Clarissa Bidwell, By Next Friend and Husband, James Bidwell v. Timothy A. Strait, M.D. ( 2019 )

09/18/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 22, 2019 Session
CLARISSA BIDWELL, DECEASED, BY NEXT FRIEND AND HUSBAND, JAMES
BIDWELL, ET AL. V. TIMOTHY A. STRAIT, M.D., ET AL.
Appeal from the Circuit Court for Hamilton County
No. 17-C-832 Kyle E. Hedrick, Judge
___________________________________
No. E2018-02211-COA-R3-CV
___________________________________
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.
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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.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Vacated; Case Remanded
CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.
Jimmy W. Bilbo and Daniel W. Clanton, Cleveland, Tennessee, for the appellant,
Clarissa Bidwell, deceased, by next friend and husband, James Bidwell, and James
Bidwell, individually, and as personal representative of the Estate of Clarissa Bidwell,
deceased.
Joshua A. Powers and Alexandra E. Weiss, Chattanooga, Tennessee, for the appellee,
Jeffrey Colburn, M.D.
Laura Beth Rufolo, Keith H. Grant, and P. Aaron Wells, Chattanooga, Tennessee, for the
appellee Timothy A. Strait, M.D.
OPINION
I.
On March 28, 2016, Clarissa Bidwell was hospitalized at Starr Regional Medical
Center for various cranial ailments. A computed tomography (CT) scan revealed a nine
millimeter rounded density just lateral to her pituitary; this was concerning for an
aneurysm and she was transferred by ambulance to the emergency department at Erlanger
Medical Center for a neurosurgical consultation. A neurosurgical consultation was
performed by Timothy A. Strait, M.D. A computed tomography angiography of Mrs.
Bidwell’s head and neck revealed a medially directed aneurysm. On March 29, 2016, a
cerebral angiogram was performed by Blaise Baxter, M.D., an interventional radiologist.
On March 30, 2016, after testing and overnight evaluation, Mrs. Bidwell was ultimately
released by Jeffrey Colburn, M.D., with the consent of Dr. Strait and Dr. Baxter. On the
way home from Erlanger, she experienced stroke-like symptoms; her husband
immediately took her back to the hospital where a CT scan revealed that Mrs. Bidwell
suffered an acute right frontal intracranial hemorrhage. She was returned to Erlanger by
helicopter ambulance.
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On April 1, 2016, Mrs. Bidwell underwent an emergency craniotomy with
evacuation of intracranial hematoma. On April 4, 2016, she was transitioned to comfort
care. On April 6, 2016, Mrs. Bidwell died.
Plaintiff alleges that defendants failed to adequately and timely treat Mrs.
Bidwell’s condition and negligently discharged her from the hospital. In addition,
plaintiff alleges that defendants’ negligence fell below the applicable standard of care,
and Mrs. Bidwell’s injuries and death would not have occurred absent the defendants’
negligence.
On March 24, 2017, pursuant to Tenn. Code Ann. § 29-26-121, plaintiff provided
pre-suit notice of his intent to bring a health care liability action against each health care
provider that was named as a defendant in the complaint. Plaintiff delivered statutorily
compliant pre-suit notice to Dr. Strait at Neurosurgical Group of Chattanooga, which was
the address listed for him on the Department of Health’s website. Plaintiff believed this
was Dr. Strait’s correct employer; however, his practice had been acquired by
Chattanooga-Hamilton County Hospital Authority dba Erlanger Health System. Erlanger
was Dr. Strait’s actual employer during the events comprising plaintiff’s claim. Plaintiff
did not provide pre-suit notice to Erlanger, nor name it as a defendant. In addition,
plaintiff sent pre-suit notice to EmCare, Inc. and/or Envision Healthcare Corporation
believing that Dr. Jeffrey Colburn was an agent or employee of these entities. This was
inaccurate; he also was an employee of Erlanger.
