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Saturday, June 30, 2012

Medical Malpractice: Saving Statute NOT Extended by Presuit Notice Letters

Yesterday, the Western Section of the Tennessee Court of Appeals held that Tennessee's saving statute is not extend by presuit notice letters in medical malpractice cases.  The opinion is Johnson v. Floyd, No. W2012-00207-COA-R3-CV (Tenn. Ct. App. Jun. 29, 2012).  The syllabus of the opinion states as follows:
This case concerns the application of the medical malpractice notice requirement to a lawsuit that was previously nonsuited and then re-filed pursuant to the saving statute. The children of a woman who died due to alleged medical negligence filed suit against the defendant medical providers. The children subsequently nonsuited the lawsuit. Within one-year of the nonsuit, the children sent notice of a potential claim to the medical providers. Within one year and 120 days from the nonsuit, the children re-filed their claim. The medical providers moved to dismiss on the ground that the claim was not filed within the one-year period provided by the saving statute and, as such, was barred by the applicable statute of limitations. The trial court dismissed the action and the children appealed. Concluding that the saving statute, Tennessee Code Annotated Section 28-1-105(a) is not an “applicable statute[] of limitations or repose,” we hold that the saving statute is not extended by compliance with the medical malpractice notice requirement, Tennessee Code Annotated Section 29-26-121(c). Affirmed and remanded.
Here's a link to the opinion:

This opinion is in direct conflict with one issued by the Middle Section of the Tennessee Court of Appeals in Rajvongs v. Wright, No. 2011- 01889-COA-R9-CV (Tenn. Ct. App. Jun.  18, 2012), which held that presuit notice letters did extend the saving statute.  (Rajvong was the subject of my June 21 post, which can be viewed at this link: Tony Duncan Law: Medical Malpractice: Saving Statute Extended by Notice Letters.)

UPDATE: Please see my Feb. 6, 2014 post where the Court of Appeals issued a new opinion in this case upon mandate from the Tennessee Supreme Court.

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