Foster v. Chiles
2015 Tenn. LEXIS 93
| Tenn. | 2015Background
- In Nov. 2009 Samuel Foster received medical treatment alleged to be negligent; plaintiffs (Samuel and Mary Foster) sent pre-suit notices to the prospective defendants on Nov. 18, 2010 under Tenn. Code Ann. § 29-26-121(a)(1).
- Plaintiffs filed a health-care-liability complaint Mar. 17, 2011 and voluntarily nonsuited (dismissed without prejudice) on May 6, 2011.
- Plaintiffs refiled the same claims against the same defendants on May 4, 2012 under the savings statute; they did not give new pre-suit notice before filing the second complaint.
- Defendants moved to dismiss for failure to comply with the statutory pre-suit notice requirement; trial court dismissed with prejudice; Court of Appeals reversed, holding original notice sufficed.
- Tennessee Supreme Court granted review and held (1) pre-suit notice under § 29-26-121(a)(1) must be given before each filing of a complaint and (2) failure to comply requires dismissal without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pre-suit notice must be given before each filing or whether one prior notice suffices for subsequent re-filed complaints | Foster: notice given before first filing satisfies statute for later re-filing | Defendants: statute requires fresh pre-suit notice before each new complaint | Court: § 29-26-121(a)(1) requires notice before the filing of each complaint (fresh notice required) |
| Whether failure to provide required pre-suit notice mandates dismissal with prejudice or without prejudice | Foster: if noncompliance, dismissal with prejudice is unnecessary and would frustrate merits resolution | Defendants: noncompliance should support dismissal with prejudice | Court: sanction is dismissal without prejudice (no statutory provision for dismissal with prejudice under § 29-26-121) |
Key Cases Cited
- Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300 (Tenn. 2012) (pre-suit notice requirement is mandatory; refiled actions require separate notice)
- Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547 (Tenn. 2013) (noncompliance with certain notice provisions requires dismissal without prejudice; contrasting sanctions in related statutes)
- Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512 (Tenn. 2014) (standard of review for dismissal reviewed de novo)
- Lee Med., Inc. v. Beecher, 312 S.W.3d 515 (Tenn. 2010) (statutory construction begins with the statute's plain language)