Day on Torts
In an HCLA case where plaintiff named a physician employed by a governmental entity as a defendant but did not name the governmental entity, dismissal was affirmed. Further, plaintiff’s motion to amend to name the governmental entity was properly denied as futile where plaintiff did not give pre-suit notice to the governmental entity and, therefore, the claim against the governmental entity would be time-barred even if it related back to the filing of the complaint.
In Fisher v. Smith, No. W2022-00779-COA-R3-CV (Tenn. Ct. App. Mar. 23, 2023), plaintiff’s HCLA claim arose from an abdominal surgery she had at a hospital in March 2020. Dr. Smith was the surgeon and was an employee of West Tennessee Medical Group (WTMG), which was a governmental entity. Until a year before the surgery at issue, Dr. Smith had been an employee of Jackson Surgical Associates, P.A. (JSA), but in March 2019 WTMG acquired JSA, thereafter operating the practice as Jackson Surgical Associates with no P.A. as part of the name.
In February 2021, plaintiffs sent pre-suit notice to Dr. Smith, JSA, the surgical center and the hospital, and amended pre-suit notices were sent to the same entities on March 1, 2021. No pre-suit notice was sent to WTMG. Dr. Smith, JSA, and the hospital responded to their notices “by informing the [plaintiffs] that Dr. Smith was employed by WTMG and not JSA and that WTMG was a governmental entity.” When plaintiffs filed their suit in June 2021, however, they named Dr. Smith and JSA as defendants.
Both named defendants filed motions to dismiss, with JSA arguing that it could not be held vicariously liable for Dr. Smith’s alleged negligence because it was not his employer and “had no involvement whatsoever in the treatment at issue.” Dr. Smith’s motion to dismiss asserted that he was the employee of WTMG, a governmental agency, and that pursuant to Tenn. Code Ann. § 29-20-310(b) of the GTLA, he could not be named in the suit because his governmental entity employer was not also named. In response to these motions, plaintiffs filed a motion to amend to substitute parties and add WTMG. After a hearing, the trial court denied the motion to amend, finding that it was futile and that plaintiff’s unduly delayed seeking amendment. The trial court also granted both motions to dismiss, which was affirmed on appeal.
Pursuant to the GTLA, “in order to maintain a medical malpractice action against a health care practitioner who is employed by a governmental entity, that entity must be named as a defendant.” (internal citations omitted). Here, plaintiffs named Dr. Smith as a defendant, but they failed to name WTMG, which was his governmental employer. After motions to dismiss were filed, plaintiffs attempted to correct this issue by seeking leave to amend to substitute WTMG as a party, so the Court of Appeals first looked at whether the trial court erred by denying the motion for leave to amend.
When considering a motion to amend, courts should consider “factors such as undue delay in filing; lack of notice to the opposing party; bad faith by the moving party; repeated failure to cure deficiencies by previous amendments; undue prejudice to the opposing party; and futility of amendment.” (internal citation and quotations omitted). The trial court denied the motion to amend based on “futility, lack of notice, and undue delay,” and the Court of Appeals affirmed that ruling.
Under the HCLA, defendants must receive pre-suit notice before suit is filed. (Tenn. Code Ann. § 29-26-121(a)(1)). If pre-suit notice is given, the statute of limitations for the HCLA claim against that defendant is extended by 120 days. (Tenn. Code Ann. § 29-26-121(c)). Here, plaintiffs filed the complaint more than one year after the incident, relying on the 120-day extension provided by the HCLA. Because WTMG did not receive pre-suit notice, however, the 120-day extension would not apply to it, so even if the amendment related back to the date the complaint was filed, it would not be a timely filing against WTMG. The Court explained:
[T]he Fishers’ proposed amendment to substitute WTMG as a party defendant would be futile. We have explained that Rule 15.03 “may operate to cure a misnomer when the party entitled to notice has, among other requirements, received constructive notice of the claim.” However, constructive notice is not enough to satisfy section 29-26-121; strict compliance with the pre-suit notice provision is required. The Fishers failed to provide pre-suit notice to WTMG as required by section 29-26-121(a)(1). They argue that it is undisputed that WTMG had notice of this suit because pre-suit notices were sent to two of its employees, Dr. Smith and Dr. Currie. Their argument, however, fails because “the proper inquiry is whether the plaintiff gave pre-suit notice to the health care provider to be named a defendant, not whether the health care provider knew about the claim [from another source].” Thus, “[t]he key consideration” is whether, pursuant to section 29-26-121(a)(1), the Fishers gave written pre-suit notice to WTMG—not whether WTMG “knew about the claim or whether it acknowledged that it had learned about the claim based on pre-suit notice given to another potential defendant.” As a consequence of their failure to provide pre-suit notice to WTMG, the Fishers could not rely on the 120-day extension of section 29-26-121(c). Therefore, even if their proposed amendment related back to the filing of the original complaint, the amended complaint would be barred by the statute of limitations because the Fishers filed their original complaint after the expiration of the statute of limitations.
(internal citations omitted).
The Court also agreed that plaintiffs “unduly delayed seeking to amend their complaint.” When the pre-suit notice letters were sent, three of the recipients responded within 30 days by informing plaintiffs that WTMG was both the correct employer and a governmental entity. Plaintiffs were thus aware of this fact before filing their complaint. Despite this, JSA was named as a defendant and plaintiffs did not seek leave to amend their complaint to substitute WTMG until almost a year after the complaint was filed. Based on futility and undue delay, the Court of Appeals affirmed the denial of the motion for leave to amend
While plaintiffs also raised the issue of whether the trial court erred by granting the two defendants’ motions to dismiss, their brief did not contain any argument on this issue and the Court deemed it waived.
This case is a reminder of the importance of naming the correct defendants in an HCLA case, especially when governmental entities are potentially involved. Here, plaintiffs’ failure to name the governmental entity employer was essentially fatal to their entire case.
This opinion was released 2.5 months after oral arguments in this case.
Note: Chapter 43, Section 1 and Chapter 52, Section 3 of Day on Torts: Leading Cases in Tennessee Tort Law have been updated to include this decision.
Day on Torts: Leading Cases in Tennessee Tort Law contains summaries of leading cases on over 500 topics and citations to more than 1500 additional cases. The 500,000+ word book (and two others, Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Cases) is available by subscription at www.birddoglaw.com and is continually updated as new decisions and statutes impact Tennessee law. Click on the link to see the book’s Table of Contents.
BirdDog Law also provides Tennessee lawyers with free access to user-friendly versions of the Tennessee rules of evidence and procedure and lots of other free resources, including a database for each of Tennessee’s 95 counties that will help find out information about court clerks, judges, filing fees, local rules, local forms, the presence (or absence) of electronic filing, case filings, and tort trial statistics.