New Health Care Liability Action: Trial Court's Dismissal Upheld on Appeal Due to Plaintiffs' Counsels' Failure to Send Presuit Notice to Employer as Required by Tennessee's Governmental Tort Liability Act, Etc.

The Tennessee Court of Appeals has released its decision in Fisher, v. Smith, W2022-00779-COA-R3-CV (Tenn. Ct. App. Mar. 23, 2023). The syllabus from the slip opinion reads:

This appeal arises from a health care liability action. The plaintiffs filed their complaint against a physician and a surgical practice after the expiration of the statute of limitations, relying on the 120-day extension under Tennessee Code Annotated section 29-26-121(c). However, the physician was not employed by the surgical practice during the treatment at issue but was employed by a governmental entity that was not named as a defendant. Both the physician and the surgical practice filed motions to dismiss, which were ultimately treated as motions for summary judgment due to consideration of matters outside the pleadings. Afterward, the plaintiffs filed a motion for leave to amend their complaint to substitute parties. Pursuant to section 29-20-310(b) of the Tennessee Governmental Tort Liability Act, the trial court found that the plaintiffs had to sue the governmental entity in order to sue the physician individually. The court found that the motion for leave to amend the complaint was futile because the statute of limitations had run as to any claim against the governmental entity. The court explained that any claim against the governmental entity would be time-barred even if it related back to the date of the filing of the complaint. The court further explained that the plaintiffs relied on the 120-day extension contained in section 29-26-121(c) when they filed their complaint and that the extension did not apply to any potential claim against the governmental entity because they failed to provide presuit notice to it. The court also noted that the plaintiffs unduly delayed seeking to amend their complaint despite being explicitly informed before filing their complaint who the physician did and did not work for. Additionally, the court found that the surgical practice was not involved in the treatment at issue and did not employ the physician or any of the medical providers involved. Thus, the court found that the surgical practice negated an essential element of the plaintiffs’ claim against it and demonstrated the evidence was insufficient to establish such a claim. Accordingly, the court granted the defendants’ motions and denied the plaintiffs’ motion for leave to amend the complaint to substitute parties. The plaintiffs appeal. We affirm.

Here is a link to the slip opinion: FisherKimberlyDETALOPN.pdf (tncourts.gov).

NOTE: This opinion is correct as a matter of law. Further, it offers a good explanation of presuit notice in Tennessee health care liability actions, motions seeking dismissal or summary judgment, amendments of complaints, and waiver of issues on appeal. It is a good read for any lawyer who handles these types of cases governed by Tennessee law. 

Also, I have no idea why Plaintiffs' counsel did not send presuit notice to the correct employer once they were notified of its existence as required by Tenn. Code Ann. sec. 29-26-121(a)(5).