Beverly Gardner v. Saint Thomas Midtown Hospital

04/01/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 20, 2020 Session

BEVERLY GARDNER V. SAINT THOMAS
MIDTOWN HOSPITAL

Appeal from the Circuit Court for Davidson County
No. 17C2226 Joseph P. Binkley, Jr., Judge

No. M2019-02237-COA-R3-CV

A patient filed a health care liability claim against a hospital, asserting the hospital was
vicariously liable for injuries she suffered as a result of the anesthesia providers’ conduct.
The hospital moved for summary judgment, arguing that the anesthesia providers were not
employed by the hospital and the hospital was, therefore, not liable for the anesthetists’
actions as a matter of law because the statute of limitations had run on the plaintiff’s direct
claims against the anesthesia providers by the time the plaintiff filed her complaint against
the hospital. The trial court granted the hospital’s motion and dismissed the plaintiff’s
complaint, relying on the common law set forth in Abshure v. Methodist Healthcare-
Memphis Hospitals, 325 S.W.3d 98 (Tenn. 2010). Acknowledging the conflict between
provisions of the Tennessee Health Care Liability Act and the common law, we hold that
the statute prevails. Accordingly, we reverse the trial court’s judgment and remand the
case for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded

ANDY D. BENNETT, J., delivered the opinion of the Court, in which JOHN W. MCCLARTY
and W. NEAL MCBRAYER, JJ., joined.

Timothy T. Ishii, Nashville, Tennessee, for the appellant, Beverly Gardner.

Patrick M. Shegon and Amanda C. Hines, Montgomery, Alabama, for the appellee, Saint
Thomas Midtown Hospital.
 OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

Beverly Gardner underwent a surgical procedure on May 8, 2016, at St. Thomas
Midtown Hospital (“STM”). In the complaint she filed against the hospital, Ms. Gardner
alleges that “[a]s a complication of anesthesia [she] suffered a traumatic intubation with
right posterior lower pharyngeal laceration as a complication of oropharyngeal intubation
with recurrent hemoptysis.” She asserts that STM, “acting through its employees and/or
agents,” was “careless and negligent” in her care and treatment and that STM “is liable for
any negligent acts and/or omissions of any actual or apparent agents and/or employees of
[STM].” Ms. Gardner provided pre-suit notice to STM more than sixty days before filing
her complaint in accordance with the requirements of Tenn. Code Ann. § 29-26-121, and
she attached a certificate of good faith to her complaint as required by Tenn. Code Ann. §
29-26-122.

The hospital denied liability and raised the following affirmative defenses, among
others:

2. To the extent that it is shown through discovery that the plaintiff or any
non-party negligently caused or contributed to cause the alleged injuries and
damages, STM intends to rely upon the doctrine of comparative
negligence/comparative fault for their apportionment of damages, if any are
awarded in this case.

3. STM admits that certain medical care was provided to plaintiff, Beverly
Gardner, at its facility, but otherwise denies plaintiff’s allegations and
demands strict proof thereof. [STM] denies plaintiff’s allegations of
carelessness, negligence, breach of the standard of care, misrepresentation,
and that any alleged injuries were caused by any act or omission by this
defendant or any of its agents or employees. STM specifically denies that
the physicians whose care is alleged in the Complaint were agents or
employee[s] of this defendant. STM denies that the plaintiff is entitled to
recover any damages from it.

Six months after filing its answer, STM moved for a qualified protective order
permitting it to engage in ex parte interviews with Ms. Gardner’s treating physicians,
including Dr. Allison Tucker. STM identified Dr. Tucker as “anesthesiologist - treated
patient during admission in question.” Following discovery, STM moved for summary
judgment. In the memorandum of law supporting its motion for summary judgment, STM
wrote: “Plaintiff brings health care liability claims against [STM] premised solely on
vicarious liability, but the underlying claims against the alleged agents (anesthesia
providers employed by Anesthesia Medical Group) were barred by the statute of limitations

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at the time suit was filed against [STM].” STM’s memorandum was the first time,
according to the contents of the appellate record, that STM identified Anesthesia Medical
Group (“AMG”) as the employer of Ms. Gardner’s anesthesia provider(s).

