IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

April 13, 2015 Session

SUSAN LEE PHILLIPS, Executrix and Surviving Spouse of ROBERT 

WAYNE PHILLIPS, Deceased v. GARY Q. CASEY, M.D., ET AL.

Appeal from the Circuit Court for Sullivan County

No. C40306(C) E.G. Moody, Judge

______________________________

No. E2014-01563-COA-R9-CV – Filed July 21, 2015

______________________________

This is a health care liability1action. The plaintiff‟s late husband died following a 

bilateral tonsillectomy surgery. An autopsy determined that the cause of death was 

angioedema. The plaintiff filed suit against the defendants exactly one year after her 

husband‟s death. The complaint did not comply with the pre-suit notice requirements for 

health care liability suits. The plaintiff voluntarily dismissed the suit without prejudice

and re-filed suit. The defendants moved to dismiss, claiming that the re-filed suit was 

barred. The trial court denied the motion to dismiss and a subsequent motion to 

reconsider but granted permission to file an interlocutory appeal pursuant to Rule 9 of the 

Tennessee Rules of Appellate Procedure. We granted permission to appeal and now 

affirm the decision of the trial court.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court 

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D.

SUSANO, JR., C.J., and D. MICHAEL SWINEY, J., joined.

Jimmie C. Miller and Meredith B. Humbert, Kingsport, Tennessee, for the appellants,

Gary Q. Casey, M.D. and Mountain Region Family Medicine, P.C.

 

1Tennessee Code Annotated section 29-26-101 now defines most all cases occurring in a medical context 

as “health care liability actions.” The statute specifies that such an action “means any civil action, 

including claims against the state or a political subdivision thereof, alleging that a health care provider or 

providers have caused an injury related to the provision of, or failure to provide, health care services to a 

person, regardless of the theory of liability, on which the action is based.” See Acts 2011, ch. 510, § 8. 

Effective April 23, 2012, the term “health care liability” replaced “medical malpractice” in the Code. See

Acts 2012, ch. 798. The provisions of the revised statute apply to this action.
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David W. Blankenship and C. Christopher Raines, III, Kingsport, Tennessee, for the

appellee, Susan Lee Phillips, Executrix and Surviving Spouse of Robert Wayne Phillips. 

OPINION

I. BACKGROUND

Susan Lee Phillips (“Wife”) brought this action on behalf of her late husband, 

Robert Wayne Phillips (“Husband”), who was a patient of Gary Q. Casey (“Dr. Casey”) 

from 1999 to 2012. In either 2011 or 2012, Dr. Casey diagnosed Husband with 

angioedema, a condition that occasionally causes rapid swelling of the tissue beneath the 

skin. Dr. Casey proscribed Lisonipril to Husband to treat a separate diagnosis of 

hypertension. Later, it was determined that Husband was allergic to Lisonipril. Dr. 

Casey then prescribed Losartan for the same hypertension. Husband last visited Dr. 

Casey on March 12, 2012. 

On April 2, 2012, Husband went to Dr. Bruce Abkes (“Dr. Abkes”) for a bilateral 

tonsillectomy. He died at approximately 8:15 p.m. that evening. An autopsy was 

performed on Husband. The autopsy listed the primary cause of death as angioedema 

and the secondary cause of death as bilateral tonsillectomy. Wife received a copy of the 

autopsy on July 3, 2012. Wife later hired counsel, who sent a letter to Dr. Casey dated 

January 30, 2013, informing him of a potential health care liability suit against him. Wife 

filed suit, on April 2, 2013, against Dr. Casey and his employer, Mountain Region Family 

Medicine, P.C. (“Mountain Region”). Wife alleged that Dr. Casey was liable for the 

death of Husband for two reasons: (1) Dr. Casey‟s prescription of medications known to 

aggravate the symptoms of angioedema, despite diagnosing Husband with angioedema; 

and (2) Dr. Casey‟s failure to inform Dr. Abkes of Husband‟s angioedema condition 

before the bilateral tonsillectomy surgery.

