Foster v. ChilesFoster v. Chiles
Lead Opinion
OPINION
delivered the opinion of the Court,
This appeal presents two issues for review: 1) whether a person asserting' a health care liability claim must give written notice of the claim to all potential health care defendants before re-filing a complaint, or whether notice given before filing the first complaint is sufficient notice for a subsequently filed complaint against the same defendants; and 2) if pre-suit notice is required for each complaint, whether the sanction for noncompliance is a dismissal with or without prejudice. The plaintiffs, before filing their health care liability complaint, gave the defendants written notice under
I.
In November 2009, Samuel Foster received medical treatment from Dr. Walter William Chiles, III, Dr. Gordon Lee Collins, Knoxville Urology Clinic, Anesthesia Medical Alliance of East Tennessee, Covenant Health, and Parkwest Medical Center (“Defendants”). On November 18, 2010, pursuant to
On May 4, 2012, the Fosters filed a new complaint in Knox County Circuit Court, raising the same claims against the same defendants.
Defendants moved to dismiss the complaint under
The trial court granted Defendants’ motions to dismiss, finding that
The Court of Aрpeals reversed, holding that the Fosters had complied with
We granted Defendants’ application for permission to appeal to decide whether a
II.
We review the trial court’s dismissal of the complaint in this case de novo-with no presumption of correctness. Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC,
It is our duty to ascertain and fully effectuate the intent of the Legislature. Thurmond,
Our construction of a statute must begin with the words the Legislature has chosen. Lee Med., Inc. v. Beecher,
III.
A.
TenmCode Ann.
Any person, or that person’s authorized agent, asserting a potentiаl 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 basedupon health care liability in any court of this state.
In Myers v. AMISUB (SFH), Inc., we held, based on the clear language of
We address a somewhat similar issue in this case — 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. The Fosters argue that
The language of
The notice statute,
Although the March 2011 and May 2012 complaints asserted the same claims and involved the same parties, Defendants were statutorily entitled to separate notice of each forthcoming complaint so that they might evaluate the merits of the claim and pursue settlement. To hold otherwise would bе to ignore the clear and unambiguous language of
We hold that
B.
We now address the consequences of the Fosters’ failure to comply with
We hold that the Fosters were required to provide Defendants with notice under
Notes
. The second suit was filed pursuant to
If [an] action is commenced within the time limited by a ... statute of limitation, but [a] judgment ... is rendered against the plaintiff upon any ground not concluding the plaintiff's right of action, ... the plaintiff ... may ... commence a new actiоn within one (1) year....
. The plaintiff in Myers also failed to comply with
. In Myers, the health care defendants had knowledge of the claim from the first-filed complaint, but we held that the defendants were still entitled to statutory pre-suit notice of the subsequent complaint.
. As
Dissenting Opinion
dissenting.
Tennessee Code Annotated section 29-26 — 121(a)(1) provides that аny person who has a potential claim for health care liability must serve written notice on each defendant at least sixty days before filing a complaint. In this case, the Court of Appeals held that Samuel E. Foster and his wife, Mary Foster (collectively, the “Plaintiffs”), complied with the plain language of this statute by sending notices of their potential claims well over sixty days prior to filing their complaint. Because I believe that the Court of Appeals properly interpreted the statute, I respectfully disagree with the conclusion reached by my colleagues and would remand this action for a trial on the merits rather than dismiss without prejudice to the filing of a third complaint.
I. Facts and Procedural History
In November of 2009, Samuel Foster underwent a urological procedure at Par-kwest Medical Center, which allegedly resulted in serious complications. On November 18, 2010, the Plaintiffs sent nоtices of potential health care liability claims to Dr. Walter Chiles, the physician primarily responsible for the procedure, and also to Dr. Gordon Collins, the Knoxville Urology Clinic, the Anesthesia Medical Alliance of East Tennessee, and Parkwest Medical Center (collectively, the “Defendants”). On March 17, 2011, the Plaintiffs timely filed their first lawsuit, in which Mr. Foster asserted health care liability claims based on the November 2009 procedure аnd Mrs. Foster asserted a claim for loss of consortium. On May 6, 2011, the Plaintiffs filed a voluntary nonsuit, which resulted in a dismissal without prejudice. See
On May 4, 2012, within one year after the dismissal of the first suit, the Plaintiffs re-filed the same claims in a second lawsuit, as is permitted by the saving statute, see
[The] Plaintiffs, who are “persons asserting a potential claim for health care liability,” provided “written notice of the[ir] potential claim” more than sixty days before May 4, 2012, the date on which they filed their second complaint. The second complaint asserted the identical cause[s] of action alleged against the same defendants in the first complaint.
.... The Supreme Court stated in Myers [v. AMISUB (SFH), Inc.] that “[t]he essence of Tennessee Code Annotatedsection 29-26-121 is that a defendant be given notice of a medical malpractice claim before suit is filed.” 382 S.W.3d [300, 309 (Tenn.2012) ]. Thus,the fact that [the] Plaintiffs’ voluntary nonsuit ended the first lawsuit and their re-filing under the saving statute started a new one begs the fundamental and dispositive question: were the defendants given notice of this health care liability action before the second complaint was filed? The answer is clearly “yes.” The clear and unambiguous language of [ section 29 — 26—121(a)(1) ], as parsed above, supports this conclusion. The [Plaintiffs here did not attempt, in their second complaint, to assert different or additionаl causes of action, nor did they add new defendants — ones that did not receive notice prior to the first complaint. ■ We again stress that the parties and the causes of action in the two complaints are identical. We hold that, under the undisputed facts, [the Plaintiffs complied with the notice requirement of [section] 29-26-121 by providing written notice to the potential defendants of the [Plaintiffs’ potential claim for health cаre liability — as brought to fruition in the second complaint — more than sixty ■ days before they filed their second action.
Foster v. Chiles, No. E2012-01780-COA-R3-CV,
II. Analysis
In pertinent part, the pre-suit notice statute provides as follows: “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 before the filing of a complaint....”
To the point,
As a matter of state public policy, this Court has recognized that “[dismissals based on procedural grounds ... run counter to the judiciаl system’s general objective of disposing of cases on the merits.” Henry v. Goins,
III. Conclusion
It is of some comfort that the majority has chosen to dismiss this action without prejudice, indicating that the Plaintiffs may send another pre-suit notice, as redundant as it may be, and ultimately file a third complaint:
If the action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground not concluding the plaintiff’s right of action, or where the judgment or decree is rendered in favor of the plaintiff, and is arrested, or reversed on appeal, the plaintiff ... may, from time to time, commence a new action within one (1) year after the reversal....
TenmCode Ann.
. The Defendants have claimed for the first time on appeal, that the Plaintiffs' medical authorization is inadequate because it was set to expire "whenever [Mr. Foster’s] litigation ends." The Defendants waived consideration of this issue by failing to present it to the trial court. Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn.1983) ("It has long been the general rule that questions not raised in the trial court will not be entertained on appeal....").