Opinion
No. M2020-00341-SC-R11-CV
07-20-2023
Dennis Harold ULTSCH v. HTI MEMORIAL HOSPITAL CORPORATION
Bryan Essary and Madison Wait, Nashville, Tennessee, for the appellant, HTI Memorial Hospital Corporation, d/b/a TriStar Skyline Medical Center. Richard D. Piliponis, Benjamin J. Miller, and Sarah L. Martin, Nashville, Tennessee, for the appellee, Dennis Harold Ultsch.
Bryan Essary and Madison Wait, Nashville, Tennessee, for the appellant, HTI Memorial Hospital Corporation, d/b/a TriStar Skyline Medical Center.
Richard D. Piliponis, Benjamin J. Miller, and Sarah L. Martin, Nashville, Tennessee, for the appellee, Dennis Harold Ultsch.
Sarah K. Campbell, J., announced the judgment of the Court and delivered the opinion of the Court with respect to parts I(B), II, and III(B)–(E), in which Sharon G. Lee and Holly Kirby, JJ., join, and an opinion with respect to parts I(A) and III(A), in which Holly Kirby, J., joins. Jeffrey S. Bivins, J., delivered the opinion of the Court with respect to part II(A), in which Roger A. Page, C.J., and Sharon G. Lee, J., join, and an opinion dissenting in part, in which Roger A. Page, C.J., joins. Sharon G. Lee, J., delivered a separate opinion.
OPINION
Sarah K. Campbell, J.
"When there is a conflict between the common law and a statute, the provision of the statute must prevail." Graves v. Ill. Cent. R.R. Co. , 126 Tenn. 148, 148 S.W. 239, 242 (1912). That longstanding rule is the key to resolving this case, which pits a common-law rule governing vicarious liability claims against certain procedural provisions of Tennessee's Health Care Liability Act. The defendant in this case moved to dismiss the plaintiff's claims under the common-law rule. The trial court granted that motion, but the Court of Appeals reversed after concluding that application of the common-law rule would conflict with the Act. We agree that the Act necessarily implies an intent to abrogate the common-law rule in the circumstances of this case and affirm the Court of Appeals’ decision.
I.
We begin by introducing the two laws at issue in this case: the common-law framework for vicarious liability claims and the Health Care Liability Act. A.
The common-law framework governing vicarious liability claims in Tennessee is "well-established." Abshure v. Methodist Healthcare-Memphis Hosps. , 325 S.W.3d 98, 105–06 (Tenn. 2010). "[A] principal may be held vicariously liable for the negligent acts of its agent when the acts are within the actual or apparent scope of the agent's authority." Id. at 105. And in most situations, "a plaintiff may sue a principal based on its vicarious liability for the tortious conduct of its agents without suing the agent." Id. That general rule applies "[e]ven where the agent's conduct is the sole basis for the principal's liability." Id. Thus, it is ordinarily the plaintiff's choice whether "to sue the agent, the principal, or both." Id.
But this Court has identified four situations in which the general rule does not apply and a plaintiff is precluded from exclusively pursuing a vicarious liability claim against the principal. Id. at 106. The first is "when the agent has been exonerated by a finding of non-liability." Id. The second is "when the plaintiff has settled its claim against the agent." Id. The third is "when the agent is immune from suit, either by statute or by the common law." Id. And most relevant here, the fourth—known as the operation-of-law exception—is "when the plaintiff's claim against the agent is procedurally barred by operation of law before the plaintiff asserts a vicarious liability claim against the principal." Id.
This Court shaped the contours of the operation-of-law exception in Abshure . The plaintiffs in that case brought a medical malpractice suit against a hospital and two physicians, one of whom was an emergency room physician. Id. at 100. The plaintiffs asserted vicarious liability claims against the hospital based on the conduct of the emergency room physician. Id. After the plaintiffs voluntarily dismissed their claims against the physicians, the hospital sought dismissal of the vicarious liability claims "on the ground that the plaintiffs’ claims against its apparent agent, the emergency room physician, were barred" by a Tennessee Rule of Civil Procedure and a statute of repose. Id. at 100, 102.
