                                                                                            06/29/2018
                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                             November 9, 2017 Session

   BONNIE HARMON, ET AL. v. HICKMAN COMMUNITY HEALTHCARE
                         SERVICES, INC.

                 Appeal from the Circuit Court for Hickman County
                   No. 14-CV-6        Deanna B. Johnson, Judge

                        ___________________________________

                            No. M2016-02374-COA-R3-CV
                        ___________________________________


This suit was brought by the children of a woman who died while incarcerated at
Hickman County Jail. Defendant is a contractor of the jail that provides medical services
at the jail; a nurse in Defendant’s employment treated the decedent for symptoms of drug
and alcohol withdrawal. She passed away shortly after. The children brought this suit
under the Health Care Liability Act claiming negligence and negligent hiring, retention,
and supervision. In due course, Defendant moved for summary judgment, arguing,
among other things, that there was not a genuine issue of material fact as to causation and
it was entitled to judgment as a matter of law on that element of Plaintiffs’ claim; the trial
court granted Defendant’s motion and subsequently denied a motion to revise, filed by
the Plaintiffs. This appeal followed.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in
                    Part and Affirmed in Part; Case Remanded

RICHARD H. DINKINS, J., delivered the opinion of the court, in which ANDY D. BENNETT,
J., joined. W. NEAL MCBRAYER, J., filed a dissenting opinion.

David Randolph Smith, Dominick R. Smith, W. Lyon Chadwick, Jr., and Christopher W.
Smith, Nashville, Tennessee, for the appellants, Bonnie Harmon, Jenny Fagan, and
Edward Fagan.

C. Bennett Harrison, Jr., and Brian W. Holmes, Nashville, Tennessee, for the appellee,
Hickman Community Healthcare Services, Inc. d/b/a Hickman County Hospital.
                                                OPINION

I.        FACTUAL AND PROCEDURAL HISTORY

        On December 12, 2011, after being found in possession of drugs and drug
paraphernalia during a traffic stop, Pamela Rudder was arrested and incarcerated in the
Hickman County Jail. At some point, she started experiencing symptoms of narcotic
withdrawals, and on December 15 at 6:33 a.m., Ms. Rudder made a “grievance report”
through the jail’s system, in which she stated that she was “going through bad
withdrawals” and requested that she be seen “as soon as possible.” She was treated in the
jail’s medical unit by Tonie D. Cloud, R.N. (“Nurse Cloud”), an employee of Hickman
Community Healthcare Services, Inc., (“Hickman County Healthcare” or “Defendant”)
assigned to the Hickman County jail.1 Ms. Rudder was later found unresponsive in her
cell, and she passed away December 16, 2011.

       Bonnie Harmon, Jenny Fagan, Edward Fagan, and Matthew Bilbery,2 the
surviving children of Ms. Rudder, sued Saint Thomas Health, Ascension Health,
Millennium Medical Trust, Inc., and Hickman County Healthcare in Davidson County
Circuit Court on April 11, 2013, asserting that the defendants were liable for Nurse
Cloud’s negligence and for the negligent hiring, training, and supervision of Nurse
Cloud. Plaintiffs amended their complaint to add a factual allegation relative to their
claim that Ascension Health’s corporate veil should be pierced. Saint Thomas Health,
Ascension Health, and Millennium Medical Trust, Inc., later moved for and were granted
summary judgment on the basis that they were not proper parties. Following their
dismissal, the case was transferred to Hickman County Circuit Court under Tennessee
Code Annotated section 16-1-116.

       After the case was transferred, Defendant moved for summary judgment (“First
Motion for Summary Judgment”), arguing that the treatment that Nurse Cloud provided
Ms. Rudder complied with the applicable standard of care, that Defendant was not
negligent in any manner, and because Plaintiffs had executed a settlement agreement with
Hickman County in another action arising out of Ms. Rudder’s death, which Defendants
alleged also included Plaintiffs’ claims against Defendant; in the memorandum
accompanying the motion, Defendant also argued that it could not be held liable for
Nurse Cloud’s actions under the loaned servant doctrine. The trial court denied the
motion on October 28, ruling that there were genuine issues of material fact which
precluded summary judgment.

1
 Hickman County Healthcare had a contract with Hickman County to provide medical services to the
Hickman County Jail.
2
    On September 18, 2015, Mr. Bilbery was dismissed, as not being a proper party to the suit.

                                                      2
       After securing the deposition of Dawn Glenn, a nurse practitioner employed by
Defendant who also worked at Hickman County Jail, and the affidavit of Robin Crowell,
Defendant’s Chief Nursing Officer, Defendant filed a Renewed and Supplemental
Motion for Summary Judgment (the “Renewed Motion”) on September 11, 2015. In the
motion, Defendant argued it was entitled to judgment as a matter of law (1) on its loaned
servant defense and (2) because the affidavit of Donna Seger, M.D., its expert witness,
and Ms. Rudder’s autopsy report negated the element of causation.

        On September 15, 2015, Plaintiffs filed two motions: a motion for partial summary
judgment on the issues of standard of care and causation (the “Causation Motion”),
supported by a Tennessee Rule of Civil Procedure 56.03 statement of undisputed material
facts, and the affidavits of Nurse Cindy Kovacs-Whaley and their medical expert, Martin
H. Wagner, M.D. In response to the motion, Defendants argued, inter alia, that Dr.
Wagner did not meet the criteria at Tennessee Code Annotated section 29-26-115(b) in
that he did not “practice a profession or specialty which would make [his] expert
testimony relevant to the issues in the case.” Plaintiffs also moved for partial summary
judgment on the loaned servant doctrine (“Loaned Servant Defense Motion”), seeking
dismissal of that affirmative defense. On October 8, Plaintiffs moved to amend their
Second Amended Complaint (“October 8 Motion to Amend”);3 they sought to add a
claim of negligent training and supervision “in response to [Defendant]’s affirmative
defense based on the loaned servant doctrine, and newly discovered evidence obtained in
discovery.” Defendant’s Renewed Motion and Plaintiffs’ Causation Motion, Loaned
Servant Defense Motion, and October 8 Motion to Amend were heard and taken under
advisement on November 2, 2015.

     On January 8, 2016, the trial court entered an order granting the October 8 Motion
to Amend;4 the court denied the Causation Motion on January 21, and the Loaned
3
  The parties and the trial court made repeated reference to a Second Amended Complaint that was
purportedly filed on May 1, 2014, and continue to make reference this Second Amended Complaint on
appeal; there is no such document in the record on appeal. An unstampfiled “Second Amended
Complaint” is included as Exhibit B to Defendant’s brief on appeal. On December 19, 2014, Defendant
answered Plaintiffs’ Second Amended Complaint, which is in the record. We consider the Exhibit B
Second Amended Complaint as the operative complaint for purposes of this appeal.
4
  These motions were heard and taken under advisement on November 2, 2015. On January 8, 2016, the
trial court entered a Memorandum and Order, granting Plaintiffs’ October 8 Motion to Amend and setting
forth its rationale. The certificate of service on the Memorandum and Order, however, was not completed
and the record does not show that the signed order was sent to counsel for the parties. The Notice of
Appeal was filed on November 9, 2016 and, in the course of reviewing the record for purposes of appeal,
counsel for Plaintiffs discovered the Order entered January 8, 2016. Counsel thereupon filed the Third
Amended Complaint in the trial court on April 27, along with a motion to supplement the record.
Following a hearing, the motion was denied on the May 11, 2017, the court holding that “pursuant to
Tenn. R. Civ. P. 24(g) the Third Amended Complaint is not necessary to provide the Court of Appeals a
fair, accurate or complete account of what occurred in the trial court with regard to the grant of
Defendant’s Renewed and Supplemental Motion for Summary Judgment” because “the Third Amended
                                                  3
Servant Defense Motion on January 25. On April 4, the court ruled on the Renewed
Motion (the “April 4 Order”), denying the motion as to Defendant’s loaned servant
defense, and granting Defendant summary judgment on causation; the court held that Dr.
Wagner’s declaration “fails to reveal that he is competent under Tennessee Code
Annotated § 29-26-115(b) and his declaration should be excluded from the record,” and
that, consequently, there was not a genuine issue of material fact on causation.

       On May 4, Plaintiffs filed a Motion to Revise the April 4 Order based on newly
submitted declarations of an expert physician, Dr. Kris Sperry; a hearing was held, and
by order entered July 19, the court denied the motion. On November 2, 2016, the trial
court entered an order certifying the April 4 Order as final.

        The parties each raise multiple issues on appeal, generally addressing whether the
trial court erred by granting Defendant’s Renewed Motion, denying Plaintiffs’ Motion to
Revise, denying the parties’ summary judgment motions on the loaned servant doctrine,
or granting Plaintiffs’ October 8 Motion to Amend. We begin our analysis with the
Motion to Revise.

