Derrick Johnson v. Jerry R. Floyd, M.D.

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Remanded by the Tennessee Supreme Court on January 21, 2014

DERRICK JOHNSON, ET AL. v. JERRY R. FLOYD, M.D., ET AL.

Appeal from the Circuit Court for Shelby County
No. CT-003875-11 James F. Russell, Judge

No. W2012-00207-COA-R3-CV - Filed February 6, 2014

This case is before us upon mandate from the Tennessee Supreme Court for reconsideration
of our previous opinion, Johnson v. Floyd, No. W2012-00207-COA-R3-CV, 2012 WL
2500900 (Tenn. Ct. App. June 29, 2012), in light of the Tennessee Supreme Court’s decision
in Rajvongs v. Wright, --- S.W.3d ----, 2013 WL 6504425 (Tenn. 2013). Based on the
Tennessee Supreme Court’s decision, we reverse the decision of the trial court and remand
for further proceedings.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.

Al H. Thomas and Aaron L. Thomas, Memphis, Tennessee, for the appellants, Derrick
Johnson, Marcus Johnson, Ozell Johnson, Odell Johnson, Terrence Johnson, children of
Deborah Johnson, deceased.

J. Kimbrough Johnson and Elizabeth T. Collins, for the appellees, Jerry R. Floyd, M.D., and
Mid-South Wellness Center, Inc.

Katherine M. Anderson, Memphis, Tennessee, for the appellee, Tewfik Rizk, M.D.

OPINION

I. Background

This case involves a claim for medical malpractice that was dismissed by the trial
court as being filed beyond the statute of limitations. The facts of this case are largely taken
from our previous opinion in this case, Johnson v. Floyd, No. W2012-00207-COA-R3-CV,
2012 WL 2500900 (Tenn. Ct. App. June 29, 2012) (hereinafter, “Johnson I”). According to
our previous Opinion:

On December 7, 2004, Plaintiffs/Appellants, Derrick
Johnson, Marcus Johnson, Odell Johnson, Ozell Johnson, and
Terrence Johnson (collectively, “Appellants”) filed a complaint
on behalf of their Mother, Deborah Johnson, alleging that she
died as a result of the medical negligence of
Defendants/Appellees Jerry R. Floyd, M.D., Tewfik Rizk, M.D.,
and Mid-South Wellness Center, Inc. (“Mid-South Wellness,”
and together with Dr. Floyd and Dr. Rizk, “Appellees”). The
complaint alleged that the Appellees negligently treated the
Appellants’ mother for her rheumatoid arthritis, resulting in her
death.

On April 27, 2010, the Appellants entered an order of
voluntary dismissal. On April 11, 2011, attempting to re-file
their lawsuit, the Appellants provided the Appellees written
notice of their potential claim as required by Tennessee Code
Annotated Section 29-26-121. On August 24, 2011 (which is
within one year and 120 days from the order of voluntary
dismissal concluding the first case), the Appellants re-filed their
complaint.

* * *

Appellees filed separate motions to dismiss, both arguing
that the Appellants’ claim was barred by the one-year statute of
limitations concerning medical malpractice actions because the
complaint was not filed within the one-year time period allowed
by the saving statute. Accordingly, the Appellees argued that the
new complaint could not relate back to the original complaint,
and as such was filed after the expiration of the one-year
medical malpractice statute of limitations. Appellants argued
that the saving statute was extended by written notice of a
potential claim as required under Tennessee Code Annotated
Section 29-26-121.

Johnson I, 2012 WL 2500900, at *1–2 (footnotes omitted) (citing Tenn. Code Ann. § 28-1-

-2-
105(a) (providing a plaintiff who originally filed his or her complaint within the applicable
statute of limitations the option to re-file the complaint within one-year from any voluntary
nonsuit or dismissal without prejudice)).1 The trial court agreed with the Appellees and
dismissed Appellants’ second complaint as untimely. Id. at *2. In our first Opinion in this
Case, this Court affirmed, concluding that a saving statute was not an “applicable statute[]
of limitations or repose,” for purposes of the Medical Malpractice Act2 notice
requirements(hereinafter referred to as the “medical malpractice notice requirements”).3
Therefore, this Court concluded that the saving statute was not extended by compliance with
the medical malpractice notice provisions. Id. at *5–6 (citing Tenn. Code Ann. § 29-26-
121(c) (providing that “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” when the plaintiff complies with
the medical malpractice notice requirements)). Because the Appellants had filed their second
complaint beyond the one-year saving statute, and the saving statute was not an “applicable
statute[] of limitations or repose” subject to extension, the Court concluded that the
complaint was untimely.

This Court noted, however, that its decision was directly contrary to the Middle
Section of this Court’s Opinion in Rajvongs v. Wright, No. M2011-01889-COA-R9-CV,
2012 WL 2308563 (Tenn. Ct. App. June 18, 2012) (hereinafter, “Rajvongs I). The Rajvongs
I Court, in contrast to our Opinion, held that the saving statute was extended through
compliance with the medical malpractice notice requirements. Id. at *8 (citing Tenn. Code
Ann. § 29-26-121(a), (c)). Because the complaint at issue in Rajvongs I was filed within one
year and 120 days from the nonsuit of the original complaint, the Rajvongs I Court held that
the complaint was timely.