Although this Court agreed that the plaintiffs’ claims against the physician had been extinguished by operation of law, it nevertheless concluded that the operation-of-law exception did not preclude the plaintiffs from pursuing their vicarious liability claims against the hospital. Id. at 112. We clarified that this exception "is triggered only when a plaintiff belatedly attempts to amend its complaint to add a new vicarious liability claim against a principal after its claims against the agent have become barred by operation of law." Id. at 111. It does not apply, however, "where the plaintiff has initially filed a vicarious liability claim against [a] principal, and the plaintiff's claims against the principal's agents are later extinguished by operation of law." Id. To extend the exception to the latter situation, the Court explained, "would be contrary to the traditional principle that plaintiffs may elect to sue the principal, the agent, or both." Id.
The Abshure Court gleaned these principles from its earlier decision in Creech v. Addington , 281 S.W.3d 363 (Tenn. 2009), and the Court of Appeals’ decision in Huber v. Marlow , No. E2007-01879-COA-R9-CV, 2008 WL 2199827 (Tenn. Ct. App. May 28, 2008). Abshure , 325 S.W.3d at 110–11. In both of those cases, the plaintiffs "initially sued the principals but did not assert vicarious liability claims against them." Id. at 110. Later, after their claims against the agents were extinguished by operation of law—in Creech by the doctrine of res judicata, 281 S.W.3d at 376–83, and in Huber by a statute of repose, 2008 WL 2199827, at *3–4 —the plaintiffs attempted to amend their complaints to add vicarious liability claims against the principals. Abshure , 325 S.W.3d at 111. The operation-of-law exception applied in those cases because "the plaintiffs’ belated efforts to amend their complaints against the principals to add a vicarious liability claim" implicated the "traditional policy reason[ ]" for the exception—that "plaintiffs should not be permitted to engage in an ‘encircling movement’ against the principal when they cannot pursue a ‘frontal attack’ on the agent." Id. at 110–11 (first citing Graham v. Miller , 182 Tenn. 434, 187 S.W.2d 622, 625–26 (1945) ; and then citing Raines v. Mercer , 165 Tenn. 415, 55 S.W.2d 263, 264 (1932), overruled on other grounds by Childress v. Childress , 569 S.W.2d 816, 819 (Tenn. 1978) ).
B.
Abshure was a medical malpractice action, but the claims in that case arose before the General Assembly began overhauling Tennessee's medical malpractice laws in 2008. They were therefore governed by the earlier, pre-amendment statutory scheme. 325 S.W.3d at 101. The General Assembly's 2008 amendments and others that followed—now known collectively as the Health Care Liability Act—established a number of new procedural requirements specific to health care liability claims. See Act of May 15, 2008, ch. 919, 2008 Tenn. Pub. Acts 1–4 (codified at Tenn. Code Ann. §§ 29-26-121, -122 (Supp. 2008)).
In 2011, the General Assembly replaced all references to "medical malpractice" with "health care liability." See Ellithorpe v. Weismark , 479 S.W.3d 818, 826 (Tenn. 2015). The Act defines the term "[h]ealth care liability action" broadly to include "any civil action ... alleging that a health care provider or providers have caused an injury related to the provision of, or failure to provide, health care services to a person, regardless of the theory of liability on which the action is based." Tenn. Code Ann. § 29-26-101(a)(1) (2012 & Supp. 2017).
Of particular importance here is the Act's presuit notice requirement. As initially enacted in 2008, that provision required persons asserting a potential claim for medical malpractice to provide "written notice of the potential claim to each health care provider against whom the potential claim is being made at least sixty (60) days before the filing of a complaint." Tenn. Code Ann. § 29-26-121(a)(1) (Supp. 2008) (emphasis added). The General Assembly amended the provision in 2009 to require that presuit notice be given only to "each health care provider that will be a named defendant. " Id. § 29-26-121(a)(1) (Supp. 2009) (emphasis added).
At the same time it imposed the presuit notice requirement, the General Assembly also provided that, when a plaintiff complies with the presuit notice requirement, "the applicable statutes of limitations and repose shall be extended up to a period of ninety (90) days" with respect to "all parties and potential parties." Id. § 29-26-121(c) (Supp. 2008). The General Assembly tweaked that provision in 2009 by expanding the extension from 90 to 120 days and providing that the extension applies only to the provider that received presuit notice, not to all potential parties. Id. § 29-26-121(c) (Supp. 2009) ("When notice is given to a provider as provided in this section, the applicable statutes of limitations and repose shall be extended for a period of one hundred twenty (120) days from the date of expiration of the statute of limitations and statute of repose applicable to that provider. " (emphasis added)).
