There are three concepts of notice for identifying tortfeasors in health care liability: inquiry notice, pre-suit notice and reasonable notice. Each concept operates like a tripwire. Once tripped, the clock starts ticking for a specific period within which the patient’s lawyer must act or else be time-barred. Inquiry notice is a feature of the discovery rule found at Tenn. Code Ann. § 29-26-116(a)(2). Inquiry notice stops tolling when the patient reasonably should have discovered the tortfeasor caused an injury. Pre-suit notice is a feature of the Health Care Liability Act found at Tenn. Code Ann. § 29-26-121(a)(5). Every claimant must serve pre-suit notice to a potential defendant 60 days before filing the lawsuit, which extends the statute of limitations and the statute of repose by an additional 120 days.¹ Reasonable notice is a feature of the comparative fault joinder statute found at Tenn. Code Ann. § 20-1-119. Patients have a 90-day “grace period” to sue a non-party defendant once the original defendant alleges comparative fault in the answer. The statute of limitations does not bar the patient’s amended claim against the new party defendant so long as the patient amends the complaint and causes process to issue within 90 days after reasonable notice that the non-party exists.

This article showcases Archer v. Sodexo Operations and Bidwell v. Strait to explain the three concepts of notice, how they operate and where they intersect.² Archer spotlighted a dark corner of the law where inquiry notice and pre-suit notice overlap in health care liability. Archer settled a lingering issue whether the discovery rule applies when the patient discovers her cause of action within a year after the injury. Inquiry notice can arise from a health care provider’s written response to pre-suit notice. Bidwell affirmed that reasonable notice exists to trigger the 90-day grace period even though the original defendant did not identify the non-party at fault. Reasonable notice hinges on whether the patient has an adequate opportunity and time to discover the non-party’s identity with available discovery tools. Moreover, Bidwell established the defendant’s failure to comply with the pre-suit notice statute does not ipso facto excuse the plaintiff’s failure to comply with the pre-suit notice statute.

Archer v. Sodexo Operations

Steven Kelly Archer went to St. Francis Hospital in Memphis and was dependent on a percutaneous endoscopic gastrostomy tube (“PEG tube”) for feeding. His PEG tube malfunctioned in the hospital. A hospital physician instructed the staff to follow NPO which means the patient receives “nothing by mouth.” The staff violated the physician’s order and fed the patient a full breakfast. As a result, the patient aspirated and sustained severe brain damage on August 26, 2018. The patient succumbed to complications from brain damage and died on February 14, 2019.

The patient’s surviving son, Steven Jeffrey Archer, sent pre-suit notice to St. Francis Hospital of a health care liability claim. In June 2019, St. Francis Hospital responded with an email notifying Archer that Sodexo Inc. was a third-party food vendor who provided food services to the patient. In July 2019, St. Francis Hospital formally sent written notice to Archer that identified Sodexo Inc. as a potential defendant.³ In July 2019, Archer sent pre-suit notice to Sodexo Inc. of a health care liability claim. In response, Sodexo Inc. sent written notice to Archer in September 2019 that identified Sodexo Operations LLC as a potential defendant. Archer sent pre-suit notice to Sodexo Operations LLC on the following day.

Archer sued St. Francis Hospital and both Sodexo defendants in December 2019. Sodexo Operations moved to dismiss arguing Archer’s claim was barred by the statute of limitations. Sodexo Operations received pre-suit notice approximately thirteen months after the aspiration (injury). Sodexo Operations alleged that Archer’s actual notice of aspiration in August of 2018 was the triggering event for the statute of limitations, not his receipt of notice in September of 2019 that identified Sodexo Operations as a potential defendant.

Archer replied that he could not identify Sodexo Operations as a potential defendant until he received notice in September 2019. Archer’s attorney submitted an affidavit stating there was nothing in the record to suggest St. Francis Hospital used a third-party food vendor. Sodexo Operations did not appear on the Secretary of State’s website during Archer’s pre-suit research. Furthermore, the attorney for St. Francis Hospital did not know the exact identity of its food vendor. Archer concluded it was unfair to expect him to identify Sodexo Operations as a potential tortfeasor in August 2018 when St. Francis Hospital could not do it in September 2019.

As a secondary argument to support dismissal, Sodexo Operations resurrected a theory involving strict application of the discovery rule that seemed dead after Hoffman v. Hospital Affiliates.⁴ The Tennessee Supreme Court held in Hoffman that the discovery rule applies when the patient discovers an injury within the one year after it occurred.⁵ Sodexo Operations nonetheless argued the discovery rule is inapplicable when the patient discovers an injury within one year after it occurs.⁶ Archer’s cause of action would accrue when he learned of his father’s aspiration in August 2018. Therefore, Sodexo Operation’s receipt of pre-suit notice in September 2019 was untimely because it was received 13 months after Archer had notice of his father’s injury.

