Clarissa Bidwell, ex rel James Bidwell et al. v. Timothy A. Strait MD et al.
Case number: E2018-02211-SC-R11-CV
Authoring judge: Justice Cornelia A. Clark
Originating judge: Judge Kyle E. Hedrick
Date filed: Tuesday, Jan. 26, 2021
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, EmCare and Envision Healthcare Corporation.
Bidwell timely provided pre-suit notice to the named defendants and timely filed his lawsuit. 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 Bidwell written notice of Erlanger as their correct employer within 30 days of receiving pre-suit notice. See Tenn. Code Ann. § 29-26-121(a)(5).
Strait answered Bidwell’s complaint, denying the allegations made against him and asserting that he was employed by Erlanger at all relevant times.
Colburn similarly answered, denying the allegations made against him and that either EmCare or Envision Healthcare Corporation was his employer.
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 Bidwell had failed to name as a defendant their actual employer, Erlanger. See Tenn. Code Ann. § 29-20-310(b).
Within 90 days of Strait’s and Colburn’s answers, Bidwell filed two motions for leave to amend his complaint to add Erlanger as a defendant.
Bidwell relied on Tennessee Code Annotated section 20-1-119, which provides a plaintiff with a 90-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 30 days of receiving pre-suit notice.
The trial court granted Strait’s and Colburn’s motions for summary judgment, finding that Bidwell’s motions to amend were futile because he had not provided Erlanger with pre-suit notice.
Bidwell appealed, and the Court of Appeals vacated the trial court’s orders granting summary judgment and remanded the case for further proceedings.
Strait and 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 Bidwell’s failure to provide Erlanger with pre-suit notice.
However, we additionally hold that Strait’s and Colburn’s answers sufficiently asserted Erlanger’s comparative fault. Therefore, 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 90 days of Strait’s answer - the first answer alleging Erlanger’s fault.
Because section 20-1-119 applied, 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 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 defendants’ motions for summary judgment and denying the plaintiff’s motions to amend.
Clarissa Bidwell, ex rel JAMES Bidwell et al. v. Timothy A. Strait MD et al. - Concurring in part, dissenting in part
Authoring judge: Justice Sharon G. Lee
I agree with the majority that the defendants, Dr. Timothy Strait and Dr. Jeffrey Colburn, are entitled to summary judgment.
It is a harsh and unfortunate result. The defendants did not comply with the notice requirement of Tennessee Code Annotated section 29-26-121(a)(5) and gained a tactical advantage which allowed them to win this case.
While I agree with the result, I disagree that the defendants sufficiently alleged comparative fault in their answers so that the plaintiff had 90 days to amend his complaint under Tennessee Code Annotated section 20-1-119.
Clarissa Bidwell, ex rel James Bidwell et al. v. Timothy A. Strait MD et al. - Concurring separately
Authoring judge: Justice Holly Kirby
I concur in the well-reasoned majority opinion but write separately on the issue of extraordinary cause to excuse failure to give pre-suit notice under Tennessee Code Annotated section 29-26-121(b) (“The court has discretion to excuse compliance with this section only for extraordinary cause shown.”)