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Potter v. Perrigan

Court of Appeals of Tennessee, Knoxville

March 26, 2015

RHONDA POTTER, et al.
v.
WILLIAM DALE PERRIGAN, M. D., et al.

Appeal from the Circuit Court for Cumberland County No. CV005289 Hon. Amy V. Hollars, Judge.

This is a medical malpractice[1] action. Plaintiffs timely filed a complaint after properly sending pre-suit notices to Defendants. After voluntarily dismissing the initial complaint, Plaintiffs filed a second complaint pursuant to the saving statute with an attached certificate of good faith and a copy of the original pre-suit notices. Defendants moved to dismiss the second complaint for failure to comply with the notice requirements set out in Tennessee Code Annotated section 29-26-121(a). The trial court agreed and dismissed the action. Plaintiffs appealed. We reversed the decision of the trial court. Defendants filed an application for permission to appeal. The Tennessee Supreme Court granted the application and remanded the case for reconsideration in light of its opinion in Foster v. Chiles, No. E2012-01780-SC-R11-CV, 2015 WL 343872 (Tenn. Jan. 27, 2015). Upon remand, we affirm the decision of the trial court.

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

Mark N. Foster and Allison M. Kirk, Rockwood, Tennessee, for the appellants, Rhonda Potter and George Wiley Potter, II.

P. Alexander Vogel, Knoxville, Tennessee, for the intervening appellant, Blue Cross Blue Shield of Tennessee.

Daniel H. Rader, III and Daniel H. Rader, IV, Cookeville, Tennessee, for the appellees, Michael Dale Perrigan, M.D. and Crossville Gynecology Associates, P.C.

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 January 14, 2008, Rhonda Potter was scheduled to undergo surgery at the Cumberland Medical Center in Crossville, Tennessee. The surgery was intended to involve the administration of anesthesia, followed by Michael Dale Perrigan, M.D. surgically removing her ovaries and two cysts and performing a rectocele repair. Prior to surgery, Ms. Potter inquired as to whether she should ingest "colon-emptying products." Ms. Potter was advised against ingesting any such products. During the surgery, Dr. Perrigan perforated Ms. Potter's bowel, causing further complications that developed into generalized peritonitis. Ms. Potter survived after undergoing additional surgery to repair the tear.

Ms. Potter and George Wiley Potter, II (collectively "Plaintiffs") have filed two complaints against Dr. Perrigan and his practice, Crossville Gynecology Associates, P.C. (collectively "Defendants") in their attempt to recover for Ms. Potter's injuries. In each complaint, Plaintiffs alleged that Dr. Perrigan was negligent in caring for Ms. Potter and that his negligence resulted in subsequent injuries and prolonged medical care.

On January 8, 2009, prior to filing their first complaint ("Lawsuit 1"), Plaintiffs provided the statutorily required 60-day pre-suit notice pursuant to the Tennessee Medical Malpractice Act ("the Act"). Plaintiffs then filed Lawsuit 1 on April 8, 2009. During the pendency of the action, the General Assembly enacted statutory changes to the Act, setting forth new requirements for medical malpractice actions filed on or after July 1, 2009. Tenn. Code Ann. §§ 29-26-121(a), -122. Plaintiffs voluntarily dismissed Lawsuit 1 on September 8, 2009, before ever having filed a certificate of good faith.[2]

On September 8, 2010, Plaintiffs filed the second complaint ("Lawsuit 2") with an attached certificate of good faith but failed to provide a new 60-day pre-suit notice. Instead, Plaintiffs attached a copy of the previously filed 60-day pre-suit notice to Lawsuit 2. Defendants sought the dismissal of Lawsuit 2, alleging, in pertinent part, that Plaintiffs had failed to comply with the notice requirements set out in section 29-26-121 by neglecting to file a new pre-suit notice. The trial court agreed and dismissed Lawsuit 2. Plaintiffs appealed to this court.

We reversed the decision of the trial court, holding that Plaintiffs fulfilled the notice requirement in accordance with this court's holding in Foster v. Chiles, No. E2012-01780-COA-R3-CV, 2013 WL 3306594, at *6 (Tenn. Ct. App. June 27, 2013), rev'd, ___S.W.3d ___, 2015 WL 343872 (Tenn. Jan. 27, 2015).[3] Defendants filed an application for permission to appeal. The Tennessee Supreme ...


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