Clarissa Bidwell, Ex Rel James Bidwell v. Timothy A. Strait MD ( 2021 )

01/26/2021
IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
May 19, 2020 Session1
CLARISSA BIDWELL EX REL. JAMES BIDWELL, ET AL.
v. TIMOTHY A. STRAIT M.D., ET AL.
Appeal by Permission from the Court of Appeals
Circuit Court for Hamilton County
No. 17-C-832 Kyle E. Hedrick, Judge
___________________________________
No. E2018-02211-SC-R11-CV
___________________________________
James Bidwell filed this health care liability action individually and on behalf of his
deceased wife, Clarissa Bidwell, and her estate against Drs. Timothy Strait and Jeffrey
Colburn (“the physician Defendants”) and the entities he believed to be their
employers—The Neurosurgical Group of Chattanooga, P.C., EmCare Inc., and Envision
Healthcare Corporation. Mr. Bidwell timely provided pre-suit notice to the named
defendants and timely filed his lawsuit. Mr. Bidwell did not provide Chattanooga-
Hamilton County Hospital Authority (“Erlanger”) with pre-suit notice, nor did he name
Erlanger as a defendant. Furthermore, Dr. Strait and Dr. Colburn did not provide Mr.
Bidwell written notice of Erlanger as their correct employer within thirty days of
receiving pre-suit notice. See Tenn. Code Ann. § 29-26-121(a)(5). Dr. Strait answered
Mr. Bidwell’s complaint, denying the allegations made against him and asserting that he
was employed by Erlanger at all relevant times. Dr. Colburn similarly answered, denying
the allegations made against him and that either EmCare Inc. or Envision Healthcare
Corporation was his employer. Drs. Strait and Colburn then moved for summary
judgment arguing that, pursuant to the Governmental Tort Liability Act, no judgment
could be rendered against them because Mr. Bidwell had failed to name as a defendant
their actual employer, Erlanger. See Tenn. Code Ann. § 29-20-310(b). Within ninety
days of Dr. Strait’s and Dr. Colburn’s answers, Mr. Bidwell filed two motions for leave
to amend his complaint to add Erlanger as a defendant. Mr. Bidwell relied on Tennessee
Code Annotated section 20-1-119, which provides a plaintiff with a ninety-day “grace
1
We heard oral argument through videoconference under this Court’s emergency orders
restricting court proceedings due to the COVID-19 pandemic.
period” within which to amend a complaint when comparative fault “is or becomes an
issue,” and section 29-26-121(a)(5), which he argued required the physician Defendants
to notify him of Erlanger within thirty days of receiving pre-suit notice. The trial court
granted Dr. Strait’s and Dr. Colburn’s motions for summary judgment, finding that Mr.
Bidwell’s motions to amend were futile because he had not provided Erlanger with pre-
suit notice. Mr. Bidwell appealed, and the Court of Appeals vacated the trial court’s
orders granting summary judgment and remanded the case for further proceedings. Dr.
Strait and Dr. Colburn subsequently filed an application for permission to appeal with
this Court. We hold that, although the physician Defendants failed to comply with
section Tennessee Code Annotated 29-26-121(a)(5), the statute provides no remedy for
noncompliance, and their noncompliance does not constitute extraordinary cause
sufficient to excuse Mr. Bidwell’s failure to provide Erlanger with pre-suit notice.
However, we additionally hold that Dr. Strait’s and Dr. Colburn’s answers sufficiently
asserted Erlanger’s comparative fault. Therefore, Mr. Bidwell was entitled to amend his
complaint to name Erlanger as a defendant pursuant to section 20-1-119, so long as he
amended his complaint and caused process to issue to Erlanger within ninety days of Dr.
Strait’s answer—the first answer alleging Erlanger’s fault. Because section 20-1-119
applied, Mr. Bidwell was not obligated to provide Erlanger with pre-suit notice under
Tennessee Code Annotated section 29-26-121(c). We conclude that, because the record
on appeal reflects that Mr. Bidwell failed to file an amended complaint and cause process
to issue, he is not entitled to amend his complaint to add Erlanger as a defendant.
Accordingly, we affirm in part and reverse in part the judgment of the Court of Appeals
on the grounds stated herein and reinstate the trial court’s orders granting the physician
Defendants’ motions for summary judgment and denying the Plaintiff’s motions to
amend.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the
Court of Appeals Affirmed in Part and Reversed in Part;
Judgment of the Trial Court Reinstated
CORNELIA A. CLARK, J., delivered the opinion of the court, in which JEFFREY S. BIVINS,
C.J., and ROGER A. PAGE, J., joined. SHARON G. LEE, J., filed an opinion concurring in
part and dissenting in part. HOLLY KIRBY, J., filed a concurring opinion.
Joshua A. Powers, Travis B. Holly, and Alexandra E. Weiss, Chattanooga, Tennessee, for
the appellant, Jeffrey Colburn, M.D.
Laura Beth Rufolo, Keith H. Grant, and Philip Aaron Wells, Chattanooga, Tennessee, for
the appellant, Timothy A. Strait, M.D.
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Jimmy W. Bilbo, Cleveland, Tennessee, for the appellee, James Bidwell, Next of Friend
and surviving spouse of Clarissa Bidwell, deceased, and on behalf of the estate of
Clarissa Bidwell.
Marty R. Phillips and Craig P. Sanders, Jackson, Tennessee, for the Amicus Curiae,
Tennessee Defense Lawyers Association.
W. Bryan Smith, Memphis, Tennessee, John Vail, Washington, D.C., and Brian G.
Brooks, Greenbrier, Arkansas, for the Amicus Curiae, Tennessee Trial Lawyers
Association.
OPINION
I. Factual and Procedural Background
James Bidwell (“the Plaintiff”) is the surviving husband of Decedent, Clarissa
Bidwell (“the Decedent”), who, at all relevant times, was a citizen of Meigs County,
Tennessee. On March 28, 2016, the Decedent was hospitalized at Starr Regional Medical
Center (“Starr Regional”) with complaints of generalized aches, nausea, blurred vision,
and right-side numbness. A computed tomography (“CT”) scan performed at Starr
Regional revealed “a nine (9) [millimeter] rounded density just lateral to the pituitary,
which was concerning for an aneurysm.” Based on these results, the Decedent was
transferred by ambulance to the emergency department at Chattanooga-Hamilton County
Hospital Authority (“Erlanger”) for a neurosurgical consultation with Dr. Timothy A.
Strait (“Dr. Strait”). There, the Decedent underwent diagnostic and interventional studies
and testing by Dr. Strait and Dr. Blaise Baxter (“Dr. Baxter”). On March 30, 2016, upon
a determination that her condition had not worsened, the Decedent was released from
Erlanger by her attending physician, Dr. Jeffrey Colburn (“Dr. Colburn”), with
instructions to “follow-up with an interventional radiologist the following week.”
On the way home from Erlanger, the Decedent began experiencing stroke-like
symptoms, including sudden onset slurred speech, left-side weakness, right-gaze
preference, and disorientation. The Plaintiff drove to the nearest hospital, Tennova
Healthcare in Cleveland,2 where the Decedent underwent a CT scan that “revealed an
acute, right frontal intracranial hemorrhage.” A helicopter ambulance then returned the
Decedent to Erlanger. The Decedent was admitted to Erlanger’s Intensive Care Unit
(“ICU”), and the next day, April 1, 2016, she underwent emergency brain surgery. She
died on April 6, 2016.
