Bidwell ex rel. Bidwell v. Strait

Decision Date26 January 2021
Docket NumberNo. E2018-02211-SC-R11-CV,E2018-02211-SC-R11-CV
Citation618 S.W.3d 309
Parties Clarissa BIDWELL EX REL. James BIDWELL, et al. v. Timothy A. STRAIT M.D., et al.
CourtTennessee Supreme Court

Cornelia A. Clark, J.

James Bidwell filed this health care liability action individually and on behalf of his deceased wife, Clarissa Bidwell, and her estate against Drs. Timothy Strait and Jeffrey Colburn ("the physician Defendants") and the entities he believed to be their employers—The Neurosurgical Group of Chattanooga, P.C., EmCare Inc., and Envision Healthcare Corporation. Mr. Bidwell timely provided pre-suit notice to the named defendants and timely filed his lawsuit. Mr. Bidwell did not provide Chattanooga-Hamilton County Hospital Authority ("Erlanger") with pre-suit notice, nor did he name Erlanger as a defendant. Furthermore, Dr. Strait and Dr. Colburn did not provide Mr. Bidwell written notice of Erlanger as their correct employer within thirty days of receiving pre-suit notice. See Tenn. Code Ann. § 29-26-121(a)(5). Dr. Strait answered Mr. Bidwell's complaint, denying the allegations made against him and asserting that he was employed by Erlanger at all relevant times. Dr. Colburn similarly answered, denying the allegations made against him and that either EmCare Inc. or Envision Healthcare Corporation was his employer. Drs. Strait and Colburn then moved for summary judgment arguing that, pursuant to the Governmental Tort Liability Act, no judgment could be rendered against them because Mr. Bidwell had failed to name as a defendant their actual employer, Erlanger. See Tenn. Code Ann. § 29-20-310(b). Within ninety days of Dr. Strait's and Dr. Colburn's answers, Mr. Bidwell filed two motions for leave to amend his complaint to add Erlanger as a defendant. Mr. Bidwell relied on Tennessee Code Annotated section 20-1-119, which provides a plaintiff with a ninety-day "grace period" within which to amend a complaint when comparative fault "is or becomes an issue," and section 29-26-121(a)(5), which he argued required the physician Defendants to notify him of Erlanger within thirty days of receiving pre-suit notice. The trial court granted Dr. Strait's and Dr. Colburn's motions for summary judgment, finding that Mr. Bidwell's motions to amend were futile because he had not provided Erlanger with pre-suit notice. Mr. Bidwell appealed, and the Court of Appeals vacated the trial court's orders granting summary judgment and remanded the case for further proceedings. Dr. Strait and Dr. Colburn subsequently filed an application for permission to appeal with this Court. We hold that, although the physician Defendants failed to comply with section Tennessee Code Annotated 29-26-121(a)(5), the statute provides no remedy for noncompliance, and their noncompliance does not constitute extraordinary cause sufficient to excuse Mr. Bidwell's failure to provide Erlanger with pre-suit notice. However, we additionally hold that Dr. Strait's and Dr. Colburn's answers sufficiently asserted Erlanger's comparative fault. Therefore, Mr. Bidwell was entitled to amend his complaint to name Erlanger as a defendant pursuant to section 20-1-119, so long as he amended his complaint and caused process to issue to Erlanger within ninety days of Dr. Strait's answer—the first answer alleging Erlanger's fault. Because section 20-1-119 applied, Mr. Bidwell was not obligated to provide Erlanger with pre-suit notice under Tennessee Code Annotated section 29-26-121(c). We conclude that, because the record on appeal reflects that Mr. Bidwell failed to file an amended complaint and cause process to issue, he is not entitled to amend his complaint to add Erlanger as a defendant. Accordingly, we affirm in part and reverse in part the judgment of the Court of Appeals on the grounds stated herein and reinstate the trial court's orders granting the physician Defendantsmotions for summary judgment and denying the Plaintiff's motions to amend.

I. Factual and Procedural Background

James Bidwell ("the Plaintiff") is the surviving husband of Decedent, Clarissa Bidwell ("the Decedent"), who, at all relevant times, was a citizen of Meigs County, Tennessee. On March 28, 2016, the Decedent was hospitalized at Starr Regional Medical Center ("Starr Regional") with complaints of generalized aches, nausea, blurred vision, and right-side numbness. A computed tomography

("CT") scan performed at Starr Regional revealed "a nine (9) [millimeter] rounded density just lateral to the pituitary, which was concerning for an aneurysm." Based on these results, the Decedent was transferred by ambulance to the emergency department at Chattanooga-Hamilton County Hospital Authority ("Erlanger") for a neurosurgical consultation with Dr. Timothy A. Strait ("Dr. Strait"). There, the Decedent underwent diagnostic and interventional studies and testing by Dr. Strait and Dr. Blaise Baxter ("Dr. Baxter"). On March 30, 2016, upon a determination that her condition had not worsened, the Decedent was released from Erlanger by her attending physician, Dr. Jeffrey Colburn ("Dr. Colburn"), with instructions to "follow-up with an interventional radiologist the following week."

