Jackson-Madison County General Hospital District

A medical product sales representative brought suit against her former employer, a hospital, claiming retaliation in violation of the Tennessee Human Rights Act. After a bench trial, the trial court judge entered a verdict in favor of the hospital, having concluded that the employee failed to carry her burden of proof. In spite of dismissing the employee's case, the trial court awarded the employee a portion of her attorney's fees as "sanctions" against the hospital for making an allegedly late-filed motion to strike the employee's demand for a jury trial, which the trial court granted. We affirm the trial court's dismissal of the employee's retaliation claim, and we reverse the trial court's order granting the employee attorney's fees.

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 based on the expiration of the one-year statute of li

I concur in the majority opinion's denial of West Tennessee Health Network and West Tennessee Healthcare, Inc.'s Motion to Dismiss and/or for Summary Judgment. Like the majority, I express no opinion whatsoever on whether dismissal of these two parties might be appropriate under other theories. However, I must respectfully dissent from the majority opinion's holding that pre-suit notice was provided to the District and that amendment of Ms. Runions' complaint was proper. The majority opinion states: "we cannot ignore the unmistakable acknowledgement from Ms. Zamata's letter that Ms. Runions did, in fact, provide written notice of a potential claim against the District." Herein lies my disagreement with the majority opinion.

This is an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. In this health care liability action, we must determine whether the plaintiff properly complied with the pre-suit notice requirement found in Tennessee Code Annotated section 29-26-121(a)(1). The original defendants in this matter all filed a motion to dismiss and/or for summary judgment alleging that they did not provide medical treatment to the plaintiff/appellee. Subsequently, the plaintiff filed a response to the defendants' motion acknowledging that she had mistakenly identified a proper defendant in this suit. The plaintiff also filed a motion to amend her complaint attempting to remedy that mistake by substituting in the proper defendant. After both motions were heard, the trial court denied the original defendants' motion to dismiss and/or for summary judgment and granted the plaintiff/appellee's motion to amend her complaint. For the following reasons, we affirm the decision of the trial court and remand for further proceedings.