As will prove central to our discussion, Chattanooga-Hamilton County Hospital
Authority, more commonly known as Erlanger, is a governmental hospital authority
created by Private Act in 1976. See Chattanooga-Hamilton County Hosp. Authority v.
Bradley County, 249 S.W.3d 361 (Tenn. 2008). Because the Hospital Authority, as
owner of the Erlanger Health System and employer of Dr. Strait and Dr. Colburn, is a
governmental entity, the lawsuit before this Court is governed in part by the Tennessee
Governmental Tort Liability Act (GTLA), which states that:
No 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 § 29-
20-403 or the amount of insurance coverage actually carried
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by the governmental entity, whichever is greater, and the
governmental entity is also made a party defendant to the
action.
Tenn. Code Ann. § 29-20-310(b). Pursuant to the GTLA, in order to maintain its suit
against Dr. Colburn and Dr. Strait, plaintiff must have also sued Erlanger. As stated infra,
despite the statutory mandate, plaintiff failed to serve pre-suit notice to Erlanger, and did
not name it in his complaint.1
Defendants Dr. Colburn and Dr. Strait failed to provide plaintiff with “written
notice” of “any other person, entity, or health care provider who may be a properly
named defendant,” within thirty days of receiving pre-suit notice, as required by Tenn.
Code Ann. § 29-26-121(a)(5).2 Significantly, defendants Dr. Colburn and Dr. Strait did
not notify plaintiff that Erlanger was their actual employer.
Following the filing of plaintiff’s complaint on July 24, 2017, Dr. Baxter and
Tennessee Interventional & Imaging Associates, PLLC, Dr. Colburn, and Dr. Strait each
filed an answer. On August 28, 2017, Dr. Strait filed his answer. On August 28, 2017, Dr.
Baxter and Tennessee Interventional & Imaging Associates, PLLC filed their answer. On
September 11, 2017, Dr. Colburn filed his answer.
In their respective answers, Dr. Colburn, Dr. Baxter, and Dr. Strait raised the
affirmative defense of comparative fault – more on this later. Additionally, Dr. Colburn
and Dr. Strait identified Erlanger as the location of the events underlying the present suit
and the location from which plaintiff was discharged prior to her death, which are central
components of plaintiff’s health care liability action. In their answer, for the first time,
Dr. Strait and Dr. Colburn identified nonparty Erlanger as their actual employer during
the timeframe relevant to plaintiff’s complaint. Dr. Strait and Dr. Colburn both denied
their individual liability.
On October 19, 2017, Dr. Strait filed a motion for summary judgment. As stated
previously in this opinion, Tenn. Code Ann. § 29-20-310(b) allows a physician employed
by a governmental entity to be personally liable only when the governmental entity is
also a party defendant. Dr. Strait argued that “[d]uring the time I provided care and
treatment to Clarissa Bidwell beginning on March 28, 2016, I was an employee of
Erlanger Medical Center.” He argued that
As Dr. Strait is an employee of Erlanger Medical Center, any
medical malpractice lawsuit brought against him, as a
1
On March 29, 2019, this Court denied Erlanger’s motion “seeking leave to appear and file a
brief as an amicus curiae.”
2
Effective April 24, 2015, the legislature amended Tenn. Code Ann. § 29-26-121 to add section
121(a)(5).
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governmental employee, must also be brought pursuant to and
in strict compliance with the Tennessee Governmental Tort
Liability Act.
He argued that, “without Erlanger Medical Center as a party defendant, no judgment can
be rendered against Dr. Strait.” He requested dismissal.
