Two New Health Care Liability Action Opinions on Same Issue: Trial Court's Grant of Summary Judgment and Motion to Dismiss Reversed on Appeal Due to Statutory Changes as They Relate to Vicarious Liability

Today, the Tennessee Court of Appeals released its decisions in Gardner v. Saint Thomas Midtown Hospital, No. M2019-02237-COA-R3-CV (Tenn. Ct. App. Apr. 1, 2021) and Ultsch v. HTI Memorial Hospital Corporation, No. M2020-00341-COA-R9-CV (Tenn. Ct. App. Apr. 1, 2021).  Both cases hinge on the same issue and arise from the same trial court.  The common issue being whether a principal in a health care liability action may be held vicariously liable for the acts or omissions of its employees and agents if the statute of limitations was extended as to the principal but not the employees and agents via service of presuit notice letters under Tenn. Code Ann. sec. 29-26-121.  

The syllabus from the slip opinion in Gardner reads:

A patient filed a health care liability claim against a hospital, asserting the hospital was vicariously liable for injuries she suffered as a result of the anesthesia providers’ conduct. The hospital moved for summary judgment, arguing that the anesthesia providers were not employed by the hospital and the hospital was, therefore, not liable for the anesthetists’ actions as a matter of law because the statute of limitations had run on the plaintiff’s direct claims against the anesthesia providers by the time the plaintiff filed her complaint against the hospital. The trial court granted the hospital’s motion and dismissed the plaintiff’s complaint, relying on the common law set forth in Abshure v. Methodist HealthcareMemphis Hospitals, 325 S.W.3d 98 (Tenn. 2010). Acknowledging the conflict between provisions of the Tennessee Health Care Liability Act and the common law, we hold that the statute prevails. Accordingly, we reverse the trial court’s judgment and remand the case for further proceedings.

Here is a link to the Gardner slip opinion:

https://www.tncourts.gov/sites/default/files/gardner.beverly.opn_.pdf.

The syllabus from the slip opinion in Ultsch reads:

This appeal concerns the interplay between the Tennessee Health Care Liability Act [] and the common law on vicarious liability with respect to pre-suit notice in a health care liability claim against the principal only. We have determined that the provisions of the HCLA take precedence over the common law and that the plaintiff’s claims in this case were timely filed. Therefore, we reverse the decision of the trial court.

Here is a link to the Ultsch slip opinion:

https://www.tncourts.gov/sites/default/files/ultsch.dennis.opn_.pdf.

NOTE: Both of these opinions offer an excellent explanation of how a vicarious liability claim may be prosecuted under Tennessee's Health Care Liability Act (f/k/a the Tennessee Medical Malpractice Act). SCOTN will be asked to review these two decisions via a Rule 11 application.  It may deny review, however, because these decision are very well reasoned and jibe with applicable Tennessee law in my humble opinion.  

UPDATE (Oct. 1, 2021): I was wrong.  SCOTN has granted permission to appeal in both cases on Sept. 24, 2021, to wit:

https://tncourts.gov/sites/default/files/sc_discretionary_appeals_list_2021sept27.pdf.