The trial court granted STM’s motion for summary judgment and dismissed Ms.
Gardner’s complaint. The court found that the statute of limitations for Ms. Gardner’s
direct claims against AMG began to run on May 8, 2016, the date when Ms. Gardner
suffered the injury forming the basis of her claim. Relying on the case Abshure v.
Methodist Healthcare-Memphis Hospitals, 325 S.W.3d 98 (Tenn. 2010), the court
concluded that STM could not be held vicariously liable for any negligence by the
anesthesia providers because, by the time Ms. Gardner filed her complaint against STM,
her claims against AMG were “procedurally barred by operation of law.”

Ms. Gardner appeals from the trial court’s order granting STM’s motion for
summary judgment. She raises four issues on appeal: (1) whether the trial court erred in
applying the incorrect standard to STM’s motion for summary judgment under the HCLA;
(2) whether a plaintiff can exclusively seek to hold a principal vicariously liable for the
conduct of its agents under Tenn. Code Ann. § 29-26-121 when the statute of limitations
has run as to the agents, but not as to the principal, based on the 120-day extension provided
by Tenn. Code Ann. § 29-26-121(c); (3) whether the trial court’s order violated the
separation of powers doctrine by rewriting the HCLA statute of limitations; and (4) whether
Tenn. Code Ann. § 29-26-121(a)(5) imposes an affirmative duty on the medical provider
served with pre-suit notice to notify the plaintiff of other persons or entities that might be
a properly named defendant.

II. ANALYSIS

A. Standard of Review

Summary judgment is properly granted when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” TENN. R. CIV. P. 56.04. The
parties do not dispute any facts that are material to the disposition of this case.
Because the issues raised are limited to statutory construction, which involves
questions of law, this case is properly resolved by summary judgment. See Bidwell
ex rel. Bidwell v. Strait, No. E2018-02211-SC-R11-CV, 2021 WL 260975, at *5,
__ S.W.3d __ (Tenn. Jan. 26, 2021); Abshure, 325 S.W.3d at 103. We review legal
questions de novo, affording the trial court’s decision no presumption of
correctness. Bidwell, 2021 WL 260975, at *5; Abshure, 325 S.W.3d at 103.

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B. Pre-Suit Notice

This health care liability case is governed by the Tennessee Health Care Liability
Act (“HCLA”), Tenn. Code Ann. §§ 29-26-102–122. Our Supreme Court has described
the applicable rules of statutory construction as follows:

When determining the statute’s meaning, we must determine and carry out
the intent of the Legislature without broadening or restricting its scope. Bray
[v. Khuri], 523 S.W.3d [619,] 621 (Tenn. 2017) (citing Stevens ex rel.
Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 553
(Tenn. 2013)); Ellithorpe v. Weismark, 479 S.W.3d 818, 827 (Tenn. 2015)
(quoting Johnson v. Hopkins, 432 S.W.3d 840, 848 (Tenn. 2013)). We begin
with the language chosen by the Legislature. Arden [v. Kozawa], 466
S.W.3d [758,] 764 (Tenn. 2015). “We presume that every word in a statute
has meaning and purpose and that each word’s meaning should be given full
effect as long as doing so does not frustrate the General Assembly’s obvious
intention.” Ellithorpe, 479 S.W.3d at 827 (citing Johnson [v. Hopkins], 432
S.W.3d [840,] 848 [Tenn. 2013]). When statutory language is clear and
unambiguous, we accord the language its plain meaning and ordinary usage
in the context within which it appears, without a forced interpretation. Bray,
523 S.W.3d at 622; Ellithorpe, 479 S.W.3d at 827; Stevens, 418 S.W.3d at
553. We do not alter a statute or substitute our policy judgment for that of
the General Assembly. Armbrister v. Armbrister, 414 S.W.3d 685, 704
(Tenn. 2013) (quoting Britt v. Dyer’s Emp’t Agency, Inc., 396 S.W.3d 519,
523 (Tenn. 2013)).