Dr. Casey and Mountain Region (collectively “Health Care Providers”) moved to 

dismiss the suit on April 19, 2013. Health Care Providers argued, and Wife later 

conceded, that the letter did not satisfy the pre-suit notice requirements under Tennessee 

Code Annotated section 29-26-121, the applicable statute governing medical malpractice

actions. Specifically, Wife did not provide pre-suit notice to Mountain Region and did 

not provide Dr. Casey with the HIPAA form authorizing the release of medical records. 

On May 10, 2013, Wife‟s initial complaint against Health Care Providers was dismissed 

without prejudice. 

On June 17, 2013, Wife sent proper pre-suit notice to Health Care Providers, 

informing them of the potential health care liability suit against them. Wife re-filed her 

suit against Health Care Providers on August 30, 2013. Health Care Providers moved to 

dismiss the re-filed complaint, arguing that the claim was barred by the applicable statute 

of limitations. Health Care Providers contended that the initial complaint was untimely 
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because it was not filed within one year of Husband‟s final visit to Dr. Casey on March

12, 2012. Due to the deficiencies of the initial complaint, Health Care Providers argued

that Wife was not entitled to rely on the saving statute, codified at Tennessee Code 

Annotated section 28-1-105. Wife responded that the diagnosis of angioedema combined 

with the improper prescription of Lisonipril and Losartan remained a dormant injury and 

that the earliest she could have reasonably known of any malpractice was April 2, 2012, 

the day Husband died. Furthermore, Wife argued that she was allowed to correct a 

statutory deficiency by re-filing her complaint.

Following a hearing, the trial court denied the motion to dismiss. Health Care 

Providers filed a motion to reconsider and motion for a Tennessee Rule of Appellate 

Procedure 9 interlocutory appeal. Following a hearing, the trial court denied the motion 

to reconsider but granted the motion for an interlocutory appeal. This court subsequently 

granted permission for an interlocutory appeal. 

II. ISSUE

Unlike an appeal as of right pursuant to Rule 3 of the Tennessee Rules of 

Appellate Procedure, “in which both the appellant and the appellee have broad latitude 

with regard to the issues that may be raised,” the questions we may address are limited to 

“those matters clearly embraced within” the issues certified by the trial court. Sneed v. 

The City of Red Bank, Tennessee, 459 S.W.3d 17, 22 (Tenn. 2014) (internal citations 

omitted). The issue presented in this appeal is as follows:

Whether Tennessee Code Annotated section 29-26-121 

permits a plaintiff to take a voluntary nonsuit pursuant to 

Tennessee Rules of Civil Procedure 41.01 with a motion to 

dismiss pending, resend notice of intent to the providers, and 

then refile a new action within the original statute of 

limitations or in accordance with the savings statute. 

III. STANDARD OF REVIEW

“The proper way for a defendant to challenge a complaint‟s compliance with 

Tennessee Code Annotated section 29-26-121 and Tennessee Code Annotated section 29-

26-122 is to file a Tennessee Rule of Procedure 12.02 motion to dismiss.” Myers v. 

AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012). When reviewing a lower 

court‟s decision on a motion to dismiss, the issues raised involve questions of law. 

Winchester v. Little, 996 S.W.2d 818 (Tenn. Ct. App. 1998). Because the trial court‟s 

denial of Health Care Providers‟ motion to dismiss involves a question of law, this court 

must review the decision de novo with no presumption of correctness. Myers, 382 

S.W.3d at 307 (citing Graham v. Caples, 325 S.W.3d 578, 581 (Tenn. 2010)). We
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construe the complaint liberally in favor of the plaintiff, and a motion to dismiss should 

be denied unless the plaintiff can prove no set of facts that would entitle him to relief. 

Wilson v. Harris, 304 S.W. 3d 824 (Tenn. Ct. App. 2009).

