Opinion
M2022-00597-COA-R3-CV
07-11-2023
CLAYTON D. RICHARDS v. VANDERBILT UNIVERSITY MEDICAL CENTER
H. Anthony Duncan, Nashville, Tennessee, and M. Todd Sandahl, Franklin, Tennessee, for the appellant, Clayton D. Richards. Sara F. Reynolds and Ashley Tipton, Nashville, Tennessee, for the appellee, Vanderbilt University Medical Center.
Session March 29, 2023
Appeal from the Circuit Court for Davidson County No. 21C184, Thomas W. Brothers, Judge.
This appeal concerns a complaint for health care liability. Although Tennessee Code Annotated section 29-26-121(c) provides for an extension of the applicable statutes of limitations in health care liability actions when pre-suit notice is given, it also specifies that "[i]n no event shall this section operate to shorten or otherwise extend the statutes of limitations or repose applicable to any action asserting a claim for health care liability, nor shall more than one (1) extension be applicable to any [health care] provider." After a prior lawsuit was voluntarily dismissed without prejudice, Plaintiff provided new pre-suit notice and refiled in reliance on the Tennessee saving statute and an extension under Tennessee Code Annotated section 29-26-121(c). The trial court dismissed the refiled complaint with prejudice, however, holding, among other things, that Plaintiff could not utilize the statutory extension in his refiled action because he had already utilized a statutory extension in the first lawsuit. For the reasons discussed herein, we affirm the trial court's dismissal of Plaintiff's lawsuit.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded
H. Anthony Duncan, Nashville, Tennessee, and M. Todd Sandahl, Franklin, Tennessee, for the appellant, Clayton D. Richards.
Sara F. Reynolds and Ashley Tipton, Nashville, Tennessee, for the appellee, Vanderbilt University Medical Center.
Arnold B. Goldin, J., delivered the opinion of the Court, in which Kenny Armstrong, J., joined. J. Steven Stafford, P.J., W.S., filed a separate concurring opinion.
OPINION
ARNOLD B. GOLDIN, JUDGE.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Clayton Richards ("Mr. Richards") seeks to recover against Vanderbilt University Medical Center ("VUMC") for negligence that is alleged to have occurred in August 2013. A previous complaint in relation to the matter at issue, filed on December 12, 2014, was voluntarily dismissed without prejudice on October 4, 2019. Mr. Richards then refiled his complaint on January 28, 2021, in reliance on the saving statute codified at Tennessee Code Annotated section 28-1-105 and on a supposed extension of time pursuant to Tennessee Code Annotated section 29-26-121(c). Indeed, although Mr. Richards' refiling clearly did not occur within a year of the previous nonprejudicial dismissal of his first lawsuit, he averred that he had complied with the statutory pre-suit notice requirement of Tennessee Code Annotated section 29-26-121(a) and that his complaint was therefore timely filed pursuant to Tennessee Code Annotated section 29-26-121(c). Of note, the above-referenced provisions from the Tennessee Code provide in pertinent part as follows:
(a) 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, may, from time to time, commence a new action within one (1) year after the reversal or arrest.Tenn. Code Ann. § 28-1-105.
(a)(1) 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 at least sixty (60) days before the filing of a complaint based upon health care liability in any court of this state.
(c) When notice is given to a provider as provided in this section, the applicable statutes of limitations and repose shall be extended for a period of one hundred twenty (120) days from the date of expiration of the statute of limitations and statute of repose applicable to that provider. Personal service is effective on the date of that service. Service by mail is effective on the first day that service by mail is made in compliance with subdivision (a)(2)(B). In no event shall this section operate to shorten or otherwise extend the statutes of limitations or repose applicable to any action asserting a claim for
health care liability, nor shall more than one (1) extension be applicable to any provider.Tenn. Code Ann. § 29-26-121.
Subsequent to its filing of an answer and amended answer, VUMC moved to dismiss Mr. Richards' lawsuit as time-barred, arguing chiefly as follows:
4. In filing the 2021 Lawsuit, Plaintiff relied on Tenn. Code Ann. § 29-26-121(c)'s 120-day extension of the statute of limitations or repose.