In the absence of an extension, the applicable statute of limitations in a health care liability action is generally one year from the date the cause of action accrued. Id. § 29-26-116(a)(1) (2012 & Supp. 2013); see also id. § 28-3-104(a)(1)(A) (2017). If "the alleged injury is not discovered within" this one-year period, however, the limitations period is one year "from the date of such discovery." Id. § 29-26-116(a)(2). The statute of repose for health care liability actions is generally three years, except "where there is fraudulent concealment on the part of the defendant." Id. § 29-26-116(a)(3).
II.
That brings us to the facts and procedural history of this case. Because we are reviewing the trial court's decision on a motion to dismiss, we accept as true the factual allegations in the complaint. See Effler v. Purdue Pharma L.P. , 614 S.W.3d 681, 687 (Tenn. 2020).
On January 7, 2018, Sheila Carol Warren was admitted to TriStar Skyline Medical Center suffering from respiratory symptoms. Before her discharge several days later, Warren informed Skyline that her oxygen tanks at home were not working properly. When Warren's ex-husband arrived at Skyline to transport Warren home, Skyline told him that Warren would need an oxygen tank during transport and instructed him to retrieve one of her tanks from home. Warren's ex-husband asked Skyline to arrange for an oxygen tank instead, but Skyline declined. Warren's ex-husband went home to pick up one of Warren's tanks and returned to Skyline. Skyline did not determine whether the tank was working before discharging Warren or otherwise ensure that her oxygen level would be monitored during transport. Warren was discharged on January 12, 2018, and died on her way home from Skyline after going into "acute hypoxic respiratory failure."
On December 21, 2018, Warren's next of kin, Dennis Harold Ultsch, gave Skyline presuit notice of a potential health care liability claim as required by Tennessee Code Annotated section 29-26-121(a)(1) (2012 & Supp. 2017). Ultsch did not provide presuit notice to any of Skyline's employees or agents.
The one-year statute of limitations applicable to Skyline began to run on January 12, 2018, when Warren died following her release from Skyline, and ended on January 12, 2019. See Tenn. Code. Ann. § 29-26-116(a)(1). Because Ultsch gave Skyline presuit notice, Tennessee Code Annotated section 29-26-121(c) (2012 & Supp. 2017) extended the statute of limitations applicable to claims against Skyline by 120 days to May 12, 2019.
Ultsch brought this action against Skyline in the Davidson County Circuit Court on May 6, 2019. His complaint alleged that Skyline—either directly or vicariously through its employees and agents—negligently caused Warren's death. Ultsch sued only Skyline, not any of its employees or agents.
In July 2019, Skyline moved to dismiss Ultsch's vicarious liability claims under Tennessee Rule of Civil Procedure 12.02(6). Skyline argued that the vicarious liability claims were barred under the common law. More precisely, Skyline contended that the operation-of-law exception applied because, at the time Ultsch brought his vicarious liability claims against Skyline, any claims against Skyline's agents had been extinguished by operation of law—i.e., the expiration of the one-year statute of limitations applicable to those claims.
Ultsch opposed the motion on several grounds. First, he disputed whether the statute of limitations applicable to any claims against Skyline's agents had expired, arguing that the statute of limitations did not begin to run until he discovered the identity of those agents from medical records Skyline provided in June 2018 and March 2019. Second, Ultsch argued that the operation-of-law exception was inapplicable. On that score, he contended that this case is distinguishable from Creech and Huber because it did not involve an attempt to belatedly amend a complaint that did not initially include vicarious liability claims. He also pointed out that Abshure and Huber involved a statute of repose rather than a statute of limitations. Third, Ultsch argued that, even if the operation-of-law exception would otherwise bar his vicarious liability claims against Skyline, application of the exception would conflict with the Health Care Liability Act.
The trial court granted Skyline's motion to dismiss. As an initial matter, the trial court held that the statute of limitations applicable to any claims against Skyline's agents expired on January 12, 2019—one year after Warren's death. The court then concluded that, because any claims against Skyline's agents were barred by the statute of limitations at the time Ultsch brought vicarious liability claims against Skyline on May 6, 2019, the vicarious liability claims fell "squarely within" the operation-of-law exception and thus were subject to dismissal.
