Tiffinne Wendalyn Gail Runions v. Jackson -Madison County General Hospital District , 549 S.W.3d 77 ( 2018 )

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.
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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).
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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.
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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
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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.
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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
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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)).
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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
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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)).
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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.
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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.
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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
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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).
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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
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