5. Section 29-26-121(c) entitles a plaintiff to only one 120-day extension.
6. Plaintiff previously relied on Tenn. Code Ann. § 29-26-121(c)'s 120-day extension when he filed his 2014 Complaint.
7. Because Plaintiff used his one extension in filing his 2014 Complaint, he was not entitled to a second 120-day extension in filing this second action against VUMC.
8. Consequently, Plaintiff was required to file this lawsuit by October 4, 2020 - one year from the entry of the Order of Voluntary Nonsuit.
9. Plaintiff did not file this lawsuit until January 28, 2021, resulting in his claims against VUMC being time barred.(internal footnotes omitted).
Following a hearing on VUMC's motion to dismiss, the trial court entered an order granting the motion and dismissing Mr. Richards' complaint with prejudice. In addition to reasoning that the 120-day extension from Tennessee Code Annotated section 29-26-121(c) is not applicable to actions refiled pursuant to the saving statute in Tennessee Code Annotated section 28-1-105, the trial court specifically countenanced the position argued by VUMC in its motion to dismiss and held as follows: "Tenn. Code Ann. § 29-26-121(c) is clear and unambiguous in its mandate that no more than one extension shall be applicable to any provider. Plaintiff utilized Tenn. Code Ann. § 29-26-121's 120-day extension in filing his original action and is, therefore, barred from utilizing the extension again in this action." This appeal followed from the trial court's dismissal of the case.
DISCUSSION
Although the trial court dismissed this case because it was not refiled within a year following the prior nonprejudicial dismissal, Mr. Richards maintains that the dismissal of his lawsuit was in error. According to Mr. Richards, his lawsuit was timely because the saving statute period was extended 120 days due to his compliance with Tennessee Code Annotated section 29-26-121 in connection with his refiling. VUMC disagrees with this assessment, arguing that the saving statute cannot be extended by Tennessee Code Annotated section 29-26-121(c), while also contending that, even if the 120-day extension is theoretically applicable to the saving statute, "[section] 29-26-121(c)'s plain language explicitly prohibits a plaintiff from using more than one 120-day extension per provider." Therefore, just as the trial court concluded, VUMC submits that Mr. Richards was not entitled to a 120-day extension in the refiled action due to the fact that he utilized a 120-day extension in filing his initial lawsuit.
This Court's prior decision in Tinnel v. East Tennessee Ear, Nose, & Throat Specialists, P.C., No. E2014-00906-COA-R3-CV, 2015 WL 791625 (Tenn. Ct. App. Feb. 25, 2015), namely the Tinnel panel's engagement with the Tennessee Supreme Court's decision in Rajvongs v. Wright, 432 S.W.3d 808 (Tenn. 2013), has served as a focal point for the dispute between the parties. In Rajvongs, the Tennessee Supreme Court examined the case of a "transitional" plaintiff who filed his initial complaint prior to the effective date of section 29-26-121, dismissed his original action, and refiled his action after the effective date of the statute. Rajvongs, 432 S.W.3d at 813 (noting that the plaintiff fell within this "narrow category of plaintiffs"). In considering whether the plaintiff in that case was entitled to the extension in Tennessee Code Annotated section 29-26-121(c) so as to extend the one-year saving statute by an additional 120 days, the Supreme Court observed that "the saving statute is not a statute of limitations or a statute of repose and . . . it operates independently." Id. Nonetheless, the Supreme Court ultimately opined that it was "unable to conclude that the General Assembly would require transitional plaintiffs to provide pre-suit notice before refiling under the saving statute and yet deprive such plaintiffs of the 120-day extension." Id. at 814 (emphasis added).
Another decision from the Tennessee Supreme Court has since applied the holding from Rajvongs. In Cannon ex rel. Good v. Reddy, 428 S.W.3d 795 (Tenn. 2014), the Tennessee Supreme Court held as follows: "Ms. Cannon, a transitional plaintiff who properly gave pre-suit notice, is entitled to the automatic 120-day extension granted in section 29-26-121(c)." Id. at 799. The Supreme Court, however, also pointedly cautioned as follows: "At the risk of stating the obvious, our reasoning in this case does not extend beyond the bounds of health care liability law and the limited number of transitional plaintiffs whose cases are still pending." Id. at 799 n.6.
