Hanson v. Levan

Citation647 S.W.3d 85
Decision Date25 October 2021
Docket NumberE2020-01581-COA-R9-CV
Parties Brett HANSON et al. v. Sarah J. LEVAN et al.
CourtCourt of Appeals of Tennessee

Hanson R. Tipton and Courtney E. Read, Knoxville, Tennessee, for the appellants, Sarah J. Levan and Summit Medical Group, PLLC.

Robert E. Pryor, Jr., Knoxville, Tennessee, for the appellee, Brett Hanson, individually, as next of kin to Tobi Lynn Hanson (deceased), and on behalf of Kenley Hanson (a minor).

D. Michael Swiney, C.J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Thomas R. Frierson, II, J., joined.

D. Michael Swiney, C.J.

In this healthcare liability action, the plaintiff sued several medical professionals and facilities. Following an amended complaint, which had removed multiple parties from the action, the remaining defendants filed their answer to the amended complaint that included allegations of comparative fault against a doctor that the plaintiff had removed as a party to the action in the amended complaint. The defendants did not file a certificate of good faith in compliance with Tennessee Code Annotated § 29-26-122, which is required when a defendant alleges comparative fault against a "non-party." Following a motion by the plaintiff, the trial court entered an order striking the defendants’ allegations of comparative fault. The trial court further found that the defendants had not demonstrated good cause to support an extension of time to file a certificate of good faith. Discerning no error, we affirm.

Background

This action involves the medical care received by Tobi Lynn Hanson ("Decedent"). Brett Hanson, individually, as next of kin to Decedent, and on behalf of Kenley Hanson (a minor) ("Plaintiff") alleged in his complaint that Decedent had been medically treated by Spencer Adoff, MD, in the emergency department at the University of Tennessee Medical Center for leg pain. Dr. Adoff was an independent contractor of Southeastern Emergency Physicians. Decedent was treated a few days later by Sarah J. Levan at Summit Medical Group, PLLC. Sarah J. Levan is a family nurse practitioner employed by Summit Medical Group, PLLC, and at times practices under the guidance and supervision of Brian T. Mosrie, MD. It is disputed as to what Decedent was treated for while at Summit Medical Group, PLLC. Dr. Mosrie approved the course of treatment recommended by Ms. Levan regarding Decedent. Plaintiff alleged that Decedent died approximately a week later in August 2015 of a "pulmonary emboli due to deep venous thrombosis of the leg

."

Following Decedent's death, Plaintiff filed a complaint alleging negligence and wrongful death in November 2016, in which he identified the following as defendants to the action: (1) Spencer Adoff, MD; (2) Team Health, Inc.; (3) Sarah J. Levan; (4) Brian T. Mosrie, MD; (5) Summit Medical Group, PLLC; and (6) University Health System, Inc. d/b/a University of Tennessee Medical Center. Plaintiff attached the required pre-suit notice and filed a certificate of good faith with his complaint, which listed multiple defendants in the style of the case including Spencer Adoff, MD. In January 2017, Sarah J. Levan and Summit Medical Group, PLLC (collectively, "Defendants"), as well as Dr. Mosrie, filed a collective answer to the original complaint, in which it included allegations of modified comparative fault. Specifically, Defendants and Dr. Mosrie alleged that the actions of others, "including Plaintiff, [Decedent], other Defendants, and/or other unnamed parties, may have been a proximate or contributing cause to any injuries allegedly suffered," that such fault should be considered by the jury, and that any award against Defendants and Dr. Mosrie should be reduced by these other parties’ degree of fault.

Plaintiff subsequently dismissed all claims against Team Health, Inc., and substituted Southeastern Emergency Physicians, LLC, as a party defendant. The Trial Court thereafter granted summary judgment in favor of Southeastern Emergency Physicians, dismissing all claims against it. The parties participated in mediation in January 2019, wherein some issues were settled. Subsequently, Defendants and Dr. Mosrie filed a motion to amend their answer, seeking to modify the paragraph in the complaint alleging comparative fault to specifically identify Dr. Spencer Adoff and University Health Systems, as well as to include Melissa Childress, Decedent's mother and a registered nurse. A hearing date was scheduled on the motion but it was continued by agreement of the parties. This motion was not addressed by the Trial Court before Plaintiff filed his motion to amend the complaint.

