IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 13, 2015 Session
SUSAN LEE PHILLIPS, Executrix and Surviving Spouse of ROBERT
WAYNE PHILLIPS, Deceased v. GARY Q. CASEY, M.D., ET AL.
Appeal from the Circuit Court for Sullivan County
No. C40306(C) E.G. Moody, Judge
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No. E2014-01563-COA-R9-CV – Filed July 21, 2015
______________________________
This is a health care liability1 action. The plaintiff‟s late husband died following a
bilateral tonsillectomy surgery. An autopsy determined that the cause of death was
angioedema. The plaintiff filed suit against the defendants exactly one year after her
husband‟s death. The complaint did not comply with the pre-suit notice requirements for
health care liability suits. The plaintiff voluntarily dismissed the suit without prejudice
and re-filed suit. The defendants moved to dismiss, claiming that the re-filed suit was
barred. The trial court denied the motion to dismiss and a subsequent motion to
reconsider but granted permission to file an interlocutory appeal pursuant to Rule 9 of the
Tennessee Rules of Appellate Procedure. We granted permission to appeal and now
affirm the decision of the trial court.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D.
SUSANO, JR., C.J., and D. MICHAEL SWINEY, J., joined.
Jimmie C. Miller and Meredith B. Humbert, Kingsport, Tennessee, for the appellants,
Gary Q. Casey, M.D. and Mountain Region Family Medicine, P.C.
1
Tennessee Code Annotated section 29-26-101 now defines most all cases occurring in a medical context
as “health care liability actions.” The statute specifies that such an action “means any civil action,
including claims against the state or a political subdivision thereof, alleging that a health care provider or
providers have caused an injury related to the provision of, or failure to provide, health care services to a
person, regardless of the theory of liability, on which the action is based.” See Acts 2011, ch. 510, § 8.
Effective April 23, 2012, the term “health care liability” replaced “medical malpractice” in the Code. See
Acts 2012, ch. 798. The provisions of the revised statute apply to this action.
David W. Blankenship and C. Christopher Raines, III, Kingsport, Tennessee, for the
appellee, Susan Lee Phillips, Executrix and Surviving Spouse of Robert Wayne Phillips.
OPINION
I. BACKGROUND
Susan Lee Phillips (“Wife”) brought this action on behalf of her late husband,
Robert Wayne Phillips (“Husband”), who was a patient of Gary Q. Casey (“Dr. Casey”)
from 1999 to 2012. In either 2011 or 2012, Dr. Casey diagnosed Husband with
angioedema, a condition that occasionally causes rapid swelling of the tissue beneath the
skin. Dr. Casey proscribed Lisonipril to Husband to treat a separate diagnosis of
hypertension. Later, it was determined that Husband was allergic to Lisonipril. Dr.
Casey then prescribed Losartan for the same hypertension. Husband last visited Dr.
Casey on March 12, 2012.
On April 2, 2012, Husband went to Dr. Bruce Abkes (“Dr. Abkes”) for a bilateral
tonsillectomy. He died at approximately 8:15 p.m. that evening. An autopsy was
performed on Husband. The autopsy listed the primary cause of death as angioedema
and the secondary cause of death as bilateral tonsillectomy. Wife received a copy of the
autopsy on July 3, 2012. Wife later hired counsel, who sent a letter to Dr. Casey dated
January 30, 2013, informing him of a potential health care liability suit against him. Wife
filed suit, on April 2, 2013, against Dr. Casey and his employer, Mountain Region Family
Medicine, P.C. (“Mountain Region”). Wife alleged that Dr. Casey was liable for the
death of Husband for two reasons: (1) Dr. Casey‟s prescription of medications known to
aggravate the symptoms of angioedema, despite diagnosing Husband with angioedema;
and (2) Dr. Casey‟s failure to inform Dr. Abkes of Husband‟s angioedema condition
before the bilateral tonsillectomy surgery.
