On Thursday the Tennessee Court of Appeals decided Potter v. Perrigan, Case No. E2013-01442-COA-R3-CV. The Plaintiff, Rhonda Potter, underwent a procedure in which her ovaries and two cysts were removed. A rectocele repair was performed at the same time. During the surgery, her bowel was perforated, causing complications and requiring additional surgery. She and her husband filed suit against the surgeon and various entities, giving the sixty-day pre-suit notice required under the Tennessee Medical Malpractice Act prior to the 2009 amendments.
Plaintiffs dismissed their case with prejudice on September 8, 2009, before ever filing a certificate of good faith. On September 8, 2010, Plaintiffs re-filed their lawsuit with a certificate of good faith attached, but did not provide a new 60-day notice to Defendants. They did attach the 60-day notice from the previous lawsuit. Defendants filed a motion to dismiss because Plaintiffs had not complied with the 60-day notice requirement laid out in T.C.A. § 29-26-121. The trial court agreed, and the Plaintiffs appealed.
In the initial appeal, the Court of Appeals reversed the trial court, holding attachment of the prior notice was sufficient. The Defendants filed an application for permission to appeal to the Supreme Court of Tennessee. In the meantime, the Tennessee Supreme Court decided Foster v. Chiles, 2015 Tenn. LEXIS 93 (January 27,2015), a nearly identical case involving the requirement to provide pre-suit notice for a re-filed suit. In Foster, the Court interpreted the statute as modified by the 2009 amendments, and determined 1) physicians have a statutory right to a second pre-suit notice if the case is re-filed, and 2) the appropriate sanction for failure to comply with pre-suit notice requirements is dismissal without prejudice. The Supreme Court accepted the appeal in Potter and remanded to the Court of Appeals for reconsideration in light of its decision in Foster.
The Foster decision left little doubt that the Court of Appeals would reverse course in Potter, and it did just that. It affirmed the trial court, dismissing the case without prejudice. A defendant has a right to pre-suit notice to investigate the claim and pursue settlement negotiations each time a healthcare liability action is filed. This is true even if a subsequent lawsuit involves the same claims and the same parties.