However, we have used other analyses or standards, as described above. See also, Barnett v. Elite Sports Medicine, 2010 WL 5289669, at *3 n. 6 (Tenn. Ct. App. Dec. 17, 2010) (stating "[b]ecause the 'extraordinary cause' exception is part of the statute, . . . we review the court's holding as an application of the facts to the law," specifically rejecting a standard based on the trial court's discretion). The cases where this court has found no extraordinary cause for noncompliance have, with one exception, involved the failure to file any notice and/or a certificate of good faith of any kind.
Code Ann. § 2926-122 that the plaintiff or plaintiff's counsel file a certificate within 90 days of the filing of the complaint stating that a competent medical expert witness has been consulted and had provided a signed statement expressing a professional belief that there was a good faith basis to maintain the suit.Barnett v. Elite Sports Medicine, No. M2010-00619-COA-R3-CV, 2010 WL 5289669, at *1 (Tenn. Ct. App. Dec. 17, 2010). However, effective July 1, 2009, the Act was amended, as relevant to this appeal, to require that the certificate of good faith be filed contemporaneously with the complaint and to provide for the complaint's dismissal if the certificate was not filed with the complaint, with two exceptions.See id.
Id. at 176. See also Barnett v. Elite Sports Medicine, No. M2010-00619-COA-R3-CV, 2010 WL 5289669, at *5 (Tenn. Ct. App. 2010) (determining that plaintiff stated a claim for battery, distinct from allegations of medical malpractice, and holding that certificate of good faith was therefore not required); Truth v. Eskioglu, 781 F. Supp. 2d 630, 635 n.10 (M.D. Tenn. 2011) ("Even if the [Medical Malpractice] Act required dismissal of the plaintiff's malpractice claims, at least a portion of her intentional misrepresentation claim would go forward. Regardless of whether a plaintiff has filed a certificate of good faith, the plaintiff's claims survive to the extent that they do not require expert testimony.").
The court held that she did not show the necessary cause to excuse dismissal of her Complaint with prejudice. Id. at 791; see also Barnett v. Elite Sports Medicine, No. M2010-00619-COA-R3-CV, 2010 WL 5289669, *5 (Tenn. Ct. App. Dec. 17, 2010) (dismissing suit for failure to file Certificate even though she had an email from a medical expert in her possession opining medical malpractice at the time of refiling her Complaint). But see Truth v. Eskioglu, 781 F.Supp.2d 630, 635-36 (M.D. Tenn. 2011) (refusing to dismiss plaintiff's Complaint for failing to file certificate when plaintiff had a letter from a physician opining there was evidence of medical malpractice in her possession prior to filing suit and when defendant failed to provide complete medical records).
Id. (citing Cude v. Herren, No. W2010-01425-COA-R3-CV, 2011 WL 4436128, at *3 (Tenn. Ct. App. Sept. 26, 2011); Myers v. AMISUB (SFH), Inc., No. W2010-00837-COA-R9-CV, 2011 WL 664753, at *1 (Tenn. Ct. App. Feb. 24, 2011); Barnett v. Elite Sports Med., No. M2010-00619-COA-R3-CV, 2010 WL 5289669, at *1 (Tenn. Ct. App. Dec. 17, 2010)). The district court also pointed out that Tennessee courts have "continually emphasized . . . that a re-filed malpractice suit is an entirely new and separate action from the non-suited action." Id.
The Tennessee Court of Appeals has repeatedly held that the traditional rule allowing a plaintiff to voluntarily dismiss and re-file a suit applies to cases under the Medical Malpractice Act that are subject to the good-faith certificate requirement. See Cude v. Herren, No. W2010-01425-COA-R3-CV, 2011 WL 4436128, at *3 (Tenn. Ct. App. Sept. 26, 2011); Myers v. AMISUB (SFH), Inc., No. W2010-00837-COA-R9-CV, 2011 WL 664753, at *1 (Tenn. Ct. App. Feb. 24, 2011); Barnett v. Elite Sports Med., No. M2010-00619-COA-R3-CV, 2010 WL 5289669, at *1 (Tenn. Ct. App. Dec. 17, 2010). These cases presented a different issue than the case at bar - the Court of Appeals was called on to decide whether cases that were non-suited before the enactment of the good-faith certificate requirement and re-filed after its enactment were subject to the requirement.
Regardless of whether a plaintiff has filed a certificate of good faith, the plaintiff's claims survive to the extent that they do not require expert testimony. Barnett v. Elite Sports Medicine, No. M2010-00619-COA-R3-CV, 2010 Tenn. App. LEXIS 785, at *16-18 (Tenn. Ct. App. Dec. 17, 2010).
The entry of the order approving Plaintiff's voluntary dismissal meant that "the case [was], for all intents and purposes, over." Barnett v. Elite Sports Med., No. M2010-00619-COA-R3-CV, 2010 WL 5289669, at *2 (Tenn. Ct. App. Dec. 17, 2010). "If the action is refiled, it proceeds as a new action."
See Childs v. UT Med. Group, Inc., 398 S.W.3d 163, 169–70 (Tenn.Ct.App.2012) (holding that new pre-suit notice is required after a non-suit before re-filing). Upon the entry of an order approving a plaintiff's voluntary dismissal, “the case is, for all intents and purposes, over.” Barnett v. Elite Sports Med., No. M2010–00619–COA–R3–CV, 2010 WL 5289669, at *2 (Tenn.Ct.App. Dec. 17, 2010). Once re-filed pursuant to the savings statute, the “new action must stand or fall on its own.” Robles, 2011 WL 1532069, at *3. If a plaintiff has not complied with Tennessee Code Annotated § 29–26–121 in connection with a lawsuit that has been recommenced, defendants may certainly object.
Upon the entry of an order approving a plaintiff's voluntary dismissal, "the case is, for all intents and purposes, over." Barnett v. Elite Sports Med., No. M2010-00619-COA-R3-CV, 2010 WL 5289669, at *2 (Tenn. Ct. App. Dec. 17, 2010). Once re-filed pursuant to the savings statute, the "new action must stand or fall on its own."