                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   July 24, 2012 Session

   ANNA PARKER, ADMINISTRATOR OF ESTATE OF WANDA FAYE
    DOBBS, DECEASED ET AL. v. PORTLAND NURSING & NURSING
                        REHAB ET AL.

                  Appeal from the Circuit Court for Sumner County
              No. 2010CV495 and No. 2010CV909 C. L. Rogers, Judge


                No. M2011-02633-COA-R9-CV - Filed August 30, 2012


In this action, the plaintiff has attempted to assert claims for ordinary negligence and medical
malpractice against nursing home defendants by filing two separate actions and then seeking
to consolidate the cases or to amend the complaint to assert both types of claims in one case.
The first complaint filed only asserted claims for ordinary negligence against the nursing
home defendants. Sixty days after having given the statutory notice to the healthcare
providers of her intent to file medical malpractice claims, the plaintiff commenced a separate
action against the same nursing home defendants and an additional defendant, a physician
who treated the nursing home patient, by filing a complaint for medical malpractice. Upon
motions of the nursing home defendants, the trial court refused to consolidate the cases,
dismissed the medical malpractice claims against the nursing home defendants upon the
ground of a prior suit pending, and denied the plaintiff’s motion to amend the complaint in
the first case to add claims for medical malpractice against the nursing home defendants.
Having determined that the plaintiff complied with Tennessee Code Annotated § 29-26-
121(a) by giving the requisite 60 days notice to the medical providers and that the statute of
limitations had not run, we have concluded that the trial court erred in denying the plaintiff’s
Tennessee Rule of Civil Procedure 15.01 motion to amend the complaint. Accordingly, we
reverse and remand with instructions to grant the plaintiff’s motion to amend the complaint
for ordinary negligence against the nursing home defendants thus allowing the plaintiff to
assert medical malpractice claims against the nursing home defendants and for further
proceedings consistent with this opinion.

       Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court
                               Reversed and Remanded

F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which P ATRICIA J.
C OTTRELL, P.J., M.S., and A NDY D. B ENNETT, J., joined.
Deborah Truby Riordan, Little Rock, Arkansas; Cameron C. Jehl and Carey L. Acerra,
Memphis, Tennessee, for the appellant, Anna Parker, Administrator of the Estate of Wanda
Faye Dobbs, deceased, and on behalf of the wrongful death beneficiaries of Wanda Faye
Dobbs.

Heidi A. Barcus, Jennifer Pearson Taylor, and Ian P. Hennessey, Knoxville, Tennessee, for
the appellees, Portland Nursing and Rehab Center, Inc. D/b/a Highland Manor Nursing &
Rehab Center, Sunbelt Health Care Centers, Inc. A/k/a Adventist Care Centers, Adventist
Health System Sunbelt Healthcare Corporation, and Adventist Health System/Sunbelt, Inc.

                                           OPINION

       Plaintiff, Anna Parker, is the Administrator of the estate of Wanda Faye Dobbs
(“decedent”). Ms. Dobbs was a resident at Highland Manor Nursing & Rehab Center, a long-
term care facility in Portland, Tennessee, from December 17, 2007, to June 4, 2009. On June
4, 2009, Ms. Dobbs was transferred to Sumner Regional Medical Center, where she died on
June 15, 2009.

       On April 23, 2010, Plaintiff commenced the first of two civil actions in the Circuit
Court for Sumner County against Portland Nursing & Rehab Center, Inc. d/b/a Highland
Manor Nursing & Rehab Center; Sunbelt Healthcare Corporation; and Adventist Health
System/Sunbelt, Inc. (collectively “Nursing Home Defendants”).1 In the complaint, Plaintiff
asserted claims against the Nursing Home Defendants for ordinary negligence; gross
negligence; willful, wanton, reckless, and/or intentional conduct; violations of the Tennessee
Adult Protection Act; breach of contract; and claims for survival and wrongful death. In the
April complaint (“Ordinary Negligence Complaint”), Plaintiff expressly and specifically
stated that she was only asserting claims for ordinary negligence that did not “involve a
decision, act, or omission based on medical science or specialized training and skill” and that
the acts or omissions alleged in the complaint involved mere custodial neglect and not
medical malpractice. The Ordinary Negligence Complaint alleged that the Nursing Home
Defendants breached the duties owed to the residents including the decedent and were
negligent in the ordinary care and treatment of the decedent.

        On April 22, 2010, the day prior to filing the complaint for ordinary negligence,
Plaintiff served written notice of potential medical malpractice claims pursuant to Tennessee
Code Annotated § 29-26-121(a), upon the Nursing Home Defendants and Ralph H. Ruckle,
M.D., a physician who had treated the decedent.