2
Tennova Healthcare was formerly known as SkyRidge Medical Center.
-3-
Tennessee Code Annotated section 29-26-121(a)(1) (2012 & Supp. 2020) requires
persons who intend to bring a health care liability action to provide pre-suit notice to
“each health care provider that will be a named defendant at least sixty (60) days before
the filing of a complaint based upon health care liability.” On March 24, 2017,3 the
Plaintiff provided pre-suit notices to Drs. Colburn and Strait (“the physician
Defendants”). The Plaintiff also provided pre-suit notices to The Neurosurgical Group of
Chattanooga, P.C. (“The Neurosurgical Group”), EmCare, Inc. (“EmCare”), and Envision
Healthcare Corporation (“Envision”).4 The Plaintiff believed that these entities employed
the physician Defendants after conducting “a targeted investigation for the purpose of
ascertaining the proper identity of all potential defendants, including [Dr.] Strait [and Dr.
Colburn] and [their] employer[s]/principal[s].” In his motions for leave to amend his
complaint, the Plaintiff asserted that, as part of the “targeted investigation,” Plaintiff’s
counsel searched online databases. The Plaintiff asserted that this search, as it related to
Dr. Strait, revealed the online physician listings for Chattanooga Neurosurgery & Spine,
which identified Dr. Strait as an employee under the “‘Our Doctors’ tab.” A business
entity search through the State of Tennessee Secretary of State’s business services
website further identified Chattanooga Neurosurgery & Spine “as an active, assumed
name for the principal corporate entity ‘The Neurosurgical Group of Chattanooga, P.C.’”
As the search pertained to Dr. Colburn, the Plaintiff asserted in his second motion
for leave to amend his complaint that his counsel was unable to locate Dr. Colburn’s
practice address on the Tennessee Department of Health, Board of Medical Examiners’
website, but that further online investigation revealed a current business address at CHI
Memorial Medical Group. The Plaintiff further asserted that, “out of an overabundance
of caution,” his counsel contacted Erlanger “to further inquire as to [the] identity of [Dr.]
Colburn’s employer.” According to the Plaintiff, counsel “was advised that [Dr.]
Colburn provided emergency physician services at [Erlanger] through [EmCare] (a
division of [Envision])[,] and that [EmCare] [w]as in the business of contracting with
hospitals to staff and manage their emergency department.” Based on this information,
Dr. Colburn “was believed to be an employee and/or agent of [EmCare], a division of
[Envision,]” and pre-suit notices were delivered to both entities. The Plaintiff did not
send pre-suit notice to Erlanger. Dr. Strait, Dr. Colburn, The Neurosurgical Group,
3
Constable Brent Runyon personally delivered pre-suit notice to Dr. Colburn on March 24, 2017.
Counsel for Mr. Bidwell mailed pre-suit notice to Dr. Strait on March 24, 2017, and it was received by
Dr. Strait, or his authorized agent, on March 27, 2017.
4
The Plaintiff further provided pre-suit notices to Dr. Baxter and Tennessee Interventional &
Imaging Associates, PLLC, who were subsequently named as Defendants in the Plaintiff’s complaint.
Those defendants are not parties to this appeal, and, because the facts pertaining to them do not impact
our decision, we do not address them in this opinion.
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EmCare, and Envision did not provide the Plaintiff notice “of any other person, entity, or
health care provider who may be a properly named defendant” pursuant to Tennessee
Code Annotated section 29-26-121(a)(5) (Supp. 2020). That provision provides:
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.
On July 24, 2017,5 the Plaintiff filed suit against Dr. Strait, Dr. Colburn, The
Neurosurgical Group, EmCare, and Envision. The Plaintiff did not sue Erlanger. As
against The Neurosurgical Group, EmCare, and Envision, the Plaintiff alleged that, “at all
times relevant to the subject matter of this Complaint, [Dr.] Strait was an actual, apparent
and/or ostensible agent and/or employee of [The Neurosurgical Group,]” that Dr. Colburn
“was an actual, apparent and/or ostensible agent and/or employee of defendants
[EmCare] and/or [Envision,]” that The Neurosurgical Group was “vicariously liable for
the negligent acts and/or omissions of [Dr.] Strait,” and that either or both EmCare and
Envision were “vicariously liable for the negligent acts and/or omissions of [Dr.]
Colburn.” The Plaintiff further alleged direct negligence against The Neurosurgical
Group, EmCare, and Envision for alleged negligent conduct related to Drs. Strait and
Colburn, including negligent hiring, training, and supervision, in addition to negligent
failure to formulate, enforce, or otherwise ensure compliance with appropriate policies
and procedures.
On August 28, 2017, Dr. Strait filed his answer. Dr. Strait admitted that he
provided medical treatment to the Decedent but denied that he was an employee or agent
of The Neurosurgical Group. Instead, Dr. Strait asserted that “at all material times, [he]
was employed by [Erlanger] and provided healthcare services to [the Decedent] in the
course and scope of his employment with [Erlanger].” Dr. Strait further averred that The
Neurosurgical Group “sold its assets to [Erlanger] and ceased conducting business” in
April 2015. Dr. Strait also asserted as follows:
This defendant reserves the right, should discovery or evidence,
including that presented at trial, indicate it appropriate, to plead the
comparative negligence of the decedent or any other person or entity, as a
5
There is no dispute that the Plaintiff’s complaint was timely filed against the physician
Defendants within the 120-day extension of the statute of limitations provided by Tennessee Code
Annotated section 29-26-121(c) (2012 & Supp. 2020).
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proximate or contributing cause of all or a portion of the alleged injuries
and damages, and to take into account such evidence in apportioning or
comparing negligence or fault, causation or damages, whether in
apportionment or mitigation. At this time, this defendant has no knowledge
of any persons except parties identified and as set forth in the plaintiff’s
Complaint to which this doctrine would apply.
On September 11, 2017, Dr. Colburn filed his answer. In his answer, Dr. Colburn
admitted that he provided medical care to the Decedent and that the Plaintiff properly
listed his current work address, but Dr. Colburn denied being an employee or agent of
EmCare or Envision at the relevant times. Unlike Dr. Strait, Dr. Colburn did not identify
his employer in his answer. Dr. Colburn also asserted the following:
To avoid waiver and pending further investigation and discovery,
Dr. Colburn raises the affirmative defense of comparative fault. Should the
evidence, as developed through the course of investigation and discovery,
or at trial, indicate that others, including but not limited to the other parties
in this matter, were guilty of negligence that caused or contributed to the
injuries and damages alleged in the Complaint, if any, then Dr. Colburn
reserves the right to amend his Answer and to show the same at trial.
EmCare and Envision also each filed an answer on September 11, 2017. They both
denied that Dr. Colburn was their employee or agent and asserted comparative fault
against the other named defendants.
On October 19, 2017, Dr. Strait moved for summary judgment. As he did in his
answer, Dr. Strait asserted that he was employed by Erlanger at all relevant times. In
addition, he contended that Erlanger was a governmental entity governed by the
Tennessee Governmental Tort Liability Act (“GTLA”), see Tenn. Code Ann.
