Tiffinne Wendalyn Gail Runions v. Jackson -Madison County General Hospital District

06/06/2018

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

November 30, 2017 Session1

TIFFINNE WENDALYN GAIL RUNIONS ET AL. v. JACKSON-MADISON

COUNTY GENERAL HOSPITAL DISTRICT ET AL.

Appeal by Permission from the Court of Appeals

Circuit Court for Madison County

No. C-14-46 Donald H. Allen, Judge

___________________________________

No. W2016-00901-SC-R11-CV

___________________________________

The Tennessee Health Care Liability Act, Tennessee Code Annotated section

29-26-121(a)(1) (2012 & Supp. 2017), requires a person who asserts a potential health

care liability claim to give written pre-suit notice of the claim to each health care provider

that will be named a defendant at least sixty days before the complaint is filed. The

question we address is whether the trial court erred by allowing the plaintiff to amend her

complaint, after the expiration of the statute of limitations, to substitute as a defendant a

health care provider to which the plaintiff had not sent pre-suit notice. The health care

provider the plaintiff sought to substitute had knowledge of the claim based on pre-suit

notice the plaintiff had mistakenly sent to another potential defendant. We hold that the

plaintiff did not comply with the mandatory pre-suit notice provision of Tennessee Code

Annotated section 29-26-121(a)(1) because she did not give written pre-suit notice of the

potential claim to the health care provider she later sought to substitute as a defendant

after the expiration of the statute of limitations. Although the health care provider learned

about the claim based on the pre-suit notice the plaintiff sent to another potential

defendant, this form of notification did not comply with the notice requirement of section

29-26-121(a)(1). Because the plaintiff did not comply with Tennessee Code Annotated

section 29-26-121(a)(1), the 120-day filing extension under Tennessee Code Annotated

section 29-26-121(c) is not applicable. Under Tennessee Rule of Civil Procedure 15.03,

the filing date of the proposed amended complaint may relate back to the filing date of

the original complaint. The plaintiff, however, filed the original complaint after the

expiration of the statute of limitations. As a result, the plaintiff’s motion to substitute the

health care provider is futile because the amended suit would be subject to dismissal

1

We heard oral argument on the campus of Lane College in Jackson, Tennessee, as part of our

S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.

based on the expiration of the one-year statute of limitations. The trial court erred by

allowing the plaintiff to amend her complaint. We reverse the trial court and the Court of

Appeals and remand this case to the trial court for further proceedings.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Trial Court and the

Court of Appeals Reversed; Case Remanded to the Trial Court

SHARON G. LEE, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, C.J.,

and CORNELIA A. CLARK, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.

Patrick W. Rogers, Jackson, Tennessee, for the appellants, Jackson-Madison County

General Hospital District; West Tennessee Healthcare, Inc.; and West Tennessee

Healthcare Network.

Mark N. Geller, Memphis, Tennessee, for the appellee, Tiffinne Wendalyn Gail Runions.

OPINION

I.

On November 9, 2012, Tiffinne Wendalyn Gail Runions gave birth to a baby at

Jackson-Madison County General Hospital at 620 Skyline Drive in Jackson, Tennessee.

Ms. Runions’ baby died five days later.

On October 18, 2013, counsel for Ms. Runions sent pre-suit notice letters,

asserting a health care liability claim, to seven entities, including Bolivar General

Hospital, Inc. d/b/a Jackson-Madison County General Hospital, Inc.; West Tennessee

Healthcare, Inc. d/b/a Jackson-Madison County General Hospital, Inc.; and West

Tennessee Healthcare Network d/b/a Jackson-Madison County General Hospital, Inc.2

Ms. Runions sent the notice letters to these entities by certified mail in care of Currie

Higgs, their registered agent, whose address was also 620 Skyline Drive, Jackson,

Tennessee. Ms. Higgs also served as general counsel for Jackson-Madison County

General Hospital District (“the District”). The letters advised that, under Tennessee Code

Annotated section 29-26-121(a), Ms. Runions was asserting a health care liability claim

against them. The letters also included a list of the health care providers to which Ms.

2

Ms. Runions also sent pre-suit notices to Armie W. Walker, M.D.; Elliott Clifton Roberts, M.D.;

West Tennessee Healthcare, Inc. d/b/a West Tennessee Women’s Center at Jackson-Madison County

General Hospital d/b/a West Tennessee OB/Gyn Clinic; and West Tennessee Healthcare Network d/b/a

West Tennessee Women’s Center at Jackson-Madison County General Hospital d/b/a West Tennessee

OB/Gyn Clinic.

-2-

Runions had sent notice and a HIPAA-compliant medical authorization,3 as required by

the statute.