The Court of Appeals granted Ultsch's interlocutory appeal and reversed. Ultsch v. HTI Mem'l Hosp. Corp. , No. M2020-00341-COA-R9-CV, 2021 WL 1235683, at *1 (Tenn. Ct. App. Apr. 1, 2021), perm. app. granted , (Tenn. Sept. 22, 2021). On appeal, the parties did not dispute the trial court's conclusion that the statute of limitations applicable to claims against Skyline's agents had expired by the time Ultsch sued Skyline. Id. at *2. After discussing the common-law framework that governs vicarious liability claims, the Court of Appeals explained that, if it were to apply the operation-of-law exception to Ultsch's "vicarious liability claims against Skyline, ... the result would likely be to bar [his] claims" since the "one-year statute of limitations had run on any direct claims against" Skyline's agents or employees. Id. at *6. The court determined that "[a]pplication of the common law principle would conflict with the outcome prescribed by" the Health Care Liability Act by "effectively shorten[ing] the time for pre-suit resolution of claims for vicarious liability cases brought solely against the principal" or forcing the plaintiff to give presuit notice to agents or employees the plaintiff did not intend to sue. Id. The Court of Appeals held that, given this conflict between the Act and the common law, the provisions of the Act prevail. Id. at *7.
In a footnote, the Court of Appeals noted that a statute of limitations is procedural and "extinguish[es] only the remedy" for a cause of action, while a statute of repose is substantive and "extinguish[es] both the right and the remedy." Ultsch , 2021 WL 1235683, at *6 n.3 (quoting Jones v. Methodist Healthcare , 83 S.W.3d 739, 743 (Tenn. Ct. App. 2001) ). The court observed that, based on that distinction, "it could be argued that" the operation-of-law exception "does not apply where a direct claim against the agent is barred by the statute of limitations." Id. The Court of Appeals, however, previously has characterized the expiration of a statute of limitations as a procedural bar, see Huber , 2008 WL 2199827, at *3, and so too have federal district courts in Tennessee, see JRS Partners, GP v. Leech Tishman Fuscaldo & Lampl, LLC , No. 3:19-cv-00469, 2020 WL 5877131, at *15–16 (M.D. Tenn. Oct. 2, 2020) ; Smith v. Holston Med. Grp., PC , No. 2:12-CV-72, 2013 WL 11478937, at *3–4 (E.D. Tenn. June 20, 2013).
We granted review in this case to consider whether the trial court erred by dismissing the plaintiff's vicarious liability claims. We simultaneously granted review in Gardner v. Saint Thomas Midtown Hospital , No. M2019-02237-COA-R3-CV, 2021 WL 1235226 (Tenn. Ct. App. Apr. 1, 2021), perm. app. granted , (Tenn. Sept. 22, 2021), to consider a similar question.
III.
A.
The broad question before us is whether the trial court correctly dismissed Ultsch's vicarious liability claims against Skyline. But that broad question includes a number of subsidiary issues. In arguing that dismissal was improper, Ultsch defends the Court of Appeals’ conclusion that application of the operation-of-law exception conflicts with the Act and that the Act must therefore prevail. Yet he also contends that the common law does not bar his claims in the first place. Ultsch maintains that the operation-of-law exception discussed in Abshure "is in reality quite narrow." He argues that this case is similar to Abshure , which declined to apply the operation-of-law exception, because it "is not a ‘late amendment’ case in which the original complaint did not allege vicarious liability." And he again points out that this case involves a statute of limitations rather than a statute of repose.
Whether the operation-of-law exception applies in the circumstances of this case is a difficult question. This case is not on all fours with any of this Court's or the Court of Appeals’ precedents considering the operation-of-law exception. Unlike the plaintiffs in Creech and Huber , cases in which the exception was applicable , Ultsch did not seek to amend his complaint to belatedly add vicarious liability claims he failed to include initially. Rather, he included vicarious liability claims in his initial complaint. But this case is also distinguishable from Abshure , which held the exception inapplicable. Whereas the plaintiffs in Abshure brought their vicarious liability claims before the claims against the agents were barred, Ultsch filed suit after the statute of limitations for any claims against Skyline's agents had expired.
We need not resolve that difficult question to decide this appeal. That is because application of the operation-of-law exception to bar Ultsch's vicarious liability claims would conflict with the Act. And in the event of a conflict, the Act must prevail. I therefore take no position on whether the operation-of-law exception in fact bars a plaintiff's vicarious liability claims in these circumstances, but instead assume for purposes of this opinion that it would.