Dr. Casey and Mountain Region (collectively “Health Care Providers”) moved to
dismiss the suit on April 19, 2013. Health Care Providers argued, and Wife later
conceded, that the letter did not satisfy the pre-suit notice requirements under Tennessee
Code Annotated section 29-26-121, the applicable statute governing medical malpractice
actions. Specifically, Wife did not provide pre-suit notice to Mountain Region and did
not provide Dr. Casey with the HIPAA form authorizing the release of medical records.
On May 10, 2013, Wife‟s initial complaint against Health Care Providers was dismissed
without prejudice.
On June 17, 2013, Wife sent proper pre-suit notice to Health Care Providers,
informing them of the potential health care liability suit against them. Wife re-filed her
suit against Health Care Providers on August 30, 2013. Health Care Providers moved to
dismiss the re-filed complaint, arguing that the claim was barred by the applicable statute
of limitations. Health Care Providers contended that the initial complaint was untimely
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because it was not filed within one year of Husband‟s final visit to Dr. Casey on March
12, 2012. Due to the deficiencies of the initial complaint, Health Care Providers argued
that Wife was not entitled to rely on the saving statute, codified at Tennessee Code
Annotated section 28-1-105. Wife responded that the diagnosis of angioedema combined
with the improper prescription of Lisonipril and Losartan remained a dormant injury and
that the earliest she could have reasonably known of any malpractice was April 2, 2012,
the day Husband died. Furthermore, Wife argued that she was allowed to correct a
statutory deficiency by re-filing her complaint.
Following a hearing, the trial court denied the motion to dismiss. Health Care
Providers filed a motion to reconsider and motion for a Tennessee Rule of Appellate
Procedure 9 interlocutory appeal. Following a hearing, the trial court denied the motion
to reconsider but granted the motion for an interlocutory appeal. This court subsequently
granted permission for an interlocutory appeal.
II. ISSUE
Unlike an appeal as of right pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure, “in which both the appellant and the appellee have broad latitude
with regard to the issues that may be raised,” the questions we may address are limited to
“those matters clearly embraced within” the issues certified by the trial court. Sneed v.
The City of Red Bank, Tennessee, 459 S.W.3d 17, 22 (Tenn. 2014) (internal citations
omitted). The issue presented in this appeal is as follows:
Whether Tennessee Code Annotated section 29-26-121
permits a plaintiff to take a voluntary nonsuit pursuant to
Tennessee Rules of Civil Procedure 41.01 with a motion to
dismiss pending, resend notice of intent to the providers, and
then refile a new action within the original statute of
limitations or in accordance with the savings statute.
III. STANDARD OF REVIEW
“The proper way for a defendant to challenge a complaint‟s compliance with
Tennessee Code Annotated section 29-26-121 and Tennessee Code Annotated section 29-
26-122 is to file a Tennessee Rule of Procedure 12.02 motion to dismiss.” Myers v.
AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012). When reviewing a lower
court‟s decision on a motion to dismiss, the issues raised involve questions of law.
Winchester v. Little, 996 S.W.2d 818 (Tenn. Ct. App. 1998). Because the trial court‟s
denial of Health Care Providers‟ motion to dismiss involves a question of law, this court
must review the decision de novo with no presumption of correctness. Myers, 382
S.W.3d at 307 (citing Graham v. Caples, 325 S.W.3d 578, 581 (Tenn. 2010)). We
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construe the complaint liberally in favor of the plaintiff, and a motion to dismiss should
be denied unless the plaintiff can prove no set of facts that would entitle him to relief.
Wilson v. Harris, 304 S.W. 3d 824 (Tenn. Ct. App. 2009).
This appeal also involves the interpretation of statutes. Statutory construction is a
question of law that is reviewed de novo without any presumption of correctness. In re
Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009). This court‟s primary objective is to
carry out legislative intent without broadening or restricting the Act beyond its intended
scope. Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In
construing legislative enactments, we presume that every word in a statute has meaning
and purpose and should be given full effect if the obvious intention of the legislature is
not violated by so doing. In re C .K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a
statute is clear, we should apply the plain meaning without complicating the task.
Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004).
IV. DISCUSSION
Health Care Providers first argue that the saving statute “does not serve to absolve
the deficiencies associated with the original filing of Wife‟s health care liability action
because the original action was not timely commenced.” According to Health Care
Providers, the alleged negligence occurred when Dr. Casey prescribed Husband Losartan
in February of 2012. They contend that the initial complaint was untimely because
Husband‟s last visit to Dr. Casey occurred in March of 2012. Wife responds that she was
not put on sufficient notice of Husband‟s injury until either July 3, 2012, when she
received the autopsy report, or March 2013, when she received the medical expert‟s
findings.
In order to determine whether Wife may rely on the saving statute, the first
question to consider is whether Wife‟s original action was “timely commenced.”
According to Tennessee Code Annotated section 29-26-101, a health care liability action
means “any civil action […] alleging that a health care provider or providers have caused
an injury related to the provision of, or failure to provide, health care services to a person,
regardless of the theory of liability on which the action is based.” Tenn. Code Ann. § 29-
26-101(a)(1). “The statute of limitations in health care liability actions shall be one (1)
year as set forth in section 28-3-104.” Tenn. Code Ann. § 29-26-116(a)(1). However,
“[i]n the event the alleged injury is not discovered within such one-year period, the
period of limitation shall be (1) year from the date of such discovery.” Tenn. Code Ann.
§ 29-26-116(a)(2). This statutory subsection is known as the “discovery rule,” and serves
to protect a would-be plaintiff from the potentially “intolerable result of barring a
patient‟s medical malpractice claim before the patient knows or should have known that
the claim exists” Green v. Sacks, 56 S.W.3d 513, 522 (Tenn. Ct. App. 2001) (quoting
Foster v. Harris, 633 S.W.2d 304, 305 (Tenn. 1982)).
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While the discovery rule allows for additional time if the injury is not readily
discernible, the statute of limitations begins to run “when the patient discovers, or
reasonably should have discovered (1) the occasion, the manner, and the means by which
the breach of duty that caused his or her injuries occurred, and (2) the identity of the
person who caused the injury.” Burk v. RHA/Sullivan, Inc., 220 S.W.3d 896, 900 (Tenn.
Ct. App. 2006) (citing Foster, 633 S.W.2d at 305). The statute of limitations begins to
run “so long as the plaintiff is aware of facts sufficient to put a reasonable person on
notice that he has suffered an injury as a result of wrongful conduct.” Stanbury v.
Bacardi, 953 S.W.2d 671, 678 (Tenn. 1997) (quoting Roe v. Jefferson, 875 S.W.2d 653,
657 (Tenn. 1994)). The statute of limitations will toll only when “the plaintiff has neither
actual nor constructive knowledge of (1) the injury, (2) the wrongful conduct causing that
injury, and (3) the identity of the party or parties who engaged in that wrongful conduct.”
Burk, 220 S.W.3d at 900-901 (citing Fluri v. Fort Sanders Reg. Med. Ctr., No. E2005-
00431-COA-R3-CV, 2005 WL 3038627 at *4 (Tenn. Ct. App. 2005)) (emphasis added).
A plaintiff has actual knowledge of an injury when an expert opines that an
alleged action constituted malpractice, or when a defendant admits malpractice. Id. at
901. Constructive knowledge of injury occurs when a plaintiff becomes aware, or should
have become aware, “of facts sufficient to put a reasonable person on notice that an
injury has been sustained as a result of defendant‟s negligent or wrongful conduct.” Lane-
Detman, L.L.C. v. Miller & Martin, 82 S.W.3d 284, 295 (Tenn. Ct. App. 2002). The
question of whether a plaintiff had actual knowledge of injury is a question of law,
appropriate for judicial determination, but the question of whether a plaintiff had
constructive knowledge “is generally a question for the trier of fact.” Burk, 220 S.W.3d
at 901.
