Day on Torts
Where HCLA (Tennessee medical malpractice) defendants knew that their hospital employer was a necessary party under the GTLA yet failed to identify them to plaintiff pursuant to Tenn. Code Ann. §29-26-121(a)(5), plaintiff was entitled to add the hospital under comparative fault statute when it was later identified in defendants’ answers. Plaintiff’s failure to give the hospital pre-suit notice did not change this result.
In Bidwell v. Strait, No. E2018-02211-COA-R3-CV (Tenn. Ct. App. Sept. 18, 2019), plaintiff brought suit on behalf of his wife, who died after being treated, released, and treated again by defendants. Plaintiff gave proper pre-suit notice to the defendants named in his complaint, including two physicians, Dr. Colburn and Dr. Strait. Unbeknownst to plaintiff, both of these doctors were actually employed by Erlanger hospital at the time of the incident, and because Erlanger is a governmental hospital authority, this claim fell under the GTLA.
When plaintiff provided pre-suit notice, neither defendant doctor identified Erlanger as a potential defendant or necessary party. Instead, both doctors waited more than 30 days then filed answers identifying Erlanger as their employer and a potential tortfeasor. Both defendants subsequently filed motions for summary judgment, as the GTLA requires that an HCLA defendant’s employer also be named in a complaint. (See Tenn. Code Ann. § 29-20-310(b)). Plaintiff filed a motion to amend pursuant to Tennessee’s comparative fault scheme in Tenn. Code Ann. §20-1-119, but the trial court ruled that because Erlanger was not given pre-suit notice under the HCLA, it could not now be added as a party. Because Erlanger was a necessary party under the GTLA, summary judgment was granted, but the Court of Appeals reversed.
In a thorough analysis of the issues at play, the Court of Appeals began by pointing out that previous Supreme Court cases that appeared to be on point were actually decided before the legislature enacted a new provision of the HCLA. The trial court looked to two cases, Runions v. Jackson-Madison Cty. Gn. Hosp. Dist., 549 S.W.3d 77 (Tenn. 2018) and Shockley v. Mental Health Coop., Inc., 429 S.W.3d 582 (Tenn. Ct. App. 2013), both of which held that plaintiffs who failed to identify and give pre-suit notice to the correct defendant could not later amend their complaint to sue the proper party, even if the proper party had actual notice of the case. After these cases, however, the Tennessee legislature added Tenn. Code Ann. § 29-26-121(a)(5) to the HCLA, which states:
In the event a person, entity, or health care provider receives notice of a potential claim for health care liability pursuant to this subsection (a), the person, entity, or health care provider shall, within thirty (30) days of receiving the notice, based upon any reasonable knowledge and information available, provide written notice to the potential claimant of any other person, entity, or health care provider who may be a properly named defendant.
“Following this amendment, the onus is no longer on the plaintiff alone to correctly identify all potential defendants to a health care liability action.” Because this subsection was not yet in effect when Runions and Shockley were decided, the Court noted that the present mater arose “in both a different statutory and situational context.”
With that statutory background in mind, the Court went on to address the issue presented here: “what is the result when a recipient of pre-suit notice fails to comply with § 29-26-121(a)(5), and then requests the dismissal of a matter based upon a claimant’s failure to add a necessary party that was known to the recipient of pre-suit notice and should have been identified to claimant following receipt of pre-suit notice and prior to the claimant filing the complaint…?”
First, the Court rejected defendants’ argument that the new subsection of the HCLA “only requires the recipient of pre-suit notice to correct a misnomer, and that it does not require the recipient to identify additional parties not named by claimant.” The Court called this interpretation “untenable,” and found that “a defendant may not withhold the identity of a known or necessary person, entity, or health care provider who may be a properly named defendant.”
Here, defendants failed to identify Erlanger after receiving pre-suit notice, but then identified Erlanger as their employer (and thus a necessary party), as well as a potential tortfeasor in their answers. Even though the answers did not specifically say that Erlanger might be liable for comparative fault, the Court pointed out that “a plaintiff should not be denied an opportunity to recover against that potential tortfeasor simply because a defendant’s answer did not follow a precise legal formula.” (internal citation and quotation omitted). In addition, the fact that plaintiff already knew Erlanger’s identity before filing the complaint had no effect on whether § 20-1-119 applied here. Based on the “defendants’ decision to withhold the identity of a known and necessary defendant, and decision to instead identify the necessary nonparty in their answer, …plaintiff [was] entitled to the extension to the statute of limitations provided in Tenn. Code Ann. § 20-1-119(a).”
Next, the Court addressed how the application of the comparative fault statute worked with the fact that Erlanger never received pre-suit notice. Tenn. Code Ann. § 29-26-121(c) provides: “Once a complaint is filed alleging a claim for health care liability, the notice provisions of this section shall not apply to any person or entity that is made a party to the action thereafter by amendment to the pleadings as a result of a defendant’s comparative fault.” The Court stated that under this provision, “when comparative fault is at play following a filed complaint, pre-suit notice takes the backseat.” The Court concluded:
Tenn. Code Ann. § 29-26-121(a)(5) states that recipients of pre-suit notice have an obligation to provide a claimant written notice of a potentially proper defendant, based upon any reasonable knowledge and information available, within thirty days of the receipt of pre-suit notice. This provision is mandatory. If a recipient does not identify a potential defendant, and then alleges the fault of that nonparty or attempts to dismiss the complaint or receive summary judgment based on the nonparty’s absence, it is logical that plaintiff be permitted to add that party based upon the concepts of fairness and efficiency at the core of comparative fault. When this occurs, the statute of limitations is extended for ninety days following the first answer, pursuant to Tenn. Code Ann. § 20-1-119, and pre-suit notice to that party is no longer required, pursuant to Tenn. Code Ann. § 29-26-121(c).
(internal citations omitted). Summary judgment was reversed.
This opinion was a good analysis and application of this newer section of the HCLA requiring recipients of pre-suit notice to identify other potential defendants. The application of this section here resulted in a more fair result and eliminated the defendants’ ability to use the interplay of the HCLA and the GTLA as a weapon.
NOTE: To aid lawyers in giving clients guidance about how long it takes to receive an opinion after oral argument in the appellate courts, we are going to start sharing that information with readers. Please understand that the length of time that elapses between oral argument and the date the opinion is released is dependent on a multitude of factors, not the least of which is the complexity of the issues presented. In this case, the opinion was released less than one month after oral argument.