In his separate opinion, Justice Bivins concludes that the operation-of-law exception applies in the factual circumstances of this case. That part of his opinion is joined by Chief Justice Page and Justice Lee and constitutes the opinion of the Court on that issue. A different majority of the Court—Justice Lee, Justice Kirby, and Justice Campbell—concludes in Parts III(B)–(E) of Justice Campbell's opinion that application of the operation-of-law exception would conflict with and therefore is abrogated by the Health Care Liability Act. Parts I(B), II, and III(B)–(E) of Justice Campbell's opinion constitute the opinion of the Court.
In her separate opinion, Justice Lee asserts that this assumption "sidesteps a foundational part of the analysis" and renders my discussion regarding the conflict between the common-law rule and the Act "merely an academic exercise." She is mistaken. When, as here, a case includes multiple potentially dispositive issues that do not bear on jurisdiction, a court has discretion to choose which of those issues to decide first. For example, when resolving claims of qualified immunity in cases brought under 42 U.S.C. § 1983, courts may skip directly to the question whether the right at issue was clearly established without deciding whether there was a violation of that right in the first place. See King v. Betts , 354 S.W.3d 691, 706 (Tenn. 2011) (recognizing that the United States Supreme Court adopted this more flexible approach in Pearson v. Callahan , 555 U.S. 223, 242, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). As another example, the United States Supreme Court recently decided a copyright case on the basis of the fair-use exception without first deciding whether the material at issue was copyrightable. See Google LLC v. Oracle Am., Inc. , ––– U.S. ––––, 141 S. Ct. 1183, 1197, 209 L.Ed.2d 311 (2021) ("We shall assume, but purely for argument's sake, that the entire [material] falls within the definition of that which can be copyrighted."). Although the dissent in that case criticized the majority for making that assumption, it did so only because copyrightability was the "principal question that [the Court was] asked to answer" and because the assumption "distort[ed]" the majority's fair-use analysis. See id. at 1211-12, 1214 (Thomas, J., dissenting).
If there is a question concerning whether the court has authority to decide the case at all, then that question necessarily must be resolved first. Cf. Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94–95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (holding that federal courts may not assume jurisdiction for purposes of deciding the merits because such an approach would carry "the courts beyond the bounds of authorized judicial action and thus offend[ ] fundamental principles of separation of powers").
Here, the principal question we are asked to answer is whether the Act abrogates the operation-of-law exception in the circumstances of this case. I assume that the operation-of-law exception would otherwise apply here in order to resolve that question, and nothing about this assumption distorts my analysis of that issue.
B.
We review a trial court's decision on a motion to dismiss de novo, without any presumption of correctness. Ellithorpe , 479 S.W.3d at 824. We accept the factual allegations in the complaint as true. Effler , 614 S.W.3d at 687. A motion to dismiss should be granted "only when it appears that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief." Willis v. Tenn. Dep't of Corr. , 113 S.W.3d 706, 710 (Tenn. 2003).
Because this case involves the interplay between the common law and the Health Care Liability Act, it is worth reiterating the principles that guide our consideration of that issue. "Common-law principles and rules govern unless they have been changed by statute." Hodge v. Craig , 382 S.W.3d 325, 338 (Tenn. 2012). "[T]he General Assembly, subject only to constitutional limitations, has plenary power to alter the common law." Id. But we "presume that the legislature did not intend to change the common law," Kradel v. Piper Indus., Inc. , 60 S.W.3d 744, 751 (Tenn. 2001), and we will find that a statute has abrogated the common law only if it does so expressly or by necessary implication, see In re Deskins’ Ests. , 214 Tenn. 608, 381 S.W.2d 921, 922 (1964). Put another way, "the common law is not displaced by a statute, except to the extent necessarily required by the statute itself." Kradel , 60 S.W.3d at 751. "[W]hen there is a conflict between the common law and a statute," however, it is well settled that "the provision[s] of the statute must prevail." Lavin v. Jordon , 16 S.W.3d 362, 368 (Tenn. 2000) (alterations in original) (quoting Graves , 148 S.W. at 242 ). This deference to the General Assembly is "constitutionally based ... [and] rests on fundamental differences between the judicial and legislative process." Hodge , 382 S.W.3d at 338. When "the General Assembly has enacted statutes that clearly and definitively set boundaries on rights, obligations, or procedures, ... ‘it should be left to the legislature to change those boundaries ... and to define new ones.’ " Id. (quoting Taylor v. Beard , 104 S.W.3d 507, 511 (Tenn. 2003) ).