This appeal also involves the interpretation of statutes. Statutory construction is a 

question of law that is reviewed de novo without any presumption of correctness. In re 

Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009). This court‟s primary objective is to 

carry out legislative intent without broadening or restricting the Act beyond its intended 

scope. Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In 

construing legislative enactments, we presume that every word in a statute has meaning 

and purpose and should be given full effect if the obvious intention of the legislature is 

not violated by so doing. In re C .K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a 

statute is clear, we should apply the plain meaning without complicating the task. 

Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004).

IV. DISCUSSION

Health Care Providers first argue that the saving statute “does not serve to absolve 

the deficiencies associated with the original filing of Wife‟s health care liability action 

because the original action was not timely commenced.” According to Health Care 

Providers, the alleged negligence occurred when Dr. Casey prescribed Husband Losartan 

in February of 2012. They contend that the initial complaint was untimely because 

Husband‟s last visit to Dr. Casey occurred in March of 2012. Wife responds that she was 

not put on sufficient notice of Husband‟s injury until either July 3, 2012, when she 

received the autopsy report, or March 2013, when she received the medical expert‟s

findings. 

In order to determine whether Wife may rely on the saving statute, the first 

question to consider is whether Wife‟s original action was “timely commenced.”

According to Tennessee Code Annotated section 29-26-101, a health care liability action 

means “any civil action [...] alleging that a health care provider or providers have caused 

an injury related to the provision of, or failure to provide, health care services to a person, 

regardless of the theory of liability on which the action is based.” Tenn. Code Ann. § 29-

26-101(a)(1). “The statute of limitations in health care liability actions shall be one (1) 

year as set forth in section 28-3-104.” Tenn. Code Ann. § 29-26-116(a)(1). However, 

“[i]n the event the alleged injury is not discovered within such one-year period, the 

period of limitation shall be (1) year from the date of such discovery.” Tenn. Code Ann.

§ 29-26-116(a)(2). This statutory subsection is known as the “discovery rule,” and serves 

to protect a would-be plaintiff from the potentially “intolerable result of barring a 

patient‟s medical malpractice claim before the patient knows or should have known that 

the claim exists” Green v. Sacks, 56 S.W.3d 513, 522 (Tenn. Ct. App. 2001) (quoting 

Foster v. Harris, 633 S.W.2d 304, 305 (Tenn. 1982)). 
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While the discovery rule allows for additional time if the injury is not readily 

discernible, the statute of limitations begins to run “when the patient discovers, or 

reasonably should have discovered (1) the occasion, the manner, and the means by which 

the breach of duty that caused his or her injuries occurred, and (2) the identity of the 

person who caused the injury.” Burk v. RHA/Sullivan, Inc., 220 S.W.3d 896, 900 (Tenn. 

Ct. App. 2006) (citing Foster, 633 S.W.2d at 305). The statute of limitations begins to 

run “so long as the plaintiff is aware of facts sufficient to put a reasonable person on 

notice that he has suffered an injury as a result of wrongful conduct.” Stanbury v. 

Bacardi, 953 S.W.2d 671, 678 (Tenn. 1997) (quoting Roe v. Jefferson, 875 S.W.2d 653, 

657 (Tenn. 1994)). The statute of limitations will toll only when “the plaintiff has neither 

actual nor constructive knowledge of (1) the injury, (2) the wrongful conduct causing that 

injury, and (3) the identity of the party or parties who engaged in that wrongful conduct.”

Burk, 220 S.W.3d at 900-901 (citing Fluri v. Fort Sanders Reg. Med. Ctr., No. E2005-

00431-COA-R3-CV, 2005 WL 3038627 at *4 (Tenn. Ct. App. 2005)) (emphasis added).

A plaintiff has actual knowledge of an injury when an expert opines that an 

alleged action constituted malpractice, or when a defendant admits malpractice. Id. at 

901. Constructive knowledge of injury occurs when a plaintiff becomes aware, or should 

have become aware, “of facts sufficient to put a reasonable person on notice that an 

injury has been sustained as a result of defendant‟s negligent or wrongful conduct.” LaneDetman, L.L.C. v. Miller & Martin, 82 S.W.3d 284, 295 (Tenn. Ct. App. 2002). The 

question of whether a plaintiff had actual knowledge of injury is a question of law,

appropriate for judicial determination, but the question of whether a plaintiff had 

constructive knowledge “is generally a question for the trier of fact.” Burk, 220 S.W.3d 

at 901.

