Subject Matter: Opinion from W S Court of Appeals
Good morning and may this note find you cool and having enjoyed the July 4th holiday. There have been some opinions of interest lately from out TN courts. attached is a recent opinion from the Western Section Court of Appeals. This opinion is noteworthy because it creates a split in authority between the Western Section and Middle Section Court of Appeals regarding the question of whether a plaintiffâ€™s service of pre-suit notice for a med mal claim (under T.C.A. Â§ 29-26-121) operates to extend the time within which that plaintiff has to re-file a previously dismissed action under Tennesseeâ€™s savings statute (T.C.A. Â§ 28-1-105). The Middle section Court of Appeals recently answered that question in the affirmative, holding that a plaintiffâ€™s compliance with the 60 day pre-suit notice provision operated to extend the savings statute (1-year period within which to re-file a claim) by 120 days. See Rajvongs v. Wright (Tenn. Ct. App. June 18, 2012).
In this opinion, however, the Western Section COA disagreed, reasoning that the med mal act only allows a 120 day extension to the â€œapplicable statute of limitations or repose.â€ The Western Section concluded that the savings statute is not an applicable SOL or SOR and is therefore not extended by compliance with the med mal notice requirement. In this case, Plaintiffs nonsuited their case prior to enactment of the med mal amendments requiring pre-suit notice. Pursuant to the med mal amendments then in effect, however, Plaintiff then provided 60 daysâ€™ notice prior to refiling their suit in August 2011. Plaintiffsâ€™ refiled suit was filed more than 1 year after the nonsuit but less than 120 days after the nonsuit. Defendants moved to dismiss the suit on the grounds that the re-filed action was time-barred because the savings statute is not extended by the 120-day extension to the applicable â€œstatute of limitations or repose.â€ The Western Section COA agreed and upheld the trial courtâ€™s dismissal of the action. A Supreme Court appeal is expected on these issues in the future.
The effect of this opinion is that in order to avoid risking dismissal of her suit, a Plaintiff must be careful when re-filing a med mal claim pursuant to the savings statute to be sure that the 60-day pre-suit notice is served at least 60 days prior to the expiration of the 1 year savings statute. We will keep you updated on all case law and statutory developments in this regard. Enjoy the weekend ahead.
Adelman Law Firm, PLLC
Rebecca Adelman â”‚ Attorney
Phone â”‚ 901.529.9313
545 S. Main St. Ste. 111â”‚Memphis, TN 38103
Firm/Company: The Adelman Firm
Document Date: July 2012
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