§47.32G Pre-Suit Notice Requirement - Dismissal without Prejudice Proper Sanction
The Case: Foster v. Chiles, --S.W.3d--, 2015 WL 343872 (Tenn. Jan. 27, 2015).
The Basic Facts: Plaintiffs gave proper pre-suit notice before filing first complaint, then took voluntary nonsuit. Plaintiffs did not give a second notice before re-filing suit, instead relying on the original notice. Trial court granted dismissal, Court of Appeals overturned, but Supreme Court held that notice was required before the filing of each complaint.
The Bottom Line:
· “We now address the consequences of the Fosters’ failure to comply with Tenn. Code. Ann. § 29-26- 121(a)(1). § 29-26-121 does not provide for a penalty or consequence for failing to provide pre- suit notice. We held in Stevens that noncompliance with Tenn. Code. Ann. § 29-26-121(a)(2)(E) required a dismissal without prejudice. 418 S.W.3d at 560. In Stevens, we noted that § 29-26-121 did not provide for a penalty for noncompliance, whereas § 29-26-122 expressly required a dismissal with prejudice for a plaintiff’s failure to file a certificate of good faith. Id. at 560-61. These 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 560. The Legislature could have, but did not, provide for dismissal with prejudice for noncompliance with § 29-26-121(a)(1).” 2015 WL 343872, at * 4.
· “[W]e hold that dismissal without prejudice is the proper sanction for noncompliance with Tenn. Code. Ann. § 29-26-121(a)(1).” Id.
Recent Cases: Givens v. Vanderbilt Univ., No. M2013-00266-COA-R3-CV, 2013 WL 5773431 (Tenn. Ct. App. Oct. 24, 2013) (Tenn. Code Ann. § 29-26-121 does not mandate dismissal with prejudice for noncompliance; failure to comply with notice requirements does not mandate dismissal under the facts of this case).