On October 25, 2013, Laura Zamata, Director of Risk Management for the

District, responded to Ms. Runions’ notice of claim by letter stating:

The District is a governmental entity and has elected to be self-insured,

therefore, there is no insurance carrier.

Please be advised that as the Director of Risk Management, I am your

designated contact for the above referenced claim and all correspondence

and telephone inquiries should be directed to me unless you are notified

otherwise.

Ms. Zamata advised that her mailing address was “JMCGH, 620 Skyline Drive, Jackson,

TN 38301.” Ms. Zamata’s letter was on West Tennessee Healthcare letterhead, which

listed at the bottom of the page thirty-five health care-related entities, including Bolivar

General Hospital, Jackson-Madison County General Hospital, West Tennessee

Healthcare Foundation, West Tennessee OB/GYN Services, and West Tennessee

Women’s Center.

On March 6, 2014, after the expiration of the statute of limitations and within the

120-day filing extension under Tennessee Code Annotated section 29-26-121(c),4 Ms.

Runions filed a health care liability complaint in the Madison County Circuit Court

against Bolivar General Hospital, Inc. d/b/a Jackson-Madison County General Hospital,

Inc.; West Tennessee Healthcare, Inc. d/b/a Jackson-Madison County General Hospital,

Inc.; and West Tennessee Healthcare Network d/b/a Jackson-Madison County General

3

HIPAA is an acronym for the Health Insurance Portability and Accountability Act of 1996, Pub.

L. No. 104–191, 110 Stat. 1936 (codified as amended in scattered sections of 18 U.S.C., 26 U.S.C., 29

U.S.C., 42 U.S.C.).

4

Tennessee Code Annotated section 29-26-121(c) provides in 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 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.

Tenn. Code Ann. § 29-26-121(c).

-3-

Hospital, Inc. The complaint alleged that the defendants’ negligent conduct while Ms.

Runions and her baby were patients at Jackson-Madison County General Hospital caused

the baby’s death.

The defendants answered, asserting, in part, that they were not proper parties

because they provided no medical care to Ms. Runions or her baby at Jackson-Madison

County General Hospital. Instead, the defendants contended that the District, which was

not sued, owned and operated the Jackson-Madison County General Hospital. The

defendants also asserted a statute of limitations defense.

The defendants moved for summary judgment,5 arguing that they had provided no

medical care to Ms. Runions or her baby. Relying on the affidavit of Ms. Higgs, the

defendants further explained the status and relationship of the District and the defendants.

According to the defendants, the District, a governmental entity, owns and operates

Jackson-Madison County General Hospital. West Tennessee Healthcare Network, a

governmental entity, is a managed care network that does not do business as

Jackson-Madison County General Hospital, Inc.; provided no medical services to Ms.

Runions or her baby; and is a subsidiary of the District with the District being its sole

member. West Tennessee Healthcare, Inc. is a non-profit organization with no employees

or licenses to operate health care facilities. Instead, West Tennessee Healthcare, Inc. is a

real estate holding company for the District that provided no medical services to Ms.

Runions or her baby and limits its activities to the ownership and leasing of property.

Jackson-Madison County General Hospital, Inc. is not an active legal entity and provided

no medical treatment to Ms. Runions or her baby. It was organized in 1992 as a

non-profit corporation with the District as its sole member. In 1995, Jackson-Madison

County General Hospital, Inc. amended its Charter to change its name to Bolivar General

Hospital, Inc. and currently operates the Bolivar General Hospital in Hardeman County.

Ms. Runions responded to the motion, conceding that she had mistakenly sued

Bolivar General Hospital, Inc. because it may not have provided health care services to

her and her baby. She argued, however, that it was clear from the face of the complaint

that she had intended to sue Jackson-Madison County General Hospital at 620 Skyline

Drive, Jackson, Tennessee—whatever its name may be. Ms. Runions explained that a

search for Jackson-Madison County General Hospital through the Tennessee Secretary of

State’s information service showed a listing for Bolivar General Hospital, Inc. with the

mailing address of 620 Skyline Drive, Jackson, Tennessee, and that Ms. Higgs was

5

The defendants’ “Motion to Dismiss and/or for Summary Judgment” was supported with an

affidavit from Ms. Higgs. Under Tennessee Rule of Civil Procedure 12.02, if, on a motion to dismiss for

failure to state a claim under Rule 12.02(6), a party submits matters outside the pleadings and the matters

are not excluded by the court, the court treats the motion as one for summary judgment under Rule 56.

Tenn. R. Civ. P. 12.02. We therefore refer to the defendants’ motion as a motion for summary judgment.