On November 3, 2017, in response to Dr. Strait’s motion for summary judgment,
plaintiff filed a motion for leave to amend his complaint. Plaintiff argued that defendant
failed to adhere to Tenn. Code Ann. § 29-26-121(a)(5), because he failed to notify
plaintiff that Dr. Strait was actually employed by and/or an agent of Erlanger. In addition,
plaintiff argued that Dr. Strait had placed comparative fault at issue by alleging in his
answer that an entity not a party to the suit caused or contributed to the injury or damage
for which plaintiff was seeking recovery. Plaintiff argued that, pursuant to Tenn. Code
Ann. § 20-1-119 and Tenn. R. Civ. P. 15.01, and so that the proper parties are before the
court, plaintiff should be permitted to amend his complaint to add Erlanger and cure the
alleged error. He argued that, pursuant to Tenn. Code Ann. § 20-1-119, his motion to
amend was timely, because it was submitted within the ninety day extension of the statute
of limitations granted by § 20-1-119.
On November 14, 2017, Dr. Colburn also filed a motion for summary judgment.
Therein, similar to Dr. Strait, he stated that he was employed by “Chattanooga-Hamilton
County Hospital Authority [dba] Erlanger Health System…during the time that [he]
provided care and treatment to Clarissa Bidwell related to this action.” He also argued
that Erlanger is a governmental hospital entity governed by the Tennessee Governmental
Tort Liability Act, and that because Erlanger, a governmental entity and employer of Dr.
Colburn, was not made a party, then no judgment could be rendered against him. He
requested dismissal.
In response, on November 20, 2017, plaintiff filed his second motion for leave to
amend his complaint as to Dr. Colburn. He reiterated the same arguments made in his
first motion to amend.
On February 23, 2018, the trial court heard oral argument on the motions for
summary judgment and on plaintiff’s motions to amend. It took the matter under
advisement. On September 25, 2018, it entered a separate memorandum and order for Dr.
Colburn and Dr. Strait granting their motions for summary judgment. The trial court held
in both that
under the relevant and applicable provisions of the GTLA and
the HCLA, the Hospital Authority is a proper and necessary
defendant to this case and its absence as a party defendant, as
is required under the Governmental Tort Liability Act, makes
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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 the
Hospital Authority’s absence by adding it as a party via
amendment. Finally, Tennessee jurisprudence shows that the
relation back doctrine under Rule 15.03 is altogether
inapplicable to HCLA pre-suit notices…because Plaintiff
cannot amend the complaint to add the Hospital Authority as
a named defendant without violating the explicit pre-suit
requirements of the HCLA…
The trial court denied plaintiff’s motion for leave to amend. Plaintiff filed a motion to
alter or amend the judgment, to make additional findings of fact, or for a new trial. The
plaintiff’s motions were denied. Plaintiff appeals.
II.
On appeal, we consider whether the trial court erred by denying plaintiff’s motions
to amend and instead granting Dr. Colburn and Dr. Strait’s motions for summary
judgment.
III.
A trial court’s decision to grant a motion for summary judgment presents a
question of law. Our review is therefore de novo with no presumption of correctness
afforded to the trial court’s determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.
1997).
IV.
A.
The trial court held that plaintiff’s attempt to amend his complaint in order to add
the Hospital Authority (dba Erlanger) was futile, because plaintiff failed to provide
Erlanger pre-suit notice prior to filing the complaint:
In order to have validly named the Hospital Authority as a
party defendant, Plaintiff had to have delivered to the
Hospital Authority a compliant pre-suit notice before filing a
complaint and before the passing of the applicable statute of
limitations. It is undisputed that Plaintiff failed to do either.
As was decided in Shockley and re-affirmed in Runions, the
omission of the pre-suit notice cannot be cured via
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amendment under Rule 15.03. Because the pre-suit notice
cannot be retroactively amended to add the Hospital
Authority, Plaintiffs motion to amend the complaint is futile.