“All civil actions are commenced by filing a complaint with the clerk of the court.
An action is commenced within the meaning of any statute of limitations upon such filing
of a complaint.” Tenn. R. Civ. P. 3. In 2013, the Tennessee Supreme Court concluded
that because the plain language of section 29-26-121(a)(1) does not address the
commencement of an action, “[t]he pre-suit notice requirement […] does not alter the
traditional definition of the commencement of an action.” Rajvongs v. Wright, 432
S.W.3d 808, 812 (Tenn. 2013). Following the guidelines set by the Supreme Court, the
court in Cartwright determined that proper pre-suit notice under Tennessee Code
Annotated section 29-26-121 was not a prerequisite to the commencement of an action.
Cartwright v. DMC-Memphis Inc., No. W2013-01614-COA-R3CV WL 6908420 at *8
(Tenn. Ct. App. 2014). Therefore, Wife‟s action in the case at hand commenced upon the
filing of the initial complaint on April 2, 2013. In order for her action to be “timely
commenced,” Wife must not have been aware of the alleged injury to Husband before
April 2, 2012.
Actual knowledge of injury can result from the admission of liability or from an
expert witness opining that an injury was the result of health care liability. Burk, 220
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S.W.3d at 901. Wife received the autopsy report on July 3, 2012, whereupon Wife was
put on notice that the primary cause of death was angioedema, a condition allegedly
diagnosed by Dr. Casey in 2011. Thereafter, Wife received a statement from an expert
witness in March 2013, asserting that Husband‟s death was the result of malpractice.
This court considers either the receipt of the autopsy report or the information obtained
through the expert witness sufficient to put Wife on actual notice of an injury as a result
of Dr. Casey‟s alleged liability. Since the earliest Wife reasonably could have had actual
notice of the injury was upon the receipt of the autopsy report dated July 3, 2012, Wife‟s
initial complaint was timely commenced for the purposes of actual knowledge.
Determination of whether Wife had constructive knowledge of the injury is a
different question. “Usually, the determination of when a plaintiff had constructive
knowledge of facts sufficient to put him or her on notice pursuant to the discovery rule is
… a question for the trier of fact.” Young ex rel. Young v. Kennedy, 429 S.W.3d 536, 557
(Tenn. Ct. App. 2013) (citing McIntosh v. Blanton, 164 S.W.3d 584, 586 (Tenn. Ct. App.
2004)). Judicial determinations on the occurrence of constructive knowledge are
appropriate only “where the undisputed facts demonstrate that no reasonable trier of fact
could conclude that plaintiff did not know, or in the exercise of reasonable care and
diligence should not have known, that [an injury occurred] as a result of defendant‟s
wrongful conduct.” Id. at 557-58 (citing Schmank v. Sonic Auto., Inc., No. E2007-01857-
COA-R3-CV, 2008 WL 2078076 at *3 (Tenn. Ct. App. 2008) (emphasis added)). “State
law strongly favors the resolution of all disputes on their merits, and the savings statute is
to be given a broad and liberal construction in order to achieve this goal.” Freeman v.
Marco Transp. Co., 27 S.W.3d 909, 912 (Tenn. 2000).
This court finds that the undisputed facts demonstrate that a trier of fact could
reasonably conclude that Wife did not know of an injury to Husband before April 2,
2012. We first reject Wife‟s contention that she did not know about the injury until
March 2013, when she received the expert‟s findings. This information amounts to
actual knowledge of injury. It is well settled within Tennessee courts that “a plaintiff
may not delay filing suit until all the injurious effects or consequences of the alleged
wrong are actually known to the plaintiff.” John Kohl & Co. P.C. v. Dearborn & Ewing,
977 S.W.2d 528, 533 (Tenn. 1998). However, this court also rejects Health Care
Providers‟ contention that the statute of limitations began to run when Dr. Casey
diagnosed Husband with hypertension in 2011.