-4-

Bolivar General Hospital, Inc.’s registered agent at the same Skyline Drive address. The

Secretary of State’s information service also listed Jackson-Madison County General

Hospital, Inc. as the “old” name of the facility now known as Bolivar General Hospital,

Inc.

Ms. Runions asserted that on October 21, 2013, the District received actual notice

of the claim through notice sent to its place of business at 620 Skyline Drive, Jackson,

Tennessee, within the one-year statute of limitations period. According to Ms. Runions,

the District knew or should have known that, but for the mistake in identity of the proper

party, she would have sued the District. As for West Tennessee Healthcare, Inc. and West

Tennessee Healthcare Network, Ms. Runions disputed whether these entities provided

medical care. She contended that the trial court should allow her to proceed with

discovery about their activities relating to the medical care she and her baby received at

Jackson-Madison County General Hospital. Ms. Runions also argued that the statute of

limitations did not bar her action.

Ms. Runions moved to amend her complaint to substitute the District for Bolivar

General Hospital, Inc. d/b/a Jackson-Madison County General Hospital, Inc. with the

amendment to relate back to the filing of the original complaint under Tennessee Rule of

Civil Procedure 15.03.

The defendants responded that Ms. Runions gave pre-suit notice to Bolivar

General Hospital, Inc.; West Tennessee Healthcare, Inc.; and West Tennessee Healthcare

Network, but not to the District. Relying on Shockley v. Mental Health Coop., Inc., 429

S.W.3d 582 (Tenn. Ct. App. 2013), the defendants argued that Ms. Runions could not

cure her failure to comply with the pre-suit notice requirement under Tennessee Code

Annotated section 29-26-121(a)(1) by relying on the relation back provision of Tennessee

Rule of Civil Procedure 15.03.

Ms. Runions argued that she had complied with Tennessee Code Annotated

section 29-26-121(a)(1) because Jackson-Madison County General Hospital, Inc. and the

District received pre-suit notice, as acknowledged by Ms. Zamata’s October 25, 2013

letter. Relying on Hinkle v. Kindred Hospital, No. M2010-02499-COA-R3-CV, 2012 WL

3799215 (Tenn. Ct. App. Aug. 31, 2012), and Brown v. Samples, No. E2013-00799-

COA-R9-CV, 2014 WL 1713773 (Tenn. Ct. App. Apr. 29, 2014), Ms. Runions

contended that by giving actual notice to the place where she received medical treatment,

she satisfied the mandatory pre-suit notice requirements of Tennessee Code Annotated

section 29-26-121(a)(1).

The trial court denied the defendants’ motion for summary judgment based on its

finding that Ms. Runions sent pre-suit notice to the defendants as evidenced by the

pre-suit notices and the letter of acknowledgement from Ms. Zamata on behalf of the

-5-

District.6 The trial court allowed Ms. Runions to amend her complaint to substitute the

District for Bolivar General Hospital, Inc.

The trial court and the Court of Appeals granted the motion of the District, West

Tennessee Healthcare Network, and West Tennessee Healthcare, Inc. for an interlocutory

appeal. The Court of Appeals considered two issues: whether the trial court erred by

denying the defendants’ motion for summary judgment based on Ms. Runions’

non-compliance with Tennessee Code Annotated section 29-26-121 and the holding in

Shockley, and whether the trial court erred by granting Ms. Runions’ motion to amend her

complaint to substitute the District as a defendant with the amended complaint relating

back to the filing date of the original complaint under Tennessee Rule of Civil Procedure

15.03. Runions v. Jackson-Madison Cnty. Gen. Hosp. Dist., No. W2016-00901-COA-R9-

CV, 2017 WL 514583, at *3 (Tenn. Ct. App. Feb. 7, 2017).

The Court of Appeals affirmed the trial court, holding that Ms. Runions had

complied with the pre-suit notice requirement of Tennessee Code Annotated section

29-26-121(a)(1) and that her motion to substitute the District as a defendant was not

futile. 2017 WL 514583, at *8. The Court of Appeals reasoned that Ms. Runions may not

have intended to give the District pre-suit notice, but the District received actual notice

based on the letter of acknowledgement from Ms. Zamata on behalf of the District. 2017

WL 514583, at *7. The Court of Appeals found that notice is not accomplished when a

related entity receives notice, but here, the District received and acknowledged receipt of

pre-suit notice based on its close and interconnected relationship with the defendants. Id.