As can be seen, in reaching its holding, the trial court considered the Supreme
Court’s recent decision, in Runions v. Jackson-Madison Cty. Gen. Hosp. Dist., 549
S.W.3d 77, 85–86 (Tenn. 2018) (citations omitted). In Runions, the plaintiff and her
infant daughter had been treated at the defendant hospital. The infant daughter died due
to the alleged medical negligence of several health care providers. Plaintiff sent pre-suit
notices to several entities, all of whom had the same registered agent. Defendants filed
for summary judgment, because plaintiff failed to give pre-suit notice to, and ultimately
add to the complaint, Jackson-Madison County General Hospital, which was a necessary
defendant. Plaintiff argued that they intended to file suit against the proper entity, but got
the name wrong, and sought to substitute a health care provider as a defendant after the
expiration of the statute of limitations. Id. Despite proffered evidence that Jackson-
Madison was put on constructive notice of the lawsuit, because it’s registered agent was
identical to that of several already-named defendants, the Supreme Court held that such
constructive notice was insufficient to satisfy the requirements of Section 121(a)(1). Id.
The Runions case followed another Supreme Court decision, in Shockley v.
Mental Health Coop., Inc., 429 S.W.3d 582 (Tenn. Ct. App. 2013), that reached a
similar conclusion regarding the addition of a nonparty to a health care liability action. In
Shockley, the plaintiff named a fundraising organization, rather than the corporate body
that managed the facility and provided care to the patient, as a defendant. See Shockley v.
Mental Health Coop., Inc., 429 S.W.3d 582 (Tenn. Ct. App. 2013). The Supreme Court
held that pre-suit notice to a corporate health care provider that contained a misnomer
was insufficient to constitute notice to the proper defendant. Id.
While the Supreme Court held, in Runions, that, “[w]e [] cannot vary the language
of the statute to allow a plaintiff to avoid compliance with the pre-suit notice statute when
she does not correctly identify the potential defendant,” it is important to recognize that
the applicable statute has since been amended by the legislature. Auspiciously, following
the Supreme Court’s decision in Shockley, and after Runions began its journey through
the courts, the legislature amended Tenn. Code Ann. § 29-26-121 to add Section
121(a)(5). Following the amendment, the onus is no longer on the plaintiff alone to
correctly identify all potential defendants to a health care liability action.
Effective April 24, 2015, and applicable to the present matter, Tenn. Code Ann. §
29-26-121(a)(5) states that
[i]n 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
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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.
This provision is mandatory. See Tenn. Code Ann. § 29-26-121(a)(5) (stating
“shall…provide written notice”); Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 308
(Tenn. 2012) (holding that the use of the word “shall” in statutes indicates that the
legislature intended the requirements to be mandatory, not directory).
As mentioned above, Tenn. Code Ann. § 29-26-121(a)(5) was enacted after
Shockley was decided, and was not yet applicable to the factual scenario before the
Supreme Court in Runions. Additionally, neither matter addressed the issue of
comparative fault. Therefore, the matter before this Court arises in both a different
statutory and situational context, and is therefore distinct from Runions and Shockley.
B.
This matter implicates the amendment in Section 121(a)(5), and we are tasked
with interpreting and applying it in the matter presently before this Court. In so doing, we
are asked to consider: 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, pursuant to § 29-26-121(a)(5)?
In order to resolve this issue, we must first determine what Tenn. Code Ann. § 29-
26-121(a)(5) requires of a recipient of pre-suit notice. Defendants argue that Tenn. Code
Ann. § 29-26-121(a)(5) 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 plain language of the statute renders the defendants’
interpretation untenable.
In § 29-26-121(a)(5), the enacted language instructs the recipient of pre-suit notice
to provide a claimant with “written notice” of
any other person, entity, or health care provider who may be a
properly named defendant.
(Emphasis added). Here, the word “other” is used as an adjective modifying “person,
entity, or health care provider” in the sentence. The word “other” is not a technical term;
it is defined in common parlance as:
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being the one (as of two or more) remaining or not included;
being the one or ones distinct from that or those first
mentioned or implied; not the same; additional.
See Merriam-Webster Dictionary, Other, (Sept. 4, 2019) merriam-webster.com
/dictionary/other (adjectival definition). As used in § 29-26-121(a)(5), “other,” in the
most plain terms, indicates that the legislature intended the recipient of pre-suit notice to
identify “person[s], entit[ies], or health care provider[s]” not included, additional, or
distinct from that or those first mentioned by the claimant in the pre-suit notice.