It is tempting to conclude that the Tinnel panel felt no need to consider the above language because the Tinnel plaintiff did not actually utilize "more than one (1) extension" despite the argument of the defendant to the contrary. Tenn. Code Ann. § 29-26-121(c). Again, the first complaint in Tinnel was filed within the applicable statute of limitations without the need for any extension thereon. However, the Tinnel panel specifically stated that it broadly "reject[ed] [the] [d]efendants' argument that [the] [p]laintiff was only entitled to the use of one extension." Id. at *5.
Whereas VUMC stresses that Rajvongs dealt with "transitional" plaintiffs, a category of plaintiffs to which Mr. Richards does not belong, Mr. Richards emphasizes the subsequent opinion by this Court in Tinnel, which he argues extended the Rajvongs holding to all plaintiffs in health care liability actions that are refiled under the saving statute. In Tinnel, a plaintiff sued for alleged medical negligence, and prior to filing her complaint, the plaintiff had provided the statutorily required pre-suit notice. Tinnel, 2015 WL 791625, at *1. Although this first lawsuit was voluntarily dismissed, the plaintiff later provided pre-suit notice again and refiled her complaint. Id. at *1-2. As was of much dispute in Tinnel, this refiling was "more than one year from the date of voluntary dismissal but within 120 days of the one-year anniversary of the dismissal." Id. at *2. Whereas the defendants moved for dismissal on the basis that the refiled lawsuit was not properly filed within a year of the prior dismissal, the plaintiff argued that she was entitled to a 120-day extension of the saving statute due to the operation of Tennessee Code Annotated section 29-26-121(c). Id. The trial court eventually dismissed the case, and on appeal, we addressed the following issue: "Whether the 120-day extension provided in Tennessee Code Annotated section 29-26-121(c) extends the re-filing period in the saving statute for a plaintiff who provided pre-suit notice prior to filing the initial complaint." Id. at *3. Although the plaintiff argued to this Court that the Rajvongs decision was strong persuasive authority to support her position, the defendants maintained that the Rajvongs holding was limited to "transitional" plaintiffs. Id. at *4. The defendants further argued that the plaintiff "cannot utilize another 120-day extension because she automatically received the extension when she filed the initial complaint." Id. In addressing the parties' concerns, the Tinnel panel ruled in the plaintiff's favor, holding in pertinent part as follows:
The plaintiff in this case provided pre-suit notice to Defendants before filing each complaint as required by the Act. Like the Supreme Court reasoned in Rajvongs, we are unable to conclude that the General Assembly would require plaintiffs to provide pre-suit notice before refiling under the saving statute and yet deprive them of the 120-day extension. We hold that Plaintiff was entitled to the 120-day extension provided for in section 29-26-121(c) because she provided Defendants with pre-suit notice that she intended to recommence her action. In so holding, we reject Defendants' argument that Plaintiff was only entitled to the use of one extension. Plaintiff's re-filed complaint was a new and independent action. Accordingly, the trial court erred in dismissing the re-filed complaint as untimely.Id. at *5 (internal citations omitted).
Having considered the issue in this appeal, we respectfully disagree with the Tinnel panel's conclusion regarding the availability of more than one 120-day extension pursuant to Tennessee Code Annotated section 29-26-121(c). As referenced in the introductory summary to this Opinion and elsewhere herein, Tennessee Code Annotated section 29-26-121(c) contains language providing that "nor shall more than one (1) extension be applicable to any provider." Tenn. Code Ann. § 29-26-121(c). The Tinnel panel did not specifically engage with this language when it rejected the argument made in that appeal concerning the numeric limitation associated with the statutory extension. Because we conclude that the language forecloses the application of multiple 120-day extensions vis-à-vis a health care provider against whom a recovery is sought for health care liability, we hold that Mr. Richards was not entitled to rely on a second extension as to VUMC so as to make the present litigation timely. Indeed, because Mr. Richards could not rely on a second statutory extension, and because he did not refile within a year of the prior voluntary dismissal, we conclude that the trial court did not err in dismissing the case, even assuming arguendo that the extension in Tennessee Code Annotated section 29-26-121(c) might otherwise potentially extend the refiling period in the saving statute for non-transitional plaintiffs.