Runions v. Jackson-Madison Cnty. Gen. Hosp. Dist., 549 S.W.3d 77, 85-86 (Tenn. 2018).
“[W]e presume that the Legislature knows the law and makes new laws accordingly.”
Ellithorpe v. Weismark, 479 S.W.3d 818, 827 (Tenn. 2015).

A key statutory provision in this case is Tenn. Code Ann. § 29-26-121(a)(1), which
states:

Any person, or that person’s authorized agent, asserting a potential claim for
health care liability shall give written notice of the potential claim 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 in any court
of this state.

(Emphasis added). This provision is mandatory and requires strict compliance. Runions,
549 S.W.3d at 86. Pre-suit notice enables “a potential defendant of a health care liability
claim . . . [to] investigate the merits of the claim and pursue settlement negotiations before
the start of the litigation.” Id. (citing Foster v. Chiles, 467 S.W.3d 911, 915 (Tenn. 2015)).

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Pre-suit notice promotes the “early resolution of claims, which also serves the interest of
judicial economy.” Id.

The plain language of the statute requires a plaintiff “asserting a potential claim for
health care liability” to give pre-suit notice to “each health care provider that will be a
named defendant.” Tenn. Code Ann. § 29-26-121(a)(1); see also Runions, 549 S.W.3d at
87. The HCLA defines “health care provider” to include “[a] nongovernmental health care
facility licensed under title 68, chapter 11,” Tenn. Code Ann. § 29-26-101(a)(2)(B), and
there appears to be no dispute that STM and AMG both qualify as health care providers.
A “health care liability action” is defined as “any civil action . . . alleging that a health care
provider or providers have caused an injury related to the provision of, or failure to provide,
health care services to a person, regardless of the theory of liability on which the action is
based.” Tenn. Code Ann. § 29-26-101(a)(1) (emphasis added). The statutory language
encompasses a claim for injury related to the provision of health care services, regardless
of the theory of liability. (In this case, the plaintiff asserts that STM is liable under the
theory of vicarious liability based on the actions of its agents and/or employees.) The
HCLA defines “health care services” as follows:

Health care services to persons includes care by health care providers, which
includes care by physicians, nurses, licensed practical nurses, pharmacists,
pharmacy interns or pharmacy technicians under the supervision of a
pharmacist, orderlies, certified nursing assistants, advance practice nurses,
physician assistants, nursing technicians and other agents, employees and
representatives of the provider, and also includes staffing, custodial or basic
care, positioning, hydration and similar patient services.

Tenn. Code Ann. § 29-26-101(b) (emphasis added). Thus, the provision of health care
services includes the provision of “care by health care providers,” and that care includes
care by the provider’s “agents, employees, and representatives.” Id. Applying these
provisions to this case, STM is subject to a claim for health care liability for the care
provided by its agents and employees.

C. Statute of Limitations

The next question concerns how these provisions interact with the statute of
limitations for HCLA claims. Tennessee Code Annotated section 29-26-121(c) states, in
pertinent part:

When notice is given to a provider as provided in this section, the applicable
statutes of limitations and repose shall be extended for a period of one
hundred twenty (120) days from the date of expiration of the statute of
limitations and statute of repose applicable to that provider. . . . In no event
shall this section operate to shorten or otherwise extend the statutes of

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 limitations or repose applicable to any action asserting a claim for health care
liability, nor shall more than one (1) extension be applicable to any provider.