§§ 29-20-101 – 408, which provides, in part, that
[n]o claim may be brought against an employee or judgment entered
against an employee for damages for which the immunity of the
governmental entity is removed by this chapter unless the claim is one for
health care liability brought against a health care practitioner. No claim for
health care liability may be brought against a health care practitioner or
judgment entered against a health care practitioner for damages for which
the governmental entity is liable under this chapter, unless the amount of
damages sought or judgment entered exceeds the minimum limits set out in
[section] 29-20-403 or the amount of insurance coverage actually carried by
the governmental entity, whichever is greater, and the governmental entity
is also made a party defendant to the action.
-6-
Tenn. Code Ann. § 29-20-310(b) (2012 & Supp. 2020) (emphasis added). Consequently,
Dr. Strait asserted that he was immune from suit for alleged health care liability because
Erlanger “was not made a party defendant” in accordance with Tennessee Code
Annotated section 29-20-310(b), and that, therefore, the claims against him should be
dismissed.
On November 3, 2017, the Plaintiff filed a motion for leave to amend his
complaint to “substitute[e] the originally named defendant-employer [of Dr. Strait]: ‘[The
Neurosurgical Group,]’ with the properly named defendant-employer: ‘[Erlanger]’” and
assert claims against it on this basis.6 The Plaintiff also simultaneously provided notice
of his voluntary dismissal of The Neurosurgical Group, EmCare, and Envision.
In support of his motion, the Plaintiff contended that Dr. Strait had failed to
comply with the requirements of Tennessee Code Annotated section 29-26-121(a)(5),
because “[a]t no time prior to the filing of the Complaint, did [Dr. Strait] . . . notify
counsel for [the Plaintiff] ‘of any other person, entity, or health care provider who may
be a properly named defendant’, or that [Dr. Strait] was actually employed by and/or an
agent of Erlanger.” (Citation omitted). The Plaintiff also argued that Dr. Strait “placed
comparative fault at issue . . . by alleging in his Answer to the original Complaint that an
entity not a party to the suit[, Erlanger,] caused or contributed to the injury or damage for
which [the Plaintiff] is seeking recovery.” Specifically, the Plaintiff highlighted the
portion of Dr. Strait’s answer that asserted he was employed by Erlanger and “provided
healthcare services to [the Decedent] in the course and scope of his employment with
Erlanger.” For these reasons, the Plaintiff averred that he was entitled to timely amend
his complaint to add Erlanger pursuant to Tennessee Rules of Civil Procedure 15.01 and
15.03 and Tennessee Code Annotated section 20-1-119, which allows a plaintiff to
amend his complaint within ninety days to add “a person not a party to the suit” who a
timely sued defendant alleges in an answer “caused or contributed to the injury or
damage for which the plaintiff seeks recovery.”
On November 14, 2017, Dr. Colburn filed a motion for summary judgment on the
same grounds asserted by Dr. Strait. In his affidavit in support of his motion, Dr.
Colburn stated that he was employed by Erlanger at all relevant times. On November 20,
2017, the Plaintiff filed a second motion for leave to amend seeking to further amend his
complaint to allege that Erlanger was the employer of Dr. Colburn as well as Dr. Strait
6
While the Plaintiff’s motion to amend states that the “proposed Amended Complaint is filed
herewith,” it is not included in the record on appeal. There is also no evidence in the record on appeal
that the Plaintiff “cause[d] process to be issued” as to Erlanger after filing his first motion to amend.
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and to substitute Erlanger and assert claims against it on this basis.7 In his motion, the
Plaintiff specifically highlighted the portion of Dr. Colburn’s answer in which he
admitted that the Plaintiff had “properly listed his current work address,” and the portion
of Dr. Colburn’s affidavit in support of his motion for summary judgment stating that
“[b]etween August 28, 2015 and February 16, 2017, [he] was employed by [Erlanger]
and received [his] paycheck and benefits from Erlanger.” Otherwise, the Plaintiff’s
grounds and contentions were the same as in his original motion to amend.
After a hearing, the trial court denied the Plaintiff’s motions to amend and granted
the Defendants’ motions for summary judgment. By memoranda and orders filed on
September 25 and 28, 2018, the trial court held that
under the relevant and applicable provisions of the GTLA and the HCLA,
[Erlanger] is a proper and necessary defendant to this case and its absence
as a party defendant, as is required under the [GTLA], makes Plaintiff’s
case fatally defective. Furthermore, the pre-suit notice requirement of the
HCLA and Plaintiff’s failure to conform therewith prevents the Plaintiff
from curing [Erlanger’s] absence by adding it as a party via
amendment. . . . [B]ecause Plaintiff cannot amend the complaint to add
[Erlanger] as a named defendant without violating the explicit pre-suit
requirements of the HCLA, [the trial court] denies Plaintiff’s motion for
leave to amend and grants summary judgment in favor of the [physician
Defendants].
On October 25, 2018, the Plaintiff filed a motion to amend the trial court’s findings. The
trial court denied that motion and entered an order designating its orders as final,
appealable judgments on November 12, 2018.
The Plaintiff appealed. The Court of Appeals vacated the judgment of the trial
court and remanded the case for further proceedings. Bidwell ex rel. Bidwell v. Strait,
No. E2018-02211-COA-R3-CV, 2019 WL 4464815, at *11 (Tenn. Ct. App. Sept. 18,
2019). The intermediate appellate court held, first, that Dr. Colburn and Dr. Strait failed
to comply with Tennessee Code Annotated section 29-26-121(a)(5), as neither identified
Erlanger as a known and necessary party within thirty days after receiving pre-suit notice
as required by that section; second, that the Plaintiff was entitled to the additional ninety
days to amend his complaint in order to add Erlanger as a defendant following the filing
7
As in his first motion for leave to amend his complaint, the Plaintiff states in his second motion
that his “proposed Second Amended Complaint is filed herewith.” Although the record on appeal does
not reflect that the amended complaint was separately filed with the trial court, it is included in the record
immediately following his second motion. There is also no evidence in the record on appeal that the
Plaintiff “cause[d] process to be issued” as to Erlanger after filing his second motion to amend.
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of the first answer alleging its fault pursuant to section 20-1-119; and third, that the
Plaintiff’s failure to provide Erlanger with pre-suit notice was not fatal to his proposed
amendments because section 29-26-121(c) states that the pre-suit notice requirement does
not apply to a party added after a lawsuit is filed as a result of a defendant’s allegation of
comparative fault.
We granted the physician Defendants’ application for permission to appeal.
II. Standard of Review
This case is on appeal from the trial court’s grant of the physician Defendants’
motions for summary judgment and denial of the Plaintiff’s motions for leave to amend
his complaint to add Erlanger as a defendant. Summary judgment is proper when “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04.
The parties do not dispute any material fact in this case. Rather, the issues presented are
purely questions of law, which this Court reviews de novo with no presumption of
correctness. Mann v. Alpha Tau Omega Fraternity, 380 S.W.3d 42, 46 (Tenn. 2012)
(citing Mills v. Fulmarque, Inc., 360 S.W.3d 362, 366 (Tenn. 2012)).
A trial court’s decision to grant or deny a motion to amend is reviewed under an
abuse of discretion standard. Runions v. Jackson-Madison Cnty. Gen. Hosp. Dist.,
549 S.W.3d 77, 84 (Tenn. 2018) (citing Pratcher v. Methodist Healthcare Memphis
Hosps., 407 S.W.2d 727, 741 (Tenn. 2013)). “A court abuses its discretion when it
applies an incorrect legal standard or its decision is illogical or unreasonable, is based on
a clearly erroneous assessment of the evidence, or utilizes reasoning that results in an
injustice to the complaining party.” Id.The question of whether a plaintiff has demonstrated extraordinary cause that
would excuse compliance with the pre-suit notice requirements is a mixed question of
law and fact, and our review of that determination is de novo with a presumption of
correctness applying only to the trial court’s findings of fact and not to the legal effect of
those findings. Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307-08 (Tenn. 2012).