This language had been referenced in the defendants' appellate briefing in support of their position on this issue.
The facts of this case do not require that we opine on whether the saving statute period might be extended in favor of a non-transitional plaintiff whose initial lawsuit did not involve the reliance upon, or triggering of, an extension under Tennessee Code Annotated section 29-26-121(c).
CONCLUSION
In light of the foregoing, we affirm the trial court's dismissal of the case.
J. STEVEN STAFFORD, P.J., W.S., concurring.
Although I ultimately agree with the majority's conclusion, I write this separate concurrence to express my concerns with the result in this case.
To recap, Mr. Richards filed his first complaint in 2014, relying on the 120-day extension to the statute of limitations under the Tennessee Health Care Liability Act ("the THCLA"). Mr. Richards eventually voluntarily dismissed his first complaint in 2019. Relying once again on the 120-day extension provided by Tennessee Code Annotated section 29-26-121, Mr. Richards refiled his case in 2021. The question, then, is whether Mr. Richards is entitled to the benefit of a second 120-day extension in his refiled action.
In order to resolve this issue, we are tasked with interpreting section 29-26-121. As such, our analysis is guided by the familiar rules of statutory construction. Of paramount importance are the words employed by the legislature. See Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn. 2012). We interpret those words based on "their natural and ordinary meaning in the context in which they appear and in light of the statute's general purpose." Id. (citing Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 526 (Tenn. 2010)). When ambiguous, we may look beyond the statutory text, including public policy and "the background and purpose of the statute"; however, external sources cannot provide a basis for departing from the clear statutory language. Id. In interpreting a statute, we must endeavor to not render any part of the statute ambiguous, Young v. Frist Cardiology, PLLC, 599 S.W.3d 568, 571 (Tenn. 2020), while also being cautious not to apply an interpretation that yields an absurd result. Seals v. H &F, Inc., 301 S.W.3d 237, 251 (Tenn. 2010) (citing State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000)). Still, the absurdity doctrine may not be used to invalidate clear statutory language simply because the result is "unpleasant or peculiar." Id. (noting that the doctrine should therefore be used "sparingly").
The majority opinion correctly concludes that the previous cases to consider this issue are inapposite to the current dispute. First, in Rajvongs v. Wright, the Tennessee Supreme Court held that in order to effectuate the purpose of the THCLA, it was unable to conclude that the General Assembly would require transitional plaintiffs to bear the burden of the THCLA pre-suit notice requirement without providing them with the corresponding benefit of the 120-day extension. 432 S.W.3d 808, 813-14 (Tenn. 2013). Our high court reached this result on the basis of the "statutory scheme in its entirety," despite the fact that the language of section 29-26-121 provided no explicit reference to the savings statute. Id. But the holding of Rajvongs was clearly limited to "transitional plaintiffs"-that is, those who filed their first complaint before the enactment of the THCLA's notice requirement and therefore were utilizing their first 120-day extension when they refiled their action utilizing the savings statute. Id.
This Court came closer to answering the question presented in this appeal in Tinnel v. E. Tennessee Ear, Nose, &Throat Specialists, P.C., No. E2014-00906-COA-R3-CV, 2015 WL 791625 (Tenn. Ct. App. Feb. 25, 2015). In that case, the plaintiff was not a transitional plaintiff because her first complaint was filed under the precursor to the THCLA. Id. at *1. The plaintiff provided pre-suit notice as required, but filed her initial complaint within one year of the accrual of her cause of action without reliance on any extension provided by statute. The case was eventually nonsuited and refiled; this time, the plaintiff relied on the 120-day extension to extend the savings statute as applied by the Rajvongs court. The defendants argued that this reliance was misplaced because the plaintiff was not a transitional plaintiff and that the plaintiff "had already availed herself of the 120-day extension" because she "automatically received the extension when she filed the initial complaint." Id. at *3, 4.
