'Belts and Suspenders' Saves Plaintiff's Med Mal Case from Dismissal Following Law Change

DORIS CANNON EX REL. JUANITA E. GOOD v. BHASKAR REDDY, M.D.
Court: TN Supreme Court

Attorneys:

Brent Albert Kinney, Edward A. Hadley, and Phillip Lester North, Nashville, Tennessee, for the appellant, Bhaskar Reddy.

Olen G. Haynes, Johnson City, Tennessee, and Raymond Wilford Fraley Jr., Fayetteville, Tennessee, for the appellee, Doris Cannon.

Judge: HOLDER

The plaintiff filed a health care liability action against the defendant. During the pendency of her action, the General Assembly enacted the pre-suit notice and certificate of good faith requirements of Tennessee Code Annotated sections 29-26-121 and -122. The plaintiff voluntarily dismissed her original action. The plaintiff then filed two successive actions. First, the plaintiff filed a second action that did not comply with the pre-suit notice and certificate of good faith statutes. The plaintiff then filed a third action that complied with Tennessee Code Annotated sections 29-26-121 and -122. The plaintiff moved to consolidate her second and third actions, and the defendant moved to dismiss. The defendant contended that the plaintiff’s second action should be dismissed for failure to comply with the pre-suit notice and certificate of good faith requirements and that her third action should be dismissed based on the doctrine of prior suit pending. The trial court consolidated the lawsuits and denied the defendant’s motions to dismiss. The defendant moved for permission to file an interlocutory appeal, which the trial court denied. We granted the defendant’s application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. During the pendency of the appeal, the plaintiff voluntarily dismissed her second action. As a result of the plaintiff’s voluntary dismissal and our recent holding in Rajvongs v. Wright, ___ S.W.3d ___, 2013 WL 6504425 (Tenn. Dec. 12, 2013), we hold that the plaintiff, who properly provided pre-suit notice of her claim prior to filing her third action, was entitled to a 120-day extension in which to refile her complaint pursuant to Tennessee Code Annotated section 29-26-121(c). The plaintiff’s third complaint was therefore timely filed. We affirm the judgment of the trial court and remand this case for further proceedings.

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