       1
        The first case was assigned No. 2010CV495 in the Circuit Court for Sumner County; the second
case was assigned No. 2010CV909 in the Circuit Court for Sumner County.

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        On July 22, 2010, Plaintiff commenced the second action by timely filing a complaint
in the same court asserting medical malpractice claims against the Nursing Home Defendants
and Dr. Ruckle.

      In the interim, on July 16, 2010, the Nursing Home Defendants filed a motion to
dismiss the complaint that was filed in April 2010 contending the claims sounded in medical
malpractice and that Plaintiff had failed to comply with the statutory notice requirements of
Tennessee Code Annotated § 29-26-121(a).

        After the second action was commenced in July 2010, the Nursing Home Defendants
filed a motion to dismiss all claims asserted against them based on the doctrine of prior suit
pending. They contended the two pending cases involved the same parties and the same
subject matter.

      On August 16, 2010, while the motions to dismiss were pending, Plaintiff filed a
motion to consolidate the two actions. On February 2, 2011, Plaintiff filed a motion to amend
the Ordinary Negligence Complaint to add the medical malpractice claims against the
Nursing Home Defendants.

       On February 17, 2011, the Circuit Court for Sumner County heard arguments on the
pending motions in both cases: Defendants’ motion to dismiss the claims asserted against
them in the second case, Plaintiff’s motion to consolidate both cases, and Plaintiff’s motion
to amend the complaint filed in the first case. On March 3, 2011, the trial court issued an
Order dismissing the medical malpractice claims asserted against the Nursing Home
Defendants (but not Dr. Ruckle) in the second case on the ground that there was a prior
lawsuit pending involving the same parties and the same subject matter. The trial court
denied Defendants’ motion to dismiss the first case finding reasonable minds could differ as
to whether the factual content alleged ordinary or professional negligence. The trial court
then consolidated the medical malpractice case against Dr. Ruckle with the ordinary
negligence claims asserted against the Nursing Home Defendants in the first case.

       The trial court did not address Plaintiff’s motion to amend in the March 3 order.
Accordingly, Plaintiff then set her motion to amend to be heard on the trial court’s July 11,
2011 docket. The motion was heard and, on July 19, 2011, the trial court denied Plaintiff’s
motion to amend on the ground that Plaintiff failed to comply with the notice requirement
in Tennessee Code Annotated § 29-26-121(a) prior to filing suit (the claims for ordinary
negligence) on April 23, 2010.

      Plaintiff filed a Motion for Reconsideration or in the alternative a Motion for
Permission to File an Interlocutory Appeal. Thereafter, Plaintiff mailed a second notice of

                                             -3-
medical malpractice claims to the Nursing Home Defendants pursuant to Tennessee Code
Annotated § 29-26-121(a). On September 29, 2011, Plaintiff filed a Second Motion to
Amend. A hearing occurred on November 22, 2011. On November 29, 2011, the trial court
issued an Order denying Plaintiff’s motion to amend stating it was “futile because Plaintiff
did not comply with Tenn. Code Ann. § 29-26-121 in providing statutory notice of her
medical malpractice claims either prior to filing the April 23, 2010 Complaint or within the
applicable statute of limitations,” but granting Plaintiff’s request for an interlocutory appeal
of its June 19, 2011 Order. Plaintiff timely filed an appeal from that order as it pertained to
that case.

       On January 3, 2012, Plaintiff filed a motion in the trial court pursuant to Tennessee
Rule of Appellate Procedure 9 for permission to appeal the November 29, 2011 Order as it
pertained to that case. The trial court granted the motion in an order entered January 30,
2012, and Plaintiff filed a timely appeal of that order. Thereafter, this court consolidated the
two appeals and we address the trial court’s decisions concerning both cases in this one
opinion.

                                               A NALYSIS

        Plaintiff contends the trial court erred in denying her motions to amend her Ordinary
Negligence Complaint filed in April 2010.2 She argues that her first motion to amend filed
on February 2, 2011, was timely filed because the medical malpractice claims were tolled
following the filing of the Medical Malpractice Complaint on July 22, 2010,3 and remained
tolled during the pendency of the Medical Malpractice Complaint, which was dismissed on
March 3, 2011. Defendants argue that the trial court properly denied Plaintiff’s motion to
amend her April 2010 complaint to add claims for medical malpractice in February 2011,
because the motion to amend was made outside the 120-day extension of the statute of
limitations, which they contend expired on October 4, 2010.

        Plaintiff also argues that the trial court erred in denying her second motion to amend
filed on September 29, 2011, because she sent a second notice of medical malpractice claims
on July 26, 2011, and the second motion to amend was filed within the time provided by the
savings statute, Tennessee Code Annotated § 28-1-105.

