IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 7, 2013 Session
HONG SAMOUTH (SAM) RAJVONGS v. DR. ANTHONY WRIGHT
Appeal by Permission from the Court of Appeals, Middle Section
Circuit Court for Rutherford County
No. 62176 Royce Taylor, Judge
No. M2011-01889-SC-S09-CV - Filed December 12, 2013
The plaintiff filed his initial health care liability action against the defendant prior to the
enactment of the pre-suit notice requirements of Tennessee Code Annotated section
29-26-121. The plaintiff voluntarily dismissed his original action. More than one year later,
the plaintiff refiled his action after the effective date of section 29-26-121. The defendant
moved for summary judgment, alleging that the plaintiff’s second action was barred by the
statute of limitations. The plaintiff countered that his pre-suit notice commenced his new
action prior to the expiration of the one-year saving statute. Alternatively, the plaintiff
argued that Tennessee Code Annotated section 29-26-121 extended the saving statute by 120
days. The trial court denied the defendant’s motion for summary judgment but granted
permission to file an interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate
Procedure. The Court of Appeals granted the application for permission to appeal and
affirmed the trial court’s denial of the motion for summary judgment. We hold that the
plaintiff’s action was commenced by the filing of a second health care liability complaint
rather than by providing pre-suit notice. We further hold that a plaintiff who files his initial
action prior to the effective date of Tennessee Code Annotated section 29-26-121, dismisses
his original action, properly provides pre-suit notice, and refiles his action after the effective
date of the statute, is entitled to the 120-day extension. We therefore affirm the judgment of
the Court of Appeals and remand this case to the trial court for further proceedings.
Tenn R. App. P. 9 Interlocutory Appeal by Permission;
Judgment of the Court of Appeals Affirmed;
Case Remanded to the Circuit Court
J ANICE M. H OLDER, J., delivered the opinion of the court in which G ARY R. W ADE, C.J., and
C ORNELIA A. C LARK, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.
Jeremy Anthony Oliver and John Franklin Floyd, Nashville, Tennessee, for the appellant, Dr.
Anthony Wright.
W. Kennerly Burger, Murfreesboro, Tennessee, for the appellee, Hong Samouth Rajvongs.
OPINION
I. Facts and Procedural History
Hong Samouth Rajvongs sought medical treatment from Dr. Anthony Wright in 2005
to address pain in his right foot and ankle. Dr. Wright performed surgery in January 2006
during which he inserted screws in Mr. Rajvongs’ right foot. Dr. Wright performed a second
surgery in February 2007. Mr. Rajvongs subsequently sought treatment from another
physician when the pain in his foot became more severe. Mr. Rajvongs’ new doctor
informed him that the screws in his foot had broken and were preventing the bone from
healing.
Mr. Rajvongs filed a health care liability complaint1 against Dr. Wright on February
11, 2008, alleging that Dr. Wright’s failure to inform Mr. Rajvongs of the broken screws
constituted a deviation from the prevailing medical standard of care. See Tenn. Code Ann.
§ 29-26-115 (Supp. 2006). Mr. Rajvongs’ original complaint was filed prior to the effective
date of the pre-suit notice requirements of Tennessee Code Annotated section 29-26-121
(Supp. 2008), amended by Act of June 4, 2009, ch. 425, § 1, 2009-2 Tenn. Code Ann. Adv.
Legis. Serv. 474-76 (LexisNexis). On November 13, 2009, the trial court entered an order
voluntarily dismissing Mr. Rajvongs’ February 11, 2008 action without prejudice in
accordance with Tennessee Rule of Civil Procedure 41. See Tenn. R. Civ. P. 41.01(3)
(explaining that “a voluntary nonsuit to dismiss an action without prejudice must be followed
by an order of voluntary dismissal,” the entry of which governs the pertinent time periods).
On October 21, 2010, Mr. Rajvongs provided Dr. Wright with pre-suit notice of a
“potential claim for health care liability” as required by the Tennessee Health Care Liability
Act (“the Act”). Tenn. Code Ann. § 29-26-121. On February 18, 2011, Mr. Rajvongs filed
a second health care liability complaint against Dr. Wright in the Circuit Court for Rutherford
County that was identical to the complaint filed in the previously dismissed action. As
required by Tennessee Code Annotated section 29-26-122(a)(2) (Supp. 2008), Mr. Rajvongs
1
In 2012, Tennessee Code Annotated sections 29-26-115 to -122 and section 29-26-202 were
amended to replace “medical malpractice” with “health care liability.” Act of Apr. 23, 2012, ch. 798,
§§ 7-15, 2012-2 Tenn. Code Ann. Adv. Legis. Serv. 274, 274-75 (LexisNexis) (codified at Tenn. Code Ann.