Furthermore, 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 the pre-suit notice. See Tenn. Code Ann. § 29-26-121(a)(5).
This understanding is not only in accordance with the plain language of the statute,
but is also consistent with the statute’s purpose; as stated by the Supreme Court, “[p]re-
suit notice benefits the parties by promoting early resolution of claims, which also serves
the interest of judicial economy.” Runions v. Jackson-Madison Cty. Gen. Hosp. Dist.,
549 S.W.3d 77, 86 (Tenn. 2018). Section 121(a)(5) further promotes judicial economy
and the early resolution of claims by ensuring that all proper parties are identified by
claimants. Correspondingly, this promotes a decrease in the addition of unnecessary
parties to health care liability actions, i.e. those whom claimants may otherwise
unnecessarily include in an abundance of caution.
The onus is no longer solely on the claimant to identify all necessary parties to a
health care liability action. Following the addition of § 29-26-121(a)(5), it therefore
stands to reason 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.
C.
Returning to the present matter, it is clear that defendants Dr. Colburn and Dr.
Strait did not comply with Tenn. Code Ann. § 29-26-121(a)(5); as a matter of fact, they
did not even attempt to comply.3 Instead, they let the thirty days expire, and filed answers
to plaintiff’s complaint. The first time Dr. Colburn and Dr. Strait identified Erlanger as
3
Defendants Dr. Colburn and Dr. Strait argue that if they had provided written notice plaintiff
would not have been able to provide pre-suit notice to Erlanger in a timely manner. This argument is
immaterial given that Dr. Colburn and Dr. Strait did not, in fact, provide the written notice mandated by
Tenn. Code Ann. § 29-26-121(a)(5).
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their actual employer, and as a nonparty health care provider who should be a properly
named defendant, was in their answers.
Interestingly, and as will prove relevant to our resolution, their respective answers
included: (1) notice of the identity of a potential nonparty tortfeasor, (2) facts that
reasonably support a conclusion that the nonparty caused or contributed to the plaintiff’s
injury, (3) a denial of individual liability, and (4) statements placing comparative fault at
issue. In their respective answers, Dr. Colburn and Dr. Strait raised, and/or otherwise
placed at issue, the affirmative defense of comparative fault. Dr. Colburn stated that
…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.
In his answer, Dr. Strait also stated that
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
the parties identified and as set forth in the plaintiff's
Complaint to which this doctrine would apply.
In addition to raising comparative fault, Dr. Strait and Dr. Colburn identified
Erlanger as the location of the events underlying the present suit, the location from which
plaintiff was allegedly improperly discharged, and as the actual employer of alleged at-
fault doctors Dr. Strait and Dr. Colburn. In his answer, Dr. Strait stated that
It would be shown that at all material times Dr. Strait was
employed by Erlanger Health System and provided healthcare
services to Clarissa Bidwell in the course and scope of his
employment with Erlanger Health System.
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* * *
It is admitted Clarissa Bidwell was transferred from Starr
Regional Medical Center to Erlanger Medical Center.
* * *
It is admitted Mrs. Bidwell was discharged from Erlanger on
March 30, 2016.
* * *
it is denied this defendant was negligent in the care and
treatment he provided to Clarissa Bidwell or that he was a
direct or proximate cause of any alleged injuries and death
suffered by Mrs. Bidwell.
* * *
this defendant is without information or knowledge sufficient
to form a belief as to what occurred on the way home from
Erlanger Medical Center... It is admitted Mrs. Bidwell was
returned to Erlanger for a higher level of care. It is
specifically denied this defendant was negligent in the care
and treatment of Mrs. Bidwell or that he was a direct or
proximate cause of any alleged injuries or death suffered by
Mrs. Bidwell.
* * *
It would be shown that in April, 2015, The Neurosurgical
Group of Chattanooga, P.C., sold its assets to Erlanger
Medical Center and ceased conducting business.