II.     MOTION TO REVISE

        While Plaintiffs’ stated ground for the Motion to Revise was Tennessee Rule of
Civil Procedure 54, in an order entered April 5, 2017, this court noted that the motion
sought relief consistent with Rule 59, and treated it as such; we continue our analysis in
that regard.5

      A Rule 59 motion “allows the trial court to correct any errors as to the law or facts
that may have arisen as a result of the court overlooking or failing to consider matters.”
Chadwell v. Knox County, 980 S.W.2d 378, 383 (Tenn. Ct. App. 1998).

        These motions “may be granted (1) when the controlling law changes
        before a judgment becomes final, (2) when previously unavailable evidence
        becomes available, or (3) when, for sui generis reasons, a judgment should

Complaint had not been filed with the Court, the trial court could not have properly considered it when
granting Defendant’s Renewed and Supplemental Motion for Summary Judgment.” The trial court based
its decision on the allegations of the Second Amended Complaint. While neither party complains on
appeal that the court should not have based its decision on the Second Amended Complaint, Defendant
argues that the October 8 motion should not have been granted; the Plaintiffs have responded. We resolve
Defendant’s argument infra.
5
  The April 5, 2017, order was entered on Defendant’s motion to dismiss the appeal for not being timely
filed. In the order, we noted the procedural history of the case; Plaintiffs had filed a “Tenn. R. Civ. P.
54.02 Motion to Revise” within 30 days of the April 4 Order, a “Premature Notice of Appeal” and a
Tennessee Rule of Appellate Procedure 9 application for permission to appeal on August 18, 2016. We
denied the Rule 9 application on September 23, 2016.
                                                    4
      be amended to correct a clear error of law or to prevent injustice. They
      should not, however, be granted if they are simply seeking to relitigate
      matters that have already been adjudicated.” Bradley v. McLeod, 984
      S.W.2d 929, 933 (Tenn. Ct. App. 1998).

Vacarella v. Vacarella, 49 S.W.3d 307, 312 (Tenn. Ct. App. 2001). Additionally, when
the basis for the motion is to alter or amend an order granting summary judgment based
on newly submitted evidence, the trial court should consider the following factors:

      [1] [T]he moving party’s effort to obtain the evidence in responding to the
      summary judgment; [2] the importance of the new evidence to the moving
      party’s case; [3] the moving party’s explanation for failing to offer the
      evidence in responding to the summary judgment; [4] the unfair prejudice
      to the non-moving party; and any other relevant consideration.

Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003) (citing Harris v. Chern, 33 S.W.3d
741, 745 (Tenn. 2000) (“When additional evidence is offered by a litigant to overcome a
grant of summary judgment pursuant to Rule 54.02, trial courts must undertake the
above-stated balancing analysis and should make adequate findings of fact and
conclusions of law on the record to support their rulings.”)) (footnote omitted).

      Plaintiffs moved the court to revise the April 4 Order based on previously
unavailable evidence, specifically the declarations of Dr. Sperry, an expert in pathology;
the motion was also supported by the affidavit of Plaintiffs’ counsel, Mr. Smith.

      In the order entered July 19, the trial court made Findings of Fact:

      Plaintiffs were on notice that Dr. Wagner’s competency was being
      challenged yet chose to take the risk of relying solely on his testimony. The
      Affidavit of Plaintiffs’ counsel filed in support of the Motion to Revise
      reflects that, as early as October 12, 2015, he was on notice that Defendant
      was going to challenge Dr. Wagner’s competency. (Smith Aff. ¶ 3). In
      addition, on October 27, 2015, Plaintiffs were served with Defendant’s
      Response to Plaintiffs’ Motion for Partial Summary Judgment on the issue
      of causation, which called into question Dr. Wagner’s credentials. The
      matter was then argued at length on November 2, 2015, and taken under
      advisement by the Court for five months before the Court published a 56
      page Order on April 4, 2016.

      Plaintiffs had been in communication with Kris Sperry, M.D. (hereinafter
      “Dr Sperry”) for over two years prior to the Motions for Summary
      Judgment being filed, and remained in contact with him afterward. The
      Affidavit of Plaintiffs’ counsel reflects that Dr. Sperry had been retained or
                                             5
      consulted by Plaintiffs and a conversation was held concerning Dr. Sperry’s
      medical opinion of the case in June, 2013. (Smith Aff. ¶ 4, Ex. 2). The
      Affidavit reflects that Plaintiffs’ counsel contacted Dr. Sperry via email on
      October 16, and 20, 2015, but they did not hear back from Dr. Sperry.
      Plaintiffs’ Affidavit further reflects that Plaintiffs received a voicemail from
      Dr. Sperry on December 1, 2015, informing Plaintiffs that Dr. Sperry had
      suffered a ruptured disc in his back, which was why he had not been
      communicating. (Smith Aff. ¶ 4, Ex. 2). Plaintiffs did not seek any relief
      under Rule 56.07 of the Tennessee Rules of Civil Procedure for an
      extension of time to obtain additional affidavits. Following the Court’s
      April 4, 2016, Memorandum and Order, Plaintiffs obtained Dr. Sperry’s
      Declaration on May 2, 2016, and submitted it to the Court along with its
      May 4, 2016, Motion to Revise. Plaintiffs did not request a continuance of
      the November 2, 2015, Hearing on the Motions for Summary Judgment in
      order to obtain Dr. Sperry’s Declaration, Affidavit, or Deposition.

Based on these findings the trial court made the following conclusions of law:

      As for the first factor to be considered — the movant’s efforts to obtain
      evidence to respond to the motion for summary judgment - Plaintiffs did
      not make a strong effort to obtain Dr. Sperry’s declaration, despite being
      put on notice that Defendant was challenging Dr. Wagner’s competency.
      Plaintiffs sent two emails to Dr. Sperry on October 16, and 20, 2015, even
      though Plaintiffs had originally consulted Dr. Sperry in June of 2013.
      Plaintiffs did not hear back from Dr. Sperry before the Hearing on the
      Motions for Summary Judgment. Although Plaintiffs knew they needed Dr.
      Sperry’s testimony, they failed to ask the Court to continue the Motions for
      Summary Judgment Hearing that was scheduled for November 2, 2015.
      Instead, Plaintiffs took a gamble and moved forward with the Hearing.
      Moreover, Plaintiffs had ample time to file for an extension of time to
      obtain Dr. Sperry’s Declaration after the Hearing while the Motion for
      Summary Judgment was under advisement.

      The second factor to be considered is the importance of the newly
      submitted evidence to the movant’s case. Here, the importance of the newly
      submitted evidence to Plaintiffs’ case is high, and Plaintiffs were aware of
      its importance. Plaintiffs could have submitted the Declaration of Dr.
      Sperry, along with a contemporaneous Motion to Supplement Plaintiffs’
      Response to Defendant’s Motion for Summary Judgment prior to the
      Court’s ruling, which was not entered for more than five months after the
      Court took it under advisement. Instead, Plaintiffs chose to await the
      Court’s decision in hopes for a favorable ruling.

                                             6
       The third factor to be considered is the explanation offered by the movant
       for its failure to offer the newly submitted evidence in its initial response to
       the motion for summary judgment. Here, Plaintiffs offer two explanations
       for why Dr. Sperry’s Declaration was not submitted. First, Plaintiffs argue
       Dr. Sperry was unreachable due to the slipped disk in his back. However, as
       stated above, Plaintiffs were free to seek relief for a continuance of the
       November 2, 2015, Hearing or an extension of time to obtain additional
       affidavits or obtain the declaration and file a motion to supplement.
       Moreover, Plaintiffs had established contact with Dr. Sperry as early as
       2013, and communicated with him as late as December 2015, yet chose not
       to obtain his Declaration nor file for an extension of time to do so.

       In addition, Plaintiffs argued at the May 26, 2016, Hearing on the Motion to
       Revise that Plaintiffs did not believe Dr. Sperry’s Declaration was
       necessary to survive the summary judgment stage, and instead took a
       calculated risk by relying solely on Dr. Wagner. The Court has previously
       emphasized in this lawsuit its conviction that the summary judgment stage
       must be taken seriously. The Court finds that Plaintiffs’ choice to rely
       solely on Dr. Wagner’s competency was one that carried great importance,
       and one that Plaintiffs’ counsel made consciously with the full awareness of
       the potential consequences. Accordingly, Plaintiffs are responsible for the
       outcome of that decision.

       The fourth factor is the likelihood that the nonmoving party will suffer
       unfair prejudice. The Court finds it would be unfairly prejudicial to
       Defendant to grant Plaintiffs’ Motion after Plaintiffs had numerous chances
       to submit Dr. Sperry’s testimony or ask for an extension of time during the
       Summary Judgment phase.