“All civil actions are commenced by filing a complaint with the clerk of the court. 

An action is commenced within the meaning of any statute of limitations upon such filing 

of a complaint.” Tenn. R. Civ. P. 3. In 2013, the Tennessee Supreme Court concluded 

that because the plain language of section 29-26-121(a)(1) does not address the 

commencement of an action, “[t]he pre-suit notice requirement [...] does not alter the 

traditional definition of the commencement of an action.” Rajvongs v. Wright, 432 

S.W.3d 808, 812 (Tenn. 2013). Following the guidelines set by the Supreme Court, the 

court in Cartwright determined that proper pre-suit notice under Tennessee Code 

Annotated section 29-26-121 was not a prerequisite to the commencement of an action.

Cartwright v. DMC-Memphis Inc., No. W2013-01614-COA-R3CV WL 6908420 at *8 

(Tenn. Ct. App. 2014). Therefore, Wife‟s action in the case at hand commenced upon the 

filing of the initial complaint on April 2, 2013. In order for her action to be “timely 

commenced,” Wife must not have been aware of the alleged injury to Husband before

April 2, 2012. 

Actual knowledge of injury can result from the admission of liability or from an 

expert witness opining that an injury was the result of health care liability. Burk, 220 
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S.W.3d at 901. Wife received the autopsy report on July 3, 2012, whereupon Wife was 

put on notice that the primary cause of death was angioedema, a condition allegedly 

diagnosed by Dr. Casey in 2011. Thereafter, Wife received a statement from an expert 

witness in March 2013, asserting that Husband‟s death was the result of malpractice. 

This court considers either the receipt of the autopsy report or the information obtained 

through the expert witness sufficient to put Wife on actual notice of an injury as a result 

of Dr. Casey‟s alleged liability. Since the earliest Wife reasonably could have had actual 

notice of the injury was upon the receipt of the autopsy report dated July 3, 2012, Wife‟s 

initial complaint was timely commenced for the purposes of actual knowledge.

Determination of whether Wife had constructive knowledge of the injury is a 

different question. “Usually, the determination of when a plaintiff had constructive 

knowledge of facts sufficient to put him or her on notice pursuant to the discovery rule is 

... a question for the trier of fact.” Young ex rel. Young v. Kennedy, 429 S.W.3d 536, 557 

(Tenn. Ct. App. 2013) (citing McIntosh v. Blanton, 164 S.W.3d 584, 586 (Tenn. Ct. App. 

2004)). Judicial determinations on the occurrence of constructive knowledge are

appropriate only “where the undisputed facts demonstrate that no reasonable trier of fact 

could conclude that plaintiff did not know, or in the exercise of reasonable care and 

diligence should not have known, that [an injury occurred] as a result of defendant‟s 

wrongful conduct.” Id. at 557-58 (citing Schmank v. Sonic Auto., Inc., No. E2007-01857-

COA-R3-CV, 2008 WL 2078076 at *3 (Tenn. Ct. App. 2008) (emphasis added)). “State 

law strongly favors the resolution of all disputes on their merits, and the savings statute is 

to be given a broad and liberal construction in order to achieve this goal.” Freeman v. 

Marco Transp. Co., 27 S.W.3d 909, 912 (Tenn. 2000). 

