New Decision on Pre-Suit Notice in Tennessee Medical Malpractice Case

Pre-suit notice in Tennessee health care liability cases continues to be a huge problem for victims of medical malpractice. In this case, Plaintiff sent notice, included all of the necessary forms and paperwork, and attached it to the complaint – but it turned out to be sent to the wrong legal entity, one who had a business name extremely similar to the company who provided the care at issue in the case.

Plaintiff’s brother was a patient at a mental health facility who died allegedly due to substandard care.  Plaintiff sent pre-suit notice to Foundation, who she thought ran the facility, and filed suit against Foundation after waiting the requisite 60 days.  Foundation’s answer, however, said that it was a fund-raising company that provided no health care whatsoever.  Foundation’s answer stated that Cooperative, a related company, was actually who provided care to Plaintiff’s brother. 

Plaintiff moved and was granted leave to amend.  The Court of Appeals described it as a Tennessee Rule of Civil Procedure 15.03 motion to correct the misnomer.  However, it is unclear from the opinion if that is how Plaintiff herself described her motion.  It is also unclear if the motion was to add Cooperative as an additional defendant based on Foundation’s answer, or if the motion was to substitute Cooperative for Foundation.

Cooperative moved for summary judgment based on not receiving pre-suit notice of the claim.  The trial court granted dismissal under Tenn. R. Civ. P. 12 based on Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012). 

On appeal, Plaintiff pointed out that nothing in the pre-suit notice statute actually says it has to be sent to whoever will ultimately be the correct defendant.  Instead, T.C.A. § 29-26-121(a)(1) merely says that it must be given “to each health care provider that will be a named defendant.” Plaintiff argued that she did just that – sent notice to the only defendant she named – and that she therefore complied with the statute.

The Court of Appeals rejected Plaintiff’s argument, saying “[i]t is axiomatic that the proper party be given pre-suit notice under 29-26-121(a)(1).”  The Court of Appeals also held that Rule 15.03 will not allow an amended complaint that corrects the name of the defendant to relate back, because it would not correct the pre-suit notice itself.  In a nutshell, the Court of Appeals held that if the name on the pre-suit notice is incorrect, nothing can be done in litigation to fix it.  In this case, Foundation and Cooperative even have the same registered agent, so the correct individual even received the pre-suit notice; it just had the wrong business name written on it.

This harsh result was not mandated by the statute and should be reversed by the Tennessee Supreme Court. 

First, Plaintiff was correct that the statute only requires notice be given to those who will be sued; not to exactly the correct business name of the defendants who will ultimately be on a verdict form after discovery has ensued.  What if Plaintiff had given pre-suit notice to Cooperative, but misspelled it as “Coperative”?  Is that completely uncorrectable for all time?  Is that what the legislature intended by passing the notice statute?  Where is that possibly indicated in a statute that is supposed to be strictly construed as in derogation of the common law?  A misnomer should be fixable in any event, let alone where the defendant actually gets the notice.

Second, shouldn’t Plaintiff’s amended complaint have been treated as a response to an allegation of potential fault against a non-party, and thus timely under T.C.A. § 20-1-119?  If an existing defendant alleges that a non-party is actually responsible for the conduct alleged in the complaint, the plaintiff can amend to sue that non-party under T.C.A. § 20-1-119 notwithstanding the statute of limitations may have run since the complaint was originally filed.  In Mann v. Alpha Tau Omega Fraternity, 380 S.W.3d 42 (Tenn. 2012), the Supreme Court held that an answer simply attaching a list of an organization’s members to an answer was sufficient to trigger 20-1-119 when the plaintiff’s complaint already said all of those members were negligent.  In Austin v. State, 222 S.W.3d 354 (Tenn. 2007), the Supreme Court held that an answer that says the State of Tennessee is actually who placed a sign, but did not say that the State did anything wrong in the process, was sufficient to trigger 20-1-119 when the plaintiff’s complaint already said the sign was placed negligently.  In Browder v. Morris, 975 S.W.2d 308 (Tenn. 1998), the Supreme Court held that a simple allegation in an answer that the defendant was on the job for a company at the time of an auto accident was sufficient to trigger 20-1-119, even if the allegation did not say the company did anything wrong itself. 

In every one of those examples, the defendant’s answer did not in any way allege that a non-party had done anything wrong.  In Mann, it was just listing the members of the defendant organization.  In Austin, it was just stating that somebody else owned what the plaintiff claimed was dangerous.  In Browder, it was just stating that the defendant was working for an employer at the time.  Nonetheless, in every one of those cases, the Tennessee Supreme Court held that T.C.A. § 20-1-119 applied to allow the plaintiff to amend his or her complaint to add the non-party in response to the allegation.  (Click on the link to read other Tennessee cases applying Tenn. Code Ann. Sec. 20-1-119.)

Here, you have Foundation (an existing defendant) saying it was actually Cooperative (a non-party) who did what Plaintiff claimed was wrong.  There is absolutely no difference between that and the litany of situations in which the Supreme Court has applied T.C.A. § 20-1-119.  Even if the courts were for some reason wary of construing notice as properly given against the correct defendant, the case should still not be dismissed because the plaintiff has a legitimate basis to have that defendant before the court.

The case is Shockley v. The Mental Health Cooperative, Inc., M2013-00494-COA-R3-CV (Tenn. Ct. App. Nov. 4, 2013).  The opinion was written by Judge Stafford – the Western Section of the Court of Appeals heard this Middle Section case.