The court of appeals rejected the attempt by Sodexo Operations to circumvent Hoffman. Archer had one full year from the date of discovery to send pre-suit notice to Sodexo Operations, whether that discovery occurred two days or two years after the injury. The “rule from Hoffman” eliminates an inequity where a patient identifies the tortfeasor on the 364th day post-injury and only has one day to send pre-suit notice, while another patient identifies the tortfeasor on the 366th day post-injury and has one year to send pre-suit notice. Patients in either scenario have one full year after identifying the tortfeasor to send pre-suit notice. Hoffman was reaffirmed.

The court of appeals used Archer as a primer on inquiry notice. Tolling via the discovery rule ceases when the patient has inquiry notice of the cause of action. Inquiry notice is equivalent to constructive notice. Courts impute knowledge to the patient that a reasonable investigation would uncover about the cause of action. The patient cannot remain passive about discovering the cause of action. This serves as a disincentive to willful blindness. Inquiry notice imposes a duty of care upon the patient who must exercise reasonable care or due diligence to discover the cause of action. Whether the patient exercised reasonable care is a question of fact measured by an objective standard.

Sodexo Operations insisted Archer had inquiry notice of his cause of action the moment he discovered his father aspirated in August 2018. The court of appeals disagreed. There was no evidence Archer could reasonably identify Sodexo Operations as a potential defendant before June 2019, when St. Francis Hospital emailed Archer regarding the use of a third-party food vendor. This email was the earliest possible date when Archer could identify Sodexo Operations as a potential tortfeasor for the cause of action to accrue. As a result, the court of appeals held Archer sent pre-suit notice to Sodexo Operation within the one-year statute of limitations.

Bidwell v. Strait

James Bidwell sued Dr. Timothy Strait and Dr. Jeffrey Colburn in addition to the entities he believed to be their employers—The Neurosurgical Group of Chattanooga P.C., EmCare Inc. and Envision Healthcare Corporation. Bidwell timely sent pre-suit notice to these defendants. However, Bidwell did not send pre-suit notice to Erlanger and did not sue Erlanger. Strait and Colburn failed to identify Erlanger as their employer within 30 days of receiving pre-suit notice, though they were required to do so by Tenn. Code Ann. § 29-26-121(a)(5).⁷ Instead, the doctors waited to identify Erlanger until they filed their answers.

Strait and Colburn moved for summary judgment pursuant to the Governmental Tort Liability Act because Bidwell had failed to sue Erlanger.⁹ The statute of limitations expired by the time Bidwell discovered that Erlanger was the doctors’ employer. Bidwell could not benefit from the 120-day extension of the statute of limitations because he did not send pre-suit notice to Erlanger.⁸ Within 90 days after the answers were filed, Bidwell moved to amend the complaint and join Erlanger as a defendant pursuant to Tenn. Code Ann. § 20-1-119. Though Bidwell did not send timely pre-suit notice to Erlanger, he argued there was “extraordinary cause” to excuse his noncompliance because Strait and Colburn did not comply with Tenn. Code Ann. § 29-26-121(a)(5) when they failed to identify Erlanger as a potential defendant. The trial court granted summary judgment to the doctors.

The Tennessee Supreme Court affirmed the trial court. The court agreed with Bidwell and Colburn did not comply with Tenn. Code Ann. § 29-26-121(a)(5). Nonetheless, the supreme court found this failure to comply with the statute was alone insufficient to establish “extraordinary cause” which would excuse noncompliance with pre-suit notice.¹⁰ There is no specified penalty in the statute when the health care provider violates its duty to identify potential defendants. The court conceded this was a harsh result. But the court suggested a patient’s noncompliance with the pre-suit notice statute may be excused where the health care provider’s failure to identify potential defendants is not the sole basis for “extraordinary cause.”

Bidwell had a chance to save his lawsuit without pre-suit notice because he had reasonable notice of Erlanger in the doctors’ answers. Bidwell was entitled to amend his complaint to sue Erlanger pursuant to Tenn. Code Ann. § 20-1-119 so long as he amended his complaint and caused process to issue to Erlanger within 90 days of Strait’s answer. The fundamental point here is that Bidwell was not obligated to send pre-suit notice to Erlanger under Tenn. Code Ann. § 20-1-119(c) because Strait gave reasonable notice of comparative fault against Erlanger in his answer. The dispositive mistake was that Bidwell failed to comply with Tenn. Code Ann. § 20-1-119 because he did not file an amended complaint and cause process to issue within 90 days after receipt of reasonable notice that Erlanger was a potential defendant. Therefore, he was not entitled to amend his complaint to add Erlanger as a defendant.