The Court of Appeals disagreed. First, the Court cited a recent case from the Tennessee Supreme Court that held that because the filing of a second case under the savings statute instituted a "new and independent action," a second set of pre-suit notice documents was required upon the refiling of the case. Id. at *5 (quoting Foster v. Chiles, 467 S.W.3d 911, 916 (Tenn. 2015)). Based on the reasoning in Rajvongs, the Tinnel panel concluded that because the plaintiff was burdened by the pre-suit notice requirements of the THCLA, she should also benefit from the 120-day extension. Id. ("Like the Supreme Court reasoned in Rajvongs, we are unable to conclude that the General Assembly would require plaintiffs to provide pre-suit notice before refiling under the saving statute and yet deprive them of the 120-day extension.").
But as the majority correctly notes, the Tinnel opinion did not discuss the language central to VUMC's argument here-Tennessee Code Annotated section 29-26-121(c)'s prohibition against applying "more than one (1) extension . . . to any provider." Of course, "it is axiomatic that judicial decisions do not stand for propositions that were neither raised by the parties nor actually addressed by the court." Staats v. McKinnon, 206 S.W.3d 532, 550 (Tenn. Ct. App. 2006) (citing Shousha v. Matthews Drivurself Serv., Inc., 210 Tenn. 384, 390, 358 S.W.2d 471, 473 (Tenn. 1962)). So, in addition to not being controlling on this Court, see Tenn. Sup. Ct. R. 4(G)(1), the Tinnel opinion simply does not analyze the central argument that has been presented in this case.1
Thus, it appears that this is the first case to explicitly analyze whether section 29-26-121(c) requires a different result than the one reached by the Rajvongs court where a non-transitional plaintiff is attempting to utilize the 120-day extension for a second time with the same provider. Mr. Richards argues that a different result is not required because the second action is "new and independent" and therefore not tied to the earlier action. Foster, 467 S.W.3d at 916. In the general sense, I agree that an action that has been nonsuited has not been decided on the merits and that the nonsuit places the parties "in their original positions prior to the filing of the suit." Himmelfarb v. Allain, 380 S.W.3d 35, 40 (Tenn. 2012). This Court has held that this essentially means that a nonsuit "leaves the parties 'as if no action had been brought at all.'" Justice v. Craftique Constr., Inc., No. E2019-00884-COA-R3-CV, 2021 WL 142146, at *3 (Tenn. Ct. App. Jan. 15, 2021) (quoting 27 C.J.S. Dismissal and Nonsuit § 11 (2020)); see also Jasinskis v. Cameron, No. M2019-01417-COA-R3-CV, 2020 WL 2765845, at *6 (Tenn. Ct. App. May 27, 2020) ("The [plaintiffs'] nonsuit of all of their claims against [the defendant] and the trial court's order that the claims were dismissed without prejudice placed the parties back where they were before the [plaintiffs] filed their lawsuit against [the defendant] ...." (citing Himmelfarb, 380 S.W.3d at 40)). But see Reliance Ins. Co. v. Mackey, No. M2003-03106-COA-R3-CV, 2004 WL 2636706, at *4 (Tenn. Ct. App. Nov. 18, 2004) ("The [voluntary] dismissal does not vitiate the fact that the action was commenced.").
However, in giving plaintiffs the benefit of the 120-day extension, the Tennessee General Assembly included one relevant limitation: that "[i]n no event" shall "more than one (1) extension be applicable to any provider." Tenn. Code Ann. § 29-26-121(c). VUMC argues that the natural and ordinary meaning of this language must be interpreted to prohibit a plaintiff from utilizing the extension more than once as to any one provider. And because Mr. Richards utilized the extension in filing his first action against VUMC, he cannot benefit from the extension a second time.
At oral argument, Mr. Richards argued that VUMC's interpretation was not the only reasonable interpretation of the statute. Instead, he asserted that section 29-26-121's limitation should be read as prohibiting a plaintiff from using the extension more than once in any single action. He further argued that this interpretation aligns with what he characterized as Rajvongs' holding that the pre-suit notice requirements and the 120-day extension are "conjoined twins" that must both be applicable in order to effectuate the purpose of the THCLA. To hold otherwise, Mr. Richards asserted, would be absurd. He also argued that VUMC's interpretation improperly shortens the limitations period provided by the savings statute, in violation of Rajvongs and section 29-26-121. See Tenn. Code Ann. § 29-26-121(c) ("In no event shall this section operate to shorten or otherwise extend the statutes of limitations or repose applicable to any action asserting a claim for health care liability[.]").
