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Thursday, January 30, 2014

Tennessee Court of Appeals Holds That Plaintiff's Failure to Effect Proper Presuit Notice Prevents Initial Action from Being Timely Filed, Which Prevents Case from Being Refiled under the Saving Statute

The Tennessee Court of Appeals released its opinion in Byrge v. Parkwest Med. Ctr., No. E2013-00927-COA-R3-CV (Jan. 30, 2014).  The summary from the slip opinion states as follows:
After taking a non-suit, Bobby J. Byrge, individually and as next of kin for the decedent Julia Kay Byrge, and the Estate of Julia Kay Byrge (“Plaintiff”) filed a second healthcare liability suit against Parkwest Medical Center (“Parkwest”) and Dr. John C. Showalter, M.D.[] Parkwest filed a motion to dismiss, and after a hearing, the Trial Court granted Parkwest’s motion finding and holding that Plaintiff’s suit was barred by the statute of limitations.  Plaintiff appeals to this Court asserting that his suit was not barred as he was entitled to rely upon Tenn. Code Ann. § 28-1-105, the saving statute. We affirm finding and holding, as did the Trial Court, that Plaintiff’s first suit was not timely filed because Plaintiff did not comply with Tenn. Code Ann. § 29-26-121, and, therefore, Plaintiff could not rely upon Tenn. Code Ann. § 28-1-105 to save his second suit.
Here's a link to the opinion:

Wednesday, January 29, 2014

New Tennessee Supreme Court Opinion: Health Care Liability Action Allowed to Proceed

The Tennessee Supreme Court released its opinion today in Cannon ex rel. Good v. Reddy, No. M2012-01332-SC-S10-CV (Tenn. Jan. 29, 2014).  The summary from the slip opinion reads as follows:
The plaintiff filed a health care liability action against the defendant. During the pendency of her action, the General Assembly enacted the pre-suit notice and certificate of good faith requirements of Tennessee Code Annotated sections 29-26-121 and -122. The plaintiff voluntarily dismissed her original action. The plaintiff then filed two successive actions.  First, the plaintiff filed a second action that did not comply with the pre-suit notice and certificate of good faith statutes. The plaintiff then filed a third action that complied with Tennessee Code Annotated sections 29-26-121 and -122. The plaintiff moved to consolidate her second and third actions, and the defendant moved to dismiss. The defendant contended that the plaintiff’s second action should be dismissed for failure to comply with the pre-suit notice and certificate of good faith requirements and that her third action should be dismissed based on the doctrine of prior suit pending. The trial court consolidated the lawsuits and denied the defendant’s motions to dismiss. The defendant moved for permission to file an interlocutory appeal, which the trial court denied. We granted the defendant’s  application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure.  During the pendency of the appeal, the plaintiff voluntarily dismissed her second action. As a result of the plaintiff’s voluntary dismissal and our recent holding in Rajvongs v. Wright, ___ S.W.3d ___, 2013 WL 6504425 (Tenn. Dec. 12, 2013), we hold that the plaintiff, who properly provided pre-suit notice of her claim prior to filing her third action, was entitled to a 120-day extension in which to refile her complaint pursuant to Tennessee Code Annotated section 29-26-121(c). The plaintiff’s third complaint was therefore timely filed. We affirm the judgment of the trial court and remand this case for further proceedings.
Here's a link to that opinion:

Monday, January 20, 2014

Remembering Why We Stand Up for What Is Right

Today I attended a luncheon at the Gordon Jewish Community Center ("GJCC") here in Nashville (here is the GJCC's Web site:  (As an aside, the GJCC is a wonderful place.)

John Seigenthaler spoke about civil rights since the death of President John F. Kennedy, and, or course, about Dr. Martin Luther King Jr. in particular.  It was a very moving speech; one that reminded me why we must stand up for what is right.  What I took away from the speech, in part, is this: discrimination---in any form (especially coupled with ignorance)---is evil.  It has led to slavery, to the Holocaust, etc.  But I also took this way from his speech: things can change; and with a little help from regular people---folks like you and me---we can make a difference.  Now, it might not be easy; in fact, it might be really difficult at times. But if we stand up for the right thing, the world we live in (and the world we leave to our children) will be a much better place.  

I want to leave you all with this thought.  My son, who is three, loves a Dr. Seuss movie called The Lorax. There is a quote from the movie that states as follows: “Unless someone like you cares a whole awful lot, nothing is going to get better. It's not.” 

I'm extremely glad we had people like JFK and MLK who cared; and that we have people like Mr. Seigenthaler who cared---and still cares.  It does my heart good.