C.
No one argues that the Act expressly abrogates the operation-of-law exception, so the only question before us is whether the Act necessarily implies or requires that the exception must be abrogated in the unique circumstances of this case. We hold that it does, because applying the exception here would directly conflict with and essentially nullify the provision of the Act that extends the statute of limitations when presuit notice is given.
It is undisputed that Ultsch gave timely presuit notice to Skyline as required by the Act and that, once notice was provided, the statute of limitations applicable to claims against Skyline was automatically extended by 120 days. See Tenn. Code Ann. § 29-26-121(c) (providing that the "applicable statutes of limitations and repose shall be extended " when "notice is given to a provider" (emphasis added)). It is also undisputed that Ultsch brought his vicarious liability claims against Skyline within that extended statute of limitations. In short, Ultsch did everything the Act required to bring a timely claim against Skyline.
Applying the operation-of-law exception to bar Ultsch's vicarious liability claims in these circumstances would directly conflict with the Act and frustrate its detailed procedural requirements. This conflict is best illustrated by identifying what Ultsch would have had to do to avoid the exception. One option would have been to file his vicarious liability claims against Skyline before January 12, 2019—when the one-year statute of limitations applicable to any claims against Skyline's agents expired. But that option would effectively negate the Act's automatic 120-day extension of the statute of limitations as to Skyline by forcing him to sue within the statute of limitations applicable to the agents. Another option would have been to provide presuit notice to Skyline's agents, whom Ultsch did not intend to sue, so that the statute of limitations applicable to those claims would be extended too. But that option cannot be squared with the Act's presuit notice provision, which requires only that notice be given "to each health care provider that will be a named defendant. " Id. § 29-26-121(a)(1) (emphasis added). A final option would have been to provide presuit notice to Skyline and its agents, and sue all of them. However, this last option is contrary to the general common-law rule that a plaintiff may choose to sue a principal, an agent, or both.
The bottom line is that, in the unique circumstances presented in this case, there is no way to simultaneously apply the operation-of-law exception and give full effect to the Act's provisions. The structure and operation of the Act thus necessarily imply that the operation-of-law exception must be abrogated. Because a conflict exists, we must give precedence to the legislature's policy choices reflected in the Act. After all, we are not permitted to "alter or amend statutes [or] substitute our own policy judgments for those of the General Assembly." Armbrister v. Armbrister , 414 S.W.3d 685, 704 (Tenn. 2013) (quoting Britt v. Dyer's Emp. Agency, Inc. , 396 S.W.3d 519, 523 (Tenn. 2013) ).
This holding is a narrow one. It is not intended to abrogate the common-law framework for vicarious liability claims outside the health care liability context or in situations where its application to health care liability claims would not conflict with the Act. We hold only that, if application of the operation-of-law exception would bar a vicarious liability claim that is timely filed within the Act's extended statute of limitations solely because the statute of limitations had expired for any claims against the principal's agents, the exception must give way to the Act.
D.
Skyline raises several arguments in defense of the trial court's decision, but they are unavailing.
Skyline first accuses the Court of Appeals of erroneously holding that the 120-day extension of the statute of limitations in section 29-26-121(c) applies not only to the health care providers who received presuit notice, but also to each and every potential agent and employee of those providers. But that argument reflects a misreading of the Court of Appeals’ decision. The Court of Appeals explained that "pre-suit notice was provided to Skyline, thereby extending by 120 days the statute of limitations applicable to it. " Ultsch , 2021 WL 1235683, at *3 (emphasis added). The Court of Appeals did not hold that the statute of limitations was extended as to claims against any other person or entity. Nor could it. The Act is clear: it provides that "[w]hen notice is given to a provider ... the applicable statutes of limitations ... shall be extended for a period of one hundred twenty (120) days from the date of expiration of the statute of limitations ... applicable to that provider. " Tenn. Code Ann. § 29-26-121(c) (emphasis added).
Skyline next points out that the General Assembly had already enacted the provisions requiring presuit notice and extending the statute of limitations by the time this Court decided Abshure . Skyline contends that there is therefore "no merit to the argument that the [Act's] pre-suit notice requirements abrogate the applicability of" the operation-of-law exception. True, the provisions of the Act on which we rely had been enacted by the time the Court decided Abshure . But they did not apply to the claims at issue in Abshure because those claims accrued and were filed years earlier—before those provisions were enacted. See Abshure , 325 S.W.3d at 100–01. Accordingly, we had no occasion in Abshure to consider the interaction of the common law with the Act.