The Court of Appeals concluded that Shockley was distinguishable. Id. In

Shockley, the plaintiff mistakenly gave notice to the wrong entity and later filed a health

care liability case against that entity. 429 S.W.3d at 587. Upon realizing the error, the

plaintiff moved to amend to substitute as a defendant the proper entity, which shared a

business address and agent for service of process with the entity she had sued. Id. at 587–

88. The trial court granted the plaintiff’s motion to amend her complaint to substitute the

correct health care provider. Id. at 588. Later, the trial court dismissed the case based on

the plaintiff’s failure to give pre-suit notice to the health care provider as required by

Tennessee Code Annotated section 29-26-121(a)(1). Id. The Court of Appeals affirmed

the dismissal, ruling that when a plaintiff does not give pre-suit notice to a potential

defendant, proof that the potential defendant had actual or constructive notice is

6

In their summary judgment motion, defendants West Tennessee Healthcare Network and West

Tennessee Healthcare, Inc. argued that the trial court should dismiss the claims against them because they

did not provide medical care to Ms. Runions or her baby. The trial court did not rule on this issue, and the

defendants did not raise it in their motion for interlocutory appeal or in their Tennessee Rule of Appellate

Procedure Rule 11 application. We, therefore, do not address this issue.

-6-

insufficient for compliance with Tennessee Code Annotated section 29-26-121(a)(1). Id.

at 594.

Here, the Court of Appeals noted that in Shockley, although the health care

provider substituted as a defendant may have received pre-suit notification, there was no

letter of acknowledgement as there was from Ms. Zamata on behalf of the District which

provided “clear and unambiguous proof” that the District knew of the potential health

care liability claim. Runions, 2017 WL 514583, at *7. The Court of Appeals affirmed the

trial court’s decision to grant Ms. Runions’ motion to amend her complaint based on its

finding that the amendment would not be futile because the District had received and

acknowledged receipt of pre-suit notice. 2017 WL 514583, at *8. Judge Gibson dissented

from the majority’s decision regarding pre-suit notice. 2017 WL 514583, at *8 (Gibson,

J., dissenting). Judge Gibson did not agree that the acknowledgement letter from Ms.

Zamata on behalf of the District distinguished the case from Shockley and constituted

pre-suit notice to the District as required by Tennessee Code Annotated section

29-26-121(a)(1). 2017 WL 514583, at *8-9.

We granted the District’s application for permission to appeal to address whether

the trial court erred by granting Ms. Runions’ motion to amend her complaint, after the

expiration of the statute of limitations, to substitute the District as a defendant in place of

Bolivar General Hospital, Inc.

II.

Tennessee Rule of Civil Procedure 15.01 allows a party to amend its pleadings

once as a matter of course before a responsive pleading is served. Tenn. R. Civ. P. 15.01.

If the opposing party has filed a responsive pleading, the party seeking to amend must

obtain written consent of the adverse party or leave of court. Leave of court “shall be

freely given when justice so requires.” Id. Under Tennessee Rule of Civil Procedure

15.03, a party may be added or substituted, under certain conditions, after the statute of

limitations has expired with the filing of the amended pleading relating back to the filing

date of the original complaint. Tenn. R. Civ. P. 15.03. An amended pleading that

substitutes a party will be considered filed on the date of the original pleading if the party

to be substituted had notice of the suit during the limitations period, or within 120 days of

the filing date, and knew or should have known that, but for a mistake about its identity,

the original suit would have been brought against it. Doyle v. Frost, 49 S.W.3d 853, 856

(Tenn. 2001).

Tennessee Rule of Civil Procedure 15.03 provides:

Whenever the claim . . . asserted in amended pleadings arose out of the

conduct, transaction, or occurrence set forth . . . in the original pleading, the

-7-

amendment relates back to the date of the original pleading. An amendment

changing the party . . . against whom a claim is asserted relates back if the

foregoing provision is satisfied and if, within the period provided by law

for commencing an action or within 120 days after commencement of the

action, the party to be brought in by amendment (1) has received such

notice of the institution of the action that the party will not be prejudiced in

maintaining a defense on the merits, and (2) knew or should have known

that, but for a mistake concerning the identity of the proper party, the action

would have been brought against the party.

Tenn. R. Civ. P. 15.03.

The purpose of Rule 15.03 is to “ameliorate the effect of a statute of limitations where the

plaintiff has sued the wrong party but where the right party has had adequate notice of the

institution of the action.” Doyle, 49 S.W.3d at 856 (quoting Bloomfield Mech.

Contracting, Inc. v. Occupational Safety & Health Review Comm’n, 519 F.2d 1257, 1262

(3d Cir. 1975) (construing Federal Rule of Civil Procedure 15(c)) (internal quotation

marks omitted).

Trial courts have broad discretion to grant or deny motions to amend pleadings.

Pratcher v. Methodist Healthcare Memphis Hosps., 407 S.W.3d 727, 741 (Tenn. 2013).