On April 2, 2012, Husband died at his home. Earlier that day, Husband underwent
a bilateral tonsillectomy surgery performed by Dr. Abkes. Certainly, it is not the case
that a plaintiff‟s death serves as the barometer for determining an injury, but a would-be
plaintiff should not be required to sue in order to “vindicate a non-existent wrong, at a
time when injury is unknown and unknowable.” Teeters v. Currey, 518 S.W.2d 512, 515
(Tenn. 1974). Even if this court is to consider the alleged mistreatment and subsequent
prescription as fairly traceable to the actions of Dr. Casey and appropriately “redressed
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by a favorable decision,” it would be difficult for this court to conclude that this was an
injury in fact. Lujan, 504 U.S. at 561.
According to Wife, Dr. Casey prescribed Husband medications known to
aggravate the symptoms of angioedema, despite diagnosing him with angioedema
sometime in 2011. Wife also alleges that Dr. Casey failed to inform Dr. Abkes of
Husband‟s angioedema before he underwent bilateral tonsillectomy surgery. Husband
died later that day, but the cause of death was not known until the autopsy released
additional information on the death. Construing Wife‟s allegations as true, as is
appropriate in our review of the trial court‟s decision on a motion to dismiss, we conclude
that reasonable minds could differ regarding the date that Dr. Casey‟s alleged malpractice
put Wife on constructive notice of injury.
A patient‟s trust in his or her doctor cannot be blind, but it also cannot be
nonexistent. If we were to accept Health Care Providers‟ argument that the statute of
limitations began to „run‟ simply when the allegedly incorrect prescription or treatment
occurred, the inherent trust that exists between a doctor-patient would vanish. No longer
could a patient take his or her doctor‟s advice freely; instead, patients would be tasked
with independently fact-checking information on conditions and drugs. Husband was a
patient of Dr. Casey‟s for over 13 years and had no reason to believe that his scratchy
throat, at most the innocuous side effect of a medication, would result in a legally
cognizable injury. The aforementioned reasons lead this court to conclude that the issue
of whether Wife timely commenced her action within the applicable statute of limitations
is a question of fact, appropriate for a trier of fact to determine. Therefore, we remand
this issue back to the trial court to determine whether Wife is entitled to rely on the
saving statute to bring her action.
This conclusion does not end our inquiry because Health Care Providers also
argue that allowing the re-filing of the complaint in this case essentially provides Wife
with a second chance to correct the deficiencies with the initial complaint. They note that
“Tennessee Code Annotated section 29-26-121 sets forth clear deadlines for compliance
with its requirements and does not include a provision granting Wife a second attempt at
compliance after a motion to dismiss was filed by Health Care Providers.” Wife
concedes that the initial complaint failed to comply with Tennessee Code Annotated
section 29-26-121. However, she argues that the statute does not specifically prohibit the
refiling of the complaint in order to comply with the statutory requirements.
Under the Medical Malpractice Act, section 29-26-121 sets out pre-suit
notification requirements necessary to the commencement of a health care liability claim.
Tenn. Code Ann. § 29-26-121. While these requirements are mandatory, the Tennessee
Supreme Court has held that a plaintiff is required to meet only substantial, and not strict,
compliance with section 29-26-121. Myers, 382 S.W.3d at 304; Stevens v. Hickman
Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 553 (Tenn. 2013). In order to determine
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whether a would-be plaintiff meets substantial compliance, courts must view both: (1) the
extent of the noncompliance; and (2) whether the noncompliance frustrated the purpose
of section 29-26-121, or otherwise prejudiced the defendants. Stevens, 418 S.W.3d at
556. The parties agree that the initial complaint did not substantially comply with the
applicable pre-suit notice requirements but that the re-filed compliant was sufficient in all
respects.