       A trial court’s ruling on a motion to alter or amend will be reversed only for an
abuse of discretion. Harris, 33 S.W.3d at 746. An abuse of discretion occurs if a trial
court causes an injustice to a party by “(1) applying an incorrect legal standard, (2)
reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly
erroneous assessment of the evidence.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524
(Tenn. 2010). We resolve this issue using the factors set forth in Stovall.

       A.      Plaintiffs’ effort to obtain Dr. Sperry’s declaration and explanation for
               not offering it earlier6


6
 Because Stovall factors (1) and (3) involved overlapping facts and mandate the same analysis in this
appeal, we will discuss them together.

                                                 7
       In support of the motion to revise, Plaintiffs’ counsel, Mr. Smith, filed an affidavit
to “explain why an affidavit from Dr. Kris Sperry could not be obtained—through the
exercise of due diligence—before the November 2, 2015 hearing on defendant’s renewed
and supplemental motion for summary judgment.” Mr. Smith explained in his affidavit
that he was first notified that Defendant was challenging Dr. Wagner’s competency on
October 12, 2015, when Defendant’s counsel notified him by email. Mr. Smith stated
that once he knew that Dr. Wagner’s competence was being challenged, he emailed Dr.
Sperry on October 16, asking him to draft a declaration concerning Ms. Rudder’s cause
of death, and after failing to receive a response, he followed up with Dr. Sperry by email
on October 20.7 Mr. Smith further explained that he did not receive any communication
from Dr. Sperry until December 1, 2015, at which time Dr. Sperry left Mr. Smith a
voicemail in which Dr. Sperry explained why he had not responded earlier, that he had
sustained a back injury that kept him from working.8 The statements in Mr. Smith’s
affidavit were consistent with his statements at the November 2 hearing on the pending
motions, wherein he informed the court and defense counsel that he would seek to offer
new evidence from another expert if the trial court were inclined to grant the motion:

       So just assuming for a second that [Defendant’s] argument is well taken,
       we would request the opportunity to get another expert that could address
       her points. But we don’t believe that’s necessary, because [Defendant]
       cannot meet [Defendant’s] burden of production under Rule 56, because
       [Defendant] can’t show that [Dr. Seger] was practicing during the year
       preceding the negligent act.

        Mr. Smith explained in the hearing on the motion to revise that, despite having
consulted with Dr. Sperry as early as December of 2013, Plaintiffs chose not to request
an affidavit from him at that time, in part due to the high cost of pathologist testimony,
and that Plaintiffs had the declaration of Dr. Wagner, whom they considered competent
to testify as to causation.



7
 These emails were attached to Plaintiffs’ Motion to Revise. In the October 16 email Mr. Smith asked
Dr. Sperry if he was “available before 10/26 (our response date) to discuss submitting a declaration in
order to respond to Dr. Seger’s affidavit?” He reiterated his request in the October 20 email.
8
 Dr. Sperry’s voicemail was played via CD-ROM during the hearing on Plaintiffs’ Motion to Revise and
was transcribed by the court reporter:

       “Hey, Mr. Smith. This is Dr. Sperry down in Atlanta. I’m sorry it took me so long to get
       back to you. I had a ruptured disc in my back that just really kind of put me out of action
       for a bit. Anyway, this is about the Rudder matter. You know, I’m -- you know, I can still
       help you with that. My number, if you want to give me a call, is []. Otherwise, you have
       my email, which is []. And I look forward to working with you again. Thanks. Bye, bye.”

                                                   8
        The evidence presented in support of the motion shows that when Plaintiffs
recognized that there might be a need for additional expert proof to meet their burden of
production at the summary judgment stage,9 they attempted to secure such testimony
from Dr. Sperry, an expert with whom they had previously consulted. The Plaintiffs then
put the trial court and Defendant on notice that they wanted an opportunity to offer such
additional expert proof in the event the trial court found that Dr. Wagner was not
competent to testify on to the cause of Ms. Rudder’s death, which it eventually did. The
evidence also shows that Dr. Sperry was unavailable during the specific time frame in
which his testimony was needed, i.e., prior to the hearing on Defendant’s Renewed
Motion. Under the circumstances presented, the desire to avoid incurring the cost of
securing Dr. Sperry’s assistance was not inappropriate. The record shows that, when the
trial court ruled determined that Dr. Wagner was not competent to provide an opinion on
causation at the summary judgment stage, Plaintiffs promptly submitted Dr. Sperry’s
declaration and curriculum vitae.

       B.      The importance of the new evidence to the Plaintiffs’ case

        In support of its Renewed Motion, Defendant offered Dr. Donna Seger, whose
curriculum vitae recited that she holds positions as an Associate Professor of Clinical
Medicine and Emergency Medicine in the Department of Medicine and Emergency
Medicine at Vanderbilt University Medical Center; that she is the Medical and Executive
Director of the Tennessee Poison Center at Vanderbilt University Medical Center; that
she has had substantial experience in the field of toxicology, including a position as the
fellowship director for toxicology at Vanderbilt University; that she has had training as a
“clinical fellow” emphasizing in toxicology at the University of Cincinnati Medical
Center; that she is board certified in toxicology; and that she holds membership in the
American Academy of Clinical Toxicology, European Association of Clinical
Toxicologists and Poison Centres, and the American College of Medical Toxicology.
Additionally, Dr. Seger stated that she is “intimately familiar with drug withdrawal and
its signs and symptoms, particularly drug withdrawal from benzodiazepines, commonly
known as Xanex.” She opined that Ms. Rudder’s death was due to “a cardiac event, most
likely an arrhythmia.” Dr. Sperry’s declaration is critical to Plaintiff’s case because his
opinion on causation expressed therein raises a genuine issue of material fact.

       To prevail in a health care liability action, a plaintiff has the burden of proving:

       (1) The recognized standard of acceptable professional practice in
       the profession and the specialty thereof, if any, that the defendant

9
 Because Defendant had filed the affidavit if Dr. Seger, in which she opined that Ms. Rudder’s death was
most likely caused by a cardiac event, Plaintiffs had to come forth with evidence sufficient to create a
genuine issue of material fact on the issue of causation. See Rye v. Women’s Care Cntr. of Memphis,
MPLLC, 477 S.W.3d 235,265 (Tenn. 2015).
                                                   9
       practices in the community in which the defendant practices or in a
       similar community at the time the alleged injury or wrongful action
       occurred;

       (2) That the defendant acted with less than or failed to act with
       ordinary and reasonable care in accordance with such standard; and

       (3) As a proximate result of the defendant’s negligent act or
       omission, the plaintiff suffered injuries which would not otherwise
       have occurred.

Tennessee Code Annotated § 29-26-115(a). These elements must generally10 be proved
by expert testimony, and the expert must satisfy the three components of Tennessee Code
Annotated section 29-26-115(b):

       The proposed expert must (1) be licensed to practice in Tennessee or one of
       its eight contiguous bordering states; (2) practice a profession or specialty
       which would make the individual’s expert testimony relevant to the issues
       in the case; and (3) have practiced this profession or specialty in one of
       these states during the year preceding the date of the alleged injury or
       wrongful act.

Mitchell v. Jackson Clinic, P.A., 420 S.W.3d 1, 7 (Tenn. Ct. App. 2013) (citing Shipley v.
Williams, 350 S.W.3d 527, 550 (Tenn. 2011). As Our Supreme Court has held:

       [T]he only grounds for disqualifying a medical expert as incompetent to
       testify are (1) that the witness was not licensed to practice in Tennessee,
       Georgia, Alabama, Mississippi, Arkansas, Missouri, Kentucky, North
       Carolina, or Virginia; (2) that the witness was not licensed to practice a
       profession or specialty that would make the person’s expert testimony
       relevant to the issues in the case; or (3) that the witness did not practice this
       profession in one of these states during the year preceding the date of the
       alleged injury or wrongful act.

Shipley, 350 S.W.3d at 550 (citing § 29-26-115(b)).

       In his declaration, Dr. Sperry states that he has been “licensed to practice in the
State of Georgia [and has] been continually licensed and actively practicing as a
pathologist since 1985,” including the year preceding Ms. Rudder’s death, during which

10
  One exception is where the health care providers “alleged acts of negligence are so obvious that they
come within the common knowledge of laymen.” Cox v. M.A. Primary & Urgent Care Clinic, 313
S.W.3d 240, 262 (Tenn. 2010) (citing Kennedy v. Holder, 1 S.W.3d 670, 672 (Tenn. Ct. App. 1999)).
                                                  10
time he was the Chief Medical Examiner for the State of Georgia; that he is board
certified in Anatomic, Clinical, and Forensic Pathology;11 that he holds both a residency
and fellowship in the field of pathology; that he has served as a professor of pathology at
the Medical College of Georgia; and that he is a fellow the American Society of Clinical
Pathologists, the National Association of Medical Examiners, the American Academy of
Forensic Sciences, and the College of American Pathologists. Specifically relevant to
this case, Dr. Sperry states in his declaration that he is familiar with “drug withdrawal
and its signs and symptoms, particularly drug withdrawal from prescription medications
including benzodiazepines (Xanax), Roxicodone, nordiazepam and morphine.” Based on
that experience and the materials he reviewed,12 Dr. Sperry concluded:

        5. It is my opinion that Ms. Rudder died as a result of withdrawal from the
        above prescription medications. The video of Ms. Rudder while in isolation
        shows that she was shivering, agitated, anxious, unable to sleep and
        suffering from protracted vomiting and diarrhea—all of which go along
        with drug withdrawal. The toxicology findings on the autopsy also support
        my opinion that Mrs. Rudder’s death was caused by drug withdrawal. The
        autopsy report shows that there are no narcotics in her blood, which tells
        me that she had metabolized all of the drugs which she disclosed she had
        been taking, as well as any other narcotic drugs which she may have not
        disclosed, which would precipitate her into withdrawal.



