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Tinnel v. East Tennessee Ear, Nose, and Throat Specialists, P.C.

Court of Appeals of Tennessee, Knoxville

February 25, 2015

CINDY A. TINNEL
v.
EAST TENNESSEE EAR, NOSE, AND THROAT SPECIALISTS, P.C. ET. AL.

Session: January 14, 2015

Appeal from the Circuit Court for Anderson County No. B2LA0116 Hon. William Everett Lantrip, Chancellor[1]

This is a medical malpractice[2] action. Plaintiff filed a complaint after sending pre-suit notices to Defendants. After voluntarily dismissing the complaint, Plaintiff filed a second set of pre-suit notices before re-filing the complaint. The pre-suit notices were filed within one year of the voluntary dismissal. Defendants moved for summary judgment, alleging that the re-filed complaint was untimely because it was not filed within one year of the dismissal pursuant to the saving statute. Plaintiff responded that the re-filed complaint was timely because the pre-suit notices entitled her to a 120-day extension of the saving statute pursuant to Tennessee Code Annotated section 29-26-121(c). The trial court dismissed the action. Plaintiff appeals. We reverse the decision of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; Case Remanded

D. Scott Hurley and Ryan N. Shamblin, Knoxville, Tennessee, for the appellant, Cindy A. Tinnel.

James H. London, Mark A. Castleberry, and J. David Watkins, Knoxville, Tennessee, for the appellees, East Tennessee Ear, Nose, and Throat Specialists, P.C. and Richard L. Schultz, M.D.

John W. McClarty, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., C.J., and D. Michael Swiney, J., joined.

OPINION

JOHN W. McCLARTY, JUDGE

I. BACKGROUND

On February 3, 2009, Cindy A. Tinnel ("Plaintiff") was admitted to the Advanced Family Surgery Center in Oak Ridge, Tennessee for an out-patient procedure involving the removal of a nasal polyp by Richard L. Schultz, M.D. Complications arose during the surgery that caused increased pressure and bleeding behind her left eye. After Plaintiff began vomiting blood following the surgery, she was transferred to Methodist Medical Center of Oak Ridge for emergency decompression surgery to reduce the pressure and stop the bleeding. Dr. Schultz stopped the bleeding, but Plaintiff suffered permanent blindness in her left eye as a result of the complications.

Plaintiff has filed two complaints against Dr. Schultz and his practice, East Tennessee Ear, Nose, and Throat Specialists, P.C. (collectively "Defendants"). In each complaint, Plaintiff alleged that Dr. Schultz was negligent in diagnosing her prior to the procedure, in performing the procedure, and in caring for her following the procedure and that his negligence resulted in her blindness.

On May 19, 2009, prior to filing her first complaint ("Lawsuit 1"), Plaintiff provided the statutorily required 60-day pre-suit notice to each defendant pursuant to the Tennessee Medical Malpractice Act ("the Act").[3] See Tenn. Code Ann. § 29-26-121(a). Plaintiff then filed Lawsuit 1 on February 3, 2010, within the applicable one-year statute of limitations. The parties underwent extensive discovery and participated in numerous depositions before Plaintiff voluntarily dismissed Lawsuit 1 on December 14, 2010.

On October 18, 2011, prior to filing her second complaint ("Lawsuit 2"), Plaintiff again provided pre-suit notice to each defendant in compliance with the statutory changes to the Act. Plaintiff then filed Lawsuit 2 on April 3, 2012, more than one year from the date of voluntary dismissal but within 120 days of the one-year anniversary of the dismissal. Defendants moved for the summary judgment dismissal of Lawsuit 2, alleging that Plaintiff failed to file Lawsuit 2 within one year of the dismissal of Lawsuit 1 pursuant to the saving statute, which provides, in pertinent part,

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, or the plaintiff's representatives and privies, as the case may be, ...

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