“A court‟s construction of a statute must begin with the words the legislature has
chosen.” Foster v. Chiles, ___ S.W.3d ___, 2015 WL 343872 at *3 (Tenn. 2015). In
Foster, the Court provided that “code sections, §§ 29-26-121 and -122, were enacted
together as part of the Tennessee Health Care Liability Act; therefore, we interpret these
sections together and must presume that the Legislature intended for them to carry
different sanctions for noncompliance.” Id. at *4 (citation omitted). According to the
plain meaning of both statutes, it is apparent that section 29-26-121 does not provide a
penalty for noncompliance, whereas section 29-26-122 expressly requires a dismissal
with prejudice for noncompliance. Stevens ex rel. Stevens v. Hickman Cmty. Health Care
Servs., Inc., 418 S.W.3d 547, 560-61 (Tenn. 2013). “Although legislative silence is not
generally indicative of an intent not to act, see House v. Estate of Edmondson, 245
S.W.3d 372, 387 (Tenn. 2008), legislative silence in this particular context offers a strong
suggestion that the legislature intended Tenn. Code Ann. §§ 29-26-121 and -122 to
function differently.” Stevens, 418 S.W.3d at 560.
In Stevens, plaintiff failed to provide a HIPAA-compliant medical authorization
pursuant to section 29-26-121(a)(2)(E). Id. at 551. The Tennessee Supreme Court
dismissed the case without prejudice due to this error. However, this holding is
distinguishable from the case at hand because the plaintiff in Stevens sought to excuse
compliance by a showing of extraordinary cause. Id. Here, Wife voluntarily dismissed
the initial suit entirely.
Health Care Providers rely heavily on Vaughn v. Mountain States Health Alliance,
No. E2012-01042-COA-R3-CV, 2013 WL 817032 at *1 (Tenn. Ct. App. 2013) as
justification for dismissal. The plaintiff in Vaughn sought to amend the complaint after
the statute of limitations had run in order to correct a mistake within the pre-suit notice.
2013 WL 817032 at *1. This court determined that plaintiffs may not amend a complaint
in order to correct noncompliance with the pre-suit notice requirements. Id. This holding
is distinguishable from the case at hand because Wife never sought to amend the initial
complaint.
In Myers, the plaintiff attempted to re-file a voluntarily dismissed health care
liability action, but the re-filed complaint did not comply with all of the requirements of
section 29-26-121 and -122. Myers, 382 S.W.3d at 303. The Tennessee Supreme Court
dismissed the re-filed complaint with prejudice due to failure to comply with section 29-
26-122. Id. at 304. In a similar case, the plaintiff voluntarily dismissed the original
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complaint and attempted to re-file the action. Potter v. Perrigan, No. E2013-01442-COA-
R3-CV, 2014 WL 1415266 at *1 (Tenn. Ct. App. 2014). However, the plaintiff did not send
a new pre-suit notice to the defendant prior to re-filing the complaint. This court
concluded that plaintiff could not rely on the notice provided prior to filing the original
complaint because the re-filed complaint “instituted a new and separate action” Id. at *3
(citing Myers, 382 S.W.3d at 309). The case before us is distinguishable from both
Potter and Myers. Wife‟s re-filed complaint does not contain any of the pre-suit notice
deficiencies found in the Myers re-filed complaint. Likewise, the situation presented here
presents the exact opposite situation addressed in Potter; Potter correctly filed notice in
the original action, but not in the re-filed one, while Wife incorrectly filed notice in the
original action, but not in the re-filed one.