This case also involves issues of statutory interpretation. “The construction of a
statute is a question of law, which is [likewise] reviewed de novo with no presumption of
correctness.” Moreno v. City of Clarksville, 479 S.W.3d 795, 802 (Tenn. 2015) (citing
Austin v. State, 222 S.W.3d 354, 357 (Tenn. 2007); Gleaves v. Checker Cab Transit
Corp., 15 S.W.3d 799, 802 (Tenn. 2000)). Our primary purpose when construing a
statute is to give effect to the legislative intent. Austin, 222 S.W.3d at 357. When a
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statute is unambiguous, “‘[w]e determine legislative intent from the natural and ordinary
meaning of the statutory language within the context of the entire statute without any
forced or subtle construction that would extend or limit the statute’s meaning.’” Id.(quoting State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000)); see also Myers,
382 S.W.3d at 311-12.
III. Analysis
There are two primary issues in this appeal. The first is the effect of the physician
Defendants’ failure to notify the Plaintiff, within thirty days of receiving pre-suit notice,
that Erlanger was their employer. See Tenn. Code Ann. § 29-26-121(a)(5). The second
is whether the physician Defendants sufficiently asserted comparative fault in their
answers such that the Plaintiff had ninety days to amend his complaint pursuant to
Tennessee Code Annotated section 20-1-119, and whether the Plaintiff satisfied the
statutory requirements of section 20-1-119. We begin our analysis by addressing the
effect of the physician Defendants’ failure to notify the Plaintiff of Erlanger as their
employer within thirty days of receiving pre-suit notice pursuant to Tennessee Code
Annotated 29-26-121(a)(5).
A. Tennessee Code Annotated § 29-26-121(a)(5)
As discussed above, the Plaintiff sought leave to amend his complaint to add
Erlanger as a defendant on the basis that he is entitled to amend, and was excused from
providing Erlanger with pre-suit notice, in part, pursuant to Tennessee Code Annotated
section 29-26-121(a)(5), section 29-26-121(b), and Tennessee Rules of Civil Procedure
15.01 and 15.03. Tennessee Rule of Civil Procedure 15.01 provides:
A party may amend the party’s pleadings once as a matter of course at any
time before a responsive pleading is served . . . . Otherwise a party may
amend the party’s pleadings only by written consent of the adverse party or
by leave of court; and leave shall be freely given when justice so requires.
For amendments adding defendants pursuant to [Tennessee Code
Annotated section] 20-1-119, however, written consent of the adverse party
or leave of court is not required.
(Emphasis added). “Factors the trial court should consider when deciding whether to
allow amendments include ‘[u]ndue delay in filing; lack of notice to the opposing party;
bad faith by the moving party, repeated failure to cure deficiencies by pervious
amendments, undue prejudice to the opposing party, and futility of amendment.’”
Cumulus Broad., Inc., v. Shim, 226 S.W.3d 366, 374 (Tenn. 2007) (emphasis added)
(quoting Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn. Ct. App. 1979)).
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In his motions for leave to amend in the trial court, the Plaintiff asserted that “none
of the factors . . . appl[ied] to the proposed amendment.” As is particularly relevant when
considering futility of amendment, the Plaintiff argued, in part, that the physician
Defendants’ noncompliance with Tennessee Code Annotated 29-26-121(a)(5) constituted
extraordinary cause under section 29-26-121(b), thereby excusing his failure to provide
Erlanger with pre-suit notice.8 Additionally, the Plaintiff asserted that his amended
complaint should relate back to the original filing of the complaint pursuant to Tennessee
Rule of Civil Procedure 15.03.9 Relying, in part, on this Court’s holding in Runions v.
Jackson-Madison County General Hospital District, 549 S.W.3d 77 (Tenn. 2018), the
trial court concluded, in pertinent part, that
the pre-suit notice requirement of the HCLA and [the] Plaintiff’s failure to
conform therewith prevents the Plaintiff from curing [Erlanger’s] absence
by adding it as a party via amendment. . . . [B]ecause [the] Plaintiff cannot
amend the complaint to add [Erlanger] as a named defendant without
violating the explicit pre-suit notice requirements of the HCLA, this Court
denies the Plaintiff’s motion for leave to amend . . . .
Addressing the Plaintiff’s argument related to extraordinary cause, the trial court noted
that “the extraordinary circumstances necessary to overcome the notice requirement have
been found in only a few, limited situations.” The court further noted that, while the
misinformation the Plaintiff had discovered during his pre-suit investigation into the
employer of the physician Defendants “created difficulty,” it did not qualify as
8
Although this argument was not clearly raised in his motions to amend, during the hearing on
the motions for summary judgment and motions to amend in the trial court on February 23, 2018, the
judge asked the Plaintiff’s counsel: “is . . . the extraordinary cause that they didn’t send you notice?
What’s the extraordinary cause you’re asking me to look at to excuse compliance [with the pre-suit notice
requirement]?” The Plaintiff’s counsel responded: “Number 1, we fully complied with the statute the best
that we could based on records to the world; and, secondly, they didn’t send the notice within thirty
days.” The Plaintiff has continued to assert this argument before the Court of Appeals and this Court.
9
Tennessee Rule of Civil Procedure 15.03 provides:
Whenever the claim or defense asserted in amended pleadings arose out of the conduct,
transaction, or occurrence set forth or attempted to be set forth in the original pleading,
the amendment relates back to the date of the original pleading. An amendment changing
the party or the naming of the party by or against whom a claim is asserted relates back if
the foregoing provision is satisfied and if, within the period provided by law for
commencing an action or within 120 days after commencement of the action, the party to
be brought in by amendment (1) has received such notice of the institution of the action
that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew
or should have known that, but for a mistake concerning the identity of the proper party,
the action would have been brought against the party.
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extraordinary under existing law “for purposes of excusing noncompliance with the
pre-suit notice requirement.”
1. Compliance with § 29-26-121(a)(5)
We begin our review of the trial court’s conclusion by turning to the language of
Tennessee Code Annotated section 29-26-121(a)(5). Enacted by the General Assembly
in 2015, section 29-26-121(a)(5) provides:
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.
When the statutory language is clear and unambiguous, “we accord the language
its plain meaning and ordinary usage in the context within which it appears, without a
forced interpretation.” Runions, 549 S.W.3d at 86. The physician Defendants argue that
the lack of a stated remedy or penalty for noncompliance renders the statute ambiguous.
We disagree. A statute requiring action is not ambiguous simply because it lacks a
consequence or remedy for any noncompliance. See e.g., Stevens ex rel. Stevens v.
Hickman Comm. Health Care Servs., Inc., 418 S.W.3d 547 (Tenn. 2013). Here, the
language of section 29-26-121(a)(5) is clear. It instructs that a person “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
healthcare provider who may be a properly named defendant.” Tenn. Code Ann.
§ 29-26-121(a)(5) (emphasis added).