As the statute provides, when pre-suit notice is given to a health care provider under the
HCLA, the statute of limitations is extended for 120 days. In the present case, Ms. Gardner
provided pre-suit notice to STM and to its registered agent on April 25, 2017, thereby
extending by 120 days the statute of limitations applicable to her claim against STM.
Pursuant to Tenn. Code Ann. §§ 29-26-116 and 28-3-104, the statute of limitations began
to run on the date the cause of action accrued, which the trial court determined to be the
date of Ms. Gardner’s surgery, May 8, 2016. The record shows that STM and its registered
agent received pre-suit notice on May 8 and 9, 2017. Ms. Gardner filed her complaint on
September 5, 2017, which was timely pursuant to the 120-day extension of the statute of
limitations provided by Tenn. Code Ann. § 29-26-121(c).

Recognizing that Ms. Gardner’s claim against it was timely under the HCLA, STM
contends that the trial court properly granted its motion for summary judgment and
dismissed Ms. Gardner’s complaint because AMG, not STM, engaged in the conduct Ms.
Gardner asserts was negligent. STM points out that Ms. Gardner failed to provide AMG
with the requisite 60-day pre-suit notice and contends that her malpractice claim against
AMG was barred by the statute of limitations. STM relies on Abshure to argue that the
trial court properly granted its motion for summary judgment.

Abshure was decided under the law in effect prior to the amendments to the
Tennessee Medical Malpractice Act requiring pre-suit notice and the 2011 enactment of
the HCLA. See Ellithorpe, 479 S.W.3d at 824-26 (summarizing the development of the
HCLA). In that case, Ms. Abshure filed a medical malpractice suit in general sessions
court against a hospital and two doctors. Abshure, 325 S.W.3d at 101. She voluntarily
dismissed her complaint and, less than a year later, she and her husband refiled the same
claims against the hospital and the two doctors in circuit court. Id. at 102. The trial court
entered an order of voluntary dismissal as to the two doctors on July 8, 2005. Id. On May
2, 2008, the hospital filed a motion for summary judgment arguing that the plaintiffs’ “only
claim against the hospital was premised on the hospital’s vicarious liability for the acts of
Dr. Ogle” and that their “claims against Dr. Ogle were now barred by operation of law by
the statute of repose for medical malpractice actions and by Tenn. R. Civ. P. 41.01(2).” Id.
The trial court accepted these arguments and granted the hospital’s motion for summary
judgment. Id. The Court of Appeals determined that, because the plaintiffs’ initial case
was filed before the statute of repose expired, the subsequent expiration of the statute of
repose did not extinguish their vicarious liability claims. Id. However, we affirmed the
trial court’s dismissal based upon the second voluntary nonsuit.1 Id. at 102-03.

1
This court concluded that the plaintiffs’ second voluntary nonsuit extinguished their right of action against
Dr. Ogle “by operation of law” and precluded an assessment of liability against him. Abshure, 325 S.W.3d
at 102-03; see TENN. R. CIV. P. 41.01(2); Tenn. Code Ann. § 28-1-105(a). Therefore, we reasoned, the
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 For purposes of the present appeal, we consider the Supreme Court’s Abshure
decision on the issue of whether the plaintiffs’ complaint against the hospital based on
vicarious liability “must be dismissed because [the plaintiffs’] direct claims against [the
physician] became barred after they filed their complaint against [the hospital].” Id. at 105.
The Court framed the issue more broadly as a question “regarding the limitations that
should be placed on the ability of plaintiffs to pursue vicarious liability claims against a
principal without also pursuing claims directly against the agent.” Id. In this context, the
Court examined relevant common law principles of vicarious liability. Id. at 105-10. To
begin with, the Court set out the following “well-established” Tennessee “common-law
framework”:

It has long been recognized in Tennessee that a principal may be held
vicariously liable for the negligent acts of its agent when the acts are within
the actual or apparent scope of the agent’s authority. It is also generally
recognized that a plaintiff may sue a principal based on its vicarious liability
for the tortious conduct of its agents without suing the agent. Even where the
agent’s conduct is the sole basis for the principal’s liability, the agent remains
a “proper, but not a necessary” party. Thus, a plaintiff is free to sue the agent,
the principal, or both.

