A newly released opinion by the Tennessee Court of Appeals analyzes the statute of limitations for filing a medical malpractice suit. The issues before the Court of Appeals were whether the plaintiff timely filed her suit and whether she could voluntarily dismiss her claim and re-file the action within the statute of limitations, or the savings statute.
In Phillips v. Casey, et al., the plaintiff’s husband died following a bilateral tonsillectomy surgery. The plaintiff filed a health care liability action against her husband’s doctors exactly one year after his death. Since her initial complaint did not comply with the pre-suit notice requirements for medical malpractice actions, the plaintiff voluntarily dismissed the suit without prejudice and re-filed it. The defendants filed a motion to dismiss, claiming that the re-filed suit was barred by the statute of limitations.
Under Tennessee law, the statute of limitations in health care liability actions is one year. However, under the discovery rule, the statute of limitations begins to run when the plaintiff discovers, or reasonably should have discovered, the occasion, manner, and means that caused the injury, as well as the person who caused the injury. Furthermore, the plaintiff must have actual or constructive knowledge of the injury, the wrongful conduct that caused the injury, and the person who caused the injury. Actual knowledge occurs when an expert provides an opinion that the act constituted malpractice, or when the doctor admits malpractice. Constructive knowledge occurs when a plaintiff is aware or should have been aware, of facts that would put a reasonable person on notice that the injury was sustained due to a doctor’s negligence.
In Phillips v. Casey, et al., the plaintiff filed her initial complaint on April 2, 2013, one year after the death of her husband. The court agreed that under the circumstances of the case, the plaintiff could not have had actual knowledge of the injury before the death of her husband. However, it held that the issue of constructive knowledge was a question for a trier of fact to determine, and it remanded the case back to the trial court.
The second issue was whether the plaintiff may re-file her complaint. The Tennessee Rules of Civil Procedure provide that the plaintiff has the right to voluntarily dismiss an action without prejudice at any time before the trial, as long as there is no summary judgment motion pending. The court found that nothing in the language of the rule supports the defendants’ argument that the plaintiff cannot re-file a claim after a voluntary dismissal. The court held that the plaintiff is not barred from re-filing a health care liability action, even though she voluntarily dismissed the initial complaint solely to cure her failure to comply with the pre-suit notice requirements applicable in such a suit.
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