Thereafter, Plaintiff filed a motion to amend the complaint in March 2019, identifying Defendants and Dr. Mosrie as the only remaining defendants. The proposed amended complaint, which was included as an exhibit to the motion, removed the allegations against the other defendants. This motion, accompanied by the proposed amended complaint, included a certificate of service to Defendants’ attorney. In June 2019, the Trial Court entered an order allowing Plaintiff to file his amended complaint, upon agreement of the parties and for good cause shown. This order was signed by Plaintiff's attorney on his own behalf and on behalf of Defendants’ attorney by permission. Plaintiff attached as exhibits to the amended complaint copies of the original pre-suit notice and the original certificate of good faith that had been filed in November 2016.

While the motion to amend the complaint was pending, the Trial Court entered two orders dismissing the claims against two defendants. In March 2019, an agreed order of dismissal was entered by the Trial Court, which dismissed the action as to Spencer Adoff, MD, with prejudice. This order was signed by respective counsel for Plaintiff and Dr. Adoff, and did not contain a certificate of service to the remaining parties. A scheduling order was subsequently entered identifying as defendants Ms. Levan, Dr. Mosrie, and Summit Medical Group, PLLC. The Trial Court entered the second order of dismissal in May 2019, which involved the defendant, University Health Systems, Inc. This order of dismissal stated that all matters in controversy regarding University Health Systems, Inc. had been resolved and that the action was dismissed with prejudice as to this defendant.

Following the Trial Court's order allowing Plaintiff to amend his complaint, Defendants and Dr. Mosrie filed a collective answer to Plaintiff's amended complaint in July 2019. The answer to the amended complaint included similar allegations regarding comparative fault as in the previous amended answer that never was filed. The answer to the amended complaint included specific allegations of fault against Decedent, Dr. Adoff, University Health Systems, and Ms. Childress. As relevant to Dr. Adoff, this answer included the following:

Specifically, [Decedent] was seen at University Health Systems on August 1, 2015 by attending physician Spencer Adoff, M.D. for right calf pain. In his evaluation and care of [Decedent], Spencer Adoff, M.D. discontinued a Doppler Lower Extremity ultrasound for [Decedent] ordered by resident Christina Yang, D.O.[1 ] To the extent that Dr. Adoff's actions in discontinuing the ultrasound and/or failing to diagnose and/or treat [Decedent] for a deep vein thrombosis

and/or pulmonary embolism on August 1, 2015 are determined at trial to have violated the applicable standard of care to physicians in the Knox County community and/or proximately caused [Decedent's] injury, fault should be attributed to Dr. Adoff and University Health System.

No certificate of good faith was filed with this answer to the amended complaint.

In December 2019, Defendants filed a notice with the Trial Court that they had served upon Plaintiff their "Rule 26 Disclosures of Expected Expert Witnesses," in which Defendants disclosed that they intended to call an expert witness to testify, in part, regarding the medical care Decedent received when being treated by Dr. Adoff. Plaintiff subsequently filed a motion, requesting that the Trial Court strike Defendants’ and Dr. Mosrie's defense of comparative fault and to exclude any expert testimony supporting this defense. In his motion, Plaintiff argued that Defendants and Dr. Mosrie had not filed a certificate of good faith with their answer to the amended complaint, which alleged comparative fault against the non-parties, Dr. Adoff and Ms. Childress.

Defendants and Dr. Mosrie filed a response in opposition to Plaintiff's motion to strike, arguing that Dr. Adoff was not "a ‘new’ party to this litigation" and that Plaintiff had already filed a certificate of good faith as to Dr. Adoff that arose out of the same factual allegations. Defendants conceded that no certificate of good faith was filed as to Ms. Childress but argued that a certificate of good faith was not necessary "for Dr. Adoff, a party to this action." Alternatively, Defendants requested an extension of time to file a certificate of good faith if such a certificate is required. Defendantsrequest for an extension of time stated as follows, in its entirety: "Alternatively, should this Court require a Certificate of Good Faith for allegations of comparative fault against Dr. Adoff, these Defendants request that the Court grant leave to these Defendants to submit same within 30 days as provided by Tenn. Code Ann. § 29-26-122(c) for good cause shown."

Defendants attached to their response copies of Plaintiff's original certificate of good faith and various emails concerning the case. The Trial Court noted that Plaintiff also submitted a "complete copy" of the emails as an exhibit at the motion hearing. The Trial Court summarized those emails as follows:

The Court also notes that there were a series of email communications between the filing of the Motion to Amend
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