This court finds that the undisputed facts demonstrate that a trier of fact could 

reasonably conclude that Wife did not know of an injury to Husband before April 2, 

2012. We first reject Wife‟s contention that she did not know about the injury until 

March 2013, when she received the expert‟s findings. This information amounts to 

actual knowledge of injury. It is well settled within Tennessee courts that “a plaintiff 

may not delay filing suit until all the injurious effects or consequences of the alleged 

wrong are actually known to the plaintiff.” John Kohl & Co. P.C. v. Dearborn & Ewing, 

977 S.W.2d 528, 533 (Tenn. 1998). However, this court also rejects Health Care 

Providers‟ contention that the statute of limitations began to run when Dr. Casey 

diagnosed Husband with hypertension in 2011. 

On April 2, 2012, Husband died at his home. Earlier that day, Husband underwent

a bilateral tonsillectomy surgery performed by Dr. Abkes. Certainly, it is not the case 

that a plaintiff‟s death serves as the barometer for determining an injury, but a would-be 

plaintiff should not be required to sue in order to “vindicate a non-existent wrong, at a 

time when injury is unknown and unknowable.” Teeters v. Currey, 518 S.W.2d 512, 515 

(Tenn. 1974). Even if this court is to consider the alleged mistreatment and subsequent 

prescription as fairly traceable to the actions of Dr. Casey and appropriately “redressed 
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by a favorable decision,” it would be difficult for this court to conclude that this was an 

injury in fact. Lujan, 504 U.S. at 561. 

According to Wife, Dr. Casey prescribed Husband medications known to 

aggravate the symptoms of angioedema, despite diagnosing him with angioedema 

sometime in 2011. Wife also alleges that Dr. Casey failed to inform Dr. Abkes of 

Husband‟s angioedema before he underwent bilateral tonsillectomy surgery. Husband 

died later that day, but the cause of death was not known until the autopsy released 

additional information on the death. Construing Wife‟s allegations as true, as is 

appropriate in our review of the trial court‟s decision on a motion to dismiss, we conclude 

that reasonable minds could differ regarding the date that Dr. Casey‟s alleged malpractice 

put Wife on constructive notice of injury. 

A patient‟s trust in his or her doctor cannot be blind, but it also cannot be 

nonexistent. If we were to accept Health Care Providers‟ argument that the statute of 

limitations began to „run‟ simply when the allegedly incorrect prescription or treatment

occurred, the inherent trust that exists between a doctor-patient would vanish. No longer 

could a patient take his or her doctor‟s advice freely; instead, patients would be tasked 

with independently fact-checking information on conditions and drugs. Husband was a 

patient of Dr. Casey‟s for over 13 years and had no reason to believe that his scratchy 

throat, at most the innocuous side effect of a medication, would result in a legally 

cognizable injury. The aforementioned reasons lead this court to conclude that the issue 

of whether Wife timely commenced her action within the applicable statute of limitations 

is a question of fact, appropriate for a trier of fact to determine. Therefore, we remand

this issue back to the trial court to determine whether Wife is entitled to rely on the 

saving statute to bring her action.

This conclusion does not end our inquiry because Health Care Providers also 

argue that allowing the re-filing of the complaint in this case essentially provides Wife 

with a second chance to correct the deficiencies with the initial complaint. They note that 

“Tennessee Code Annotated section 29-26-121 sets forth clear deadlines for compliance 

with its requirements and does not include a provision granting Wife a second attempt at 

compliance after a motion to dismiss was filed by Health Care Providers.” Wife 

concedes that the initial complaint failed to comply with Tennessee Code Annotated 

section 29-26-121. However, she argues that the statute does not specifically prohibit the 

refiling of the complaint in order to comply with the statutory requirements. 

Under the Medical Malpractice Act, section 29-26-121 sets out pre-suit 

notification requirements necessary to the commencement of a health care liability claim. 

Tenn. Code Ann. § 29-26-121. While these requirements are mandatory, the Tennessee 

Supreme Court has held that a plaintiff is required to meet only substantial, and not strict, 

compliance with section 29-26-121. Myers, 382 S.W.3d at 304; Stevens v. Hickman 

Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 553 (Tenn. 2013). In order to determine 
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whether a would-be plaintiff meets substantial compliance, courts must view both: (1) the 

extent of the noncompliance; and (2) whether the noncompliance frustrated the purpose 

of section 29-26-121, or otherwise prejudiced the defendants. Stevens, 418 S.W.3d at 

556. The parties agree that the initial complaint did not substantially comply with the 

applicable pre-suit notice requirements but that the re-filed compliant was sufficient in all 

respects. 