Id. at 105-06 (emphasis added) (footnotes omitted); see also Johnson v. LeBonheur
Children’s Med. Ctr., 74 S.W.3d 338, 343 (Tenn. 2002).2

hospital could not be held vicariously liable for the physician’s conduct. Abshure, 325 S.W.3d at 103. On
appeal, our Supreme Court determined that the plaintiffs, by their voluntary dismissal, “gratuitously
dismissed” their claims against Dr. Ogle and that there was no settlement of the claims. Id. at 112. The
Court, therefore, disagreed with the result reached by the Court of Appeals on this issue.
2
Our Supreme Court has explained that a principal is liable for its agent’s conduct when the agent is acting
“within the actual or apparent scope of the agency.” Boren ex rel. Boren v. Weeks, 251 S.W.3d 426, 432
(Tenn. 2008). “‘Apparent agency is essentially agency by estoppel; its creation and existence depend upon
such conduct by the apparent principal as will preclude [it] from denying another’s agency.’” Id. (quoting
White v. Methodist Hosp. S., 844 S.W.2d 642, 646 (Tenn. Ct. App. 1992)). The issue in Boren was whether
a hospital was vicariously liable for the alleged negligence of an independent contractor emergency room
physician based on the theory of apparent agency. Id. at 428. Recognizing that situations exist “‘where a
hospital offers a service, such as the care of an anesthesiologist, and the patient has no part in choosing the
individual who will perform the service,’” the Boren Court noted that it may be “‘natural for the patient to
assume reliance on the reputation of the hospital as opposed to any specific doctor.’” Id. at 436 (quoting
White, 844 S.W.2d at 647). The Boren Court adopted the Restatement (Second) of Torts § 429 and stated:

To hold a hospital vicariously liable for the negligent or wrongful acts of an independent
contractor physician, a plaintiff must show that (1) the hospital held itself out to the public
as providing medical services; (2) the plaintiff looked to the hospital rather than to the
individual physician to perform those services; and (3) the patient accepted those services
in the reasonable belief that the services were provided by the hospital or a hospital
employee.

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 The Court in Abshure stated that, despite the rule allowing a plaintiff to sue either
the agent, the principal, or both, “the courts have recognized that there are certain
circumstances in which it would be improper to permit a plaintiff to proceed solely against
a principal based on its vicarious liability for the conduct of an agent.” Abshure, 325
S.W.3d at 106. The circumstances warranting an exception to the general rule include the
following:

(1) when the agent has been exonerated by a finding of non-liability; (2)
when the plaintiff has settled its claim against the agent; (3) when the agent
is immune from suit, either by statute or by the common law; and (4) when
the plaintiff’s claim against the agent is procedurally barred by operation of
law before the plaintiff asserts a vicarious liability claim against the
principal.

Id. We focus our attention on the Court’s analysis regarding the fourth exception, which
was the basis for the trial court’s decision to dismiss Ms. Gardner’s complaint: barring
vicarious liability claims against a principal “‘when the right of action against the agent is
extinguished by operation of law.’” Id. at 109 (quoting Johnson, 74 S.W.3d at 345).
Noting that “rights of action may be extinguished by operation of law in many different
ways,” the Court discussed two cases dealing with “procedural bars associated with the
statute of repose and the res judicata doctrine.” Id.