11
   Generally, pathology is “a medical science, and specialty practice, concerned with all aspects of
disease, but with special reference to the essential nature, causes, and development of abnormal
conditions, as well as the structural and functional changes that result from the disease processes.
Jefferson Law Book Company, Stedman’s Medical Dictionary 1041 (William H. L. Dornete, M.D., J.D.,
ed., 5th ed. 1984). A pathologist is a physician “who specializes in anatomical, experimental, or clinical
pathology and practices chiefly in the laboratory as a consultant to clinical colleagues, especially with
reference to histologic diagnoses on tissue removed for biopsy, selection of diagnostic tests and
interpretation of laboratory results, performing postmortem studies, and designing and participating in
research of various types.” Id. The more specific field of clinical pathology is defined as:

        (1) . . . any part of the medical practice of pathology as it pertains to the care of patients;
        (2) the subspecialty in pathology concerned with the theoretical and technical aspects of
        chemistry, bacteriology, virology, mycology, parasitology, immunology, hematology,
        biophysics, and so on, as they pertain to the diagnosis of disease and the care of patients,
        as well as to the prevention of disease and welfare of the community.

Id.
12
  Those materials being: “Autopsy Report and Death Certificate of Pamela Rudder; Affidavit of Donna
Seger, M.D.; Affidavit of Nurse Kovacs-Whaley, R.N.; Mrs. Rudder’s jail and medical records; jail
videotape surrounding Ms. Rudder’s actions and conduct while she was in isolation at the Hickman
County jail up to the time of her death.”
                                                     11
      6. I disagree with Dr. Seger’s that opinion that Ms. Rudder had
      hypertensive heart disease. Dr. Seger’s opinion appears to be based on the
      death certificate which incorrectly listed Mrs. Rudder’s cause of death as
      hypertensive and arteriosclerotic heart disease. The autopsy report contains
      no pathologic findings of hypertension or arteriosclerosis.

      7. The autopsy findings do not support hypertension because Mrs. Rudder’s
      heart was not enlarged and the left ventricle measurement is normal (1.2
      centimeters). The autopsy report does not support arteriosclerosis because
      her arteries were found to be completely wide-open. The coronary arteries
      are described as having unobstructed ostia (openings) and follow usual
      distributions and are without significant arteriosclerosis.

      8. I agree with Dr. Seger’s opinion that Mrs Rudder likely died from a
      cardiac event, most likely an arrhythmia. The cardiac arrhythmia, however,
      was caused by nausea, vomiting, diarrhea and withdrawal from prescription
      medications and not hypertension or heart disease.

      9. I disagree with Dr. Seger’s opinion that the vital signs are totally
      inconsistent with someone experiencing drug withdrawal. While it is
      unclear, [sic] from the record when the vitals were taken, assuming that
      they were taken on December 15, her hypotensive (low) blood pressure is
      supportive of her being dehydrated and the vitals do not rule out Mrs.
      Rudder’s death being caused by medication withdrawal.

      10. It is my opinion, that Ms. Rudder’s death was, more likely than not,
      proximately caused by nurse Tonic Cloud R.N.’s failure to act with
      ordinary and reasonable care in accordance with the standard of care—as
      testified to by Nurse Kovacs-Whaley. (Aff. of C. Kovacs-Whaley at 2-3, ¶
      9.) If Mrs. Rudder’s medication withdrawal symptoms had been
      appropriately treated, Mrs. Rudder more likely than not would not have
      died from medication withdrawal on December 16, 2011.

       Defendant argues that Dr. Sperry’s “declaration still falls short of being able to
create a material question of fact” because “[n]owhere in his declaration nor his CV is
there any indication that Dr. Sperry has ever treated a live patient,” Dr. Sperry “is not
trained in toxicology or pharmacology” and he therefore “has no relevant experience
concerning the matters about which he is testifying, namely the signs and symptoms of
drug withdrawal of a live patient.” We do not agree. Plaintiffs were not required to
produce an expert witness who specialized in “toxicology” or whose practice regular
involves the treatment of “live patient[s]”; Plaintiffs were only required to produce an
expert witness who “is licensed to practice a profession or specialty that would make the
person’s expert testimony relevant to the issues in the case.” Shipley, 350 S.W.3d at 550
                                            12
(citing Tenn. Code Ann. § 29-26-115(b)); accord Walker v. Bell, 828 S.W.2d 409, 412
(Tenn. Ct. App. 1991) (recognizing that section 115 does not require “an expert witness
to be in the same specialty as the defendant; the only requirement is that the witness be
licensed in a profession that would make his expert testimony relevant to the issues in the
case.”). Dr. Sperry’s declaration and curriculum vitae satisfy that burden. Dr. Sperry
served as Chief Medical Examiner for the State of Georgia, a position which would
require him the make inquiries into the “the cause, manner, and circumstances of death.”
Ga. Code Ann. § 45-16-25 (West 2017). Further, Defendant has not presented any
evidence from which we could conclude that toxicology is the only possible medical
specialty that would make an expert’s testimony relevant; for us to hold so would raise
Plaintiffs’ burden above what the statute and pertinent case law require. As the Supreme
Court recognized in Shipley, once a determination is made that an expert witness meets
the minimum statutory requirements, i.e., practice in a specialty that makes the witnesses
testimony relevant, “any questions the trial court may have about the extent of the
witness’s knowledge, skill, experience, training, or education pertain only to the weight
of the testimony, not to its admissibility. 350 S.W.3d at 551 (citing Stovall, 113 S.W.3d at
725). Dr. Sperry’s declaration and curriculum vitae show that he was competent to
testify under section 115. Additionally, we hold that if this evidence had been considered
by the trial court at the summary judgment stage, a genuine issue of material fact on the
element of causation precluding summary judgment to Defendant would have been
created.

       C.     The unfair prejudice to the Defendant

       On appeal, Defendant has not identified any prejudice that would befall it in the
event that the April 4 Order was amended based on Plaintiffs’ newly submitted evidence.
This is not a case in which the newly submitted evidence was readily available to the
Plaintiffs. Caudill v. Clarksville Health Sys., GP, No. M2016-02532-COA-R3-CV, 2017
WL 4457590, at *7 (Tenn. Ct. App. Oct. 5, 2017) (“[W]here information was ‘clearly
available’ to a litigant prior to the judgment, allowing a litigant to rely on that evidence in
a motion to alter or amend ‘would result in unfair prejudice to the [party opposing the
motion to alter or amend].’”) (quoting Haynes v. Lunsford, No. E2015-01686-COA-R3-
CV, 2017 WL 446987, at *5 (Tenn. Ct. App. Feb. 2, 2017)). Nor is this a case where
Plaintiffs were not able to obtain new evidence to support their motion to alter or amend.
See Smith v. Haley, No. E2000-001203-COA-R3-CV, 2001 WL 208515, at *6 (Tenn. Ct.
App. Mar. 2, 2001). Further, from our review of the record, it does not appear that a trial
date has been set or that expert depositions have been taken.

       Applying the Stovall factors to the facts presented, through the affidavit of their
counsel Plaintiffs explained that they attempted to obtain Dr. Sperry’s declaration as soon
as they knew it might be necessary for purposes of responding to Defendant’s summary
judgment motion, and the reason they were unable to obtain it before the November 2,
2015 hearing; further, that counsel informed the trial court and Defendant of Plaintiff’s
                                            13
desire to obtain Dr. Sperry’s declaration if the trial court felt that Defendant was entitled
to summary judgment. The declaration creates a genuine issue of material fact as to
causation.