After careful consideration, I am compelled to agree with VUMC. As an initial matter, the holding in Rajvongs was not based on any concern about shortening the statute of limitations. In fact, the Rajvongs opinion makes clear that a savings statute is not a statute of limitations. Rajvongs, 432 S.W.3d at 813 ("We have long recognized that the saving statute is not a statute of limitations or a statute of repose and that it operates independently." (citations omitted)). So the express prohibition contained in section 29-26-121(c) regarding shortening the statute of limitations or repose is entirely inapposite here.
Additionally, it appears that Mr. Richards' chosen interpretation of section 29-26-121(c) violates a cardinal rule of statutory interpretation: "[j]ust as we may not overlook or ignore any of the words in a statute, we must be circumspect about adding words to a statute that the General Assembly did not place there." Coleman v. State, 341 S.W.3d 221, 241 (Tenn. 2011) (citing In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005); City of Knoxville v. Entm't Res., LLC, 166 S.W.3d 650, 658 (Tenn. 2005)). Here, the parties' positions can be summarized as follows: VUMC interprets section 29-26-121 as prohibiting a plaintiff from using more than one extension per provider; Mr. Richards interprets section 29-26-121(c) as prohibiting more than one extension per provider per action. Clearly, this interpretation adds additional words to section 29-26-121(c) that were not included by our legislature.
The 120-day extension at issue in this case, moreover, is a creature of statute. And what the legislature gives, it can take away. Cf. Officer v. Young, 13 Tenn. 320, 322-23 (Tenn. 1833) (discussing the limits on the legislature's power to give away and take away when dealing with vested rights). Although the General Assembly has given plaintiffs a 120-day extension, it is fair to say that the THCLA has done a fair amount more taking away from plaintiffs than giving. See, e.g., Runions v. Jackson-Madison Cnty. Gen. Hosp. Dist., 549 S.W.3d 77, 79 (Tenn. 2018) (dismissing a claim under the THCLA because the defendant provider did not receive the statutory pre-suit notice, even though the provider had actual notice of the claim); Webb v. Trevecca Ctr. for Rehab. &Healing, LLC, No. M2019-01300-COA-R3-CV, 2020 WL 6581837, at *1 (Tenn. Ct. App. Nov. 10, 2020) (dismissing a complaint under the THCLA because the plaintiff's pre-suit notice letter was directed toward the provider's administrator, rather than the provider, a rehabilitation facility); Shaw for Est. of Suttle v. Gross, No. W2019-01448-COA-R3-CV, 2021 WL 1388007, at *1 (Tenn. Ct. App. Apr. 13, 2021) (dismissing a claim under the THCLA because the plaintiff did not substantially comply with the requirement to provide a HIPAA-compliant authorization); Moore-Pitts v. Bradley, 605 S.W.3d 24 (Tenn. Ct. App. 2019) (same); Rush v. Jackson Surgical Assocs. PA, No. W2016-01289-COA-R3-CV, 2017 WL 564887 (Tenn. Ct. App. Feb. 13, 2017) (same); Shockley v. Mental Health Coop., Inc., 429 S.W.3d 582 (Tenn. Ct. App. 2013) (dismissing a claim under the precursor to the THCLA because the plaintiff sent pre-suit notice to the Mental Health Cooperative Foundation, Inc, rather than the actual provider the Mental Health Cooperative, Inc., even though the entities were related and had the same agent for service of process); see also Ashley D. McGhee, Comment, Evaluating the Performance of the Tennessee Health Care Liability Act, 20 Transactions: Tenn. J. Bus. L. 971, 974 (2019) (discussing the number of cases dismissed for "failing to overcome significant procedural complexities that require complete compliance in order to earn the 120-day extension").
