Where defendant was contracted to provide food services to a hospital, and decedent’s injury was allegedly a result of actions or omissions from the food service provider, the Court of Appeals affirmed the finding that the discovery rule applied and plaintiff’s pre-suit notice was timely even though it was sent more than one year after the injury, as nothing in the record indicated that plaintiff could have or should have discovered defendant’s identity earlier.
In Archer v. Sodexo Operations, LLC, No. W2020-01176-COA-R9-CV, 2022 WL 1657222 (Tenn. Ct. App. May 25, 2022), decedent was transported to a hospital emergency room and admitted due to complications with his PEG tube, through which he received nutrition. Decedent had an order that nothing be given to him by mouth, but on August 26, 2018, the morning after his admission, he was given a full breakfast tray. Decedent aspirated on the food, was found unresponsive, had multiple rounds of CPR performed, was transferred to a long-term care facility, and eventually died in February 2019.
On June 26, 2019, plaintiff, who was decedent’s son, sent pre-suit notice of his HCLA claim to the hospital where decedent was treated. On June 27, counsel for the hospital emailed plaintiff’s counsel and stated, “I don’t know much about this one but from what little I know this may be an issue with the dietary people. Dietary is contracted out to Sodexo (I think).” After further communication, counsel for the hospital stated that it was informing plaintiff pursuant to Tenn. Code Ann. § 29-26-121(5) that there might be another defendant because dietary services were contracted out.
According to an affidavit, plaintiff’s counsel attempted to identify the correct Sodexo to be named as a defendant by reviewing over 100 pages on the Sodexo website, reviewing the hospital website, reviewing job postings on the hospital website, and researching the Tennessee Secretary of State website. Based on this research, plaintiff sent pre-suit notice to Sodexo, Inc. on August 19, 2019. On September 19, counsel for Sodexo, Inc. informed plaintiff’s counsel that Sodexo Operations, LLC (the defendant at issue in this appeal) might be a proper party to the suit, and it listed the same address for Sodexo Operations as the address used to send notice to Sodexo, Inc. The very next day, plaintiff sent pre-suit notice to Sodexo Operations, and subsequently named the hospital, Sodexo, Inc., and Sodexo Operations as defendants in his complaint.
Sodexo Operations (defendant) thereafter filed a motion to dismiss, asserting that the claim against it was time-barred because it did not receive pre-suit notice within one-year of the injury. The trial court denied the motion, but granted defendant permission to seek an interlocutory appeal. On appeal, denial of the motion to dismiss was affirmed.
Defendant first argued that the discovery rule did not apply here based on the plain language of Tenn. Code Ann. § 29-26-116(a), meaning that plaintiff’s claims against defendant would be time-barred. After noting the one-year statute of limitations for HCLA claims, § 29-26-116(a)(2) states: “In the event the alleged injury is not discovered within such one-year period, the period of limitations shall be one (1) year from the date of such discovery.” Defendant argued that pursuant to that language, because “Plaintiff was fully aware of Decedent’s injury on the day it occurred, …the statute’s discovery rule simply does not apply to the present matter.” The Court of Appeals rejected this argument, noting that the Tennessee Supreme Court had rejected this exact argument in a previous case.
In Hoffman v. Hospital Affiliates, Inc., 652 S.W.2d 341 (Tenn. 1983), the Tennessee Supreme Court ruled that the discovery rule in HCLA cases applies even when the discovery of the injury occurs during the year following the injury. The Supreme Court explained in Hoffman “that when an injury was discovered within a year after the negligent act, the statute of limitations began to run on the date of discovery.” (internal citation omitted). Based on that reasoning, the Court of Appeals here rejected defendant’s argument that the discovery rule did not apply.
Having ruled that the discovery rule applied, the Court of Appeals moved onto applying it to the facts of this case. In HCLA cases, “the statute of limitations…is tolled until the plaintiff discovered, or reasonably should have discovered, (1) the occasion, the manner, and the means by which a breach of duty occurred that produced his injuries; and (2) the identity of the defendant who breached the duty.” (internal citation omitted). Plaintiffs are not allowed, however, to “simply wait for information regarding a potential defendant to come to them. They have a duty to investigate and discover pertinent facts through the exercise of reasonable care and diligence.” (internal citation omitted).
Based on the record, the Court of Appeals agreed with plaintiff that the very earliest he could have discovered the existence of Sodexo Operations as a defendant was when plaintiff’s counsel received the email from the hospital’s counsel in June 2019 stating that dietary services were contracted out. The Court reasoned:
As Plaintiff noted in the trial court, Sodexo Operations has not pointed to anything in the record that Plaintiff should have seen or noted that would have alerted it sooner to the involvement of either Sodexo or more specifically Sodexo Operations. When asked during oral argument what Plaintiff could have done to discover the identity of Sodexo Operations earlier, the only suggestion that counsel had was for Plaintiff to have issued presuit notice to the known defendant earlier and set in motion ‘the chain of events’ that ultimately led to the response from St. Francis Hospital, earlier. However, the record does not reflect any undue delay or lack of diligence by Plaintiff. Decedent was served the breakfast tray on August 26, 2018 and he subsequently died on February 14, 2019. Plaintiff sent presuit notice to St. Francis on June 26, 2019. Sodexo Operations simply has not shown that Plaintiff reasonably should have discovered its identity any earlier than June 2019.
Pursuant to the discovery rule, plaintiff’s pre-suit notice sent to defendant in September 2019 was timely, and denial of the motion to dismiss was affirmed.
The Court came to the correct decision in this case based on the record, but litigants should be aware that application of the discovery rule in HCLA cases (and indeed in all cases) can be quite complicated.
This opinion was released 6.5 months after oral arguments in this case.
Note: Chapter 50, Section 3 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.
Day on Torts: Leading Cases in Tennessee Tort Law contains summaries of leading cases on over 500 topics and citations to more than 1500 additional cases. The 500,000+ word book (and two others, Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Cases) is available by subscription at www.birddoglaw.com and is continually updated as new decisions and statutes impact Tennessee law. Click on the link to see the book’s Table of Contents.
BirdDog Law also provides Tennessee lawyers with free access to user-friendly versions of the Tennessee rules of evidence and procedure.