The plaintiff’s initial medical malpractice filing constituted a "commencement" and therefore the second medical malpractice lawsuit was timely filed
Baltimore, Maryland (PRWEB) December 10, 2014
MedicalMalpracticeLawyers.com, the premier free website that connects medical malpractice victims in the United States with medical malpractice lawyers in their state, discusses in today's blog the December 9, 2014 decision of the Court of Appeals of Tennessee that sided with the medical malpractice plaintiff. The defendants had successfully moved to dismiss the plaintiff's re-filed medical malpractice lawsuit on the basis that the initial pre-suit notices were deficient because they failed to include the date of birth of the decedent (who allegedly died as a result of the medical negligence of the defendants) and they failed to state the name and address of the decedent's wife, who authorized the notices.
The Court of Appeals opinion stated that the plaintiff's initial Tennessee medical malpractice lawsuit was filed on May 6, 2011 and alleged that the plaintiff's husband died on May 19, 2010 as a result of the medical negligence of the defendants in connection with the husband's elective eye surgery performed on May 13, 2010. On June 14, 2011, the defendants filed motions to dismiss the plaintiff’s complaint because the pre-suit notices failed to state the husband's date of birth and the wife's name and address, and the medical authorizations signed by the plaintiff failed to comply with the statute. The plaintiff subsequently filed notices of voluntary non-suit as to the defendants, and the trial court dismissed the plaintiff's medical malpractice lawsuit "without prejudice," on September 9, 2011, according to the Court of Appeals opinion.
The Court of Appeals stated that shortly afterwards, the plaintiff provided new pre-suit notices to the defendants. On February 29, 2012, the plaintiff filed a new medical malpractice lawsuit against the defendants and stated that notices had been given pursuant to Tennessee Code Annotated § 29-26-121. The Court of Appeals noted that the defendants did not contend that the plaintiff failed to comply with the pre-suit notice requirements with regard to her second lawsuit.
The Court of Appeals opinion stated that the defendants filed motions to dismiss, arguing that the plaintiff had failed to comply with the pre-suit notice requirements in her initial lawsuit and therefore the initial complaint was void and failed to toll the statute of limitations. The trial court sided with the defendants and the plaintiff appealed.
The Court of Appeals stated that the issue before it was whether the filing of the plaintiff’s initial lawsuit constituted a "commencement" within the meaning of Tennessee's "savings statute," which provides that if the action is commenced within the time limited by a rule or statute of limitation and the judgment or decree is rendered against the plaintiff upon any ground not concluding the plaintiff's right of action, the plaintiff may commence a new action within one year. The commencement of an action is governed by Rule 3 of the Tennessee Rules of Civil Procedure, which states, in part, that all civil actions are commenced by filing a complaint with the clerk of the court. An action is commenced within the meaning of the any statute of limitations upon such filing of a complaint, ...
The Court of Appeals determined that Tennessee Code Annotated § 29-26-121 does not alter the definition of commencement that occurs pursuant to Rule 3. Therefore, the Court of Appeals held that the plaintiff’s May 6, 2011 filing constituted a commencement and the second lawsuit commenced by the plaintiff in February 2012 was timely.
Charlotte J. Cartwright et al. v. DMC-Memphis Inc. d/b/a Delta Medical Center et al., No. W2013-01614-COA-R3-CV.
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