        2
        Plaintiff did not appeal the trial court’s March 3, 2011 order, which dismissed her Medical
Malpractice Complaint and denied the motion to consolidate the cases. Our analysis is limited to determining
whether the trial court erred in denying the motion to amend her Ordinary Negligence Complaint.
        3
         Plaintiff states that the Medical Malpractice Complaint was timely filed because she gave notice
and it was within the 120-day extension for medical malpractice claims pursuant to the notice sent on April
22, 2010, in order to comply with Tennessee Code Annotated § 29-26-121(a).

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        The grant or denial of a motion to amend is within the discretion of the trial court, and
the court’s action will be reversed only for an abuse of discretion. Sallee v. Barrett, 171
S.W.3d 822, 825-26 (Tenn. 2005) (citing Doyle v. Frost, 49 S.W.3d 853, 856 (Tenn. 2001);
Henderson v. Bush Bros. & Co., 868 S.W.2d 236, 237–38 (Tenn. 1993)). A trial court abuses
its discretion when it “applies an incorrect legal standard, or reaches a decision which is
against logic or reasoning or that causes an injustice to the party complaining.” Eldridge v.
Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (internal citations omitted). Tennessee Rule of Civil
Procedure 15 governs the amendment of pleadings and Rule 15.01 states leave to amend
pleadings “shall be freely given when justice so requires.” Thus, while decisions whether to
permit an amendment are discretionary, “Tenn. R. Civ. P. 15.01 substantially lessens a trial
court’s discretion to deny a requested amendment.” Hardcastle v. Harris, 170 S.W.3d 67, 80-
81 (Tenn. Ct. App. 2004) (citing Branch v. Warren, 527 S.W.2d 89, 91–92 (Tenn. 1975)).
However, “trial courts are not required to grant such motions ‘if the amendment would have
been futile.”’ Sallee, 171 S.W.3d at 830 (quoting Huntington Nat’l Bank v. Hooker, 840
S.W.2d 916, 923 (Tenn. Ct. App. 1991)).

                      I. D ENIAL OF P LAINTIFF’S F IRST M OTION TO A MEND

       The trial court denied the first motion to amend the complaint in the ordinary
negligence action on the ground that Plaintiff failed to comply with the notice requirement
contained in Tennessee Code Annotated § 29-26-121(a)(1). We have concluded that the trial
court erred in denying Plaintiff’s first motion to amend by applying an incorrect legal
standard.

        Plaintiff’s complaint wherein she asserted claims for ordinary negligence was filed
on April 23, 2010. In the April complaint, Plaintiff expressly and specifically stated that she
was only asserting claims for ordinary negligence and was not asserting claims for medical
malpractice. Our review of the complaint confirms the fact that the April complaint did not
assert claims for medical malpractice, only ordinary negligence.

       As Plaintiff correctly states, claims for ordinary negligence and medical malpractice
are separate and distinct causes of action as discussed in Estate of French v. Stratford House,
333 S.W.3d 546 (Tenn. 2011).4 In Estate of French, our Supreme Court noted this
distinction:




        4
         Both parties note that the passage of the Tennessee Civil Justice Act of 2011 ended this distinction
and created a new cause of action of a “health care liability” claim. See 2011 Tenn. Pub. Acts ch. 510.

                                                    -5-
       If the alleged breach of the duty of care set forth in the complaint is one that
       was based upon medical art or science, training, or expertise, then it is a claim
       for medical malpractice. If, however, the act or omission complained of is one
       that requires no specialized skills, and could be assessed by the trier of fact
       based on ordinary everyday experiences, then the claim sounds in ordinary
       negligence.

Id. at 556 (citing Conley v. Life Care Ctrs. of Am., Inc., 236 S.W.3d 713, 729–30 (Tenn. Ct.
App. 2007)) (footnoted omitted); see also Smartt v. NHC Healthcare/McMinnville, LLC, No.
M2007-02026-COA-R3-CV, 2009 WL 482475 (Tenn. Ct. App. Feb. 24, 2009).

        The claims asserted by Plaintiff in the April complaint relate to breaches of the
standard of care due to failure to supervise staff, failure to adequately staff the nursing
facility, failure to appropriately train the staff, and failure to maintain records. Like in Estate
of French, we find that these claims “do not substantially relate to the rendition of medical
treatment by a medical professional.” Estate of French, 333 S.W.3d at 558 (finding
allegations that “chronic understaffing” resulted in the failure to provide basic care were
claims that sounded in ordinary negligence).