We review a trial court’s decision to grant or deny a motion to amend under an abuse of

discretion standard. Id. (citing Hawkins v. Hart, 86 S.W.3d 522, 532 (Tenn. Ct. App.

2001)); Cumulus Broad., Inc. v. Shim, 226 S.W.3d 366, 374 (Tenn. 2007) (quoting Welch

v. Thuan, 882 S.W.2d 792, 793 (Tenn. Ct. App. 1994)). “A court abuses its discretion

when it applies an incorrect legal standard or its decision is illogical or unreasonable, is

based on a clearly erroneous assessment of the evidence, or utilizes reasoning that results

in an injustice to the complaining party.” Wilson v. State, 367 S.W.3d 229, 235 (Tenn.

2012) (citing Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011));

accord State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008).

In deciding whether to grant a motion to amend, one factor a trial court should

consider is the futility of amendment.7 Trial courts are not required to grant a motion to

amend if the amendment would be futile. Sallee v. Barrett, 171 S.W.3d 822, 830 (Tenn.

7

Other factors a trial court should consider “include ‘undue delay in filing; lack of notice to the

opposing party; bad faith by the moving party, repeated failure to cure deficiencies by previous

amendments, [and] undue prejudice to the opposing party . . . .’” Cumulus Broad., 226 S.W.3d at 374

(quoting Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn. Ct. App. 1979)); accord Conley v. Life Care

Ctrs. of Am., Inc., 236 S.W.3d 713, 723–24 (Tenn. Ct. App. 2007) (citing Hall v. Shelby Cnty. Ret. Bd.,

922 S.W.2d 543, 546 (Tenn. Ct. App. 1995)).

-8-

2005) (quoting Huntington Nat’l Bank v. Hooker, 840 S.W.2d 916, 923 (Tenn. Ct. App.

1991)); McCullough v. Johnson City Emergency Physicians, P.C., 106 S.W.3d 36, 47

(Tenn. Ct. App. 2002).

Resolving this issue requires us to determine whether Ms. Runions’ motion to

amend would be futile. Ms. Runions filed her original complaint after the expiration of

the one-year statute of limitations applicable to health care actions, relying on the

120-day filing extension afforded by Tennessee Code Annotated section 29-26-121(c).

The 120-day filing extension under Tennessee Code Annotated section 29-26-121(c)

would apply only if Ms. Runions gave pre-suit notice to the District under Tennessee

Code Annotated section 29-26-121(a)(1). The amended complaint may, under Tennessee

Rule of Civil Procedure 15.03, relate back to the filing date of the original complaint, but

the filing date of the original complaint was after the expiration of the statute of

limitations. If Ms. Runions did not give pre-suit notice to the District, then it would be

futile to allow her to file the amended complaint substituting the District because the

cause of action would be time-barred by the statute of limitations.

So, we must determine whether Ms. Runions gave pre-suit notice to the District to

entitle her to the 120-day extension of the filing date under Tennessee Code Annotated

section 29-26-121(c). The answer depends on whether Ms. Runions complied with

Tennessee Code Annotated section 29-26-121(a)(1) when the District learned about the

claim through the pre-suit notice given to Ms. Higgs, the registered agent for the

defendants, who also served as general counsel for the District.

The trial court denied the defendants’ motion for summary judgment, ruling that

Ms. Runions gave pre-suit notice to the District. Summary judgment is appropriate 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. We review a trial court’s ruling on a motion for summary judgment de novo,

without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis, MPLLC,

477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.

1997)).

The interpretation of Tennessee Code Annotated section 29-26-121 is a question

of law that we review de novo with no presumption of correctness. Bray v. Khuri, 523

S.W.3d 619, 621 (Tenn. 2017); Arden v. Kozawa, 466 S.W.3d 758, 764 (Tenn. 2015).

When determining the statute’s meaning, we must determine and carry out the intent of

the Legislature without broadening or restricting its scope. Bray, 523 S.W.3d at 621

(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

-9-

language chosen by the Legislature. Arden, 466 S.W.3d at 764. “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, 432 S.W.3d at 848). 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)).

Tennessee Code Annotated section 29-26-121(a)(1) requires a claimant to provide

written notice to a potential defendant before filing a complaint alleging health care

liability:

Any person . . . 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.

Tenn. Code Ann. § 29-26-121(a)(1) (emphasis added). To satisfy the pre-suit notice

requirement, the claimant must within the statute of limitations8 serve the notice by

personal delivery or certified mail. Id. § 29-26-121(a)(3)-(4). When a plaintiff gives

pre-suit notice to a health care provider under Tennessee Code Annotated section

29-26-121, the one-year statute of limitations is extended by 120 days. Id.

§ 29-26-121(c).

