Kimberly D. Fisher, ET AL. v. Garrison Smith M.D., ET AL.

This appeal arises from a health care liability action. The plaintiffs filed their complaint
against a physician and a surgical practice after the expiration of the statute of limitations,
relying on the 120-day extension under Tennessee Code Annotated section 29-26-121(c).
However, the physician was not employed by the surgical practice during the treatment at
issue but was employed by a governmental entity that was not named as a defendant. Both
the physician and the surgical practice filed motions to dismiss, which were ultimately
treated as motions for summary judgment due to consideration of matters outside the
pleadings. Afterward, the plaintiffs filed a motion for leave to amend their complaint to
substitute parties. Pursuant to section 29-20-310(b) of the Tennessee Governmental Tort
Liability Act, the trial court found that the plaintiffs had to sue the governmental entity in
order to sue the physician individually. The court found that the motion for leave to amend
the complaint was futile because the statute of limitations had run as to any claim against
the governmental entity. The court explained that any claim against the governmental
entity would be time-barred even if it related back to the date of the filing of the complaint.
The court further explained that the plaintiffs relied on the 120-day extension contained in
section 29-26-121(c) when they filed their complaint and that the extension did not apply
to any potential claim against the governmental entity because they failed to provide presuit
notice to it. The court also noted that the plaintiffs unduly delayed seeking to amend
their complaint despite being explicitly informed before filing their complaint who the
physician did and did not work for. Additionally, the court found that the surgical practice
was not involved in the treatment at issue and did not employ the physician or any of the
medical providers involved. Thus, the court found that the surgical practice negated an
essential element of the plaintiffs’ claim against it and demonstrated the evidence was
insufficient to establish such a claim. Accordingly, the court granted the defendants’
motions and denied the plaintiffs’ motion for leave to amend the complaint to substitute
parties. The plaintiffs appeal. We affirm.