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Saturday, October 12, 2013

New Health Care Liability Action (f.k.a. Medical Malpractice Case)

For some reason, I haven't posted this case yet; I'm not sure why other than I've just been busy.  On June 27, 2013, the Tennessee Court of Appeals, Eastern Section, issued its opinion in Foster v. Chiles, No. E2012-01780-COA-R3-CV (Tenn. Ct. App. Jun. 27, 2013).  The summary states as follows:
This is a health care liability case. Samuel E. Foster and his wife, Mary Foster,[] timely filed a complaint after properly sending pre-suit notices to the potential defendants as required by Tenn. Code Ann. § 29-26-121(a) (2012). After nonsuiting their first lawsuit, they timely filed a second complaint in which they alleged the same cause of action against the same defendants. The second complaint alleged compliance with section 121(a), citing the notices already properly sent before the first complaint was filed. The trial court dismissed the second complaint with prejudice based upon the court’s determination that plaintiffs failed to satisfy the notice requirement of section 121(a). We hold that plaintiffs complied with section 121(a)’s notice requirement by giving a written notice of their potential health care liability claim to each defendant at least 60 days prior to the filing of their second complaint.  We further hold that section 121 does not mandate dismissal with prejudice for noncompliance with its terms, and that plaintiffs’ inadvertent failure to file – with the second complaint – proof of their service of the subject notices does not warrant dismissal with prejudice. We vacate the trial court’s order of dismissal and remand for further proceedings.
(Footnote omitted.)

Here is a link to that slip opinion:

The Appellants-Defendants in the trial court filed an application for permission to appeal with the Tennessee Supreme Court on August 26, 2013.  Appellees-Plaintiffs filed their answer to same on Sept. 5, 2013.  Currently the case is before the Tennessee Supreme Court under Docket No. E2012-01780-SC-R11-CV.  The case history can be viewed at this link:

UPDATE: the Tennessee Supreme Court reversed the Tennessee Court of Appeals in this case on Jan. 27, 2015.  You can read about it at my Jan. 27, 2015 post, to wit:

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