“A court‟s construction of a statute must begin with the words the legislature has 

chosen.” Foster v. Chiles, ___ S.W.3d ___, 2015 WL 343872 at *3 (Tenn. 2015). In 

Foster, the Court provided that “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 *4 (citation omitted). According to the 

plain meaning of both statutes, it is apparent that section 29-26-121 does not provide a 

penalty for noncompliance, whereas section 29-26-122 expressly requires a dismissal 

with prejudice for noncompliance. Stevens ex rel. Stevens v. Hickman Cmty. Health Care 

Servs., Inc., 418 S.W.3d 547, 560-61 (Tenn. 2013). “Although legislative silence is not 

generally indicative of an intent not to act, see House v. Estate of Edmondson, 245 

S.W.3d 372, 387 (Tenn. 2008), legislative silence in this particular context offers a strong 

suggestion that the legislature intended Tenn. Code Ann. §§ 29-26-121 and -122 to 

function differently.” Stevens, 418 S.W.3d at 560. 

In Stevens, plaintiff failed to provide a HIPAA-compliant medical authorization 

pursuant to section 29-26-121(a)(2)(E). Id. at 551. The Tennessee Supreme Court 

dismissed the case without prejudice due to this error. However, this holding is 

distinguishable from the case at hand because the plaintiff in Stevens sought to excuse 

compliance by a showing of extraordinary cause. Id. Here, Wife voluntarily dismissed 

the initial suit entirely.

Health Care Providers rely heavily on Vaughn v. Mountain States Health Alliance, 

No. E2012-01042-COA-R3-CV, 2013 WL 817032 at *1 (Tenn. Ct. App. 2013) as 

justification for dismissal. The plaintiff in Vaughn sought to amend the complaint after 

the statute of limitations had run in order to correct a mistake within the pre-suit notice.

2013 WL 817032 at *1. This court determined that plaintiffs may not amend a complaint 

in order to correct noncompliance with the pre-suit notice requirements. Id. This holding 

is distinguishable from the case at hand because Wife never sought to amend the initial

complaint. 

In Myers, the plaintiff attempted to re-file a voluntarily dismissed health care 

liability action, but the re-filed complaint did not comply with all of the requirements of 

section 29-26-121 and -122. Myers, 382 S.W.3d at 303. The Tennessee Supreme Court 

dismissed the re-filed complaint with prejudice due to failure to comply with section 29-

26-122. Id. at 304. In a similar case, the plaintiff voluntarily dismissed the original 
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complaint and attempted to re-file the action. Potter v. Perrigan, No. E2013-01442-COAR3-CV, 2014 WL 1415266 at *1 (Tenn. Ct. App. 2014). However, the plaintiff did not send 

a new pre-suit notice to the defendant prior to re-filing the complaint. This court 

concluded that plaintiff could not rely on the notice provided prior to filing the original 

complaint because the re-filed complaint “instituted a new and separate action” Id. at *3 

(citing Myers, 382 S.W.3d at 309). The case before us is distinguishable from both 

Potter and Myers. Wife‟s re-filed complaint does not contain any of the pre-suit notice 

deficiencies found in the Myers re-filed complaint. Likewise, the situation presented here 

presents the exact opposite situation addressed in Potter; Potter correctly filed notice in 

the original action, but not in the re-filed one, while Wife incorrectly filed notice in the

original action, but not in the re-filed one. 

