Kelly on Malpractice

What happens to the principal when you nonsuit the agent? It depends on how you nonsuit the agent and when you recommence the action. In Abshure v. Upshaw, 2009 WL 690804 (Tenn.Ct.App.), Dr. Upshaw performed a colonoscopy on Ms. Abshure, who went to the ER of Methodist Hospital complaining of abdominal pain. She was treated in the Methodist ER by Dr. Ogle, who ordered three enemas to be given to Ms. Abshure to relieve her pain. Dr. Ogle ordered the enemas before reviewing a CT scan. Ms. Abshure underwent emergency surgery. During the surgery, Dr. Jones discovered a perforated colon with fecal contamination of the peritoneum with secondary peritonitis. He performed a colostomy. Ms. Abshure developed respiratory distress and sepsis syndrome in the ICU. She continues to have a colostomy.
Ms. Abshure filed a medical malpractice action against Methodist, Dr. Upshaw, and Dr. Ogle in general sessions court. The Abshures nonsuited their action in August 2002. On June 23, 2003, within the one-year period provided by the savings statute, the Abshures recommenced their medical malpractice action in circuit court. In December 2003, Dr. Upshaw moved for summary judgment. Dr. Ogle moved for summary judgment in September 2004.

In June 2005, the Abshures filed the expert affidavit of Dr. Shaw. In his affidavit, Dr. Shaw asserted that, after reviewing the medical records, in his opinion the emergency room “staff of Methodist Hospital acted with less than or failed to act within acceptable standards of care.” The trial court granted Ms. Abshure’s motion to dismiss Dr. Upshaw and Dr. Ogle. In the meantime, on May 6, 2004, the statute of repose applicable to Dr. Ogle expired. In October 2007 and March 2008, the Abshures filed the expert affidavits of Dr. Westmeyer. It was his opinion that Dr. Ogle had not acted within the acceptable standard of care. He stated that Dr. Ogle had deviated from the standard of care when he ordered that enemas be administered to Ms. Abshure before knowing the results of the CT scan where Dr. Ogle knew Ms. Abshure had recently undergone a colonoscopy.

Methodist filed a motion for summary judgment in May 2008. First, Methodist asserted that, because the Abshures’ claim against it was based solely on vicarious liability, and because the Abshures had nonsuited their claim against Dr. Ogle in July 2005 and could not sue him again, and because the statute of repose had run with respect to Dr. Ogle, extinguishing both the Abshures’ remedy and right of action, Methodist could not be held vicariously liable for the negligence of Dr. Ogle. Methodist further asserted that under Rankhorn v. Sealtest Foods, 479 S.W.2d 649 (Tenn.Ct.App.1971) and Huber v. Marlow, 2008 WL 2199827 (Tenn.Ct.App.), the passing of the statute of repose applicable to Dr. Ogle extinguished any vicarious liability of Methodist for the negligence of Dr. Ogle. Methodist asserted that, where Dr. Ogle had been nonsuited and the savings statute, statute of limitations, and statute of repose had run, extinguishing the Abshures’ right of action against Dr. Ogle, Methodist could not be held vicariously liable for the negligence of Dr. Ogle.

The trial court found that, upon the second nonsuit of Dr. Ogle in July 2005, any claims against him “were effectively dismissed with prejudice and barred as no case could be refiled against Dr. Ogle.” The trial court further found that the Abshures failed to allege vicarious liability against Methodist for the negligence of Dr. Ogle in their complaint and that Methodist was not put on notice of the vicarious liability claim. The trial court concluded that Methodist could not be held vicariously liable where the claims against Dr. Ogle were barred by the statute of repose. The trial court alternatively determined that the Abshures’ claim against Dr. Ogle was effectively dismissed with prejudice when the Abshures nonsuited their claim for the second time.

The issues on appeal were as follows: (1) whether the trial court erred in determining that the Abshures failed to assert a claim of vicarious liability against Methodist in their complaint; (2) whether the expiration of the statute of repose applicable to Dr. Ogle extinguished the Abshures’ claim against Methodist by operation of law; (3) whether the Abshures conferred an affirmative, substantive right upon Dr. Ogle when they voluntarily dismissed him pursuant to Rule 41.01 for the second time and beyond the one-year period provided by the savings statute, thereby extinguishing their vicarious liability claim against Methodist. The Court of Appeals first recognized that a plaintiff is not required to name in his complaint the agents or employees of the entity against which it asserts a claim of vicarious liability for the negligence of those agents or employees. See Knight v. Hosp. Corp. of Am., 1997 WL 5161, at *3 (Tenn.Ct.App. ). Additionally, the failure to use the term “vicarious liability” is not fatal in the face of a motion for summary judgment where the claim has been presented or framed within the context of the materials submitted by the parties. Notice pleading is still the rule in Tennessee. Therefore, the Court of Appeals reversed the trial court insofar as it concluded the Abshures had failed to assert a claim of vicarious liability in their complaint.

The second issue involved the statute of repose. Methodist cited Rankhorn and Huber for the proposition that the Abshures’ claim under a theory of vicarious liability was barred by operation of law in accordance with Johnson v. LeBonheur Children’s Medical Center, 74 S.W.3d 338 (Tenn.2002), because the statute of repose applicable to Dr. Ogle had expired. The Court of Appeals found that Methodist’s reliance on Rankhorn for the proposition that the running of the statute of repose operated to extinguish a plaintiff’s right and remedy following a voluntary nonsuit was misplaced. A plaintiff who timely files his action within the statutes of limitations and repose and then voluntarily nonsuits his action may rely on the savings statute and re-file his action within one year despite the expiration of the statute of repose. See Cronin v. Howe, 906 S.W.2d 91 (Tenn.1995). Thus, where an initial claim is timely filed, the expiration of the statute of repose will not extinguish a claim for vicarious liability by operation of law where the plaintiff voluntarily nonsuits his action in accordance Rule 41.01 and the savings statute.

The third issue, however, was fatal to the Abshures. The Court of Appeals held that is the substantive effect of the Abshures’ second Rule 41.01 nonsuit, which was taken well beyond the one-year savings period provided by the savings statute, was equivalent to “a covenant not to sue.” It operated to relieve Dr. Ogle from any assessment of liability against him. The nonsuit gave rise to the third instance in Johnson v. LeBonheur wherein a principal may not be held vicariously liable based upon the acts of its agent when the injured party confers a substantive right (like a covenant not to sue) upon the agent. Therefore, the Court of Appeals affirmed the summary Judgment for Methodist.

Abshure v. Upshaw is a good case because I think it limits the harsh effect of the Huber doctrine. There is no need to name agents for vicarious liability to attach. This should help with the new notice statute as well. On the other hand, you must be wary of the savings statute when electing to nonsuit and recommence your action.