        When Plaintiff filed her complaint for ordinary negligence in April 2010, she was not
required to comply with the notice requirement of Tennessee Code Annotated § 29-26-
121(a), because the complaint sounded in ordinary negligence and not in medical
malpractice. Id. at 555 (stating “a potential medical malpractice claimant is required to
provide written notice of his or her claim to the health care provider . . . no such notice is
required for a claim based upon ordinary negligence”). However, Plaintiff was required to
comply with the notice requirement of Tennessee Code Annotated § 29-26-121(a) before
filing her medical malpractice claims and she complied with this requirement by sending the
requisite notice on April 22, 2010. She filed her medical malpractice complaint on July 22,
2010, which satisfied the 60-day waiting requirement.

        Upon the filing of her medical malpractice complaint, the statute of limitations was
tolled pursuant to Rule 3 of the Tennessee Rules of Civil Procedure. Thus, when Plaintiff
filed her motion to amend her April complaint for ordinary negligence on February 2, 2011,
she was doing so within the applicable statute of limitations. Accordingly, the addition of
such claims by amendment pursuant to Rule 15.01 was not “futile” despite the Nursing Home
Defendant’s contention to the contrary.

       It is also very important to recognize that amendments to complaints “shall be freely
given.” Tenn. R. Civ. P. 15.01. “Tennessee law and policy have always favored permitting

                                                -6-
litigants to amend their pleadings to enable disputes to be resolved on their merits rather than
on legal technicalities.” Hardcastle, 170 S.W.3d at 80 (citing Karash v. Pigott, 530 S.W.2d
775, 777 (Tenn.1975); Patton v. Dixon, 103, 58 S.W. 299, 301 (Tenn. 1900); Rutherford v.
Rains, 158 Tenn. Append. 35, 42 (1814)). In Hardcastle, this court noted that the most
important factor in determining whether the amendment should be given is “the proposed
amendment’s potential prejudicial effect on the opposing party.” Id. at 81. While the trial
court stated that Plaintiff had not given notice pursuant to Tennessee Code Annotated § 29-
26-121(a), and this same lack of notice is the justification that the Nursing Home Defendants
point to on appeal, we simply find that is not the case. Plaintiff gave notice of her medical
malpractice claims on April 22, 2010, and therefore the Nursing Home Defendants were on
notice of potential medical malpractice claims. Plaintiff was not required to give notice prior
to filing her Ordinary Negligence Complaint and therefore to deny Plaintiff’s motion to
amend a complaint that did not require pre-suit notice to add claims for a separate cause of
action in which pre-suit notice was complied with, creates an absurd result. As Plaintiff noted
in her briefs, the purpose of the pre-suit notice requirement in Tennessee Code Annotated §
29-26-101 is “to give the defendant the opportunity to investigate and perhaps even settle the
case before it is actually filed.” DePue v. Schroeder, No. E2010-00504-COAR9CV, 2011
WL 538865, *7 (Tenn. Ct. App. Feb. 15, 2011) (quoting Howell v. Claiborne and Hughes
Health Ctr., No. M2009-01683-COA-R3-CV, 2010 WL 2539651 (Tenn. Ct. App. Jun. 24,
2010)). Nursing Home Defendants had such notice and opportunity to investigate and settle
the medical malpractice claims, by the notice provided on April 22, 2010.

       We also find it significant that Plaintiff filed the medical malpractice action in the
Circuit Court for Sumner County, the same court in which she filed her separate and distinct
causes of action for ordinary negligence and, thus, no prejudice to the Nursing Home
Defendants exists.

      We, therefore, conclude that the trial court erred in denying Plaintiff’s motion to
amend its Ordinary Negligence Complaint to add claims for medical malpractice.5 Having
concluded that the trial court erred in denying Plaintiff’s first motion to amend the April
complaint to add claims for medical malpractice, the issue regarding the denial of the second
motion to amend is moot.




        5
          At no point do Nursing Home Defendants dispute that the claims for medical malpractice and
ordinary negligence arise out of the same conduct, transaction, or occurrence as required by Tennessee Rule
of Civil Procedure 15.03. Instead, Defendants contend that Plaintiff cannot rely on 15.03 because of the lack
of notice, an argument which we have rejected.

                                                    -7-
                                     I N C ONCLUSION

       The judgment of the trial court is reversed, and this matter is remanded for further
proceedings consistent with this opinion. Costs of appeal are assessed against the appellees,
Portland Nursing & Rehab Center, Inc. d/b/a Highland Manor Nursing & Rehab Center;
Sunbelt Healthcare Corporation; and Adventist Health System/Sunbelt, Inc. jointly and
severally.




                                                      ______________________________
                                                      FRANK G. CLEMENT, JR., JUDGE




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