Pre-suit notice under Tennessee Code Annotated section 29-26-121(a)(1) is

mandatory, not directory. Arden, 466 S.W.3d at 762; Foster v. Chiles, 467 S.W.3d 911,

915 (Tenn. 2015) (citing Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 308–09 (Tenn.

2012)). Strict compliance with the pre-suit notice provision is required; substantial

compliance is insufficient. Arden, 466 S.W.3d at 763; Foster, 467 S.W.3d at 915; Myers,

382 S.W.3d at 309. Tennessee Code Annotated section 29-26-121 ensures that a plaintiff

give timely notice to a potential defendant of a health care liability claim so it can

investigate the merits of the claim and pursue settlement negotiations before the start of

the litigation. Foster, 467 S.W.3d at 915 (citing Stevens, 418 S.W.3d at 564). Pre-suit

notice benefits the parties by promoting early resolution of claims, which also serves the

8

The statute of limitations in health care liability actions is one year after the accrual of the cause

of action. Tenn. Code Ann. § 29-26-116(a)(1) (citing Tenn. Code Ann. § 28-3-104(a)(1)).

- 10 -

interest of judicial economy. See id. The sanction for noncompliance with Tennessee

Code Annotated section 29-26-121(a)(1) is dismissal without prejudice. Id. at 916.

Ms. Runions knew that she and her baby received medical treatment at

Jackson-Madison County General Hospital, but she did not correctly identify the District

as the owner and operator of Jackson-Madison County General Hospital. Instead, she

identified and gave pre-suit notice to Bolivar General Hospital, Inc.; West Tennessee

Healthcare, Inc.; and West Tennessee Healthcare Network through their registered agent,

Ms. Higgs, who also served as general counsel for the District. The District’s Risk

Manager acknowledged receipt of the notice and advised that she was the “designated

contact for the above referenced claim.” Therefore, the District knew of Ms. Runions’

claim through pre-suit notice sent to three potential defendants. After the statute of

limitations had expired and within the 120-day filing extension, Ms. Runions sued

Bolivar General Hospital, Inc., West Tennessee Healthcare, Inc., and West Tennessee

Healthcare Network. These defendants answered the complaint and moved for summary

judgment asserting that they had provided no health care to Ms. Runions and her baby.

Realizing her error, Ms. Runions moved to amend her complaint to substitute the District,

which owned and operated Jackson-Madison County General Hospital, Inc. in place of

Bolivar General Hospital, Inc. This proposed amendment would be futile if Ms. Runions

cannot rely on the 120-day filing extension under Tennessee Code Annotated section

29-26-121(c) by showing that she complied with the mandatory pre-suit notice

requirement of Tennessee Code Annotated section 29-26-121(a)(1) for the District.

To determine whether a plaintiff complies with the mandatory pre-suit notice

provision of Tennessee Code Annotated section 29-26-121(a)(1) when the plaintiff does

not give written notice of a claim to a health care provider, but that provider learns of the

claim through pre-suit notice given to a different potential defendant, we review the

language of Tennessee Code Annotated section 29-26-121(a)(1). The operative words are

“Any person . . . 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.” (emphasis added). This language is clear, unambiguous, and requires strict

compliance. The Legislature expressly provided that a plaintiff shall give pre-suit notice

to the health care provider that will be a named defendant. This language can only mean

that the plaintiff must communicate in writing directed to the potential defendant about

the claim. We cannot read the statute to authorize indirect notice—that is, written notice

of the claim directed to a potential defendant that another health care provider receives

and even, as here, acknowledges receiving. Under the language of Tennessee Code

Annotated section 29-26-121(a)(1), the proper inquiry is whether the plaintiff gave

pre-suit notice to the health care provider to be named a defendant, not whether the health

care provider knew about the claim based on pre-suit notice of the claim directed to

another potential defendant.

- 11 -

We hold that a plaintiff does not comply with the mandatory pre-suit notice

provision of Tennessee Code Annotated section 29-26-121(a)(1) when the plaintiff does

not give written pre-suit notice to a health care provider that will be named as a

defendant—even though that health care provider has knowledge of the claim based on

pre-suit notice the plaintiff sent to another potential defendant. Tennessee Code

Annotated section 29-26-121(a)(1) states that notice is to be given in writing to the health

care provider to be named as a defendant at least sixty days before the complaint is filed.

We are not free to add language to the statute to create an exception for when a health

care provider becomes aware of the claim through some means other than pre-suit notice

given to it by the plaintiff. We also cannot vary the language of the statute to allow a

plaintiff to avoid compliance with the pre-suit notice statute when she does not correctly

identify the potential defendant.9 Our holding is dictated by the language of section

29-26-121(a)(1), which the Legislature enacted based on public policy considerations.