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Dr. Colburn stated that
Dr. Colburn admits that he provided medical care to Clarissa
Bidwell in Hamilton County at the Chattanooga-Hamilton
County Hospital Authority d/b/a Erlanger Health System
(“Erlanger”) in 2016.
* * *
Dr. Colburn admits upon information and belief that Clarissa
Bidwell presented to Starr Regional Medical Center in
Athens, Tennessee, and on March 28, 2016 Clarissa Bidwell
was transferred from Starr Regional Medical Center to
Erlanger for possible aneurysm.
* * *
Dr. Colburn admits that Clarissa Bidwell was prescribed
Plavix and aspirin, was discharged from Erlanger on March
30, 2016 by Dr. Colburn with the consent of Dr. Strait and
Dr. Baxter
* * *
Dr. Colburn admits that Clarissa Bidwell returned to Erlanger
for further care on March 30, 2016.
* * *
Dr. Colburn admits that he provided care to Clarissa Bidwell
at Erlanger on the dates as reflected in the medical records.
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* * *
To the extent that Plaintiffs allege any negligence or deviation
from the applicable standard of care by Dr. Colburn, Dr.
Colburn would show that at all material times, the services,
care and treatment provided to Clarissa Bidwell were
performed in accordance with that degree of skill, learning
and experience ordinarily used, possessed and practiced by
such healthcare practitioners in the Chattanooga, Hamilton
County, Tennessee community and/or similar communities;
that accepted and proper methods were used; that Dr. Colburn
met the standard of care set forth in T.C.A. § 29-26-101, et
seq.; and that the services, care and treatment delivered to
Clarissa Bidwell at all times were in accordance with the
reasonable requirements of good care and practice, and in
accordance with the generally accepted standard of care and
practice in the Chattanooga, Hamilton County, Tennessee
community and/or similar communities. It is specifically
denied that the matters set forth in the Complaint were a
result of any negligent act or omission by Dr. Colburn, or the
failure on the part of Dr. Colburn to act with ordinary and
reasonable care.
As outlined above, both Dr. Colburn and Dr. Strait also denied they were at fault for any
injuries that occurred to Mrs. Bidwell. Furthermore, Dr. Baxter also raised the issue of
comparative fault, and argued for its application to the present matter at a later hearing.
After filing their answers, Dr. Colburn and Dr. Strait moved for summary
judgment based upon plaintiff’s failure to add a necessary party – Erlanger – to his
complaint. As stated earlier in this opinion, Erlanger must be a party in order to sustain
the cause of action against Dr. Colburn and Dr. Strait, pursuant to the GTLA. On
November 3, 2017 and on November 20, 2017, as to Dr. Strait and Dr. Colburn
respectively, plaintiff filed motions to amend his complaint in order to add Erlanger as a
defendant. In his motion, plaintiff argued that:
Tenn. Code Ann. § 20-1-119(a)(1)-(2) provides for the
joinder of third party defendants when comparative fault is or
becomes an issue.
* * *
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As a result, defendant [] has placed comparative fault at issue
in this case by alleging in his Answer to the original
Complaint that an entity not a party to the suit caused or
contributed to the injury or damage for which Mr. Bidwell is
seeking recovery.
Tenn. Code Ann. § 20-1-119 states that
if a defendant named in an original complaint initiating a suit
filed within the applicable statute of limitations…alleges in
an answer…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 section, the plaintiff
may, within ninety (90) days of the filing of the first answer
or first amended 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…
Tenn. Code Ann. § 20-1-119(a). Plaintiff argued that his motion to add Erlanger was not
barred by the statute of limitations, because § 20-1-119(a) permitted him an additional
ninety days in which to file his amended complaint.
Regarding comparative fault, the Supreme Court has held that there is no specific
formula required in a pleading in order to place it at issue. In Austin v. State, automobile
accident victims brought an action against a county to recover for negligence. Austin v.
