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Swearengen v. DMC-Memphis Inc.

Court of Appeals of Tennessee, Memphis

April 2, 2015

CLIFFORD SWEARENGEN
v.
DMC-MEMPHIS, INC., ET AL.

Session February 24, 2015.

Appeal from the Circuit Court for Shelby County No. CT-0057-2011 John R. McCarroll, Jr., Judge.

This is an appeal from the trial court's grant of a motion to dismiss Appellant's medical malpractice action[1] against defendants named in Appellant's amended complaint filed more than one year after the cause of action accrued. The trial court found that Appellant's claims against the additional parties were time barred because the amended complaint adding these parties was not filed within ninety days of the original answer asserting comparative fault against non-parties. Discerning no error, we affirm and remand.

Ronald Krelstein, Germantown, Tennessee, and Steven Markowitz, Memphis, Tennessee, for the appellant, Clifford Swearengen.

Jonathan Martin and Joshua Hillis, Memphis, Tennessee, for the appellee, DMC-Memphis, Inc. d/b/a Delta Medical Center.

Joseph M. Clark and Samantha E. Bennett, Memphis, Tennessee, for the appellees, Prism Medical Group, PLC, Michael Johnson, M.D., and Jeffrey Stricklin, NP.

KENNY ARMSTRONG, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.

OPINION

KENNY ARMSTRONG, JUDGE.

I. Factual and Procedural History

In December 2011, Clifford Swearengen (Appellant) filed a medical malpractice action arising from medical treatment he received at DMC-Memphis, Inc. d/b/a Delta Medical Center (DMC). Mr. Swearengen's complaint named DMC as the sole defendant. In his complaint, Mr. Swearengen alleged that, on or about September 30, 2010, he entered DMC's emergency room seeking treatment and that DMC: (1) failed to advise him that his symptoms were indicative of a stroke; (2) failed to perform necessary tests; (3) failed to properly diagnose his condition; and (4) failed to either properly treat him or transfer him to a facility that could properly treat him. Mr. Swearengen claimed that as a result of DMC's negligence, he suffered exacerbation of a stroke that resulted in visual and cognitive impairments and partial paralysis.

On March 1, 2012, DMC filed its answer denying the material allegations of Appellant's complaint. In paragraph 7 of the affirmative defense section of its answer, DMC stated that it "is prohibited by law to practice medicine, it does not and did not attempt to diagnose, develop a medical plan of care, perform surgery or otherwise practice medicine with respect to the [Appellant]. Thus, [DMC] can have no liability for the acts alleged which involve the practice of medicine." DMC further asserted the doctrine of comparative fault as either a bar to any recovery or to diminish DMC's proportion of fault. DMC also alleged in its answer "that the physicians treating the [Appellant] were not employees of DMC. Thus, to the extent alleged in [Appellant's] complaint, DMC can have no liability for the acts alleged involving the physicians treating the [Appellant]."

On November 5, 2012, DMC filed a motion to amend its answer to allege comparative fault specifically naming these parties: Prism Medical Group, Inc., Michael Johnson, M.D., and Jeffrey Stricklin, N.P. (collectively the "Prism Appellees"). On December 6, 2012, the trial court entered an order allowing the amended answer, and DMC filed its amended answer on December 10, 2012. DMC did not file a certificate of good faith as to the Prism Appellees within thirty (30) days of alleging comparative fault against these parties in its amended answer.

On March 6, 2013, Mr. Swearengen filed an amended complaint naming the Prism Appellees as additional defendants. Thereafter, the Prism Appellees moved to dismiss the amended complaint on the ground that the Appellant's action against the Prism Appellees was barred by the statute of limitations. Specifically, the Prism Appellees argued that Mr. Swearengen did not amend his complaint to add them within ninety days of DMC's original answer as required by Tennessee Code Annotated Section 20-1-119. The Prism Appellees also asserted in their motion to dismiss that DMC failed to file a certificate of good faith as to the Prism Appellees within thirty days of filing the amended answer as required by Tennessee Code Annotated Section 29-26-122(b); therefore, the Prism Appellees asserted that Appellant could not rely on the saving provisions of Tennessee Code Annotated Section 20-1-119. Lastly, the Prism Appellees argued, that by waiting ten (10) months to assert the defense, DMC waived its right to assert comparative fault against the Prism Appellees in its amended answer.

On January 14, 2014, the trial court entered an order granting the Prism Appellees' motion to dismiss, finding that DMC's original answer was sufficient to trigger the ninety-day period for adding the Prism Appellees. Initially, the trial court did not rule on the question of whether DMC's failure to file a certificate of good faith was fatal to the assertion of comparative fault, or whether DMC waited too long to amend its answer. On February 27, 2014, the Prism Appellees moved the trial court to finalize the order pursuant to Tennessee Rule of Civil Procedure 54. The following day, February 28, 2014, Mr. Swearengen filed a motion to alter or amend the order of the trial court, asking the trial court to reconsider its previous ruling and to issue a ruling on the two pretermitted issues. On March 21, 2014, Mr. Swearengen filed a supplemental motion to alter or amend the trial court's January 14, 2014 ruling citing additional authority.

On April 3, 2014, the trial court entered an order denying Mr. Swearengen's motions to alter or amend. In its order, the trial court found that an affidavit filed by Mr. Swearengen's attorney was sufficient to waive DMC's requirement to file a certificate of good faith. Additionally, the trial court held that DMC had not waived its rights to allege comparative fault by waiting ten ...


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