We do not substitute our judgment about policy matters for that of the Legislature.

BellSouth Telecomms., Inc. v. Greer, 972 S.W.2d 663, 673 (Tenn. Ct. App. 1997). Our

interpretation of Tennessee Code Annotated section 29-26-121(a)(1) is consistent with

Tennessee Code Annotated section 29-26-121(a)(2), which requires pre-suit notice to

include a HIPAA-compliant medical authorization permitting the health care provider

receiving the notice to obtain complete medical records from each other health care

provider sent the notice. Here, because Ms. Runions did not send pre-suit notice to the

District, it did not receive a HIPAA-compliant medical authorization.

The issues here and in Shockley v. Mental Health Cooperative, Inc., involve

pre-suit notice but in different contexts. In Shockley, the issue was whether the suit

should be dismissed based on the plaintiff’s asserted failure to provide pre-suit notice.

Here, the issue is whether it would be futile to allow a plaintiff to substitute a health care

provider as a defendant after the expiration of the statute of limitations resulting from the

plaintiff’s asserted failure to provide pre-suit notice.

9

Ms. Runions’ cause of action arose in 2012, before the enactment of Tennessee Code Annotated

section 29-26-121(a)(5), which 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.

Tenn. Code Ann. § 29-26-121(a)(5). This section became effective April 24, 2015, and applies to causes

of action arising on or after its effective date. 2015 Tenn. Pub. Acts, ch. 254, § 1.

- 12 -

In Shockley, the claimant filed a health care liability suit arising from the suicide

of her brother while he was receiving care in a medical facility operated by the Mental

Health Cooperative, Inc. (“the Cooperative”). Shockley, 429 S.W.3d at 584–85. Ms.

Shockley mistakenly sent pre-suit notice letters to the Mental Health Cooperative

Foundation, Inc. (“the Foundation”) and Peggy Hoffman, the Foundation’s agent for

service of process. Id. at 587. Ms. Shockley sued the Foundation within the one-year

statute of limitations period. Id. at 585. The Foundation and the Cooperative were

separate and distinct entities; the Foundation was the Cooperative’s fundraising entity

and did not provide medical care. Id. at 585, 587. Ms. Hoffman, however, was the

registered agent for both entities, and the pre-suit notice letters were sent to and received

at the same address. Id. at 587. The trial court allowed Ms. Shockley to amend her

complaint to substitute the Cooperative as a defendant in the place of the Foundation. Id.

at 588. The trial court later dismissed the case based on Ms. Shockley’s failure to comply

with Tennessee Code Annotated section 29-26-121(a)(1) by failing to give pre-suit notice

to the Cooperative. Id. The Court of Appeals affirmed, holding that the clear and

ambiguous language of Tennessee Code Annotated section 29-26-121(a)(1) requires the

plaintiff to give pre-suit notice to the provider that will be named as a defendant. Id. at

590. The Court of Appeals found that the Foundation was neither a health care provider

nor a proper defendant, and pre-suit notice given to a party that is not to be named a

defendant is of no effect under Tennessee Code Annotated section 29-26-121(a)(1). Id. In

the Shockley court’s view, “the question of whether a plaintiff complied with pre-suit

notice does not turn on ‘actual or constructive’ notice; it turns on whether a plaintiff

complied with Section 29-26-121.” Id. at 594. Even though the Cooperative may have

had knowledge of the potential claim because it had the same business address and the

same registered agent as the Foundation, this “constructive” notice did not satisfy

Tennessee Code Annotated section 29-26-121.

Here, the Court of Appeals reasoned that Shockley was distinguishable because the

District acknowledged in writing that it had received notice; the plaintiff, therefore, had

complied with Tennessee Code Annotated section 29-26-121. This, however, is a

distinction without a difference. The key consideration is whether, under Tennessee Code

Annotated section 29-26-121(a)(1), Ms. Runions gave written pre-suit notice to the

District—not whether the District knew about the claim or whether it acknowledged that

it had learned about the claim based on the pre-suit notice given to another potential

defendant.

Here, as in Shockley, the plaintiff cannot proceed because she failed to give

pre-suit notice, but for different reasons. Ms. Shockley filed her original suit within the

statute of limitations, and so, the amendment to add the Cooperative was not futile

because it related back to the filing date of the original complaint under Tennessee Rule

of Civil Procedure 15.03. The complaint was later dismissed because Ms. Shockley did

not give pre-suit notice. Ms. Runions filed her original suit after the statute of limitations

- 13 -

had expired, relying on the 120-day extension under Tennessee Code Annotated section

29-26-121(c). Because she did not give pre-suit notice to the District under Tennessee

Code Annotated section 29-26-121(a)(1), Ms. Runions cannot rely on Tennessee Code

Annotated section 29-26-121(c) to extend the filing date for her claim against the District

by 120 days. Under Tennessee Rule of Civil Procedure 15.03, Ms. Runions’ amended

complaint could relate back to the filing of the original complaint, but the relation back

would not make the amended complaint timely. As a result, Ms. Runions’ motion to

amend her complaint to substitute the District would be futile because she filed her

original suit after the expiration of the statute of limitations.