As explained by the intermediate appellate court, the word “other” is used as an
adjective modifying “person, entity, or health care provider.” This term is not technical
and is commonly understood and defined as “being the one (as of two or more) remaining
or not included; being the one or ones distinct from that or those first mentioned; not the
same; additional.” See Merriam-Webster Dictionary, Other, (Oct. 21, 2020) merriam-
webster.com/dictionary/other (adjectival definition). We agree with the Court of Appeals
that, by modifying the word “other” with “any,” “the enacted language clarifies that the
recipients of pre-suit notice are to provide the claimant with what amounts to a complete
and total identification of all those ‘who may be a properly named defendant’ based upon
‘the reasonable knowledge and information available’ to the party that received pre-suit
notice.” Bidwell ex rel. Bidwell, 2019 WL 4464815, at *5.
- 12 -
In the case on appeal, it is undisputed that the physician Defendants failed to
provide the Plaintiff with written notice of Erlanger, their employer. Although other
circumstances may arise that require us to examine whether defendants had “any
reasonable knowledge and information available” that triggered their notice obligation
under section 29-26-121(a)(5), that question is not presented by this appeal. Here, it is
not disputed that the physician Defendants had “reasonable knowledge and information
available” that Erlanger was their employer and, therefore, that Erlanger was another
entity or health care provider who may be not just a “properly named defendant,” but a
necessary party under the GTLA. Therefore, we conclude that the physician Defendants
failed to comply with Tennessee Code Annotated section 29-26-121(a)(5).
2. Extraordinary Cause
Although section 29-26-121(a)(5) does not include a remedy for a defendant’s
failure to satisfy its notification requirement, the Plaintiff argued in the courts below, and
argues before this Court, that the physician Defendants’ failure to comply with Tennessee
Code Annotated section 29-26-121(a)(5) constitutes extraordinary cause that excuses the
Plaintiff from providing pre-suit notice to Erlanger. See Tenn. Code Ann. § 29-26-121(b)
(“The court has discretion to excuse compliance with this section only for extraordinary
cause.”). Therefore, he asserts that his motions to amend were not futile and his amended
complaint naming Erlanger as a Defendant should relate back to the date of the original
complaint.
Tennessee Code Annotated section 29-26-121 does not define “extraordinary
cause.” In Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 310-11 (Tenn. 2012), we
analyzed this language using its plain and ordinary meaning, noting:
“Extraordinary” is commonly defined as “going far beyond the ordinary
degree, measure, limit, etc.; very unusual; exceptional; remarkable.”
Webster's New World Dictionary of the American Language, 516
(1966); see also State v. Vikre, 86 N.C. App. 196, 356 S.E.2d 802, 804
(1987) (adopting dictionary definition of extraordinary cause as “going
beyond what is usual, regular, common, or customary . . . of, relating to, or
having the nature of an occurrence or risk of a kind other than what
ordinary experience or prudence would foresee”). One legal scholar,
commenting on Tennessee Code Annotated sections 29-26-121 and [-]122,
has noted that possible examples of “extraordinary cause” might include
“illness of the plaintiff’s lawyer, a death in that lawyer’s immediate family,
[or] illness or death of the plaintiff's expert in the days before the filing
became necessary.” [John A. Day, Med Mal Makeover 2009 Act Improves
on ‘08: The New New Medical Malpractice Notice and Certificate of Good
Faith Statutes, 45 Tenn. Bar J. 14, 17 (July 2009).]
- 13 -
The Plaintiff asserts that the physician Defendants’ failure to comply with
Tennessee Code Annotated section 29-26-121(a)(5) alone constitutes extraordinary
cause. However, he does not support this statement with any further discussion or
argument. Although the trial court did not directly address this argument when ruling on
whether extraordinary cause existed, it did note that, while the misinformation the
Plaintiff found during his pre-suit investigation may have caused confusion and “created
difficulty for the Plaintiff,” the facts did not give rise to extraordinary cause. We agree.
Even if we accept the Plaintiff’s assertion that its failure either to provide Erlanger
with pre-suit notice or name it as a defendant resulted from the physician Defendants’
failure to comply with their statutory notification requirement, we cannot agree that this
is enough, standing alone, to constitute extraordinary cause in this case. While this leads
to harsh results for the Plaintiff, had the General Assembly intended for noncompliance
with section 29-26-121(a)(5) to excuse a plaintiff from providing pre-suit notice, it could
have said so. See Stevens ex rel. Stevens, 418 S.W.3d at 560 (citing State v. Harkins,
811 S.W.2d 79, 82 (Tenn. 1991) (“[I]t is a rule of statutory construction which is well
recognized by our courts, that the mention of one subject in a statute means the exclusion
of other subjects that are not mentioned.”)); see e.g., Tenn. Code Ann. § 29-26-121(c)
(noting that the pre-suit notice requirements do not apply to any person or entity that is
made a party to an action as a result of a defendant’s alleging comparative fault).
Although a trial court may conclude in another case that a defendant’s failure to comply
with section 29-26-121(a)(5) constitutes extraordinary cause, we agree with the trial
court’s determination that extraordinary cause did not exist in the case on appeal.
Therefore, although we conclude that the physician Defendants failed to comply
with Tennessee Code Annotated section 29-26-121(a)(5), because the Plaintiff has not
established extraordinary cause sufficient to excuse compliance with the pre-suit notice
requirements, and in the absence of a remedy or penalty for noncompliance with section
29-26-121(a)(5), the trial court did not abuse its discretion when it denied the Plaintiff’s
motions to amend based on futility.10
For these reasons, we must turn to the Plaintiff’s second argument—that he is
entitled to amend his complaint, and was excused from providing Erlanger with pre-suit
notice, pursuant to Tennessee Code Annotated section 20-1-119 and section 29-26-
121(c).
10
Because we reach this conclusion, we need not address the Plaintiff’s arguments pertaining to
Tennessee Rule of Civil Procedure 15.03.
- 14 -
B. Tennessee Code Annotated § 20-1-119
1. Alleging Comparative Fault Under § 20-1-119
This Court adopted the doctrine of comparative fault in McIntyre v. Balentine,
833 S.W.2d 52, 56 (Tenn. 1992), for a more just apportionment of fault between
plaintiffs and defendants. Austin, 222 S.W.3d at 357. In keeping with this intent, we
stated in McIntyre that
fairness and efficiency require that defendants called upon to answer
allegations [of] negligence be permitted to allege, as an affirmative defense,
that a nonparty caused or contributed to the injury or damage for which
recovery is sought. In cases where such a defense is raised, the trial court
shall instruct the jury to assign this nonparty the percentage of the total
negligence for which he is responsible. However, in order for a plaintiff to
recover a judgment against such additional person, the plaintiff must have
made a timely amendment to his complaint and caused process to be served
on such additional person. Thereafter, the additional party will be required
to answer the amended complaint.
833 S.W.2d at 58. In other words, this Court recognized that
allowing a defendant to shift some or all of the fault to a nonparty would
result in a “predicament for some plaintiffs because a defendant could plead
the fault of a nonparty after the statute of limitations had run against that
nonparty, thus preventing the plaintiff from adding the nonparty to the
suit.”
Mann, 380 S.W.3d at 47 (quoting Browder v. Morris, 975 S.W.2d 308, 310 (Tenn.
1998)).