       A court abuses its discretion when it bases a decision on a clearly erroneous
assessment of the evidence. Lee Med., 312 S.W.3d at 524. As noted above, Dr. Sperry’s
declaration creates a genuine issue of material fact on causation; the denial of the motion
deprived the trial court of this crucial evidence which would preclude Defendant from
being granted summary judgment. Given the policy of our courts to hear cases on their
merits, and in the absence of unfair prejudice to Defendant, the interests of justice would
have been promoted had the court granted the motion to revise.13

III.      LOANED SERVANT DEFENSE

       Plaintiffs and Defendant appeal the denial of their respective motions for summary
judgment on the loaned servant defense. Plaintiffs argue that the defense fails as a matter
of law because “the plain and unambiguous language of the contract between [Defendant]
and Hickman County establishes that Nurse Cloud, as a matter of law, cannot be the
loaned servant of Hickman County” and because the defense is barred on the grounds of
res judicata. The trial court ruled that the contract only identified the relationship
between Hickman County and Defendant and “did not define the relationship between
[Defendant] and Nurse Cloud.”

       As to Defendant’s motion the court ruled that a genuine issue of material fact
precluded summary judgment:


13
     As noted in Chambers ex rel. Chambers v. Bradley County:

          Tennessee courts have long recognized that the interests of justice are promoted by
          providing injured persons an opportunity to have their lawsuits heard and evaluated on
          the merits. The Supreme Court observed in 1937 that “[w]e have stated repeatedly that it
          is the policy of this court to have controversies between litigants determined upon their
          merits.” Fiske v. Grider, 171 Tenn. 565, 106 S.W.2d 553, 555 (Tenn. 1937); see also
          Henry, 104 S.W.3d at 481 (“in the interests of justice, courts express a clear preference
          for a trial on the merits”); Henley v. Cobb, 916 S.W.2d 915, 916 (Tenn. 1996) (“It is well
          settled that Tennessee law strongly favors the resolution of all disputes on their merits”);
          Childress v. Bennett, 816 S.W.2d 314, 316 (Tenn. 1991) (“it is the general rule that courts
          are reluctant to give effect to rules of procedure which seem harsh and unfair, and which
          prevent a litigant from having a claim adjudicated upon its merits”); Tenn. Dep’t of
          Human Servs. v. Barbee, 689 S.W.2d 863, 866 (Tenn. 1985) (“the interests of justice are
          best served by a trial on the merits”); Stevens, 418 S.W.3d 547, 2013 WL 6158000 at *8
          (quoting and reaffirming general rule stated in Childress ).

No. E2013-01064-COA-R10-CV, 2014 WL 1266101, at *5 (Tenn. Ct. App. Mar. 28, 2014).

                                                      14
       For their part, Plaintiffs have quoted the deposition of Nurse Glenn defining
       Nurse Cloud’s job description as follows: “Follows hospital and
       departmental policies and procedures at all times.” With this quote,
       Plaintiffs have raised a genuine issue regarding the very material fact as to
       who actually controlled Nurse Cloud.

Defendant argues that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law on the defense.

       Relative to the defense, in its answer to the second amended complaint, Defendant
asserted:

       19. The allegations of paragraph 19 are denied as stated. HCH admits that
       Nurse Cloud was loaned by HCH to Hickman County pursuant to a services
       agreement between HCH and Hickman County to assist County in
       providing health care services inmates of the Hickman County Jail. HCH
       affirmatively asserts that when Nurse Cloud provided nursing services at
       the Hickman County Jail, she did so on behalf of and in the course and
       scope of her specific loaned servant relationship with Hickman County and
       not in the course and scope of her general employment as a nurse for HCH.
       ***

       83. HCH affirmatively asserts that it cannot be held liable for the conduct
       of Nurse Cloud because at all relevant times she was acting as the loaned
       servant of Hickman County, as described in paragraph 19, above.

The pertinent portion of the contract between Hickman County and Defendant stated:

       The relationship between Hospital and County is solely that of independent
       contractors. Nothing in this Agreement or otherwise will be construed or
       deemed to create any other relationship, including one of employment,
       agency, or joint venture.

       Generally, an employer can be held liable for the negligence of an employee
acting within the scope of their employment under the doctrine of respondeat superior.
White v. Revco Disc. Drug Centers, Inc., 33 S.W.3d 713, 718 (Tenn. 2000). In some
cases however, the liability of an employer can be shifted to another employer where the
“loaned servant” doctrine applies. Arrow Elecs. v. Adecco Employment Servs., Inc., 195
S.W.3d 646, 651 (Tenn. Ct. App. 2005) (citing Parker v. Vanderbilt Univ., 767 S.W.2d
412, 416 (Tenn. Ct. App.1988)). This doctrine is applicable where “a general employer
‘loans’ his agent to a special employer, thereby giving the special employer control over
the agent, along with responsibility for the agent’s actions or omissions.” Gager v. River
Park Hosp., No. M2009-02165-COA-R3-CV, 2010 WL 4244351, at *6 (Tenn. Ct. App.
                                             15
Oct. 26, 2010) (citations omitted); see also Gaston v. Sharpe, 168 S.W.2d 784, 786
(Tenn. 1943) (“[A] servant at a particular time may remain under the control of his
general employer for some purposes and yet be under the control of a special employer
for others. Likewise it sometimes happens that a particular work in which the servant is
engaged may be properly considered as the work or business of both the general
employer and the special employer.”). To determine whether an employee is a “loaned
servant” we apply the test set out by our Supreme Court in Gaston v. Sharpe:

       Since the question of liability is always raised because of some specific act
       done, the important question is not whether or not he remains the servant of
       the general employer as to matters generally, but whether or not, as to the
       act in question, he is acting in the business of and under the direction of one
       or the other. . . The question is as to whether it is understood between him
       and his employers that he is to remain in the allegiance of the first as to a
       specific act, or is to be employed in the business of and subject to the
       direction of the temporary employer as to the details of such act. This is a
       question of fact in each case.

168 S.W.2d at 786 (Tenn. 1943) (quoting Restatement of Agency, § 227).

       Plaintiffs argue that the contract between Hickman County and Defendant
precludes application of the “loaned servant” defense; in support of their motion they
filed a Statement of Undisputed Material Facts in accordance with Tennessee Rule of
Civil Procedure 56.0314 stating:

       1. Mr. Keller attached to his declaration a copy of the contract between
       HCH and Hickman County, which stated in relevant part: “The relationship
       between Hospital and County is solely that of independent contractors.
       Nothing in this Agreement or otherwise will be construed or deemed to
       create any other relationship, including one of employment, agency, or joint
       venture.” (HCH Contract with Hickman County, at 2)

       RESPONSE: Objection. This selected portion of the contract term seeks to
       define the relationship between Hickman County and the defendant, rather
       than Hickman County and Nurse Cloud, and is therefore irrelevant to the
       inquiry pertaining to the loaned servant doctrine. Further, the entire contract
       between the defendant and Hickman County needs to be considered in
       connection with this issue.


14
  In the memorandum in support of the motion, Plaintiffs also relied on the contract between Defendant
and Hickman County and the transcript of a hearing on and order granting the motion which resulted in
the dismissal of Saint Thomas Health, Ascension Health, and Millennium Medical Trust, Inc.
                                                 16
       Without waiving this objection, the defendant responds as follows:
       Admitted.

       2. There’s no proof that Nurse Cloud was controlled or was supervised by
       anyone other than the chief nursing officer or the other employees at
       Hickman Community Hospital as it related to her provision of nursing
       services to jail inmates including their decedent. (Dec. 20, 2013 Hr’g Tr. at
       12:2-10)

       RESPONSE: Objection. The cited reference for this alleged undisputed
       material fact comes from oral argument made by counsel for the defendant
       in connection with the defendant’s motion to dismiss and motion for
       summary judgment related to the plaintiffs’ efforts to establish venue in
       Davidson County, Tennessee. Statements of counsel during oral argument
       are not evidence nor does any statement made by counsel during that
       hearing in any way create an admission on the issue of the loaned servant
       doctrine.

       Without waiving this objection, the defendant responds as follows: Denied.
       (Depositions of Tonie Cloud, RN and Dawn Glenn, NP; Affidavits of
       Robin Crowell and Tonie Cloud, RN; Declaration of Dawn Glenn, NP).

       3. There appears to be no evidence that Nurse Cloud was actually
       controlled by anyone at the Hickman County Jail or that her allegiance was
       with anyone other than Defendant in all circumstances. (Mem. and Order at
       12, Pls.’ Not. Filing, Ex. 7)

       RESPONSE: Objection. The citation to the Court’s memorandum and
       order is not evidence, but rather the Court’s ruling based upon evidence
       presented in connection with the defendant’s first motion for summary
       judgment that included the assertion of the loaned servant doctrine. The
       defendant has filed a renewed and supplemental motion for summary
       judgment with supporting evidence that cures the deficiencies in the first
       motion as pointed out in the Court’s memorandum and order dated October
       27, 2014.

       Without waiving this objection, the defendant responds as follows: Denied.
       (Affidavit and Deposition of Tonie Cloud, RN; Deposition and Declaration
       of Dawn Glenn, NP; Affidavit of Robin Crowell).

        While Plaintiffs argue that they are entitled to judgment as a matter of law, they
fail to acknowledge the effect of Defendant’s denial of asserted facts 2 and 3 or to discuss
the disputed facts. Summary judgment is appropriate only when “the pleadings,
                                             17
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
(emphasis added). Inasmuch as Plaintiffs have not shown the absence of a genuine issue
of material fact, they are not entitled to summary judgment on this issue.

       We also address Plaintiffs’ argument, based on Parker v. Vanderbilt University
that the particular language in the contract between Defendant and Hickman County
precludes application of the defense. 767 S.W.2d at 412. In that medical malpractice
action, Vanderbilt University had been sued by the representatives of a person who
suffered severe brain damage during surgery performed by doctors furnished to Nashville
General Hospital by Vanderbilt under a contract with the Metropolitan Government. The
contract provided that Vanderbilt would provide surgical staff to Nashville General; that
Nashville General had the right to approve all medical staff; and that all residents
“loaned” as part of the agreement were supervised by and accountable to Nashville
General. The agreement further provided that the surgical staff, i.e., the “loaned
servants,” would be “accountable solely to [Nashville] General.” Id. at 417. Accordingly,
the court held that the Vanderbilt surgeons were loaned servants and any negligence
could not be imputed to Vanderbilt.

       Unlike the contract in Parker, the contract between Defendant and Hickman
County only speaks to the relationship between Defendant and Hickman County and does
not address the extent and degree of control Hickman County may had over Nurse Cloud.
Therefore, the contract between Defendant and Hickman County does not preclude the
“loaned servant” defense as a matter of law because the contract does not settle the issue
of who actually controlled Nurse Cloud in her provision of medical services.

        Plaintiffs next argue that Defendant is barred from asserting a “loaned servant”
defense by res judicata. “Res judicata bars a second suit between the same parties on the
same cause of action with regard to all issues that were or could have been litigated in the
former suit.” Lee v. Hall, 790 S.W.2d 293, 294 (Tenn. Ct. App. 1990) (citations omitted).
A party asserting that an issue is barred by res judicata must show: “(1) that the
underlying judgment was rendered by a court of competent jurisdiction; (2) that the same
parties were involved in both suits; (3) that the same cause of action was involved in both
suits; and (4) that the underlying judgment was on the merits.” Id.

       While this case was pending in Davidson County Circuit Court, Saint Thomas
Health, Ascension Health, and Millennium Medical Trust moved to dismiss the action
against them on the grounds that they were not proper parties and that venue was
improper in Davidson County; the court converted their motion to a motion for summary
judgment and granted the motion. Plaintiffs’ res judicata argument hinges on their
contention that the issue of who controlled Nurse Cloud’s action was central to the ruling
on the motion for summary judgment. This argument is without merit. The motion only
                                            18
asked the court to decide whether Saint Thomas, Ascension, and Millennium Medical
Trust should be dismissed as improper parties, and did not raise or resolve the issue of
who, between Defendant and Hickman County, controlled Nurse Cloud. In granting the
motion, the court held:

      [Saint Thomas Health, Ascension Health, and Millennium Medical Trust]
      are not proper parties to this proceeding and thus there is no material
      question of fact as to whether these defendants should be parties to this
      proceeding, including there being no question of material fact on whether
      the corporate identities of these defendants should be disregarded as the
      alter egos of the defendant, Hickman Community Healthcare Services, Inc.
      d/b/a Hickman Community Hospital.

Moreover, at the time that motion was granted, Defendant had not filed an answer and
therefore had not pled its “loaned servant” defense; the question was not at issue. As we
are instructed by our Supreme Court, “a judgment or decree is res judicata only as to the
matters in issue; the adjudication, to be conclusive, should be upon the very point brought
directly in issue by the pleadings; and a party will not be prejudiced by a judgment as to
rights not then accrued.” White v. White, 876 S.W.2d 837, 839–40 (Tenn. 1994) (citing
22 Tennessee Jurisprudence, Res Judicata, ¶ 28 at 840 (1985)). For these reasons, the
defense is not barred by res judicata.

       With respect to its motion, Defendant argues that there is not a genuine issue of
fact that Hickman County, not the Defendant, exercised control over Nurse Cloud in her
capacity as a nurse at the jail. The burden on a defendant asserting a loaned servant
defense was set forth in Chamberlain v. Lee:

      In order to escape responsibility for the negligence of [a] servant on the
      theory that the servant has been loaned, the original master must resign full
      control of the servant for the time being. It is not sufficient that the servant
      is partially under the control of a third person.

257 S.W. 415, 417 (1924). Therefore, at the summary judgment stage, it was Defendant’s
burden to show that there is no genuine issue of material fact that it “resign[ed] full
control” over Nurse Cloud to Hickman County. Upon our review of the record, we agree
with the trial court that summary judgment to Defendant on this ground was
inappropriate because there is a genuine issue of material fact as to who actually
controlled Nurse Cloud and to what degree.

      In support of its argument, Defendant cites to its Rule 56.03 statement of
undisputed facts:


                                            19
       1. By letter agreement dated June 29, 2008, HCH entered into a contract
       with Hickman County to provide medical services to the Hickman County
       jail that consisted of the provision of a nurse, a nurse practitioner, and a
       medical doctor to serve as Medical Director. (Keller Dec.; contract
       attached).

       RESPONSE: Undisputed for the purposes of this motion.

       7. Robin Crowell, RN, BSN, MHSA, was the Chief Nursing Officer for
       HCH in December of 2011 at the time of Pamela Rudder’s death while in
       the Hickman County jail.

       RESPONSE: Undisputed.

       12. Nurse Cloud, RN, is the only person that the plaintiffs have identified
       for whom they are seeking to impose liability against HCH in their second
       amended complaint. (Second Amended Complaint).

       RESPONSE: Undisputed. However, Plaintiffs’ proposed Third Amended
       Complaint contains independent allegations of negligence against HCH for
       negligent training and supervision.

         Relevant to this issue, Dawn Glenn testified in her deposition that she was
employed by Defendant as a nurse practitioner; that, in that capacity, she worked in both
a clinic that was part of Defendant’s hospital and at the Hickman County Jail; that Dr.
John Thomas Sexton, who was also employed by Defendant, supervised the treatment she
provided to the inmates at the jail; that Nurse Cloud’s supervisor in December 2011 was
Robin Crowell, the chief nursing officer for Defendant, and that Nurse Glenn also
supervised Nurse Cloud by answering questions or concerns that Nurse Cloud had about
the treatment of inmates. Nurse Glenn also confirmed that Nurse Cloud’s job description
included a mandate that she “follow[] hospital and departmental policies and procedures
at all times” and that the full extent of Hickman County’s involvement with Nurse Cloud
in the exercise of her duties was for jail personnel to provide security, transport inmates
to the clinic, then return inmates back to their “pods” after examination in the clinic. In a
declaration submitted after her deposition Nurse Glenn stated:

       While working at the Hickman County jail, there was no one at Hickman
       Community Hospital who had any supervisory authority over how we
       treated inmates as a registered nurse, nurse practitioner, or medical doctor.
       Inmates were seen pursuant to the jails policies and with the use of the jails
       facilities and equipment.


                                             20
       In her affidavit, Robin Crowell stated that she was the chief nursing officer for
Defendant in December 2011, and that “no one employed by Hickman County told Nurse
Cloud how to practice nursing and to treat patients, which was performed by Nurse Cloud
based upon her training and experience as a nurse” and “all of Nurse Cloud’s duties at the
jail were governed by the jail policies and instructions from jail personnel.” In her
deposition, Nurse Crowell testified that the “State of Tennessee” supervised Nurse
Cloud’s “nursing treatment”, explaining:

        The policies and procedures for any medical care for any inmate is -- those
        policies come from the State of Tennessee. It dictates when an inmate can
        be seen by a medical provider, when they can have medication. So she was
        strictly under their policies and procedures, not the hospital. And then also,
        she’s a licensed registered nurse, which means she’s licensed to perform a
        nursing assessment, to plan and to organize a patient’s care based upon her
        own licensure. She’s not supervised on how to perform a nursing
        assessment.

Nurse Crowell also stated in her affidavit that “all of the equipment and supplies used by
Nurse Cloud in connection with her care and treatment of inmates was provided by the
Hickman County jail. Nothing was provided by Hickman Community Hospital.”

        Nurse Cloud testified in her deposition that part of her official job description was
to “[c]oordinate[] any other staff functions within the framework of the policies and
procedures[15] and within the legal frame work of the State of Tennessee.” A document
entitled “Job Description” was entered as an exhibit to her deposition, which contains the
requirements for a “RN – Correctional,” one of which was to “[f]ollow[] hospital and
departmental policies and procedures at all times.” Plaintiffs filed another deposition of
Nurse Cloud, which was taken as part of a separate case. In that deposition, Nurse Cloud
testified that Nurse Glenn and Nurse Crowell directed her activities at the jail; that, in
setting up the clinic at the jail, she took out Defendant’s equipment, i.e. “our blood
pressure, monitors, scale, stuff like that”; and that the jail did not decree what equipment
was needed for the clinic.

