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Thursday, September 19, 2019

New Health Care Liability Action: Defendants' Failure to Comply with Tenn. Code Ann. sec. 29-26-121(a)(5) Proves Fatal to Their Motions for Summary Judgment; Adding Nonparties as Defendants under Tenn. Code Ann. sec. 20-1-119, Etc.

The Tennessee Court of Appeals just issued its opinion in Bidwell v. Strait, No. E2018-02211-COA-R3-CV (Tenn. Ct. App. Sept. 18, 2019).  The syllabus from the slip opinion reads:
Plaintiff, James Bidwell, took his wife, Clarissa Bidwell, to Starr Regional Medical Center for treatment. She was transferred to Chattanooga-Hamilton County Hospital Authority dba Erlanger Health System, a governmental hospital authority, where she was treated, but later died. Plaintiff provided statutorily compliant pre-suit notice of his intent to file a health care liability action against each health care provider that was named as a defendant in the complaint. See Tenn. Code Ann. § 29-26-121(a). Plaintiff did not provide pre-suit notice to Erlanger. Tenn. Code Ann. § 29-26-121(a)(5) requires a recipient of pre-suit notice to give written notice to a claimant of any other person, entity, or health care provider who may be properly named a defendant within thirty days of receiving pre-suit notice. However, Dr. Jeffery Colburn and Dr. Timothy A. Strait failed to identify Erlanger as their employer, i.e. a known and necessary party to the suit. Plaintiff timely filed his complaint within the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121. Defendants answered plaintiff’s complaint, each raising the affirmative defense of comparative fault. Dr. Colburn and Dr. Strait then moved for summary judgment arguing that, pursuant to the Governmental Tort Liability Act, without Erlanger as a party defendant no judgment could be rendered against them. See Tenn. Code Ann. § 29-20-310(b). In response, plaintiff filed two motions to amend his complaint to add Erlanger as a defendant, in reliance upon the extension to the statute of limitations provided in Tenn. Code Ann. § 20-1-119(a). After a hearing, the trial court held that plaintiff’s failure to provide pre-suit notice to Erlanger prevents him from adding them to his complaint. It granted Dr. Colburn and Dr. Strait’s motions for summary judgment. Plaintiff appeals. We hold that Tenn. Code Ann. § 29- 26-121(a)(5) required Dr. Colburn and Dr. Strait to identify Erlanger as a known and necessary party within thirty days after receiving pre-suit notice; they failed to comply with § 29-26-121(a)(5). We hold that, pursuant to Tenn. Code Ann. § 20-1-119, their subsequent declaration of the necessity of the nonparty to the suit, after the complaint was filed, granted plaintiff an additional ninety days following the filing of the first answer to amend his complaint in order to add the nonparty as a defendant. See Tenn. Code Ann. § 20-1-119; see also Tenn. Code Ann. § 20-1-119(g) (stating that this section applies to suits involving governmental entities). In addition, we hold that, pursuant to Tenn. Code Ann. § 29-26-121(c), plaintiff’s addition of the nonparty is not barred for failure to provide pre-suit notice. See Tenn. Code Ann. § 29-26-121(c). Therefore, we vacate the trial court’s award of summary judgment to defendants Dr. Colburn and Dr. Strait. We remand this matter for further proceedings, pursuant to applicable law, and consistent with this opinion.
Here is a link to the opinion:

NOTE: This case is the first one I am aware of that addresses the effects of a defendant failing to comply with Tenn. Code Ann. sec. 29-26-121(a)(5).  Under -121(a)(5), the onus is on the defendant to identify "any other person, entity, or health care provider who may be a properly named defendant," after presuit notice is received by the defendant.  Bidwell, slip op. at 7–9.  The fact that this was a GTLA case further complicated things.  However, the Court of Appeals reached the correct conclusion here: Plaintiff moved to amend within ninety days and the fact that no presuit notice was sent to the hospital did not matter under these circumstances.  Id. at 17–18.

Additionally, under Rule 15, Tenn. R. Civ. P., and Tenn. Code Ann. sec. 20-1-119, Plaintiff did not have to file a motion seeking leave to add the hospital; Plaintiff could have just filed an amended complaint and had process issued within ninety days of the filing of an answer alleging fault against the hospital.  Tenn. R. Civ. P. 15.01; T.C.A. § 20-1-119(a)(1).  Again, if -119 applies, no motion need be filed before an amended complaint can be filed due to a 2007 amendment to Rule 15.01 after the Tennessee Supreme Court's decision in Jones v. Prof'l Motorcycle Escort Serv., LLC, 193 S.W.3d 564 (Tenn. 2006).  While a motion seeking leave to amend may be filed, it is unnecessary in instances like this one. 

UPDATE NO. 1 (May 9, 2019): The Tennessee Supreme Court granted the Rule 11 application (f/k/a certiorari) on Feb. 20, 2020.  Oral argument is currently set for May 19, 2020.  The case status can be checked at this link: (search case no. "E2018-02211-SC-R11-CV").

UPDATE NO. 2 (Jan. 26, 2021): SCOTN released its opinion in this case today.  Here is my blog post about it: