Kelly on Malpractice

In Willis v. Shelby County, 2009 WL 1579248 (Tenn.Ct.App.), Willis originally filed two separate causes of action in the Circuit Court of Shelby County, Tennessee that the defendants negligently caused the amputation of his left leg. Willis’ cause of action arises from the medical treatment that he received while he was awaiting trial in the Shelby County Jail. At that time, Willis was a Type I diabetic. After complaining that he failed to receive proper medication while detained, Willis was eventually transported to the Regional Medical Center and Willis’ left leg was amputated below the knee. Willis filed his first lawsuit in state court in July 2005. At that time, Willis brought both state and federal claims against the various defendants. Willis alleged that Correctional Medical Services (CMS) and its employee Katherine Merriweather (collectively “CMS Defendants”) negligently treated his diabetes, that the Shelby County Defendants negligently cared for Willis while he was detained in the jail, that the Tennessee Governmental Tort Liability Act (“GTLA”) waived immunity for the Shelby County Defendants, and that the Defendants violated his civil rights pursuant to 42 U.S.C. § 1983. Based on Willis’ § 1983 claims, Defendants properly removed the case to the U.S. District Court for the Western District of Tennessee (“district court”) on the basis of federal question jurisdiction.

After the district court assumed jurisdiction, Defendants submitted motions for summary judgment. In September of 2006, the district court granted summary judgment to most of the Defendants on Willis’ § 1983 claims. At the same time, the district court declined to exercise supplemental jurisdiction over all of Willis’ state law claims and dismissed them without prejudice. Willis failed to file a request to remand the supplemental claims. Rather, over a year later, on September 28, 2007, Willis filed a motion with the district court to remand the state law claims to the Shelby County Circuit Court. The district court entered an order on October 30, 2007 denying Willis’ motion to remand because it found that Willis could have re-filed his cause of action in state court during the 30 days after it had dismissed the claims without prejudice. Meanwhile, on September 21, 2007, Willis filed a motion with the state court to re-assume jurisdiction and set the case on the clerk’s docket. As a second precaution, Willis also filed a second lawsuit, which was identical to his first suit, in state court on September 27, 2007. In response, Defendants filed various motions to dismiss, alleging that the second lawsuit was barred by res judicata, collateral estoppel, and the statute of limitations. The trial court entered a final judgment on both of Willis’ lawsuits. The trial court denied Willis’ motion to re-assume jurisdiction. In both cases, the trial court opined that the proper procedure was for Willis to re-file his suit in Tennessee state court within thirty days from the date of that dismissal order, which he failed to do. Accordingly the statute of limitations passed and the matter must be dismissed. The trial court then dismissed both lawsuits with prejudice. Willis appealed.

On appeal, Willis argued that the trial court should have re-assumed jurisdiction after the district court dismissed his state law claims without prejudice. To support this argument, Willis explained that the suit was originally filed in state court. Willis alleged that if the federal court gives up jurisdiction, then it is unnecessary to re-file the suit in state court; the state court must simply re-assume jurisdiction over the case and proceed to resolve the state law claims.

The Court of Appeals noted foremost that the district court dismissed, not remanded, Willis’ case. Any action taken in state court after a written notice of removal and before remand was of no force or effect. Willis argued that if the federal court gives up jurisdiction, it is unnecessary to re-file suit in state court because the state action remains pending after removal. Yet, federal courts have consistently held that the removal of an action to federal court divests the state court of jurisdiction to take further action. Therefore, the trial court could not reassume jurisdiction that was divested by removal. The first issue went to the Defendants.

The second issue was more interesting. Willis claimed that Tennessee’s saving statute extended the time that he had to re-file his supplemental claims. Because Tennessee’s saving statute applies to an action filed within one year from the time that a similar action was dismissed without prejudice, Willis alleged that he had one year from the time the district court dismissed his case to refile his claim in state court. Willis admitted that he could not use the savings statute to revive his GTLA claims against the Shelby County Defendants. See Lynn v. City of Jackson, 63 S.W.3d 332, 333-36 (Tenn.2001). Nevertheless, he claimed that the trial court erred by dismissing his cause of action against Defendants CMS and Katherine Merriweather. There was no dispute that had Willis’ cause of action been dismissed without prejudice in the state court, Tennessee’s saving statute would have permitted him to refile his medical malpractice claim against Defendants CMS and Katherine Merriweather within the next year. The fundamental issue here was the effect that 28 U.S.C. § 1367(d) had on Tennessee’s savings statute. Defendants cited Rector v. Dacco, Inc., 2006 WL 1749525 (Tenn.Ct.App.). In Rector, the Court of Appeals held that a plaintiff could not use TENN.CODE.ANN. § 28-1-105(a) and § 28-1-115 successively to provide a second one-year saving grace period even if the case was originally filed in federal court. Because the plaintiff did not file his state action within one year after dismissing his first cause of action in federal court, the Court found that neither TENN.CODE. ANN. § 28-1-105(a) nor § 28-1-115 independently saved plaintiff’s cause of action. The parties disputed what implications Rector. Defendants alleged Rector meant that the saving period provided in 28 U.S.C. § 1367 was applicable rather than the one-year saving period in TENN.CODE ANN. § 28-1-115. Willis argued that his claims against the CMS Defendants were timely filed because his previous suit was dismissed without prejudice. His case was re-filed within one year of the dismissal. The Court of Appeals agreed. Tennessee has long applied TENN.CODE ANN. § 28-1-105(a) to toll the statute of limitations in cases dismissed from federal court. See Clark v. Robertson, 2007 WL 708590 (E.D.Tenn.).

28 U.S.C. § 1367(d) expressly provides that the supplemental claim shall be tolled while the claim is pending in federal court and for a period of 30 days after it is dismissed “unless State law provides for a longer tolling period.” The Court of Appeals found that where TENN.CODE ANN. § 28-1-105 provides a plaintiff more than 30 days to commence a new action, it will toll the statute of limitations beyond that thirty day period. Because Willis initiated a new action against the CMS Defendants within one year from the time that the district court dismissed the claims, the saving statute applied to toll the statute of limitations for Willis’ claims against the CMS Defendants. Willis, therefore, timely filed the action. The Court of Appeals reversed the trial court on this second issue and remanded the case for further proceedings.

What is the Lesson? Never, never doubt the power of the savings statute.