Practice Tips

Inquiry notice applies to all personal injury actions, not just health care liability. Prudent lawyers should conduct intense pre-suit research to identify all potential tortfeasors even when they are not necessarily suspected. This research should be documented by date, time and source in painstaking detail. Research of the secretary of state’s corporate website is one source; the register of deeds involving the defendant’s property is another. Locating past and present owners of the property may expose potential tortfeasors like co-owners and property managers. Search engines are invaluable sources of information. Research the defendant on Google or Bing to inquire about other persons or entities with whom the known defendant does business. Examine the defendant’s website because it may contain useful information about others at fault. Send a registered letter to the defendant asking a risk manager or attorney to contact you immediately about identifying other potential defendants. Documented and fastidious research into the identity of potential tortfeasors is the best objective measure of due diligence.

In summary, there is no quarter for the unsuspecting patient or passive lawyer. Inquiry notice tends to penalize patients who trust their doctor. It compels patients to assume medical negligence if there is a bad outcome. Imputing knowledge of negligence from post-operative pain forces patients to second-guess their doctors; otherwise, they risk discovering the cause of action too late. Patients are rewarded for unhealthy skepticism of their doctors, which ultimately sows distrust in the physician-patient relationship. Knowledge of an injury may impute knowledge of its tortious origin even though negligence is not supposed to be presumed from an injury.¹¹ Inquiry notice penalizes the passive lawyer, and the tortfeasor’s identity may be imputed if the lawyer relies exclusively on responses to pre-suit notice to identify potential tortfeasors. Archer and Bidwell provide a clear warning that due diligence and documentation is compulsory. |||

CLINT KELLY is board-certified in Medical Malpractice by the American Board of Professional Liability Attorneys and practices at the Kelly Firm in Hendersonville, Tenn. He is a 1993 graduate of Memphis Law School and resides in Nashville.

NOTES

1. Any person, or that person’s authorized agent, asserting a potential claim for health care liability shall give written notice of the potential claim to each health care provider that will be a named defendant at least sixty (60) days before the filing of a complaint. Tenn. Code Ann. § 29-26-121(a)(1).
2. Archer v. Sodexo Operations LLC, No. W2020-01176-COA-R9-CV, 2022 Tenn. App. LEXIS 202, at *19 (Tenn. Ct. App. May 25, 2022); Bidwell v. Strait, 618 S.W.3d 309 (Tenn. 2021).
3. Tenn. Code Ann. § 29-26-121(a)(5) requires recipients of pre-suit notice to identify any health care provider who may be a potential defendant and send written notice of that identification to the plaintiff within 30 days.
4. Hoffman v. Hosp. Affiliates Inc., 652 S.W.2d 341 (Tenn. 1983).
5. Hoffman v. Hosp. Affiliates Inc., 652 S.W.2d 341, 344 (Tenn. 1983).
6. The Court of Appeals acknowledged it may have used language in Jones v. Behrman, 2017 WL 2791172, at *4 (Tenn. Ct. App. June 27, 2017) that appeared contradictory to Hoffman, stating that “Plaintiffs could not rely upon the discovery rule” because they “discovered their cause of action within the one-year period of limitation.”
7. In the event a health care provider receives notice of a potential claim for health care liability, the health care provider shall, within 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).
8. No judgment may be entered against an employee of a governmental entity unless that governmental entity is also a defendant in the action. Tenn. Code Ann. § 29-20-310(b).
9. Sending pre-suit notice extends the one-year statute of limitations as well as the three-year statute of repose by 120 days. Tenn. Code Ann. § 29-26-121(c).
10. Bidwell, 618 S.W.3d at 322-23; accord Moxley v. Amisub Sfh, 2022 Tenn. App. LEXIS 341, at *45 (Tenn. Ct. App. Aug. 29, 2022) (absent unique circumstances, attorney oversight and stressful conditions encountered during the COVID-19 pandemic do not constitute extraordinary cause for noncompliance with pre-suit notice).
11. In a health care liability action, there shall be no presumption of negligence unless it is shown the instrumentality causing injury was in the defendant’s exclusive control and the injury was one which ordinarily doesn’t occur in the absence of negligence. Tenn. Code Ann. § 29-26-115(c).