Shortly after our decision in McIntyre, the General Assembly enacted Tennessee
Code Annotated section 20-1-119, which addresses the predicament that McIntyre
hypothesized. This statute provides in pertinent part:
(a) In civil actions where comparative fault is or becomes an issue, if a
defendant named in an original complaint initiating a suit filed within the
applicable statute of limitations . . . alleges in an answer . . . to the original
or amended complaint that a person not a party to the suit caused or
contributed to the injury or damage for which the plaintiff seeks recovery,
and if the plaintiff’s cause or causes of action against that person would be
barred by any applicable statute of limitations but for the operation of this
- 15 -
section, the plaintiff may, within ninety (90) days of the filing of the first
answer . . . alleging that person’s fault, either:
(1) Amend the complaint to add the person as a defendant
pursuant to Tenn. R. Civ. P. 15 and cause process to be issued
for that person; or
(2) Institute a separate action against that person by filing a
summons and complaint.
....
(g) Notwithstanding any law to the contrary, this section applies to suits
involving governmental entities.11
Section 20-1-119 provides a ninety-day “grace period” for a plaintiff to amend a
complaint to add as a defendant any unnamed person alleged by a defendant to have
caused or contributed to the plaintiff’s injury, even if the statute of limitations applicable
to the plaintiff’s cause of action has expired. Tenn. Code Ann. § 20-1-119; see also
Owens v. Truckstops of Am., 915 S.W.2d 420, 427 (Tenn. 1996); Mills, 360 S.W.3d at
370. In other words, it “provides ‘an injured party with a fair opportunity to bring before
the court all persons who caused or contributed to the party’s injur[y].’” Austin,
222 S.W.3d 357 (citing Townes v. Sunbeam Oster Co., 50 S.W.3d 446, 451 (Tenn. Ct.
App. 2001), cited with approval in McNabb v. Highways, Inc., 98 S.W.3d 649, 654
(Tenn. 2003)); see also Mann, 380 S.W.3d at 47 (explaining that Tennessee Code
Annotated section 20-1-119 “preserves a plaintiff’s prerogative to select defendants in the
same manner as before”).
Given this purpose, Tennessee courts have consistently “rejected arguments that
narrowly construe [section 20-1-119] and have applied the statute in a manner consistent
with the concepts of fairness and efficiency that underlie the comparative fault system.”
Austin, 222 S.W.3d at 357 (citing Browder, 975 S.W.2d 312); see also Mann,
380 S.W.3d at 50 (“We have repeatedly held that section 20-1-119 must be construed
liberally to effectuate its remedial purpose.” (emphasis added)); Becker v. Ford Motor
Co., 431 S.W.3d 588, 592 (Tenn. 2014) (“This Court has stated repeatedly that [the
statute] should not be construed narrowly because it is an integral part of a comparative
fault system that is built on the concepts of fairness and efficiency.” (emphasis added));
Moreno, 479 S.W.3d at 806 (citing Becker, 431 S.W.3d at 592); Townes, 50 S.W.3d at
451, 453-54 (“In light of the statute’s purpose . . . we have determined that it is remedial
and should be construed liberally . . . [and] to enable plaintiffs to have their claims
11
It is undisputed that this provision applies to Erlanger. See Chattanooga-Hamilton Hosp.
Auth. v. Bradley Cnty., 249 S.W.3d 361, 363 n.1 (Tenn. 2008) (“Erlanger is a governmental hospital
authority created by Private Act in 1976.”).
- 16 -
adjudicated on the merits.” (emphasis added)); Romine v. Fernandez, 124 S.W.3d 599,
604 (Tenn. Ct. App. 2003) (“[T]his statute is not to be construed narrowly, but should be
construed liberally.” (emphasis added)), perm. app. denied, (Tenn. Dec. 22, 2003);
Swearengen v. DMC-Memphis, Inc., 488 S.W.3d 774, 780 (Tenn. Ct. App. 2015) (“[T]he
statute is to be construed to afford an injured party a ‘fair opportunity to bring before the
court all persons who caused or contributed to the party’s injuries.’” (quoting Townes,
50 S.W.3d at 451)), perm. app. denied, (Tenn. Aug. 13, 2015).
This liberal construction of the statute applies when a court is determining whether
a defendant has sufficiently “allege[d] in an answer . . . to the original or amended
complaint that a person not a party to the suit caused or contributed to the injury or
damage for which the plaintiff seeks recovery.” Tenn. Code Ann. § 20-1-119(a).
Liberally construing this portion of the statute is also consistent with the liberal pleading
standards of the Tennessee Rules of Civil Procedure. Austin, 222 S.W.3d at 358. Under
Rule of Civil Procedure 8.03, a defendant may successfully raise comparative fault by
“set[ting] forth affirmatively facts in short and plain terms relied upon to constitute . . .
comparative fault (including the identity or description of any other alleged tortfeasors).”
“A defendant is not required to allege the fault of the nonparty explicitly or use the words
‘comparative fault.’” Id. Tennessee courts have applied this liberal standard in several
prior decisions.
For example, in Romine v. Fernandez, 124 S.W.3d 599, 600 (Tenn. Ct. App.
2003), cited with approval in Austin, 222 S.W.3d at 357, Mr. Romine and his wife filed a
medical malpractice suit against Dr. Morris, who was Mr. Romine’s physician, The
Office of Bone & Joint Surgery, P.C., and Methodist South relating to contraindicated
prescription medication administered to Mr. Romine after knee surgery. In their answer,
Dr. Morris and the Office of Bone & Joint Surgery acknowledged that Mr. Romine was
administered the medication, “but not at Dr. Morris’ order.” Id. at 601. Dr. Morris
denied that he was guilty of any negligent conduct that resulted in Mr. Romine’s injury.
Id. He further asserted:
Dr. Morris has no knowledge of any act of medical negligence committed
by any other defendant or third party in the care and treatment of the
plaintiff. However, in the event that the plaintiff’s allegations of
negligence on the part of co-defendants are true, and if the plaintiffs are
successful in presenting a factual basis for those allegations, then in that
instance Dr. Morris invokes the doctrine of comparative fault and says that
under no circumstance would he be liable for more than a proportionate
share of the total fault.
Id. However, Dr. Morris did not name or identify any party to which the doctrine of
comparative fault would apply.
- 17 -
Nevertheless, pointing to the statements contained in Dr. Morris’ answer, the
plaintiffs filed a motion to amend their complaint to add an anesthesiologist and a
certified registered nurse anesthetist as defendants pursuant to Tennessee Code Annotated
section 20-1-119. Id. Dr. Morris responded, arguing that he “did not invoke ‘the
doctrine of comparative fault against unnamed third parties.’” Id. The Romines filed a
supplemental answer to support their motion to amend and alleged “that they ‘could not
have been aware of who ordered the [medication] until Dr. Morris indicated in his answer
that it was not he who did so.’” Id.
The Court of Appeals held that “the statements contained in Dr. Morris’ answer
were sufficient to put the Romines on notice that someone other than Dr. Morris
administered the [medication].” Id. at 604. The intermediate appellate court further
reasoned that
[a]lthough Dr. Morris did not specifically state the names of [the previously
unnamed defendants], Dr. Morris’ answer provided “reasonable notice of a
third party claim and, coupled with the available . . . discovery tools, the
plaintiff had more than adequate opportunity and time to discover the third
party’s identity” and to amend their complaint to add [the unnamed
defendants] within the ninety (90) days following the filing of Dr. Morris’
answer.
Id. at 604-05 (quoting Soper v. Wal-Mart Stores, Inc., 923 F. Supp 1032, 1038 (M.D.