The Appellant in this case filed an application for permission to appeal to the
Tennessee Supreme Court on August 28, 2012. Likewise, the Appellee in Rajvongs I filed

1
No objections to the adequacy of the notice provided by the Appellants were raised in either motion
to dismiss filed the Appellees.
2
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)). Because this case originated prior to the effective date of the above statutes,
we will continue to refer to this action as a medical malpractice action.
3
The notice and certificate of good faith requirements applicable to this action are found at
Tennessee Code Annotated Sections 29-26-121 and 29-26-122. For a more thorough discussion of the notice
provisions of the Medical Malpractice Act, see Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 309 (Tenn.
2012).

-3-
his application for permission to appeal to the Tennessee Supreme Court on July 20, 2012.
On September 19, 2012, the Tennessee Supreme Court granted the application for permission
to appeal in Rajvongs I. The application for permission to appeal Johnson I remained
pending.

The Tennessee Supreme Court affirmed the decision in Rajvongs I on December 12,
2013. See Rajvongs v. Wright, --- S.W.3d ----, 2013 WL 6504425 (Tenn. 2013) (hereinafter,
“Rajvongs II”). In its Opinion, the Tennessee Supreme Court held that the saving statute is
extended by 120 days through compliance with the medical malpractice notice provision for
“transitional” plaintiffs. The Tennessee Supreme Court defined “transitional” plaintiffs as
those “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.” Id. at *5. Because Mr. Rajvongs had filed his original complaint in February 2008,
prior to the effective date of the 2008 notice requirements, see 2008 Pub.Acts, c. 919, § 1
(providing that the notice requirements contained therein shall apply to all actions filed on or
after October 1, 2008), or the 2009 notice requirements, see 2009 Pub.Acts, c. 425, § 4
(providing that the notice requirements contained therein shall apply to all actions filed on or
after July 1, 2009), he was properly classified as a “transitional” plaintiff. The Court,
therefore, concluded that the Mr. Rajvongs could take advantage of the 120 day extension
provided in Tennessee Code Annotated Section 29-26-121(c). Rajvongs II, 2013 WL
6504425, at *5–6.

In explaining its decision to allow an extension to the saving statute for a “transitional”
plaintiff through compliance with the medical malpractice notice requirements, the Rajvongs
II Court stated:

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.

* * *

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

-4-
 statute of repose had been “harmonized” with the saving statute)
(citing Cronin [v. Howe], 906 S.W.2d [910,] 914–15 [Tenn.
1995)]); 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 [v. AMISUB], 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 [v. AMISUB],
382 S.W.3d [300,] 309–10 [(Tenn. 2012)]. 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
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.

Rajvongs, 2013 WL 6504425, at *5.

On January 21, 2014, the Tennessee Supreme Court granted the Appellants’ application
for permission to appeal Johnson I and remanded to this Court for reconsideration in light
of the Tennessee Supreme Court’s decision in Rajvongs II.

II. Analysis

Like Mr. Rajvongs in Rajvongs II, the Appellants are, likewise, “transitional”
plaintiffs. The original complaint in this case was filed in 2004, well before either the 2008
or 2009 medical malpractice notice requirements went into effect. Johnson I, 2012 WL
2500900, at *1; see also Rajvongs II, 2013 WL 6504425, at *5–6 (defining a “transitional”
plaintiff). The original complaint was nonsuited on April 27, 2010. Johnson I, 2012 WL

-5-
2500900, at *1. At this time, the statutes containing the medical malpractice notice
requirements had gone into effect. See 2008 Pub.Acts, c. 919, § 1 (providing that the notice
requirements contained therein shall apply to all actions filed on or after October 1, 2008);
2009 Pub.Acts, c. 425, § 4 (providing that the notice requirements contained therein shall
apply to all actions filed on or after July 1, 2009). Thus, in order to re-commence their action
after the nonsuit, the Appellants were required to comply with the medical malpractice notice
requirements contained in Tennessee Code Annotated Sections 29-26-121 and 29-26-122.
See Rajvongs II, 2013 WL 6504425, at *5–6 (citing Myers, 382 S.W.3d at 308–09 (holding
that plaintiffs whose original[] complaints were filed prior to the effective dates of the medical
malpractice notice requirements were not exempted from complying with the notice
requirements upon re-filing after the effective dates of the statutes, despite the fact that such
notice was not required at the time of the original filing)). Based on these requirements, “the
Appellants [timely] provided the Appellees written notice of their potential claim as required
by [the medical malpractice notice requirements then in effect.]” Id. The Appellants,
apparently believing that their compliance with the medical malpractice notice requirements
extended the time to file their complaint, then filed their second complaint on August 24,
2011. The filing of the second complaint was within one year and 120 days from the nonsuit.
Id. Therefore, if the saving statute is extended by 120 days through compliance with the
medical malpractice notice requirements, the Appellants’ complaint was timely filed.

Based on the holding in Rajvongs II, we conclude that the saving statute at issue was
extended for 120 days through compliance with the medical malpractice notice requirements
for transitional plaintiffs. Because the Appellants in this case are properly classified as
transitional plaintiffs, we must conclude that the one-year saving statute applicable to this case
was extended by 120 days through Appellants’ compliance with the medical malpractice
notice requirements. The Appellants filed their second complaint within one year and 120
days from the filing of their nonsuit; thus, their second complaint was timely. The trial court’s
order dismissing this case as being filed beyond the applicable statute of limitations is,
therefore, reversed.

III. Conclusion

The judgment of the Circuit Court of Shelby County is reversed and this cause is
remanded for all further proceedings as may be necessary and are consistent with this
Opinion. Costs of this appeal are taxed to Appellees Jerry R. Floyd, M.D., Tewfik Rizk, M.D.,
and Mid-South Wellness Center, Inc., for which execution may issue if necessary.

-6-
 _____________________________
J. STEVEN STAFFORD, JUDGE

-7-