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Pre-Suit Notice

February 28, 2020

Pre-Suit Notice

Case: Clarissa Bidwell, Deceased, By Next Friend and Husband, James Bidwell, Et Al v. Timothy A. Strait, M.D., Et Al

Facts: Plaintiff sued two doctors for medical malpractice and provided each with the required pre-suit notice. Plaintiff did not provide notice to Erlanger, the governmental hospital authority which employed the doctors. The doctors did not identify Erlanger as a known and necessary party to the suit, but they did later move for summary judgment on the basis that, pursuant to the GTLA, no judgment could be rendered against them without Erlanger as a party defendant. Plaintiff moved to amend his complaint to add Erlanger as a defendant pursuant to the extension provided in TCA 20-1-119. The trial court denied the motion because Plaintiff did not provide Erlanger a pre-suit notice, and granted the doctors summary judgment.

Appellate decision: The intermediate court reversed, holding that TCA 29-26-121(a)(5) required the defendants to identify Erlanger as a known and necessary party. Their failure to do so granted Plaintiff an additional ninety days to add the nonparty as a defendant pursuant to TCA 20-1-119. Finally, Plaintiff’s addition of the nonparty is not barred for failure to provide pre-suit notice pursuant to TCA § 29-26-121(c), which waives the pre-suit notice requirement regarding a person or entity made a party to the action by amendment to the pleadings “as a result of” a defendant’s alleging comparative fault.

Review granted: February 20, 2020.

Prediction: Ben thinks the Supreme Court will affirm the reversal and rule in favor of the Plaintiff, but on different grounds. The doctors did allege comparative fault generally, but not specifically as to Erlanger. Moreover, the Plaintiff did not amend his complaint “as a result of” the allegation of comparative fault but because the defendants pointed out the complaint did not comply with the GTLA. Therefore, the section cited by the intermediate court should not apply. However, Ben thinks the Supreme Court will exercise its discretion to excuse compliance with the pre-suit notice requirement for “extraordinary cause.” As the intermediate court observed, the doctors failed in their statutory duty to identify Erlanger as a known and necessary party to the suit, so they should not be rewarded with summary judgment.