In Huber v. Marlow, this court held that “the plaintiffs could not amend their
complaint to add a vicarious liability claim against the principal because their claims
against the agent had been extinguished by operation of law—the running of the statute of
repose.” Abshure, 325 S.W.3d at 110 (citing Huber v. Marlow, No. E2007-01879-COA-
R9-CV, 2008 WL 2199827, at *3-4 (Tenn. Ct. App. May 28, 2008)). In Creech v.
Addington, the plaintiffs also attempted to amend their complaint to add a claim of
vicarious liability. Creech, 281 S.W.3d 363, 371-72 (Tenn. 2009). The Creech Court
“concluded that the plaintiffs could not pursue their vicarious liability claim against the
principal because the doctrine of res judicata had extinguished their claims against the
agents by operation of law.” Abshure, 325 S.W.3d at 110 (citing Creech, 281 S.W.3d at
376-383). As reflected in these two cases, the fourth limitation on vicarious liability claims
“arises when the plaintiff attempts to assert a vicarious liability claim against the principal
after its right to assert a claim against the agent has become procedurally barred.” Id. This
exception stems from the idea that “plaintiffs should not be permitted to engage in an
‘encircling movement’ against the principal when they cannot pursue a ‘frontal attack’ on
the agent.” Id. (quoting Graham v. Miller, 187 S.W.2d 622, 625-26 (Tenn. 1945); Raines
v. Mercer, 55 S.W.2d 263, 264 (Tenn. 1932)).

Id.
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 The Abshure Court emphasized that the Creech and Huber decisions “were heavily
influenced by the fact that the plaintiffs did not assert a vicarious liability claim against the
principal when they first filed suit, even though they could have.” Id. at 111. Thus, the
exception “does not apply in circumstances where the plaintiff has initially filed a vicarious
liability claim against the principal, and the plaintiff’s claims against the principal’s agents
are later extinguished by operation of law.” Id. The Court further stated:

Extending the procedural limitation recognized in Creech v. Addington and
Huber v. Marlow to plaintiffs who have included a vicarious liability claim
in their original complaint would be contrary to the traditional principle that
plaintiffs may elect to sue the principal, the agent, or both. In circumstances
where the plaintiff has properly asserted a vicarious liability claim against
the principal, the extinguishment of the plaintiff’s claims against the agent,
by voluntary dismissal or otherwise, “merely produce[s] the same effect as
if the [agent] had never been sued. . . .”

Id. (quoting Rankhorn v. Sealtest Foods, 479 S.W.2d 649, 652 (Tenn. Ct. App. 1971)).
Applying these principles to the facts before it, the Abshure Court noted that the plaintiffs
“filed a proper vicarious liability claim against [the hospital] before their claims against
[the physician] were extinguished by operation of law.” Id. at 112. Therefore, “the
subsequent procedural bar of their claims against Dr. Ogle does not prevent [the plaintiffs]
from pursuing their timely filed vicarious liability claim against the hospital.” Id.

As mentioned above, the Court’s analysis in Abshure was based upon the law in
effect before the pre-suit notice provisions and the HCLA were in effect. If we apply the
fourth exception to vicarious liability identified in Abshure to Ms. Gardner’s vicarious
liability claims against STM in the present case, the result would likely be to bar her claims
because, when she filed her complaint against STM (September 5, 2017), the one-year
statute of limitations had run on any direct claims against AMG (on May 9, 2017). Under
the plain language of the HCLA, however, as discussed above, the plaintiffs’ claims against
STM were timely. It is evident that the common law principles described in Abshure
conflict with the plain language of the HCLA.

When a statute conflicts with the common law, the statute prevails. McClay v.
Airport Mgmt. Servs., LLC, 596 S.W.3d 686, 690 n.3 (Tenn. 2020); Meyers v. First Tenn.
Bank, N.A., 503 S.W.3d 365, 377 (Tenn. Ct. App. 2016). Moreover, “[w]hen the
Legislature ‘has acted to occupy an area of the law formerly governed by the common law,
the statute must prevail over the common law in the case of conflict.’” Buman v. Gibson,
No. W2013-01867-COA-R3-CV, 2014 WL 3893293, at *9 (Tenn. Ct. App. Aug. 11, 2014)
(quoting Hodge v. Craig, 382 S.W.3d 325, 338 (Tenn. 2012)). The provisions of the HCLA
at issue here, namely the definitions in Tenn. Code Ann. § 29-26-101 and the pre-suit notice
provisions in Tenn. Code Ann. § 29-26-121, were substantially amended in 2008, 2009,
and 2011. See Ellithorpe, 479 S.W.3d at 824-26. As our Supreme Court has stated, “The