It can scarcely be argued that requiring a plaintiff to shoulder the burden of pre-suit notice when refiling a lawsuit without also conferring on that plaintiff the benefit of the extension is a harsh, unfair result. Such a rule also bears very little relationship to the stated purpose of the THCLA "to reduce the number of frivolous lawsuits filed in Tennessee[.]" Henderson v. Vanderbilt Univ., 534 S.W.3d 426, 449 (Tenn. Ct. App. 2017) (internal quotation marks and citation omitted); see also Buckman v. Mountain States Health All., 570 S.W.3d 229, 241 (Tenn. Ct. App. 2018) (Swiney, J., concurring) (asking the legislature to amend the THCLA to eliminate the "unintended consequence" where cases are dismissed "for technical reasons without any decision ever being made as to the possible merits of the case"), abrogated by Martin v. Rolling Hills Hosp., LLC, 600 S.W.3d 322 (Tenn. 2020). But Tennessee courts have repeatedly recognized the harsh results that often ensue from the application of the THCLA. See, e.g., Bidwell ex rel. Bidwell v. Strait, 618 S.W.3d 309, 322 (Tenn. 2021) ("While this leads to harsh results for the Plaintiff, had the General Assembly intended for noncompliance with section 29-26-121(a)(5) to excuse a plaintiff from providing pre-suit notice, it could have said so."); Mills v. Wong, 155 S.W.3d 916, 925 (Tenn. 2005) ("Although a rule which extinguishes medical malpractice rights of action even though a plaintiff was mentally incompetent may be harsh, it is fully within the constitutional power of the legislature so to provide, and thus it is not our place to debate its wisdom.").
These concerns, however, do not allow me to depart from the result reached by my colleagues. Importantly, "unless the General Assembly's decision runs afoul of either the state or federal constitutions, this Court must decline to interfere, even when the General Assembly's decision produces harsh results." Pigg v. Barge, Waggoner, Sumner &Cannon, No. 87-161-II, 1988 WL 92523, at *4 (Tenn. Ct. App. Sept. 9, 1988) (citing Harrison v. Schrader, 569 S.W.2d 822, 828 (Tenn. 1978) ("Undeniably some hardship results from the application of this statute, but it is not the role of this Court to pass upon the wisdom or lack thereof of the legislation under review.")). For better or worse, a harsh result does not necessarily equate to an absurd result. Cf. 2A Sutherland Statutory Construction § 46:1 (7th ed.) ("Courts may apply the plain meaning rule even though it produces a harsh or unjust result, or a mistaken policy, as long as the result is not absurd."). And while the Rajvongs court was free to consider the purpose of the THCLA as a whole in light of the legislative silence as to transitional plaintiffs, this situation is governed by a clear statutory directive prohibiting the use of the 120-day extension more than once as to any provider. See Mills, 360 S.W.3d at 368 (noting that we may generally only consider public policy related to the "the background and purpose of the statute" if the statute is ambiguous).
Mr. Richards has not argued that the Tennessee General Assembly lacked the power to impose a burden on him without bestowing him with some corresponding benefit. And we must presume that the legislature was aware of both the savings statute and the state of the law surrounding it when enacting section 29-26-121(c). Wilson v. Johnson Cnty., 879 S.W.2d 807, 810 (Tenn. 1994). We therefore must apply the language as written notwithstanding any concern that the result is harsh or undesirable. See Watts v. Putnam County, 525 S.W.2d 488, 492-93 (Tenn. 1975) (finding that claims were time-barred under the construction defect statute, and noting that although the result was "harsh" and perhaps "undesirable," it was "demanded under the statutory scheme").
In sum, Mr. Richards utilized the 120-day extension when he filed his initial action in 2014 against VUMC. In its legislative prerogative, the Tennessee General Assembly has chosen to bestow the 120-day extension only once as to any particular provider. Consequently, Mr. Richards may not utilize the extension a second time against VUMC. In assuming that the benefit of the THCLA followed its burden in this situation, Mr. Richards has fallen into a trap laid by the maze of procedural requirements that make up the THCLA, and his claim is untimely as a result. Mr. Richards therefore joins the ranks of many plaintiffs in Tennessee whose claims have been felled by the procedural hurdles of the THCLA without consideration of their merits. See Buckman, 570 S.W.3d at 241 (Swiney, J., concurring) (calling for the THCLA to be amended nearly five years ago to correct the unintended consequences of the act, but noting that it was possible that "our General Assembly intended in enacting these healthcare liability statutes for some Tennessee citizens to have their healthcare liability actions resolved not on the merits but instead by means of technical traps"). As such, although I welcome a contrary conclusion from the Tennessee Supreme Court, I must reluctantly agree with my learned colleagues as to the result in this case.