§§ 29-26-115 to -122, -202 (2012)). We will therefore use “health care liability” throughout this opinion.
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also filed a certificate of good faith stating that he had consulted an expert. The expert
provided a signed, written statement confirming that he is qualified to provide an opinion that
Dr. Wright’s actions constituted a deviation from the applicable standard of professional
care.
Dr. Wright’s answer to the complaint denied Mr. Rajvongs’ allegations and asserted
that the action was barred by the one-year statute of limitations. See Tenn. Code Ann.
§ 29-26-116 (2000) (prescribing the statute of limitations for health care liability actions).
Dr. Wright subsequently moved for summary judgment, arguing that Mr. Rajvongs’ February
18, 2011 complaint was not filed within one year of the November 13, 2009 order voluntarily
dismissing his case. See Tenn. Code Ann. § 28-1-105 (2012) (permitting a plaintiff to
commence an action within one year from a dismissal that does “not conclud[e] the
plaintiff’s right of action.”). Mr. Rajvongs responded that his complaint was timely because
his October 21, 2010 pre-suit notice commenced his action within one year of the voluntary
dismissal. Alternatively, Mr. Rajvongs argued that Tennessee Code Annotated section
29-26-121(c) extended by 120 days the one-year “saving statute.” Tenn. Code Ann.
§ 28-1-105.
The trial court denied Dr. Wright’s motion for summary judgment but granted
permission to file an interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate
Procedure. The Court of Appeals granted Dr. Wright’s application for permission to appeal
and affirmed the trial court’s denial of the motion for summary judgment. Rajvongs v.
Wright, No. M2011-01889-COA-R9-CV, 2012 WL 2308563, at *1 (Tenn. Ct. App. June 18,
2012). We granted Dr. Wright permission to appeal.
II. Analysis
Dr. Wright has appealed the denial of his motion for summary judgment. Summary
judgment is appropriate when there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04. The parties do not
dispute the underlying facts in this case. Therefore, we are presented solely with a question
of law, which we review de novo with no presumption of correctness. Abshure v. Methodist
Healthcare-Memphis Hosps., 325 S.W.3d 98, 103 (Tenn. 2010); Frye v. Blue Ridge
Neuroscience Ctr., P.C., 70 S.W.3d 710, 712 (Tenn. 2002).
A. Commencement of an Action
Mr. Rajvongs’ initial action was voluntarily dismissed on November 13, 2009. The
saving statute permits a plaintiff to renew a lawsuit that was dismissed without concluding
the plaintiff’s right of action. Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn. 1995). The
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saving statute provides that if a timely filed action is dismissed without prejudice, a plaintiff
may “commence a new action within one (1) year after” the dismissal. Tenn. Code Ann.
§ 28-1-105(a). If a new action is not commenced within one year from the date of dismissal,
it is time-barred. Old Hickory Eng’g & Mach. Co. v. Henry, 937 S.W.2d 782, 784 (Tenn.
1996). Because Mr. Rajvongs’ first action was dismissed on November 13, 2009, the saving
statute extended his time for commencing a new action to November 13, 2010.
Mr. Rajvongs, however, did not file his second action on or before November 13,
2010. Instead, he provided pre-suit notice on October 21, 2010, and filed his second health
care liability complaint on February 18, 2011, approximately three months after the
expiration of the one year provided by the saving statute. We must therefore determine
whether the October 21, 2010 pre-suit notice commenced a new action.
To determine the effect of providing pre-suit notice on the commencement of a civil
action, we first look to the Tennessee Rules of Civil Procedure, which are promulgated by
this Court to govern the practice and procedure of our state courts. State v. Mallard, 40
S.W.3d 473, 481 (Tenn. 2001). Tennessee Rule of Civil Procedure 3 provides that “[a]ll civil
actions are commenced by filing a complaint with the clerk of the court.” Whether process
is returned served or unserved, an action is commenced within the meaning of any statute of
limitations when a complaint is filed. Tenn. R. Civ. P. 3; Old Hickory, 937 S.W.2d at
784-85.
We next examine the language of the pre-suit notice requirement of the Act to
determine whether the statute requiring pre-suit notice alters the traditional definition of the
commencement of an action. Tennessee Code Annotated section 29-26-121(a)(1) provides:
Any person, or that person’s authorized agent, asserting a
potential claim for health care liability shall give written notice
of the potential claim to each health care provider that will be a
named defendant at least sixty (60) days before the filing of a
complaint based upon health care liability in any court of this
state.