In deciding whether Wife can re-file a health care liability action after taking a 

voluntary dismissal, this court turns to the unambiguous language of Rule 41.01 of the 

Tennessee Rules of Civil Procedure. “[T]he plaintiff shall have the right to take a 

voluntary nonsuit to dismiss an action without prejudice by filing a written notice of 

dismissal at any time before the trial of a cause.” Tenn. R. Civ. P. 41.01; Cronin v. Howe, 

906 S.W.2d 910, 914-15 (Tenn. 1995) (providing that the same holds true for timely filed 

health care liability actions). “Where the right to take a voluntary dismissal is in the 

discretion of the trial court, it should be granted absent some showing of plain legal 

prejudice to the defendant.” Oliver v. Hydro-Vac Servs. Inc., 873 S.W.2d 694, 696 

(Tenn. Ct. App. 1993) (internal citations omitted). The possibility that defendant might 

be subjected to a second lawsuit is “insufficient legal prejudice.” Id. (citing McCants v. 

Ford Motor Co., 781 F.2d 855 (11th Cir. 1996)). 

Health Care Providers argue the re-filed complaint should be dismissed because

no provision exists within Tennessee Code Annotated section 29-26-121 that allows a 

plaintiff to re-file his or her complaint solely to comply with the pre-suit notice 

requirements. We decline to adopt this rationale. As previously discussed, it is our role 

to interpret the words chosen by the legislature in a review of a particular statute. Foster, 

2015 WL 343872 at *3. Nothing within a plain language interpretation of Tennessee 

Code Annotated sections 29-26-121 or -122 supports the conclusion that a plaintiff in a 

health care liability action is not allowed to re-file a claim after taking a voluntary 

dismissal. A plain language interpretation of Rule 41.01 of the Tennessee Rules of Civil 

Procedure results in the same conclusion. 

The General Assembly clearly expressed differing treatment for violations of 

sections 29-26-121 and -122, just as it did under Rule 41.01 for the case when a motion 

for summary judgment is pending. Rule 41.01(1) provides in pertinent part as follows: 

“Subject to the provisions of Rule 23.05, Rule 23.06, or Rule 66 or of any statute, and 

except when a motion for summary judgment made by an adverse party is pending, the 

plaintiff shall have the right to take a voluntary nonsuit.” (Emphasis added). “In most 

situations a voluntary nonsuit may be taken as a matter of right, but such is not the case 
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when a motion for summary judgment is pending.” Clevenger v. Baptist Health Sys., 974 

S.W.2d 699, 700 (Tenn. Ct. App. 1997). Had the Legislature intended to bar a plaintiff‟s 

re-filed health care liability action due to either: (1) deficiencies in the original complaint; 

or (2) a defendant‟s motion to dismiss, it would have plainly done so as it did with a 

motion for summary judgment. 

Finally, it is axiomatic that a re-filed complaint does not represent a continuation 

of the original complaint, but rather “the institution of a new and independent claim.” 

Myers, 382 S.W.3d at 309. A re-filed complaint would not bear a new docket number if

the legislature intended that complaint to be a continuation of the original action. Id. The 

Tennessee Supreme Court‟s recent holding in Foster dealt with the issue of “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.” 2015 WL 343872 at *3. In 

dismissing plaintiff‟s complaint without prejudice, the Court concluded that, while it does 

not favor dismissals on procedural grounds, it cannot “engage in a strained interpretation 

of the statute to reach a desired result.” Id. at *4. This court declines to adopt a 

„strained‟ interpretation towards section 29-26-121 or Rule 41.01 that would bar Wife‟s 

present action; to „read in‟ a new statutory provision not included by the legislature 

would amount to nothing more than legislating from the bench, exactly what the judicial 

system seeks to avoid. Accordingly, we conclude that Wife is not barred from re-filing a 

health care liability action even though she voluntarily dismissed the initial complaint

solely to correct her failure to comply with the statutory requirements applicable in health 

care liability actions.

V. CONCLUSION

The judgment of the trial court is affirmed and the cause is remanded for such 

further proceedings as necessary. Costs of the appeal are assessed to the appellants, Dr. 

Gary Q. Casey, M.D., and Mountain Region Family Medicine, P.C. 

________________________________

JOHN W. McCLARTY, JUDGE