In deciding whether Wife can re-file a health care liability action after taking a
voluntary dismissal, this court turns to the unambiguous language of Rule 41.01 of the
Tennessee Rules of Civil Procedure. “[T]he plaintiff shall have the right to take a
voluntary nonsuit to dismiss an action without prejudice by filing a written notice of
dismissal at any time before the trial of a cause.” Tenn. R. Civ. P. 41.01; Cronin v. Howe,
906 S.W.2d 910, 914-15 (Tenn. 1995) (providing that the same holds true for timely filed
health care liability actions). “Where the right to take a voluntary dismissal is in the
discretion of the trial court, it should be granted absent some showing of plain legal
prejudice to the defendant.” Oliver v. Hydro-Vac Servs. Inc., 873 S.W.2d 694, 696
(Tenn. Ct. App. 1993) (internal citations omitted). The possibility that defendant might
be subjected to a second lawsuit is “insufficient legal prejudice.” Id. (citing McCants v.
Ford Motor Co., 781 F.2d 855 (11th Cir. 1996)).
Health Care Providers argue the re-filed complaint should be dismissed because
no provision exists within Tennessee Code Annotated section 29-26-121 that allows a
plaintiff to re-file his or her complaint solely to comply with the pre-suit notice
requirements. We decline to adopt this rationale. As previously discussed, it is our role
to interpret the words chosen by the legislature in a review of a particular statute. Foster,
2015 WL 343872 at *3. Nothing within a plain language interpretation of Tennessee
Code Annotated sections 29-26-121 or -122 supports the conclusion that a plaintiff in a
health care liability action is not allowed to re-file a claim after taking a voluntary
dismissal. A plain language interpretation of Rule 41.01 of the Tennessee Rules of Civil
Procedure results in the same conclusion.
The General Assembly clearly expressed differing treatment for violations of
sections 29-26-121 and -122, just as it did under Rule 41.01 for the case when a motion
for summary judgment is pending. Rule 41.01(1) provides in pertinent part as follows:
“Subject to the provisions of Rule 23.05, Rule 23.06, or Rule 66 or of any statute, and
except when a motion for summary judgment made by an adverse party is pending, the
plaintiff shall have the right to take a voluntary nonsuit.” (Emphasis added). “In most
situations a voluntary nonsuit may be taken as a matter of right, but such is not the case
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when a motion for summary judgment is pending.” Clevenger v. Baptist Health Sys., 974
S.W.2d 699, 700 (Tenn. Ct. App. 1997). Had the Legislature intended to bar a plaintiff‟s
re-filed health care liability action due to either: (1) deficiencies in the original complaint;
or (2) a defendant‟s motion to dismiss, it would have plainly done so as it did with a
motion for summary judgment.
Finally, it is axiomatic that a re-filed complaint does not represent a continuation
of the original complaint, but rather “the institution of a new and independent claim.”
Myers, 382 S.W.3d at 309. A re-filed complaint would not bear a new docket number if
the legislature intended that complaint to be a continuation of the original action. Id. The
Tennessee Supreme Court‟s recent holding in Foster dealt with the issue of “whether
notice given before the filing of the first complaint is sufficient pre-suit notice for a suit
that is re-filed after the dismissal of the first complaint.” 2015 WL 343872 at *3. In
dismissing plaintiff‟s complaint without prejudice, the Court concluded that, while it does
not favor dismissals on procedural grounds, it cannot “engage in a strained interpretation
of the statute to reach a desired result.” Id. at *4. This court declines to adopt a
„strained‟ interpretation towards section 29-26-121 or Rule 41.01 that would bar Wife‟s
present action; to „read in‟ a new statutory provision not included by the legislature
would amount to nothing more than legislating from the bench, exactly what the judicial
system seeks to avoid. Accordingly, we conclude that Wife is not barred from re-filing a
health care liability action even though she voluntarily dismissed the initial complaint
solely to correct her failure to comply with the statutory requirements applicable in health
care liability actions.
V. CONCLUSION
The judgment of the trial court is affirmed and the cause is remanded for such
further proceedings as necessary. Costs of the appeal are assessed to the appellants, Dr.
Gary Q. Casey, M.D., and Mountain Region Family Medicine, P.C.
________________________________
JOHN W. McCLARTY, JUDGE
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