On the way home from Erlanger, the Decedent began experiencing stroke-like symptoms, including sudden onset slurred speech, left-side weakness, right-gaze preference, and disorientation. The Plaintiff drove to the nearest hospital, Tennova Healthcare in Cleveland,2 where the Decedent underwent a CT scan

that "revealed an acute, right frontal intracranial hemorrhage." A helicopter ambulance then returned the Decedent to Erlanger. The Decedent was admitted to Erlanger's Intensive Care Unit ("ICU"), and the next day, April 1, 2016, she underwent emergency brain surgery. She died on April 6, 2016.

Tennessee Code Annotated section 29-26-121(a)(1) (2012 & Supp. 2020) requires persons who intend to bring a health care liability action to provide pre-suit notice to "each health care provider that will be a named defendant at least sixty (60) days before the filing of a complaint based upon health care liability." On March 24, 2017,3 the Plaintiff provided pre-suit notices to Drs. Colburn and Strait ("the physician Defendants"). The Plaintiff also provided pre-suit notices to The Neurosurgical Group of Chattanooga, P.C. ("The Neurosurgical Group"), EmCare, Inc. ("EmCare"), and Envision Healthcare Corporation ("Envision").4 The Plaintiff believed that these entities employed the physician Defendants after conducting "a targeted investigation for the purpose of ascertaining the proper identity of all potential defendants, including [Dr.] Strait [and Dr. Colburn] and [their] employer[s]/principal[s]." In his motions for leave to amend his complaint, the Plaintiff asserted that, as part of the "targeted investigation," Plaintiff's counsel searched online databases. The Plaintiff asserted that this search, as it related to Dr. Strait, revealed the online physician listings for Chattanooga Neurosurgery

& Spine, which identified Dr. Strait as an employee under the " ‘Our Doctors’ tab." A business entity search through the State of Tennessee Secretary of State's business services website further identified Chattanooga Neurosurgery & Spine "as an active, assumed name for the principal corporate entity ‘The Neurosurgical Group of Chattanooga, P.C. "

As the search pertained to Dr. Colburn, the Plaintiff asserted in his second motion for leave to amend his complaint that his counsel was unable to locate Dr. Colburn's practice address on the Tennessee Department of Health, Board of Medical Examiners’ website, but that further online investigation revealed a current business address at CHI Memorial Medical Group. The Plaintiff further asserted that, "out of an overabundance of caution," his counsel contacted Erlanger "to further inquire as to [the] identity of [Dr.] Colburn's employer." According to the Plaintiff, counsel "was advised that [Dr.] Colburn provided emergency physician services at [Erlanger] through [EmCare] (a division of [Envision])[,] and that [EmCare] [w]as in the business of contracting with hospitals to staff and manage their emergency department." Based on this information, Dr. Colburn "was believed to be an employee and/or agent of [EmCare], a division of [Envision,]" and pre-suit notices were delivered to both entities. The Plaintiff did not send pre-suit notice to Erlanger. Dr. Strait, Dr. Colburn, The Neurosurgical Group, EmCare, and Envision did not provide the Plaintiff notice "of any other person, entity, or health care provider who may be a properly named defendant" pursuant to Tennessee Code Annotated section 29-26-121(a)(5) (Supp. 2020). That provision provides:

In 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 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.

On July 24, 2017,5 the Plaintiff filed suit against Dr. Strait, Dr. Colburn, The Neurosurgical Group, EmCare, and Envision. The Plaintiff did not sue Erlanger. As against The Neurosurgical Group, EmCare, and Envision, the Plaintiff alleged that, "at all times relevant to the subject matter of this Complaint, [Dr.] Strait was an actual, apparent and/or ostensible agent and/or employee of [The Neurosurgical Group,]" that Dr. Colburn "was an actual, apparent and/or ostensible agent and/or employee of defendants [EmCare] and/or [Envision,]" that The Neurosurgical Group was "vicariously liable for the negligent acts and/or omissions of [Dr.] Strait," and that either or both EmCare and Envision were "vicariously liable for the negligent acts and/or omissions of [Dr.] Colburn." The Plaintiff further alleged...

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