State, 222 S.W.3d 354, 355 (Tenn. 2007). The county filed its answer; the victims then
filed a complaint against the state more than one year after the accident, but within ninety
days after the county’s answer. The Supreme Court granted review in order to determine
whether Tenn. Code Ann. § 20-1-119 provided a plaintiff with a ninety-day extension of
the statute of limitations when a defendant does not explicitly allege the fault of a
nonparty. The Supreme Court held that the statute does give plaintiff an additional ninety
days to file suit against a potential nonparty tortfeasor whenever a defendant’s answer
gives a plaintiff notice of the nonparty’s identity and alleges facts that reasonably support
a conclusion that the nonparty caused or contributed to the plaintiff’s injury. Austin 222
S.W.3d at 355.
In Austin, the Supreme Court held that Tenn. Code Ann. § 20-1-119 applies
whether the nonparty is alleged to be partially responsible or totally responsible for the
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plaintiff’s injuries. Because the county’s answer identified the state as a nonparty and
alleged facts that reasonably supported a conclusion that the state caused or contributed
to the Austins’ injuries, it held that Tenn. Code Ann. § 20-1-119 was applicable, and that
the complaint was timely filed within the ninety day extension provided therein. Id.
The Supreme Court further clarified that a precise formula is not required for
identifying a potential at-fault nonparty. It stated that:
The State contends that Tennessee Code Annotated section
20–1–119 requires defendants to allege explicitly that the
nonparty tortfeasor caused or contributed to the plaintiff’s
injury. However, 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. See Romine v. Fernandez, 124 S.W.3d 599, 604–05
(Tenn. Ct. App. 2003) (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). Moreover, under
Rule 8.03 of the Tennessee Rules of Civil Procedure, a
defendant may successfully raise the defense of 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.” Consistent
with the liberal pleading standards of the Tennessee Rules of
Civil Procedure, the determination of whether comparative
fault is an issue cannot turn on the presence or absence of
such precise language. See Karash v. Pigott, 530 S.W.2d 775,
777 (Tenn. 1975) (stating that the Tennessee Rules of Civil
Procedure “are designed to insure that cases and controversies
be determined upon their merits and not upon legal
technicalities or procedural niceties”).
Based on the foregoing principles, we conclude that
Tennessee Code Annotated section 20–1–119 applies
whenever a defendant’s answer gives a plaintiff notice of the
identity of a potential nonparty tortfeasor and alleges facts
that reasonably support a conclusion that the nonparty caused
or contributed to the plaintiff’s injury.
Austin, 222 S.W.3d at 357–58.
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In addition, in Romine v. Fernandez, this Court held that tentative statements of
comparative fault, in a physician’s answer, were sufficient to trigger Tenn. Code Ann. §
20-1-119’s grace period in order to permit the plaintiff to add claims against allegedly
comparatively negligent defendants. Romine v. Fernandez, 124 S.W.3d 599 (Tenn. Ct.
App. 2003). This Court stated that
Our Supreme Court has previously stated 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. The purpose
behind the statute is to “provide an injured party with a fair
opportunity to bring before the court all persons who caused
or contributed to the party’s injuries.” In light of this purpose,
this statute is not to be construed narrowly, but should be
construed liberally.
Romine v. Fernandez, 124 S.W.3d 599, 604 (Tenn. Ct. App. 2003) (internal citations and
quotations omitted). Additionally, this Court clarified that the fact that plaintiff knew of
the party’s identity, or should have known of the party’s identity, prior to filing the suit,
is irrelevant:
Whether the Romines knew or should have known of [the
additional parties] and their status as potential defendants is
irrelevant to the application of Tennessee Code Annotated
section 20–1–119. See Townes, 50 S.W.3d at 452–
453 (holding that “a plaintiff’s knowledge of the existence of
other persons who might be liable for the plaintiff’s injuries is
irrelevant”). The Romines timely filed their amended
complaint which saved their claims from being time barred.
