Tennessee Supreme Court Decision Analyzes Pre-Suit Notice Requirements of Health Care Liability Act, Application of Comparative Fault Statute

January 26, 2021

In an opinion released today, the Tennessee Supreme Court ruled that Tennessee’s Health Care Liability Act (“HCLA”) requires defendants to provide plaintiffs with written notice when plaintiffs sue the wrong defendant but does not provide a penalty or a remedy when defendants fail to comply with the statute.

In the case before the Court, Mrs. Clarissa Bidwell died at Chattanooga-Hamilton County Hospital Authority (“Erlanger”).  Consistent with the HCLA, her husband, Mr. James Bidwell, sent pre-suit notice of his intent to file a health care liability action on behalf of his wife’s estate to Dr. Timothy Strait and Dr. Jeffrey Colburn (the “physician defendants”) and the entities he believed were their employers.  Mr. Bidwell did not send pre-suit notice to Erlanger, their actual employer.

The physician defendants received the pre-suit notice but did not notify Mr. Bidwell within 30 days after receiving it that Erlanger, not the named entities, was their employer.

When Mr. Bidwell timely filed his complaint, he did not name Erlanger as a defendant. Instead, he named the entities to which he sent pre-suit notice and which he believed were the physician defendants’ employers.  Dr. Strait’s answer to the complaint asserted that Erlanger was his employer, and Dr. Colburn’s answer denied that the entities Mr. Bidwell named were his employers.  Dr. Colburn failed to identify Erlanger as his employer.  Each doctor also denied the allegations made against him. 

Drs. Strait and Colburn then moved for summary judgment, arguing that no judgment could be rendered against them because their employer, Erlanger, a governmental entity, had not been named as a defendant, as required by the Governmental Tort Liability Act.

Mr. Bidwell responded by filing motions to amend his complaint to add Erlanger.  Mr. Bidwell asked the trial court to allow him to amend his complaint because the physician defendants had failed to comply with a provision of the HCLA enacted in 2015 which states that a person, entity, or health care provider that receives pre-suit notice of a potential claim for health care liability shall, “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” within 30 days of receiving pre-suit notice.

Mr. Bidwell also relied on another law that gives plaintiffs 90 days to file an amended complaint and cause process to issue to a nonparty if a defendant raises comparative fault against the nonparty in an answer.  Mr. Bidwell argued that the physician defendants had raised Erlanger’s comparative fault in their answers.

The trial court denied Mr. Bidwell’s motions to amend and granted Dr. Strait’s and Dr. Colburn’s motions for summary judgment.  The Court of Appeals reversed, and the Supreme Court agreed to hear the case.

A majority of the Supreme Court affirmed in part, and reversed in part, the Court of Appeals and reinstated the trial court’s orders granting summary judgment for the physician defendants.  The majority held that, while the plain language of the HCLA requires Dr. Strait and Dr. Colburn to provide Mr. Bidwell with written notice of Erlanger within 30 days of receiving pre-suit notice, the statute does not provide a remedy or penalty for their noncompliance.  The majority further ruled that the physician defendants’ noncompliance was not, alone, enough to constitute extraordinary cause. 

The majority agreed with Mr. Bidwell that statements in Dr. Strait’s and Dr. Colburn’s answers were sufficient to raise comparative fault and to trigger a different Tennessee law affording Mr. Bidwell 90 days to file an amended complaint naming Erlanger and to cause process to issue to Erlanger.  The majority pointed out, however, that Mr. Bidwell had failed to file an amended complaint or to cause process to issue within the 90-day period.  Rather, Mr. Bidwell filed only motions to amend his complaint.  The majority concluded that, because Mr. Bidwell failed to complete the process of filing an amended complaint naming Erlanger and causing process to issue to Erlanger, the trial court properly granted summary judgment to the physician defendants, employees of Erlanger, a governmental entity.

Justice Holly Kirby concurred with the majority’s decision but wrote separately to emphasize that, while the physician defendants’ failure to give notice of Erlanger in this case was not sufficient to constitute extraordinary cause, failure to comply with the HCLA’s notice requirement may constitute extraordinary cause in future cases, as those receiving pre-suit notice now have guidance from the Court directing them to provide such notice.

In a separate opinion, concurring in part and dissenting in part, Justice Sharon G. Lee agreed with the majority’s decision that the physician defendants were entitled to summary judgment. However, Justice Lee disagreed with the majority that the answers filed by Dr. Strait and Dr. Colburn sufficiently alleged comparative fault.  Thus, Justice Lee concluded that the physician defendants’ answers did not trigger the law giving Mr. Bidwell 90 days to amend his complaint.  Justice Lee also emphasized that, while the General Assembly has not provided a remedy for a defendant’s failure to give notice of an entity that may be a properly named defendant, and while a defendant’s failure to give this notice alone does not amount to extraordinary cause, defendants should not feel free to ignore a statute when it helps them win a case.

To read the Supreme Court’s majority opinion in Bidwell ex rel. Bidwell et al. v. Strait et al., authored by Justice Cornelia A. Clark, as well as the separate concurring opinion authored by Justice Holly Kirby, and separate concurring in part and dissenting in part opinion authored by Justice Sharon G. Lee, go to the opinions section of TNCourts.gov.