Issues: Does a Plaintiff need to resend pre-suit notice after re-filing a non-suited health care liability action? Does failure to attach pre-suit notice to a complaint mandate dismissal?
Facts: Plaintiffs timely filed a health care liability suit after sending the required pre-suit notices. See T.C.A. §§ 29-26-121, 29-26-122. Plaintiffs nonsuited the first action, and timely filed a second complaint against the same Defendants. Plaintiffs did not send a new pre-suit notice or attach copies of the notices to the second complaint. The trial court dismissed the case for failure to comply with the notice requirements.
Appellate Decision: The intermediate court ruled for Plaintiffs and reversed the dismissal. The court first distinguished this case from others in which the initial pre-suit notice was deficient for some reason, including our supreme court’s case of Myers v. AMISUB. The court then held that Plaintiffs complied with the statute by giving pre-suit notice before the filing of their current complaint, regardless of the fact that their non-suited complaint had come and gone; there is no need to submit an identical notice for a nearly-identical new complaint. The court also held that Plaintiffs’ inadvertent failure to include copies of the pre-suit notice did not require dismissal because the “essence” of the requirement is to effect notice, not merely proof of notice.
Review Granted: November 13, 2013.
Prediction: Ben thinks the supreme court will affirm the intermediate court in favor of the plaintiff for the reasons provided in the decision below. Lower courts have been grappling extensively with the requirements and consequences of the pre-suit notice requirement, and this case should provide some welcome guidance. See John Day’s blog regarding one such case.