Our task in interpreting a rule or statute is to determine the drafter’s intent by reading
the plain language of the rule in the context in which it appears. Lee Med., Inc. v. Beecher,
312 S.W.3d 515, 526 (Tenn. 2010). We review the interpretation of rules and statutes de
novo with no presumption of correctness given to lower court opinions. See, e.g., Mills v.
Fulmarque, Inc., 360 S.W.3d 362, 366 (Tenn. 2012); Lacy v. Cox, 152 S.W.3d 480, 483
(Tenn. 2004). We will not look beyond the plain language of a rule if the language is
unambiguous. Lee Med, Inc., 312 S.W.3d at 527. When statutory provisions appear to
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conflict, however, our duty is to construe the provisions to ensure their harmonious
operation. Hill v. City of Germantown, 31 S.W.3d 234, 238 (Tenn. 2000).
The plain language of Tennessee Code Annotated section 29-26-121(a)(1) reinforces
Tennessee Rule of Civil Procedure 3. The pre-suit notice requirement directs a plaintiff to
“give written notice of the potential claim [for health care liability]” to each defendant “at
least sixty (60) days before the filing of a complaint.” The statutory language, “potential
claim,” draws a distinction between a potential health care liability claim and the complaint
that is filed to commence an action. Providing notice “at least sixty (60) days before the
filing of a complaint,” indicates that the complaint, not the notice, is the defining event for
commencement of a civil action.
Moreover, the plain language of section 29-26-121(a)(1) does not address the
commencement of an action. The plaintiff is required to provide pre-suit notice sixty days
prior to filing a complaint. See Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 309 (Tenn.
2012) (holding that the pre-suit notice requirement is mandatory and may not be satisfied by
substantial compliance). The pre-suit notice requirement of section 29-26-121(a)(1),
however, does not alter the traditional definition of the commencement of an action. We
therefore conclude that a health care liability action is commenced by filing a complaint in
accordance with Rule 3. Accordingly, Mr. Rajvongs’ action was commenced when he filed
his second complaint in the Circuit Court for Rutherford County on February 18, 2011, which
was outside the one-year period of the saving statute.
B. The 120-Day Extension
We next consider Mr. Rajvongs’ argument that Tennessee Code Annotated section
29-26-121(c) extends the one-year saving statute by an additional 120 days and so allows for
the timely filing of his February 18, 2011 complaint.
Section 29-26-121(c) provides that:
When notice is given to a provider as provided in this section,
the applicable statutes of limitations and repose shall be
extended for a period of one hundred twenty (120) days from the
date of expiration of the statute of limitations and statute of
repose applicable to that provider . . . . In no event shall . . .
more than one (1) extension be applicable to any provider.
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Tenn. Code Ann. § 29-26-121(c). The plain language of subsection (c) provides that pre-suit
notice is the only prerequisite to receiving the automatic extension of the statutes of
limitations or repose.
Mr. Rajvongs attempted to comply with the newly enacted requirement of section
29-26-121(a)(1) by providing pre-suit notice to Dr. Wright on October 21, 2010. Dr. Wright
has not objected to Mr. Rajvongs’ notice or otherwise challenged its adequacy. Instead, Dr.
Wright asserts that Mr. Rajvongs’ pre-suit notice did not extend the saving statute by 120
days.
Section 29-26-121(c) extends the “applicable statutes of limitations or repose.” The
Act defines “statute of limitations” as being either one year from the date of the injury or one
year from the date of discovery. Tenn. Code Ann. § 29-26-116(a)(1)-(2).2 Similarly, the Act
defines “statute of repose” and provides that “[i]n no event shall any such action be brought
more than three (3) years after the date on which the negligent act or omission occurred . . . .”
Tenn. Code Ann. § 29-26-116(a)(3).
Mr. Rajvongs’ initial complaint was filed within the statute of limitations as that term
is defined in section 29-26-116(a)(1). Mr. Rajvongs’ initial complaint also preceded the
2008 and 2009 pre-suit notice requirements, and he voluntarily dismissed his action on
November 13, 2009. Mr. Rajvongs attempted to comply with the Act’s new notice
requirement by providing Dr. Wright with pre-suit notice on October 21, 2010, by which time
the “statute of limitations” and “statute of repose” applicable to his case had expired.