       The evidence does not provide a clear answer to the question of who directed
Nurse Cloud’s treatment. Nurse Cloud’s and Nurse Crowell’s testimonies directly
contradict each other about which entity, Defendant or Hickman County, provided the
equipment at the clinic in the jail. Further, Nurse Glenn testified in her deposition that
she “supervised” Nurse Cloud’s treatment of inmates but later submits a declaration that
“no one at Hickman County Hospital” had “any supervisory authority over how” Nurse

15
  She further testified that the she understood the referenced policies and procedures to mean Defendant’s
policies and procedures.

                                                   21
Cloud treated inmates. In addition, Nurse Crowell stated in her affidavit that Nurse
Cloud was completely governed by jail policies; however, Nurse Crowell also explains
that “no one employed by Hickman County told Nurse Cloud how to practice nursing and
to treat patients.” Nurse Crowell also testified in her deposition that the State of
Tennessee directed Nurse Cloud’s treatment of patients; however, Nurse Cloud testified
in her deposition that Nurse Crowell and Nurse Glenn directed her activities. The
testimonies conflict, creating a genuine issue of fact as to “whether it was understood
between [Nurse Cloud] and [Defendant] that [s]he is to remain in the allegiance of
[Defendant] . . . or is to be . . . subject to the direction of [Hickman County].” See
Gaston, 168 S.W.2d at 786.

       There is a genuine issue of material fact that precludes summary judgment on this
issue, and the trial court did not err by denying Plaintiffs’ Loaned Servant Defense
Motion or by denying Defendant’s Renewed Motion for Summary Judgment on the
loaned servant defense issue.

IV.     SETTLEMENT AGREEMENT

       In its First Motion for Summary Judgment Defendant argued Plaintiffs’ case
should be dismissed because it had been released from liability under the terms of the
“‘Full, Final, and Absolute, Release and Settlement Agreement” (the “Agreement”),
which was executed by Hickman County, Plaintiffs, and Matthew Bilbery.16
Specifically, Defendant argued that it was directly released by the terms of the
Agreement and, even if not directly released, Nurse Cloud was released, and Defendant
cannot be vicariously liable for an agent who was released; the trial court denied the
motion, finding three genuine issues of material fact. Defendant reiterates those
arguments on appeal.

       A “settlement” or “release” is “a contract and the rules of construction applied to
contracts are used in construing a release.” Richland Country Club, Inc. v. CRC Equities,
Inc., 832 S.W.2d 554, 557 (Tenn. Ct. App. 1991). “‘[A] release ordinarily covers all such
matters as may fairly be said to have been within the contemplation of the parties when it
was given . . . .’” Peatross v. Shelby Cty., No. W2008-02385-COA-R3-CV, 2009 WL
2922797, at *3 (Tenn. Ct. App. Sept. 10, 2009) (quoting Jackson v. Miller, 776 S.W.2d
115, 118 (Tenn. Ct. App. 1989)). We have further explained the analysis a court must
undertake in interpreting a settlement agreement:




16
   Defendant also argued in its first Motion for Summary Judgment that Plaintiffs’ claims should be
dismissed because they could not show the standard of care required of Nurse Cloud and could not show
any deviation from that standard. The trial court denied Defendant’s motion on that ground, and it is not
at issue in this appeal.
                                                   22
       The scope of a release is determined by the intention of the parties as
       expressed in the terms of the particular instrument, considered in the light
       of all the facts and circumstances. The intention of the parties is to be
       gathered from the entire instrument and in such inquiry that construction
       will be adopted which gives effect to each and every part of the instrument
       where that is possible. In interpreting a release to determine whether a
       particular claim has been discharged, the primary rule of construction is
       that the intention of the parties shall govern and this intention is to be
       determined with a consideration of what was within the contemplation of
       the parties when the release was executed, which in turn is to be resolved in
       the light of all of the surrounding facts and circumstances under which the
       parties acted.

Evans v. Tillett Bros. Constr. Co., Inc., 545 S.W.2d 8, 11 (Tenn. Ct. App. 1976).
Because the interpretation of a contract is a question of law, “[t]his court must review the
document ourselves and make our own determination regarding its meaning and legal
import.” Pylant v. Spivey, 174 S.W.3d 143, 150-51 (Tenn. Ct. App. 2003) (citing
Hillsboro Plaza Enters. v. Moon, 860 S.W.2d 45, 47 (Tenn. Ct. App. 1993)).

       Accordingly, we must first “consider the language of the” the Agreement.
Peatross, 2009 WL 2922797 at *3. Then “we must examine the facts and circumstances
surrounding the execution of the Release,” considering the affidavits offered by the
parties to determine the intent of Hickman County and Plaintiffs in signing the
Agreement. Id. “If a trier of fact could draw different inferences about their intent,
summary judgment is inappropriate.” Id. (citing Evans, 545 S.W.2d at 12).

       The pertinent language in the Agreement states:

       That the undersigned, BONNIE HARMON, JENNY FAGAN, EDWARD
       EAGAN and MATTHEW BILBREY, Children as next of kin of PAMELA
       RUDDER, deceased. (“Releasing Parties”), for the sole consideration of
       Seventy-Five Thousand Dollars ($75,000.00) to us paid in hand paid, the
       receipt whereof is hereby acknowledged, do hereby remise, release, and
       forever discharges HICKMAN COUNTY, TENNESSEE, RANDAL
       WARD, FELICIA ROBERSON and SONDRA LUNA (“Released
       Parties”), their successors and assigns, heirs, executors, administrators,
       agents/insurers, affiliates, employers, and all other persons, firms, and
       corporations of and from any and all claims, demands, rights and causes of
       action of whatsoever kind and nature, arising from and by reason of any
       and all known and unknown, foreseen and unforeseen, bodily injury or the
       consequences thereof, including emotional distress, resulting and to result,
       from the arrest, detention, treatment and ultimate death of Pamela Rudder
       between December 11, 2011 and December 16, 2011, which is referred to
                                            23
       and described in the following lawsuits: Bonnie Harmon, et al. v, Hickman
       County, et al., Hickman County Circuit Court, Case No. 12-cv-70; Bonnie
       Harmon, et al. v. Hickman County, et al., Hickman County Circuit Court,
       Case Na. 13-cv-25; Bonnie Harmon, et al. v. Hickman County, et al.,
       United States District Court for the Middle District of Tennessee, Case No.
       1:13-cv-00002; and Bonnie Harmon, et al. v. Hickman County, et al.,
       United States District Court for the Middle District of Tennessee, Case No.
       1:13-ev-00042 (collectively referred to as the “Lawsuits”). In the Lawsuits,
       Releasing Parties have claimed the Released Parties to be legally liable,
       which liability is hereby expressly denied.

       At the time the Agreement was signed on March 21, 2014, there were five suits
pending to recover for the death of Ms. Rudder. Two of those suits were brought in
Hickman County Circuit Court and two in the United States District Court for the Middle
District of Tennessee (the “Hickman County suits”). The parties in the Hickman County
suits were identical, with Bonnie Harmon, Jenny Fagan, Edward Fagan, and Matthew
Bilbrey as plaintiffs, and Hickman County, Randal Ward, Sondra Luna, and Felicia
Roberson were defendants.17 Consistent with their designations in the suits, Bonnie
Harmon, Jenny Fagan, Edward Fagan, and Matthew Bilbrey are the “Releasing Parties,”
and Hickman County, Randal Ward, Sondra Luna, and Felicia Roberson, are the
“Released Parties.” Generally, the Agreement describes the event giving rise to the
controversy, names the four suits being settled, and lists the people and entities that
benefit from the Agreement.

        Neither Nurse Cloud nor Defendant are named as parties in the Hickman County
Suits or designated as “Released Parties” in the Agreement; no non-governmental official
or entity is included as a defendant in the suits or as a “Released Party” in the Agreement.
The Agreement does not define the group of people to whom the Agreement extends,
e.g., whether it is meant to cover only employees of Hickman County or whether it is
meant to cover all those for whom Hickman County could be vicariously liable. This suit
was filed on April 11, 2013, and, after signing the Agreement, Plaintiffs continued to
litigate this case, filing a Second Amended Complaint less than two months later. There
is nothing from the express language of the Agreement from which to conclude that this
suit or any party to this suit was intended to be included as a “Released Party.”

        Defendant argues that Nurse Cloud was released because she was an agent of
Hickman County; the question of whether an agency relationship existed, however, is
itself an issue of fact:


17
  The caption of those cases listed Randal Ward as the Sheriff of Hickman County and Sondra Luna and
Felicia Roberson as “[d]eputy sheriffs and [c]orrectional [o]fficers of Hickman County Jail.”