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overarching purpose of the pre-suit notice statute is to ensure that health care defendants
receive timely notice of a forthcoming lawsuit.” Arden v. Kozawa, 466 S.W.3d 758, 764
(Tenn. 2015). The new definitional provisions enacted in 2011 generally clarified the
scope of the HCLA by substituting the term “health care liability” for “medical
malpractice” and by defining a “health care liability action” to include “any civil action . .
. alleging that a health care provider or provider” caused an injury related to the provision
of health care services, “regardless of the theory of liability on which the action is based.”
Ellithorpe, 479 S.W.3d at 826 (quoting Tenn. Code Ann. § 29-26-101(a)(1)).

The trial court’s application of the common law set forth in Abshure to the facts here
conflicts with the outcome prescribed by the HCLA. Subsection (c) of Tenn. Code Ann.
§ 29-26-121 states: “In no event shall this section operate to shorten or otherwise extend
the statutes of limitations or repose applicable to any action asserting a claim for health
care liability, nor shall more than one (1) extension be applicable to any provider.” As Ms.
Gardner points out in her brief, were we to follow the common law rule relied upon by
STM, the result would effectively shorten the time for pre-suit resolution of claims for
vicarious liability cases brought solely against a principal. To avoid the trap envisioned by
STM, a plaintiff choosing to sue only the principal would be required to give the principal
pre-suit notice at least sixty days prior to the date upon which the statute of limitations
applicable to an agent expires in order to benefit from the 120-day extension provided by
Tenn. Code Ann. § 29-26-121(c). A plaintiff could also give pre-suit notice to the
agent/employee, but Tenn. Code Ann. § 29-26-121(a)(1) requires pre-suit notice only for
“a named defendant.” Moreover, as discussed above, the HCLA defines “health care
provider” to include nongovernmental hospitals, Tenn. Code Ann. § 29-226-101(a)(2)(B),
and the statute does not change the common law rule that a plaintiff may choose to sue the
principal and not the agent.

For all of these reasons, we conclude that, in health care liability cases in which a
plaintiff chooses to sue only the principal, the provisions of the HCLA regarding pre-suit
notice prevail over the common law exception in Abshure with respect to the tolling of the
statute of limitations. This result is consistent with the purposes and the language of the
HCLA. Therefore, the trial court erred in granting STM’s motion for summary judgment
and dismissing Ms. Gardner’s complaint. 3

D. Other Properly Named Defendant

When STM received Ms. Gardner’s pre-suit notice, it was required by the HCLA to
provide written notice to Ms. Gardner of “any other person, entity, or health care provider

3
Whether an agency relationship exists is a question of fact that is determined by the circumstances of the
case. Boren, 251 S.W.3d at 432. Whether an agency relationship existed between STM and AMG is a
question of fact that the trial court did not address.
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who may be a properly named defendant.” Tenn. Code Ann. § 29-26-121(a)(5). This
provision states:

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.

STM admits that it failed to comply with this section of the HCLA. STM argues that this
provision did not apply to it because, “when [STM] received pre-suit notice, its position
was and still is that its employees and the alleged agents would not be ‘properly-named
Defendants’ because they were not negligent and did not cause any injury to the Plaintiff.”
According to STM, it “should not be obligated to notify the Plaintiff that a health care
provider is a proper Defendant when [STM] does not believe the provider acted negligently
or caused an injury to the Plaintiff ‘based upon any reasonable knowledge and information
available.’”