Ms. Runions argues that pre-suit notice to the business address of the facility

where she received treatment satisfied the pre-suit notice requirement of Tennessee Code

Annotated section 29-26-121(a)(1), citing Brown v. Samples, No. E2013-00799-COA-

R9-CV, 2014 WL 1713773 (Tenn. Ct. App. Apr. 29, 2014), and Hinkle v. Kindred Hosp.,

No. M2010-02499-COA-R3-CV, 2012 WL 3799215 (Tenn. Ct. App. Aug. 31, 2012).

Neither the language of Tennessee Code Annotated section 29-26-121(a)(1) nor the

holdings in Brown and Hinkle support this argument. Tennessee Code Annotated section

29-26-121(a) does not authorize pre-suit notice to be sent to the facility but states that

when notice is mailed to a health care provider that is a corporation, it must be sent to

both the address for the agent for service of process and the health care provider’s

business address, if different from that of the agent for service of process. Tenn. Code

Ann. § 29-26-121(a)(3)(B)(ii). Implicit in this language is that a plaintiff must direct the

notice to the health care provider and not to some other person or entity.

In Brown and Hinkle, the plaintiffs sent pre-suit notice to the intended health care

providers, but the disputed issue was the manner of service. In Brown, the plaintiff

asserted a health care liability claim against the University of Tennessee Medical Center

and the University of Tennessee Graduate School of Medicine in Knoxville. 2014 WL

1713773, at *1. In April 2011, the plaintiff sent pre-suit notice to these potential

defendants and later filed a claim against them with the Division of Claims

Administration within the 120-day extension period. Id. After the claim was transferred

to the Division of Claims, the State moved to dismiss, asserting that the plaintiff could

not rely on the 120-day extension because she failed to serve pre-suit notice on the

Tennessee Attorney General, the Assistant Attorney General, or the Division of Claims

Administration.10 2014 WL 1713773, at *2. The Court of Appeals held that the plaintiff

complied with Tennessee Code Annotated section 29-26-121(a)(1) by sending pre-suit

notice to the University of Tennessee Graduate School of Medicine, a division of the

State of Tennessee. 2014 WL 1713773, at *8. Nothing in Tennessee Code Annotated

10

Tennessee Rule of Civil Procedure 4.04(6) requires process to be served on the State of

Tennessee by delivering a copy to the Tennessee Attorney General or any assistant attorney general.

Tenn. R. Civ. P. 4.04(6).

- 14 -

section 29-26-121 at that time addressed the proper agent for service of process for the

State for pre-suit notice. 2014 WL 1713773, at *7-8.

In Hinkle, the plaintiff sent pre-suit notice of a claim against Kindred Hospital to

its Chief Administrator at the Hospital’s address. 2012 WL 3799215, at *2. The plaintiff

did not send notice to Kindred Hospital’s agent for service of process. The Court of

Appeals held that notice was sufficient because there was no objection to the alleged

failure of service on the agent for service of process, no confusion about which entity was

to be named a defendant, and Kindred Hospital received actual notice. 2012 WL

3799215, at *7. Unlike this case, the plaintiff in Hinkle directed notice to the defendant,

not to another potential defendant. The disputed issue was the plaintiff’s method of

giving notice, not whether the plaintiff gave pre-suit notice. See id.

III.

We hold that the trial court erred by granting Ms. Runions’ motion to amend to

substitute the District as a defendant because this amendment would be futile. Ms.

Runions did not comply with Tennessee Code Annotated section 29-26-121(a)(1) by

giving the District written pre-suit notice; thus, she cannot rely on the 120-day filing

extension of Tennessee Code Annotated section 29-26-121(c). Ms. Runions filed her

complaint after the expiration of the statute of limitations, but within the 120-day

extension. Although the proposed amendment may, under Tennessee Rule of Civil

Procedure 15.03, relate back to the filing of the original complaint, the amended

complaint would be barred by the statute of limitations. We reverse the decisions of the

trial court and the Court of Appeals and remand this case to the trial court for further

proceedings. The costs of this appeal are taxed to Tiffinne Wendalyn Gail Runions and

any surety, for which execution may issue if necessary.

___________________________

SHARON G. LEE, JUSTICE

- 15 -