Tenn. 1996)). Lastly, the court emphasized that whether the plaintiffs “knew or should
have known” of the unnamed defendants “and their status as potential defendants [was]
irrelevant to the application of [section 20-1-119].” Id. at 605 (citing Townes, 50 S.W.3d
at 452-53).
In Austin v. State, 222 S.W.3d 354, 355 (Tenn. 2007), this Court directly
addressed the issue of whether Tennessee Code Annotated section 20-1-119 provides a
plaintiff with ninety days to amend his complaint “when a [named] defendant does not
explicitly allege the fault of a nonparty” in his answer. In Austin, the plaintiffs were
injured in a car accident after they drove through a stop sign without stopping. Id. at
355-56. The plaintiffs filed a complaint against the county alleging that their injuries
were the result of its negligence. Id. at 356. In its answer, the county alleged that
the traffic sign in question was not placed there by the [county]; that it is in
the right of way of the State of Tennessee; that it is under the control of the
State of Tennessee; that [the county] has no control over said stop sign, its
placement, maintenance, etc. and that it cannot be held liable for the stop
sign regardless of its condition.
- 18 -
Id.As a result of these allegations, the plaintiffs filed a complaint with the Tennessee
Claims Commission, asserting the same negligence claims against the State as they made
against the county. Id. The State filed a motion for summary judgment, arguing that the
plaintiffs’ complaint against it was filed after the one-year statute of limitations and,
therefore, the plaintiffs’ claims against it were barred. Id. The plaintiffs responded,
asserting that the county had alleged the State’s comparative fault in its answer, and,
therefore, Tennessee Code Annotated section 20-1-119 provided the plaintiffs with ninety
days to file suit against the State. Id.After reviewing the history and purpose of the statute, we held that a plaintiff will
not be denied the benefit of section 20-1-119 simply because the defendant failed to
assert comparative fault in a formulaic manner. Austin, 222 S.W.3d at 357-58 (“[A]
plaintiff should not be denied an opportunity to recover against [a] potential tortfeasor
simply because a defendant’s answer did not follow a precise legal formula.” (citing
Romine, 124 S.W.3d at 604-05) (“holding that a defendant who gave plaintiff sufficient
notice of a nonparty tortfeasor had raised the defense of comparative fault even though he
did not explicitly allege the fault of the nonparties”)). We specified that a defendant is
“not required to allege the fault of the nonparty explicitly or use the words ‘comparative
fault.’” Id. at 358. Instead, a defendant’s answer need only give a plaintiff “notice of the
identity of a potential nonparty tortfeasor and allege[] facts that reasonably support a
conclusion that the nonparty caused or contributed to the plaintiff’s injury.” Id. This
Court also determined it is “irrelevant whether a defendant alleges that the nonparty is
totally or partially responsible for the plaintiff’s injury.” Id. at 359. For these reasons,
this Court concluded that the county’s answer identified the State and alleged facts that
reasonably supported a conclusion that it was at fault for the plaintiffs’ injuries. Id.
Therefore, the plaintiffs’ complaint against the State was proper. Id.
Additionally, and relevant to this case, in Browder v. Morris, 975 S.W.2d 308, 309
(Tenn. 1998), this Court granted review to determine whether Tennessee Code Annotated
section 20-1-119 applies when a defendant raises the comparative fault of vicariously
liable nonparties. Noting that section 20-1-119 “was enacted in response to this Court’s
adoption of comparative fault, and that the concepts of fairness and efficiency form the
basis of such a system,” and that “[i]t is neither fair nor efficient in a comparative fault
scheme to permit a defendant to identify a financially or legally responsible nonparty
after the statute of limitations has run against that nonparty, yet deny the plaintiff an
opportunity to join them as a defendant,” we answered that question affirmatively. Id. at
312. Therefore, when, in an answer or amended answer, a named defendant raises the
issue of the comparative fault of a nonparty who may be either directly or vicariously
- 19 -
liable, a plaintiff is entitled to amend the complaint according to the ninety-day grace
period of section 20-1-119.
Based on the foregoing authorities, the physician Defendants’ arguments that their
answers did not trigger Tennessee Code Annotated section 20-1-119 are without merit.
In his complaint, the Plaintiff asserted claims of both direct and vicarious liability against
The Neurosurgical Group, EmCare, and Envision—the entities which he believed
employed the physician Defendants. In his answer filed on August 28, 2017, Dr. Strait
clearly stated that “at all material times, [he] was employed by [Erlanger] and provided
healthcare services to [the Decedent] in the course and scope of his employment with
[Erlanger].” Furthermore, he stated that The Neurosurgical Group “sold its assets to
[Erlanger] and ceased conducting business” in April 2015. Dr. Strait also denied he “was
negligent in the care and treatment he provided to [the Decedent] or that he was a direct
or proximate cause of any alleged injuries and death suffered by [the Decedent].” Lastly,
Dr. Strait provided:
This defendant reserves the right, should discovery or evidence,
including that presented at trial, indicate it appropriate, to plead the
comparative negligence of the decedent or any other person or entity, as a
proximate or contributing cause of all or a portion of the alleged injuries
and damages, and to take into account such evidence in apportioning or
comparing negligence or fault, causation or damages, whether in
apportionment or mitigation. At this time, this defendant has no knowledge
of any persons except parties identified and as set forth in the plaintiff’s
Complaint to which this doctrine would apply.
(Emphasis added). All of these statements make it clear that Dr. Strait sufficiently
asserted comparative fault, triggering Tennessee Code Annotated section 20-1-119’s
savings provision. As noted, the Plaintiff alleged claims of direct and vicarious liability
against the entities believed to be the physician defendants’ employers. By stating that
The Neurosurgical Group was not his employer, that The Neurosurgical Group ceased
doing business in 2015, that he was not negligent in his care of the Decedent, and that he
was employed by Erlanger at all material times and provided care to the Decedent in the
course and scope of his employment with Erlanger, Dr. Strait, much like the county in
Austin, clearly identified Erlanger as a potential nonparty tortfeasor and “allege[d] facts
that reasonably support a conclusion that [Erlanger] caused or contributed to the
plaintiff’s injury.” See Austin, 222 S.W.3d at 358; Browder, 975 S.W.2d at 311-12.
Similarly, Dr. Colburn admitted in his answer, filed on September 11, 2017, to
providing care to the Decedent at Erlanger “on the dates reflected in the medical
records.” He denied that he was an employee or agent of EmCare or Envision, but,
- 20 -
unlike Dr. Strait, did not expressly name his employer. Yet, Dr. Colburn also asserted in
his answer:
To avoid waiver and pending further investigation and discovery, Dr.
Colburn raises the affirmative defense of comparative fault. Should the
evidence, as developed through the course of investigation and discovery,
or at trial, indicate that others, including but not limited to the other parties
in this matter, were guilty of negligence that caused or contributed to the
injuries and damages alleged in the Complaint, if any, then Dr. Colburn
reserves the right to amend his Answer and to show the same at trial.
(Emphasis added). Although Dr. Colburn did not explicitly identify Erlanger, these
statements were sufficient to put the Plaintiff on notice that an entity other than EmCare
and/or Envision was Dr. Colburn’s employer. Like the defendant’s answer in Romine,
Dr. Colburn’s answer provided “reasonable notice of a third party claim and, coupled
with the available . . . discovery tools, the plaintiff had more than adequate opportunity
and time to discover the third party’s identity” and to amend his complaint to add
Erlanger as a defendant within the ninety-day period Tennessee Code Annotated section
20-1-119 provides.12 Romine, 124 S.W.3d at 605.