Romine v. Fernandez, 124 S.W.3d 599 (Tenn. Ct. App. 2003) (affirming the trial court;
application for permission to appeal denied by the Supreme Court).
Based on the foregoing, it is clear that comparative fault has been placed at issue
in the present matter, and therefore Tenn. Code Ann. § 20-1-119 is applicable. According
to the principles espoused therein, it follows that the result of defendants’ decision to
withhold the identity of a known and necessary defendant, and decision to instead
identify the necessary nonparty in their answer, is that plaintiff is entitled to the extension
to the statute of limitations provided in Tenn. Code Ann. § 20-1-119(a); see also Tenn.
Code Ann. § 20-1-119(g) (explicitly stating that this section applies to suits involving
governmental entities). This is consistent with the legislature’s mandatory instruction that
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all known potential defendants are to be identified in health care liability actions. See
Tenn. Code Ann. § 29-26-121(a)(5).
D.
Despite the foregoing, do we not simply end up back where we began, where
plaintiff’s failure to provide pre-suit notice to the nonparty bars its addition to the
complaint? No, because while pre-suit notice is a precursor to filing a health care liability
action, there are two relevant situations in Tenn. Code Ann. § 29-26-121 in which failure
to provide written pre-suit notice of a claim may be excused. First, courts have
“discretion to excuse compliance with this section [] for extraordinary cause.” Tenn.
Code Ann. § 29-26-121(b). We need not consider exercising our discretion here. Second,
Tenn. Code Ann. § 29-26-121(c) states that
[o]nce 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.
Tenn. Code Ann. § 29-26-121(c). This provision clarifies that the legislature envisioned
the interplay between health care liability pre-suit notice and comparative fault. The
legislature’s instruction directs their reconciliation; when comparative fault is at play
following a filed complaint, pre-suit notice takes the backseat.
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. See Tenn. Code Ann. § 29-26-
121(a)(5) (stating “shall…provide written notice”); Myers v. AMISUB (SFH), Inc., 382
S.W.3d 300, 308 (Tenn. 2012) (holding that the use of the word “shall” in statutes
indicates that the legislature intended the requirements to be mandatory, not directory). 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. See Austin v.
State, 222 S.W.3d 354, 355 (Tenn. 2007); Romine v. Fernandez, 124 S.W.3d 599 (Tenn.
Ct. App. 2003); Tenn. Code Ann. § 20-1-119; Tenn. Code Ann. § 29-26-121(c). 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) (“[o]nce 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
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amendment to the pleadings as a result of a defendant’s alleging comparative fault”).
Therefore, failure to provide pre-suit notice does not bar the addition of Erlanger to
plaintiff’s complaint.
E.
As a final matter, we quickly address whether or not plaintiff successfully filed his
motion to amend the complaint within ninety days following the filing of the first answer.
On August 28, 2017, the first answers were filed by Dr. Baxter and Dr. Strait. Therein,
the issue of comparative fault was first raised, nonparty Erlanger was identified, and
correspondingly, Tenn. Code Ann. § 20-1-119 was triggered. In accordance with Tenn.
Code Ann. § 20-1-119(a), on November 3, 2017 and on November 20, 2017, plaintiff
filed motions to amend his complaint in order to add Erlanger. Simple math dictates that
both motions were filed within ninety days of the first answer.
V.
In sum, neither the statute of limitations nor the pre-suit notice requirements of
Tenn. Code Ann. § 29-26-121 are impediments to plaintiff’s timely filed motions to
amend his complaint in the context of a claim for comparative fault. The addition of
Erlanger will cure plaintiff’s failure to comply with the GTLA.
Accordingly, we vacate the trial court’s award of summary judgment to defendants
Dr. Jeffrey Colburn and Dr. Timothy A. Strait. Costs on appeal are taxed to the appellees,
Dr. Jeffrey Colburn and Dr. Timothy A. Strait. This matter is remanded for further
proceedings, pursuant to applicable law, and consistent with this opinion.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
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