Tennessee Supreme Court Finds Failure to Meet Pre-Suit Notice Requirements for Healthcare Liability Action Results in Dismissal Without Prejudice

A recent Tennessee Supreme Court decision, Samuel E. Foster v. Walter William Chiles, III, M.D., et al., No. E2012-01780-SC-R11-CV, 2015 WL 343872 (Tenn. 2015), decided the appropriate remedy for non-compliance with pre-suit notice requirements in T.C.A. § 29-26-121 for a healthcare liability action under Tennessee law.  Specifically, T.C.A. § 29-26-121(a)(1) provides the following requirements: 

(a)(1) Any person, or that person's authorized agent, asserting a potential claim for health care liability shall give written notice of the potential claim to each health care provider that will be a named defendant at least sixty (60) days before the filing of a complaint based upon health care liability in any court of this state.

(2) The notice shall include:

(A) The full name and date of birth of the patient whose treatment is at issue;

(B) The name and address of the claimant authorizing the notice and the relationship to the patient, if the notice is not sent by the patient;

(C) The name and address of the attorney sending the notice, if applicable;

(D) A list of the name and address of all providers being sent a notice; and

(E) A HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.

In the Foster case the plaintiff filed suit against the defendant on March 17, 2011.  Prior to the filing of this first lawsuit, counsel properly provided defendants with pre-suit notice as required under T.C.A. § 29-26-121.  The plaintiff subsequently voluntarily dismissed the case on May 6, 2011. 

On May 4, 2012, the plaintiff filed a new complaint regarding the same claims against the same defendants.  This time the plaintiff did not comply with the pre-suit notice requirements for the second filed complaint.  As a result the defendants moved to dismiss the case and it was dismissed with prejudice due to failure to comply with T.C.A. § 29-26-121. 

This issue was appealed to the Tennessee Supreme Court and the court found that T.C.A. § 29-26-121(a)(1) requires plaintiffs to provide pre-suit notice to prospective healthcare defendants every time that a complaint is filed.  In this case the fact pre-suit notice was provided prior to the first lawsuit was insufficient to comply with T.C.A. § 29-26-121(a)(1) for the second filed suit.

The second question the Tennessee Supreme Court addressed was whether this violation of T.C.A. § 29-26-121(a)(1) compels a dismissal with or without prejudice.  This is very important because a dismissal with prejudice is final.  A dismissal without prejudice is not necessarily final.  The Tennessee Supreme Court found that a violation of these pre-suit notice requirements requires a dismissal “without prejudice”.  The court noted that under T.C.A. § 29-26-122 the court is required by the statute to provide a dismissal with prejudice for plaintiff’s failure to file a certificate of good faith.  However, the requirement for a “dismissal with prejudice” is not found in T.C.A. § 29-26-121 for the pre-suit notice requirements.  As a result, the court found the appropriate sanction (because the statute is silent on this appropriate sanction) is a dismissal without prejudice.

This is a very important case for healthcare liability actions.  Since the Tennessee healthcare liability action tort reform took effect there have been numerous cases that have addressed plaintiff’s failure to comply with the pre-suit notice requirements in this statute.  Now, the Tennessee Supreme Court has extended a significant life preserver to those parties and attorneys that have failed to comply with T.C.A. § 29-26-121.  Those cases will only be temporarily dismissed, without prejudice, and can now likely be refiled in most circumstances in order to correct the original error.