On November, 9, 2009, plaintiff was an emergency room nurse at Erlanger Hospital. During her shift, a certified nurse anesthetist employed by the defendant was administering anesthesia to a patient. Near the end of the procedure, the patient awoke prematurely and was agitated. The patient tried to extubate herself and rise from the table. Plaintiff noticed the situation and lunged toward the patient in an attempt to save her from falling and otherwise injuring herself. As a result, plaintiff sustained a back injury. So, it was not the patient bringing the healthcare liability claim, but a third-party nurse working nearby.
On September 27, 2010, plaintiff sent defendant a notice of intent to sue letter pursuant to T.C.A. § 29-26-121, and the return receipt was dated September 30, 2010. Only 38 days after the notice of intent letter was sent, plaintiff filed her complaint. Two and a half years later, defendant moved for summary judgment alleging plaintiff had failed to comply with the notice requirements of T.C.A. § 29-26-121. Specifically, plaintiff had filed her suit less than 60 days after sending the notice of intent to sue. Plaintiff did not dispute her non-compliance with the notice provision but responded by claiming the defendant had waived the defense of failure to comply with T.C.A. § 29-26-121 by failing to timely raise it.
The trial court granted the defendant’s motion for summary judgment. On appeal, the plaintiff renewed the waiver argument and also claimed T.C.A. § 29-26-121 conflicted with Tennessee Rule of Civil Procedure 18.01, Joinder of Claims (A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal or equitable, in contract or tort, as the party has against an opposing party.)
The Court of Appeals quickly disposed of both issues. As for the waiver issue, the clear language of Tenn. R. Civ. P 12.08 allows a party to present the defense of failure to state a claim in a motion, in an answer, in an amendment to an answer, in a later pleading (if one is permitted) or at the trial on the merits. Since the defendant could have waited and raised the issue at trial, the Court of Appeals concluded the defendant had not waived the notice defense by conducting discovery and later presenting it in a motion for summary judgment.
As for the Rule 18.01 issue, the Court of Appeals declined to address it as plaintiff had failed to raise the issue in the trial court.
Tragic, isn’t it, that form has trumped substance in our law?
The case is Blankenship v. Anesthesiology Consultants Exchange, P.C., E2013-01974-COA-R3-CV (Tenn. Ct. App. Feb. 26, 2014).