Our Supreme Court recently addressed this provision of the HCLA in Bidwell ex
rel. Bidwell v. Strait. The plaintiff in Bidwell was the surviving husband of a patient who
died following health care she received by Drs. Colburn and Strait. Bidwell, 2021 WL
260975, at *1. The plaintiff complied with the HCLA’s requirement that he provide pre-
suit notice to Drs. Colburn and Strait sixty days before filing a complaint naming them as
defendants. Id.; see Tenn. Code Ann. § 29-26-121(a)(1). The plaintiff also provided pre-
suit notice to three entities whom the plaintiff believed employed these two physicians.
Bidwell, 2021 WL 260975, at *1. Despite the plaintiff’s efforts to determine the doctors’
employer(s), the plaintiff did not learn that Erlanger, a governmental agency, employed
Drs. Colburn and Strait, and, therefore, did not provide pre-suit notice to Erlanger. Id. at
*1-2. At least sixty days after providing the physicians with pre-suit notice, the plaintiff
filed a complaint against Dr. Colburn, Dr. Strait, and the other defendants the plaintiff
believed were liable for his wife’s injuries and death. Id. at *2. None of the defendants
the plaintiff served with pre-suit notice provided the plaintiff with notice of any other
person, entity, or health care provider that may have been a properly named defendant
within thirty days of receiving pre-suit notice, as required by Tenn. Code Ann. § 29-26-
121(a)(5). Id. Dr. Strait identified Erlanger as his employer in his answer, but Dr. Colburn
did not identify Erlanger as his employer in the answer he filed. Id. at *2-3.

Dr. Strait subsequently moved for summary judgment, arguing that he was immune
from suit because his employer, Erlanger, was a governmental entity, governed by the
Tennessee Government Tort Liability Act (“GTLA”), and it was a necessary party to the
lawsuit. Id. at *3. The plaintiff moved for leave to amend his complaint to add Erlanger
as a defendant, pointing out that Dr. Strait had failed to comply with Tenn. Code Ann. §

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29-26-121(a)(5), as he was required to do. Id. Dr. Colburn, who was also employed by
Erlanger, then filed a motion for summary judgment on the same grounds as Dr. Strait. Id.
at *4. The trial court denied the plaintiff’s motion to amend and granted the defendants’
motions for summary judgment. Id. at *4. The trial court’s judgment was reversed on
appeal, and the Supreme Court granted the defendants’ application for permission to
appeal. Id.

Rejecting the defendant physicians’ contention that Tenn. Code Ann. § 29-26-
121(a)(5) was ambiguous, the Court found that the language of the statute “is clear” and
requires those receiving pre-suit notice “‘to provide the claimant with what amounts to a
complete and total identification of all those “who may be a properly named defendant”
based upon “the reasonable knowledge and information available” to the party that
received pre-suit notice.’” Id. at *7 (quoting Bidwell ex rel. Bidwell v. Strait, No. E2018-
02211-COA-R3-CV, 2019 WL 4464815, at *5 (Tenn. Ct. App. Sept. 18, 2019)). The Court
acknowledged that § 29-26-121(a)(5) does not provide a remedy for a defendant’s failure
to comply with its requirements, but it did not hold that the lack of a remedy excuses a
defendant’s noncompliance.4 Id. Contrary to STM’s argument, a named defendant
receiving pre-suit notice is not relieved of complying with this provision of the HCLA
based on its belief that a non-named third party is not liable for conduct that may be proved
negligent. Such an interpretation would effectively nullify the provision.5

IV. CONCLUSION

The trial court’s judgment granting STM’s motion for summary judgment is
reversed, and this case is remanded for further proceedings consistent with this opinion.
Costs of this appeal shall be taxed to the appellee, Saint Thomas Midtown Hospital, for
which execution shall issue if necessary.

_/s/ Andy D. Bennett_______________
ANDY D. BENNETT, JUDGE

4
The outcome in Bidwell was different than the outcome here, in part, because the Bidwell physicians’
employer was a governmental entity and was a necessary party to the HCLA complaint pursuant to the
GTLA. See Bidwell, 2021 WL 260975, at *3.
5
All other issues Ms. Gardner raises are pretermitted.
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