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Tuesday, February 06, 2018

New Health Care Liability Action Opinion: Refiled Case Time-barred Because Prior Case That Was Nonsuited Was Untimely Filed

The Tennessee Court of Appeals just issued its opinion in Dortch v. Methodist Healthcare Memphis Hosp., No. W2017-01121-COA-R3-CV (Tenn. Ct. App. Feb. 5, 2018).  The syllabus from the slip opinion reads as follows:
This is a health care liability case. Appellant/Plaintiff first filed suit against Appellees/Defendants for medical malpractice in April 2014. Defendants filed motions to dismiss based on Plaintiff’s failure to comply with the pre-suit notice requirements for health care liability claims. Before the trial court could hear Defendants’ motions to dismiss, Plaintiff filed a notice of voluntary nonsuit, and an order was entered thereon. Plaintiff subsequently re-filed her case against Defendants in September 2016 in reliance on the one year savings statute. Defendants moved the court to dismiss Plaintiff’s suit based on the statute of limitations. The trial court granted Defendants’ motions and dismissed Plaintiff’s claims with prejudice, holding that, because Plaintiff’s original presuit notice was defective, her first complaint was untimely and she could not rely on the savings statute to revive a time-barred cause of action. We affirm the judgment of the trial court.
Here is a link to the slip opinion:

NOTE: This case is a reminder of two things: first, a case can only be filed under the saving statute if it was timely filed before it was nonsuited; and, second, health care liability actions are very difficult to prosecute.

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