More Traps for the Unwary in MedMal Cases
Timing is everything when it comes to adding alleged comparative tortfeasors. Unfortunately, this lesson is too often learned the hard way. Where medical malpractice is concerned, the lack of coordination between the drafters of the Health Care Liability Act with the statute allowing a comparative tortfeasor to be added within 90 days of their being identified in an answer adds yet another trap for plaintiffs to avoid. The Tennessee Court of Appeals’ opinion in Swearengen v. Delta Medical Center presents a cautionary tale.
Clifford Swearengen filed suit against Delta Medical Center, alleging that he received negligent care when he was treated there. DMC responded, denying liability and pointing out that it is prohibited by law from practicing medicine. DMC alleged in general the comparative fault of the physicians who treated Mr. Swearengen, although the answer did not refer to them by name. Nine months later, DMC amended its answer, naming Prism Medical Group and the individual physicians who treated Mr. Swearengen. DMC did not file a certificate of good faith. About three months later, Mr. Swearengen filed a complaint against the Prism Medical Group parties, naming them as additional defendants.
The Prism Medical Group parties moved to dismiss the complaint against them, arguing that Mr. Swearengen’s complaint was time-barred, coming more than one year after the alleged injury and more than 90 days after DMC’s original amended answer alleging the fault of comparative tortfeasors. They also alleged that since DMC did not file a certificate of good faith with its amended complaint, Mr. Swearengen could not rely on the saving statute. Finally, Prism argued that by waiting ten months to specifically name the Prism parties, DMC waived its right to assert Prism’s comparative fault. The trial court granted the motion to dismiss, agreeing with Prism that DMC’s original answer triggered the 90 day saving statute during which time Mr. Swearengen could add the Prism parties as defendants even though the statute of limitations had run. The trial court later determined that DMC’s required certificate of good faith was waived by Mr. Swearengen and that DMC had not waived its right to allege the comparative fault of tortfeasors by waiting several months before amending its answer.
The Court of Appeals examined the substance of DMC’s original answer in light of Tennessee’s notice pleading standards under Tenn. R. Civ. P. 8. The Court determined that the pleading was sufficient to put Mr. Swearengen on notice that a non-party caused or contributed to his injuries. Since the filing came more than one year after the alleged injury, the filing of DMC’s original answer triggered the 90-day grace period provided by the applicable saving statute, T.C.A. § 20-1-119.
On appeal, Mr. Swearengen argued that DMC’s failure to file a certificate of good faith within 30 days when it named the Prism parties as comparative tortfeasors prevented the 90-day saving statute from triggering. The Court of Appeals noted that the two statutes operate independently from each other, and, regardless, no motion was made at the trial-court level to dismiss the comparative fault pleading by DMC. Thus, the judgment of the trial court was affirmed, and another medmal claim was lost to procedural rules.