                                                24
      The existence of an agency relationship, however, “is a question of fact
      under the circumstances of the particular case,” and is determined by
      examination of agreements among the parties or of the parties’ actions. Id.
      The principal’s right to control the acts of the agent is a relevant factor
      when determining the existence of an agency relationship. The amount of
      actual control exercised by the principal over the agent also may be
      determinative of whether an agency relationship exists.

Johnson v. LeBonheur Children’s Med. Ctr., 74 S.W.3d 338, 343 (Tenn. 2002) (citations
omitted). And, as we held in our discussion of the loaned servant defense, there is a
genuine dispute of material fact as to the amount and degree of control that Hickman
County had over Nurse Cloud’s actions. For the same reasons, summary judgment is not
appropriate on this ground.

       Defendant also argues that it is released from liability because it and Hickman
County “are affiliated through their contractual relationship”; Defendant does not identify
the manner in which this contractual relationship would release Defendant from liability
under the terms of the Agreement. This court recognized in Dolman v. Donovan, No.
W2015-00392-COA-R3-CV, 2015 WL 9315565, at *4 (Tenn. Ct. App. Dec. 23, 2015),
that “the term ‘affiliate’ may denote myriad affiliations.” The contract between
Defendant and Hickman County expressly defines the relationship between them as
“independent contractors” and expressly disclaims any “other relationship, including one
of agency or joint venture.” Defendant does not cite to other evidence bearing on the
intent of the parties to the Agreement in including the term “affiliate.”

        Finally, Defendant argues that it should be released as an entity included in the
language “all other persons, firms, and corporations.” They cite no evidence in support
of this proposition. Having reviewed the record, we fail to see any evidence that, when
the Settlement was executed, the parties specifically intended Defendant or Nurse Cloud
to be included as an “other person[], firm[], and corporation[]” of any Released Party.
        We hold that summary judgment was not appropriate on this basis.

V.    THIRD AMENDED COMPLAINT

        A party may amend their pleadings by “written consent of the adverse party or by
leave of the court”; when permission to amend is asked of the court, Tennessee Rule of
Civil Procedure 15.01 instructs the court to given such leave freely “when justice so
requires. This instruction is to be construed liberally, meaning that “the court should
freely grant the amendment, so long as prejudice to the opposing party can be avoided.”
Harden v. Danek Med., Inc., 985 S.W.2d 449, 454 (Tenn. Ct. App. 1998); Campbell
County Bd. of Educ. v. Brownlee–Kesterson, Inc., 677 S.W.2d 457 (Tenn. Ct. App.
1984). “Although leave to amend pleadings is to be freely given under Tenn. R. Civ. P.
15, trial courts are not required to grant such motions if ‘the amendment would have been
                                              25
futile.’” McCullough v. Johnson City Emergency Physicians, P.C., 106 S.W.3d 36, 47
(Tenn. Ct. App. 2002) (quoting Huntington Nat’l Bank v. Hooker, 840 S.W.2d 916, 923
(Tenn. Ct. App. 1991). An amendment to add a claim is futile if the claim would be
barred by the applicable statute of limitations unless the claim “relate[s] back” to the
original pleading under Rule 15.03. Ward v. Wilkinson Real Estate Advisors, Inc., No.
E2013-01256-COA-R3CV, 2013 WL 6200179, at *4 (Tenn. Ct. App. Nov. 26, 2013)
(Charles D. Susano, Jr., concurring).

       Rule 15.03 provides a mechanism by which a party can assert new claims or add
additionally parties via amendment, even where a statute of limitation has run:

       Whenever the claim or defense asserted in amended pleadings arose out of
       the conduct, transaction, or occurrence set forth or attempted to be set forth
       in the original pleading, the amendment relates back to the date of the
       original pleading

Energy Sav. Products, Inc. v. Carney, 737 S.W.2d 783, 784 (Tenn. Ct. App. 1987) (“An
amended complaint under [Rule 15.03] avoids the impact of a statute of limitation . . . .”).
A trial court’s decision on a motion to amend a complaint will be reviewed under the
abuse of discretion standard. 94th Aero Squadron of Memphis, Inc. v. Memphis-Shelby
Cty. Airport Auth., 169 S.W.3d 627, 639 (Tenn. Ct. App. 2004).

        After Defendant filed its Renewed Motion for Summary Judgment, Plaintiffs
moved to amend their Second Amended Complaint “in response to HCH’s affirmative
defense based on the loaned servant doctrine, and newly discovered evidence obtained in
discovery,” to assert a claim that Defendant was liable for the negligent training and
supervision of Nurse Cloud; Plaintiffs had included this claim in the Initial Complaint
and First Amended Complain, but not in the Second Amended Complaint. The trial court
granted the motion, and held that the amendment related back to the filing of the initial
complaint pursuant to Tennessee Rule of Civil Procedure 15.03, and that the amendment
was not futile. Defendant contends that the claim asserted in the amendment is barred by
the statute of limitations and that, accordingly, the amendment was futile and the motion
to amend should have been denied.

       We agree with the trial court that the claim asserted in the Third Amended
Complaint relates back to the “conduct, transaction, or occurrence set forth or attempted
to be set forth in the original pleading” and the amendment is not futile. First, Plaintiffs’
claim that Defendant was negligent in its training and supervision of Nurse Cloud arises
out of the same allegedly negligent conduct, i.e. Nurse Cloud’s treatment of Ms. Rudder,
complained of in the original complaint. In addition, the claim of negligent training and
supervision of Nurse Cloud was actually included in the initial Complaint and the First
Amended Complaint.

                                             26
       Defendant argues that Rule 15.03 does not apply and that we should apply
Tennessee Code Annotated 28-1-10518 and determine that the claim of negligent training
and supervision of Nurse Cloud is barred by “the one year statute of limitations and three
year statute of repose contained in Tenn. Code Ann. § 29-26-116.”19

       We do not agree with the Defendant’s argument that the failure of Plaintiffs to
include the claim of negligent training and supervision in the Second Amended
Complaint operated as a dismissal of the claim, and that when Plaintiffs sought, more
than a year after filing the Second Amended Complaint, to add the claim in the Third
Amended Complaint, the one year limitation period at section 28-1-105 barred the claim.
Plaintiffs did not enter a voluntary nonsuit when they did not include the claim in the
Second Amended Complaint, and there was no other “judgment or decree . . . rendered
against the plaintiff upon any ground” that concluded the right of action; there has not
been any disposition of Plaintiffs’ negligent training and experience claim and section 28-
1-105 has not been triggered.20

        The trial court did not abuse its discretion in granting Plaintiffs’ motion to amend.




18
   Tennessee Code Annotated 28-1-105, commonly referred to as the “savings statute,” provides that if an
action “is commenced within the time limited by a rule or statute of limitation, but the judgment or decree
is rendered against the plaintiff upon any ground not concluding the plaintiff’s right of action . . . the
plaintiff . . . may . . . commence a new action within one (1) year . . . .”
19
  In support of its argument, Defendant cites language in Frazier v. East Tennessee Baptist Hospital, Inc.,
55 S.W.3d 925 (Tenn. 2001), that the “Rule 15.03 applies separately from the [Tennessee Code
Annotated section 28-1-105.]” 55 S.W.3d at 929.
20
   Citing Christian v. Lapidus, Defendant argues that the savings statute was triggered because Plaintiffs
abandoned their negligent training and supervision claim by filing their Second Amended Complaint
without it. 833 S.W.2d 71 (Tenn. 1992). We do not find Christian applicable here. In that case, the
question was whether the statute of limitation had run on plaintiff’s malicious prosecution claim. 883
S.W. 2d at 73. The Christian court held that the statute of limitations on the claim began to run when an
amended complaint was filed in the underlying suit that removed the plaintiffs from the named
defendants. Id. (“The legal effect was to remove the Christians from the lawsuit and constitute an
abandonment of Defendants’ RICO action against them.) Here, Plaintiffs’ Second Amended Complaint
did not abandon their suit against Defendant, but merely modified the claims. As our Supreme Court later
acknowledged, “[i]n Christian, the issue was whether a plaintiff’s abandonment of a civil lawsuit was a
final and favorable termination that commenced the statute of limitations for a later malicious prosecution
action, and the Christian decision “was limited to the procedural context of that case—a plaintiff’s
abandonment of the underlying civil proceeding.” Parrish v. Marquis, 172 S.W.3d 526, 530 (Tenn.
2005), overruled on other grounds by Himmelfarb v. Allain, 380 S.W.3d 35 (Tenn. 2012). Christian’s
subsequent limitation makes it inapplicable here.
                                                    27
VI.   CONCLUSION

      For the foregoing reasons, we reverse the judgment denying Plaintiffs’ Motion to
Revise; in all other respects we affirm the judgment.




                                              RICHARD H. DINKINS, JUDGE




                                         28
