Day on Torts
Where a plaintiff sent notice to and filed suit against an incorrect HCLA defendant, then moved to amend to name the correct defendant, the motion to amend may be futile if the complaint was originally filed outside the one-year statute of limitations, as the 120-day extension would not apply to the new defendant to whom notice was not given.
In Runions v. Jackson-Madison County General Hospital District, No. W2016-00901-SC-R11-CV (Tenn. June 6, 2018), the plaintiff and her infant daughter had been treated at the defendant hospital, and the infant daughter died, allegedly due to defendant’s negligence. Plaintiff sent pre-suit notice to several entities, all of whom had Ms. Higgs listed as their registered agent. Ms. Higgs was also the registered agent for the Jackson-Madison County General Hospital District (the District), who was not sent notice but ultimately was identified as the proper defendant.
In response to the pre-suit notice letters, Laura Zamata, who was Director of Risk Management for the District, sent a letter informing plaintiff that the District was self-insured and that she was the contact going forward. This letter was sent on letterhead from one of the served defendants, and at the bottom it listed thirty-five entities, including the served defendants and the District.
After the one-year limitations period had passed, but within the 120-day extension under the HCLA, plaintiff filed her health care liability suit against the defendants who had received pre-suit notice. The defendants filed motions for summary judgment, asserting that the District was the proper defendant. Plaintiff filed a motion for leave to amend the complaint to name the District as the defendant. She argued that “it was clear from the face of the complaint” who she had tried to sue, and that her “search for Jackson-Madison County General Hospital through the Tennessee Secretary of State’s information service showed a listing for Bolivar General Hospital, Inc.,” which was one of the originally named defendants. She also pointed out that notice was sent to the District’s place of business, as the address was the same as the address listed for the entities actually served with pre-suit notice, and that the District therefore had actual notice of the claim within the statutory period.
The trial court granted the motion to amend, “finding that [plaintiff] sent pre-suit notice to the defendants as evidenced by the pre-suit notices and the letter of acknowledgment from Ms. Zamata on behalf of the District.” The Court of Appeals affirmed, “holding that [plaintiff] complied with the pre-suit notice requirement…and that her motion to substitute the District as a defendant was not futile.” The Court of Appeals found that plaintiff “may not have intended to give the District pre-suit notice, but the District received actual notice based on the letter of acknowledgment from Ms. Zamata on behalf of the District.”
The case was appealed to the Tennessee Supreme Court, which reversed the trial court and Court of Appeals and held that the motion to amend would be futile due to the fact that the District did not receive pre-suit notice and thus was not subject to the 120-day extension of the statute of limitations.
When a plaintiff moves to amend a complaint and add a new defendant, “under certain conditions, after the statute of limitations has expired” the amended pleading will relate back to the filing of the original complaint for statute of limitations purposes. (citing Tenn. R. Civ. P. 15.03). The issue in this case was that the original complaint was not filed within the one-year statute of limitations; plaintiff had taken advantage of the 120-day extension of the statute of limitations given under the HCLA when proper pre-suit notice is given. Thus, when plaintiff sought to amend her complaint to add the District as a defendant, even with relation back to the original complaint the claim against the District would be time-barred unless the 120-day extension applied to it. The question before the Court, then, was “whether [plaintiff] gave pre-suit notice to the District to entitle her to the 120-day extension of the filing date under Tennessee Code Annotated section 29-26-121(c),” or whether plaintiff complied with the HCLA “when the District learned about the claim through the pre-suit notice given to Ms. Higgs, the registered agent for the defendants, who also served as general counsel for the District.”
The Supreme Court began its analysis by noting that pre-suit notice is “mandatory, not directory,” and that “strict compliance” is required.” (internal citations omitted). In determining that sufficient notice was not given in this case, the Court reasoned:
The language [requiring notice] is clear, unambiguous, and requires strict compliance. The Legislature expressly provided that a plaintiff shall give pre-suit notice to the health care provider that will be a named defendant. This language can only mean that the plaintiff must communicate in writing directed to the potential defendant about the claim. We cannot read the statute to authorize indirect notice—that is, written notice of the claim directed to a potential defendant that another health care provider receives and even, as here, acknowledges receiving. …We hold that a plaintiff does not comply with the mandatory pre-suit notice provision of Tennessee Code Annotated section 29-26-121(a)(1) when the plaintiff does not give written pre-suit notice to a health care provider that will be named as a defendant—even though that health care provider has knowledge of the claim based on pre-suit notice the plaintiff sent to another potential defendant. …We are not free to add language to the statute to create an exception for when a health care provider becomes aware of the claim through some means other than pre-suit notice given to it by the plaintiff.
Further, the Court found that the District’s acknowledgment letter did not change its analysis. Pre-suit notice was not sent to the District, and the acknowledgment did not relieve plaintiff of this obligation.
Plaintiff argued that “the pre-suit notice [sent] to the business address of the facility where she received treatment satisfied the pre-suit notice requirement,” but the Supreme Court disagreed. It pointed out that the statute requires that when the health care provider is a corporation, notice must be sent to “both the address for the agent for service of process and the healthcare provider’s business address, if different,” and that a notice directed to another entity could not satisfy this requirement.
Because the Court found that the District was not given pre-suit notice, the 120-day extension of the statute of limitations did not apply to it, and the motion to amend was thus futile. The trial court and Court of Appeals were accordingly reversed.
Here, the Supreme Court very strictly applied the pre-suit notice requirement, giving no weight to the District’s apparent acknowledgment that it had notice of this suit before it was filed.
One important note in this case—this case arose before 2012, so the current version of § 29-26-121(a)(5) did not apply, which provides that an entity or provider receiving notice of an HCLA claim must, within 30 days, “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.”