Day on Torts - New Post: Second Pre-Suit Notice Required After Voluntary Dismissal of First HCLA Complaint

Where plaintiff nonsuits a complaint that contains medical malpractice (now known as  health care liability action or “HCLA”)  claims then later re-files a different complaint containing HCLA claims against the same defendant, she must give a new, separate pre-suit notice for the re-filed complaint.

In Byington v. Reaves, No. E2020-01211-COA-R3-CV (Tenn. Ct. App. April 20, 2021), plaintiff was treated by defendant for cancer on her nose. The treatment recommended by defendant eventually led to “removal of [plaintiff’s] right nostril, leaving her noticeably disfigured.” Plaintiff sent pre-suit notice of her HCLA claims on April 23, 2019 to defendant doctor and clinic, then filed a complaint the next day on April 24, 2019. This first complaint alleged that defendants fraudulently induced plaintiff into going through with the surgery, that there was a lack of informed consent due to the fraudulent inducement, that defendant doctor “failed to adhere to the standard of care,” and that defendant doctor did not tell plaintiff about alternative treatment options.

Defendants filed a motion to dismiss, asserting that plaintiff failed to comply with the HCLA by providing them pre-suit notice less than 60 days prior to filing her complaint, and that plaintiff failed to file a certificate of good faith. Plaintiff then voluntarily dismissed this first complaint.

On August 16, 2019, plaintiff filed a second complaint which alleged “medical battery” and “medical malpractice.” Plaintiff included a certificate of good faith with this complaint, but she did not send defendants a second pre-suit notice. Defendants moved to dismiss, arguing that the HCLA required plaintiff to send a pre-suit notice before this second suit was filed, and the trial court agreed, dismissing the case. On appeal, dismissal was affirmed.

Tenn. Code Ann. § 29-26-121(a)(1) requires an HCLA plaintiff to give pre-suit notice to “each health care provider that will be named a defendant at least sixty (60) days before the filing of a complaint based upon health care liability.” The Tennessee Supreme Court has interpreted this requirement to mean that a plaintiff must “provide pre-suit notice to prospective health care defendants each time a complaint is filed.” (internal citation omitted).

Here, plaintiff argued that the notice she sent in April actually applied to the second complaint rather than the first one. She pointed to a paragraph in the first complaint that stated: “Since this present Complaint is based upon the tort of battery, not negligence, it was not necessary that Defendants be served with a notice of potential claim 60 days before the suit is filed.” Plaintiff argued that by using this language, she “disclaimed the notice requirement in her initial complaint.”

The Court quickly rejected this assertion, pointing out that “a plaintiff cannot disclaim HCLA pre-suit requirements by asserting health care claims under the guise of common law torts.” In addition, plaintiff’s counsel had admitted during oral arguments that the “initial complaint included health care liability claims.” The Court reasoned:

Because [plaintiff] could not disclaim the pre-suit notice requirements in her initial complaint, and because her initial complaint included health care liability claims, it is axiomatic that the Notice she sent before filing the initial complaint applied only to the initial complaint. This conclusion is most aligned with Tennessee law and public policy. …Here, [defendants] received the Notice on April 25, 2019. Four days later, [defendants] were served with the initial complaint, which included health care liability claims. …Upon [plaintiff’s] voluntary nonsuit of the initial complaint, any pending health care liability claims against [defendants] were extinguished. The voluntary nonsuit also abrogated the Notice [plaintiff] sent to [defendants]. Simply put, [defendants] were no longer on notice that [plaintiff] might pursue a cause of action for health care liability against them.

(Internal citations omitted).

The Court ruled that plaintiff’s second complaint was “the institution of a new and independent action,” and that by failing to send pre-suit notice before that action, plaintiff failed to comply with the HCLA. Dismissal was thus affirmed.

As we’ve seen in other cases, plaintiffs must give a separate pre-suit notice if they voluntarily dismiss their initial HCLA claim. Further, this case demonstrates the importance of carefully following the timeline outlined in the statute, as notice must be given at least sixty days before the complaint is filed.

NOTE: This opinion was released one month after oral arguments in this case.