Nevertheless, Mr. Rajvongs provided pre-suit notice prior to filing his second complaint,
relying on his pre-suit notice to extend the saving statute by 120 days.
Mr. Rajvongs accordingly falls within the narrow category of plaintiffs who filed their
initial complaints prior to the effective date of section 29-26-121, dismissed their original
actions, and refiled their actions after the effective date of the statute. We must therefore
2
Tennessee Code Annotated section 29-26-116 provides in pertinent part:
(a) (1) The statute of limitations in health care liability actions shall be one (1) year as set forth in
§ 28-3-104.
(2) In the event the alleged injury is not discovered within such one-year period, the period of
limitation shall be one (1) year from the date of such discovery.
(3) In no event shall any such action be brought more than three (3) years after the date on
which the negligent act or omission occurred except where there is fraudulent concealment
on the part of the defendant, in which case the action shall be commenced within one (1)
year after discovery that the cause of action exists.
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determine whether these “transitional” plaintiffs who gave pre-suit notice are entitled to the
120-day extension although their original statutes of limitations and repose have expired.
The Act contains no language explicitly addressing the refiling of nonsuited health
care liability action, nor does it contain any language that can be fairly construed as
amending the saving statute. Tenn. Code Ann. § 28-1-105. A careful review of the Act and
its subsequent amendments confirms that the requirements and procedures for refiling
nonsuited health care liability cases are unchanged.
In Myers v. AMISUB, however, we were asked to consider whether the pre-suit notice
requirement applied to a transitional plaintiff. Mr. Myers, like Mr. Rajvongs, filed his
original health care liability action prior to the effective date of section 29-26-121. Myers,
382 S.W.3d at 304. Mr. Myers timely refiled his action within the one-year saving statute
and after the effective date of section 29-26-121. Myers, 382 S.W.3d at 304. Mr. Myers,
however, did not give pre-suit notice to his health care providers. Myers, 382 S.W.3d at 304.
Interpreting the statute using our ordinary canons of construction, we examined the language
of section 29-26-121 and determined that the General Assembly did not exempt transitional
plaintiffs from complying with the newly enacted pre-suit notice requirement although no
notice was required before the original complaint was filed. Myers, 382 S.W.3d at 308-09.
We were not, however, asked to consider the 120-day extension granted by subsection (c) or
its “applicable statutes of limitations or repose” language. See Tenn. Code Ann.
29-26-121(c).
We have long recognized that the saving statute is not a statute of limitations or a
statute of repose and that it operates independently. See Pratcher v. Methodist Healthcare
Memphis Hosps., 407 S.W.3d 727, 737 (Tenn. 2013) (recognizing that the statute of repose
had been “harmonized” with the saving statute”) (citing Cronin, 906 S.W.2d at 914-15);
Sharp v. Richardson, 937 S.W.2d 846, 848 (Tenn. 1996) (noting that the saving statute
permits the refiling of a health care liability action even if the refiling occurs beyond the
three-year statute of repose). However, a transitional plaintiff is not necessarily precluded
from receiving the 120-day extension simply because section 29-26-121(c) makes no explicit
reference to the saving statute.
Clearly, the General Assembly enacted the 120-day extension to offset the obligation
to give pre-suit notice at least 60 days prior to filing a complaint. In Myers, we properly
interpreted the plain language of the statute as requiring transitional plaintiffs to give notice
before refiling a nonsuited action because the defendants have never been provided with the
notice that is contemplated under the Act. Myers, 382 S.W.3d at 309-10. We are unable to
conclude that the General Assembly would require transitional plaintiffs to provide pre-suit
notice before refiling under the saving statute and yet deprive such plaintiffs of the 120-day
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extension. Considering the statutory scheme in its entirety, we can only conclude that a
transitional plaintiff who properly provides pre-suit notice is entitled to the same procedural
benefits that section 29-26-121(c) makes available to a plaintiff filing an initial health care
liability complaint.
III. Conclusion
We hold that Mr. Rajvongs’ action was commenced by the filing of his February 18,
2011 complaint and was not commenced by providing his pre-suit notice. Because Mr.
Rajvongs provided pre-suit notice as required by Tennessee Code Annotated section
29-26-121(a), he is entitled to the 120-day extension provided by section 29-26-121(c), and
his February 18, 2011 complaint was timely filed. We affirm the judgment of the Court of
Appeals and remand this case to the trial court for further proceedings. Costs of this appeal
are taxed to Dr. Anthony Wright and his surety, for which execution may issue if necessary.
JANICE M. HOLDER, JUSTICE
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