Hong Samouth (Sam) Rajvongs v. Dr. Anthony Wright
2013 Tenn. LEXIS 1000
| Tenn. | 2013Background
- Rajvongs sought treatment from Wright for foot pain; screws were inserted in 2006 and a second surgery occurred in 2007.
- After discovery that the screws were broken, Rajvongs sued Wright on February 11, 2008 for deviation from standard care.
- The February 2008 action was voluntarily dismissed without prejudice on November 13, 2009 under Rule 41.01(3).
- Pre-suit notice under Tennessee’s health care liability act was required for actions filed after the effective date, but Rajvongs filed a second complaint after giving notice on October 21, 2010 and refiled on February 18, 2011.
- The trial court denied summary judgment; the Court of Appeals affirmed; the issue is whether the saving statute and the 120-day extension apply to transitional plaintiffs who give pre-suit notice.
- The Supreme Court held that commencement is the filing of a complaint, the 120-day extension applies to transitional plaintiffs who properly provide pre-suit notice, and Rajvongs’ February 18, 2011 complaint was timely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Commencement of action | Notice commenced the action under the Act | Commencement is filing a complaint, not notice | Commencement is filing a complaint; notice does not start the action |
| Effect of pre-suit notice on the saving statute | Pre-suit notice extends the saving statute by 120 days | Notice does not affect commencement but seeks extension | Pre-suit notice extends the statute by 120 days under 29-26-121(c) |
| Transitional plaintiffs and 120-day extension | Transitional plaintiffs may obtain the 120-day extension | Extension may not apply to transitional plaintiffs | Transitional plaintiffs who give pre-suit notice are entitled to the 120-day extension |
Key Cases Cited
- Cronin v. Howe, 906 S.W.2d 910 (Tenn. 1995) (saving statute permits renewal after dismissal without prejudice)
- Old Hickory Eng’g & Mach. Co. v. Henry, 937 S.W.2d 782 (Tenn. 1996) (saving statute extends time to commence anew)
- Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300 (Tenn. 2012) (transitional plaintiffs must provide pre-suit notice; 120-day extension discussed)
- Pratcher v. Methodist Healthcare Memphis Hosps., 407 S.W.3d 727 (Tenn. 2013) (saving statute harmonized with statute of repose)
- Abshure v. Methodist Healthcare-Memphis Hosps., 325 S.W.3d 98 (Tenn. 2010) (standard for interpreting rules and statutes; de novo review)
- Mallard, State v., 40 S.W.3d 473 (Tenn. 2001) (interpretation of procedural rules; commencement and filing)