For all of these reasons, we hold that Dr. Strait’s and Dr. Colburn’s answers
triggered the application of Tennessee Code Annotated section 20-1-119. To hold
otherwise would undermine the remedial purpose that section 20-1-119 was enacted to
serve and frustrate the concepts of fairness and efficiency that form the basis of our
comparative fault jurisprudence and section 20-1-119. See Browder, 975 S.W.2d at 311.
2. Statutory and Procedural Requirements
As such, the Plaintiff had ninety days from the filing of “the first answer . . .
alleging [Erlanger’s] fault” to either “amend [his] complaint to add [Erlanger] as a
defendant pursuant to [Tennessee Rule of Civil Procedure] 15 and cause process to be
issued for [Erlanger]” or institute a separate legal action against Erlanger by filing a
summons and complaint. See Tenn. Code Ann. § 20-1-119(a)(1)-(2). Here, the Plaintiff
filed motions to amend his complaint with the trial court rather than simply filing an
amended complaint or initiating a separate legal action against Erlanger. This raises the
12
We base this conclusion solely upon the statements contained in Dr. Colburn’s answer. We do
not consider statements contained in Dr. Colburn’s affidavit in support of his motion for summary
judgment that “[b]etween August 28, 2015 and February 16, 2017, [he] was employed by [Erlanger] and
received [his] paycheck and benefits from Erlanger.” See Moreno, 479 S.W.3d at 808 (acknowledging
that letters and discovery responses are not “answers” and, therefore, statements contained therein raising
comparative fault are not sufficient to trigger Tennessee Code Annotated section 20-1-119).
- 21 -
question of whether the Plaintiff timely and properly complied with the statutory
requirements set forth in section 20-1-119, as well as Tennessee Rule of Civil Procedure
15.01.
Prior to 2007, Rule 15.01 stated, in pertinent part, that “[a] party may amend the
party’s pleadings as a matter of course at any time before a responsive pleading is served
. . . . Otherwise, a party may amend the party’s pleadings only by written consent of the
adverse party or by leave of court; and leave shall be freely given when justice so
requires.” Tenn. R. Civ. P. 15.01 (2006) (emphasis added).
Reflecting both the language of section 20-1-119 and of Rule 15.01, this Court
stated in Jones v. Professional Motorcycle Escort Service, LLC., 193 S.W.3d 564, 570
(Tenn. 2006), that “[s]uccessful amendments under section 20-1-119 require four discrete
actions within ninety (90) days: (1) the filing and (2) granting of a motion to amend,
(3) the filing of an amended complaint, and (4) the issuance of process.” In Jones, the
plaintiff completed these four steps within the statutory ninety-day period but did so out
of order—filing her amended complaint before filing her motion to amend and obtaining
a court order granting her motion to amend. Id. at 566. Recognizing that the plaintiff had
completed all of the required steps and that “[t]he Tennessee Rules of Civil Procedure are
intended ‘to [e]nsure that cases and controversies be determined upon their merits and not
upon legal technicalities or procedural niceties,’” id. at 573 (quoting Karash v. Pigott,
530 S.W.2d 775, 777 (Tenn. 1975)), this Court held that the plaintiff substantially
complied with the requirements in Tennessee Code Annotated section 20-1-119 and Rule
15.01 of the Tennessee Rules of Civil Procedure and that her delay in filing her motion to
amend was not fatal, id.After this Court’s holding in Jones, Tennessee Rule of Civil Procedure 15.01 was
amended. As stated previously, the Rule now provides:
A party may amend the party’s pleadings once as a matter of course at any
time before a responsive pleading is served . . . . Otherwise a party may
amend the party’s pleadings only by written consent of the adverse party or
by leave of court; and leave shall be freely given when justice so requires.
For amendments adding defendants pursuant to [Tennessee Code
Annotated section] 20-1-119, however, written consent of the adverse party
or leave of court is not required.
Tenn. R. Civ. P. 15.01 (2008) (emphasis added). The Advisory Commission Comment to
the 2007 Amendment explains that “[t]he need for the new third sentence . . . was
highlighted by Jones . . . . Because [section] 20-1-119 allows potential comparative
tortfeasors pleaded in the answer to be added to the complaint, there is no reason to
trouble the trial court with permission to amend.” Thus, the current version of Rule 15.01
- 22 -
dispenses with two of the requirements outlined in Jones: (1) the filing of a motion to
amend and (2) an order granting the motion to amend. Under the current version of Rule
15.01 and the holding in Jones, a plaintiff relying on section 20-1-119 must satisfy two
requirements within ninety days: (1) file an amended complaint and (2) cause process to
be issued to the party named in the amended complaint.
In the case on appeal, Dr. Strait filed his answer prior to Dr. Colburn on
August 28, 2017. The Plaintiff filed two motions for leave to amend—the first on
November 3, 2017 and the second on November 20, 2017. Both motions were filed
within the ninety-day period provided by section 20-1-119. However, while the record
on appeal reflects that the Plaintiff attached his second amended complaint to his second
motion for leave to amend,13 he failed to actually amend his complaint within ninety days
of Dr. Strait’s answer. Had the Plaintiff simply filed an amended complaint naming
Erlanger as a defendant pursuant to section 20-1-119, as Rule of Civil Procedure 15.01
permits, and caused process to issue to Erlanger within ninety days of Dr. Strait’s answer,
he would have properly and timely satisfied the statutory requirements of section
20-1-119.14 However, he did not do so, and his motions to amend “simply fail[] to fulfill
the unambiguous requirements of the statute.” Ward v. AMI SUB (SFH), Inc., 149
S.W.3d 35, 39 (Tenn. Ct. App. 2004).15
13
Although his first motion to amend recited that his amended complaint was attached, it is not
included in the record on appeal.
14
As discussed by the intermediate appellate court, had the Plaintiff timely and properly
complied with the statutory requirements of Tennessee Code Annotated section 20-1-119, his failure to
provide Erlanger with pre-suit notice would not have precluded him from pursuing his cause of action
against Erlanger. See Tenn. Code Ann. § 29-26-121(c) (“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 alleging
comparative fault.”).
15
We recognize that this is a harsh result, and we take this opportunity to urge litigants adding a
party pursuant to section 20-1-119 to timely file an amended complaint and cause process to issue as
opposed to filing a motion to amend alone. To the extent a litigant is also seeking to amend a complaint
on grounds separate from Tennessee Code Annotated section 20-1-119, our holding does not alter the
procedure under Rule 15.01 requiring the litigant to receive leave of court or written consent from the
adverse party. Thus, in cases like this one, the litigant may need to pursue alternative paths of separately
filing an amended complaint naming the comparative tortfeasor and causing process to issue pursuant to
section 20-1-119 and Rule 15.01 and also filing a motion to amend requesting leave of court on any
additional grounds.
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IV. Conclusion
For these reasons, we affirm in part, and reverse in part, the Court of Appeals on
the separate grounds stated herein and reinstate the trial court’s orders granting the
physician Defendants’ motions for summary judgment and denying the Plaintiff’s
motions to amend. Costs of this appeal are taxed to Mr. Bidwell, for which execution
may issue if necessary.
_________________________________
CORNELIA A. CLARK, JUSTICE
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