Finally, Skyline contends that the Court of Appeals’ decision is inconsistent with Taylor v. Miriam's Promise , No. M2017-01908-COA-R3-CV, 2019 WL 410700 (Tenn. Ct. App. Jan. 31, 2019), perm. app. denied , (Tenn. June 20, 2019) (not for citation). It is hard to see how that argument—even if correct—would help Skyline. Taylor was designated "not for citation." Although the case may be cited to demonstrate a split of authority, see Tenn. Sup. Ct. R. 4(E)(2), it has no precedential value, see id. 4(E)(1) ("If an application for permission to appeal is hereafter denied by this Court with a ‘Not for Citation’ designation, the opinion of the intermediate appellate court has no precedential value."). And we of course are not bound "by a conclusion reached by the Court of Appeals" in any event. Crosslin v. Alsup , 594 S.W.2d 379, 380 (Tenn. 1980).
This case is also distinguishable from Taylor . The plaintiff in Taylor sued both the principal and the agent but did not comply with the Act's presuit notice requirement as to the agent. See 2019 WL 410700, at *3–4. More importantly, the Court of Appeals did not identify or discuss the potential conflict between application of the operation-of-law exception and the provision of the Act extending the statute of limitations when presuit notice is given. Its analysis is therefore unpersuasive. E.
The dissent maintains that we must apply the operation-of-law exception absent a conclusion that it "cannot coexist with the provisions of the [Act]." In the dissent's view, the operation-of-law exception can coexist with the Act—and therefore is not abrogated by necessary implication—because a plaintiff can avoid dismissal of its claims against the principal by "sending pre-suit notice to the agent(s) as well as the principal" or "fil[ing] suit within the one-year statute of limitations."
We have never adopted the "cannot coexist" standard on which the dissent relies. To be sure, abrogation by necessary implication is a high bar: a "necessary implication" is one that is "so strong in its probability that anything to the contrary would be unreasonable." Necessary Implication , Black's Law Dictionary (11th ed. 2019). But that standard is met here because allowing the Act and the operation-of-law exception to coexist—that is, depriving a plaintiff who wishes to sue only the principal of the Act's mandatory extension of the statute of limitations or forcing that plaintiff to give presuit notice to parties that will not be named defendants—would be unreasonable.
* * *
The Health Care Liability Act's presuit notice provisions necessarily imply an intent to abrogate the operation-of-law exception in the unique circumstances of this case. Because the operation-of-law exception does not bar Ultsch's claims, the Court of Appeals correctly reversed the trial court's decision to grant Skyline's motion to dismiss. We therefore affirm the decision of the Court of Appeals and remand to the trial court for further proceedings consistent with this opinion. The costs of this appeal are taxed to Skyline, for which execution shall issue if necessary.
Jeffrey S. Bivins, J., delivered the opinion of the Court with respect to part II(A), in which Roger A. Page, C.J., and Sharon G. Lee, J., join, and an opinion dissenting in part, in which Roger A. Page, C.J., joins.
Sharon G. Lee, J., delivered a separate opinion.
Sharon G. Lee, J., concurring in parts I(B), II, and III(B)–(E) of the opinion authored by Justice Campbell ; concurring in part II(A) of the opinion authored by Justice Bivins.
This case presents a simple issue: Whether the Tennessee Health Care Liability Act's statute of limitation extension prevails over the common law rule that a plaintiff cannot pursue a vicarious liability claim against a principal when the plaintiff's claim against the agent is procedurally barred by operation of law before the plaintiff asserts the vicarious liability claim against the principal. This common law rule is known as the operation-of-law exception. Here, the Plaintiff filed a vicarious liability suit against the principal, TriStar Skyline Medical Center, after the one-year statute of limitations had expired as to Skyline's agents but within the Act's 120-day extension of the statute of limitations as to Skyline. Was the suit timely filed? Yes—the Act's provisions prevail over the common law operation-of-law exception.
I agree with the opinion authored by Justice Campbell to the extent it holds that the Act prevails over the common law. Yet, I cannot fully concur because the opinion sidesteps a foundational part of the analysis—whether the common law operation-of-law exception even applies. The opinion describes this as a "difficult question" and assumes hypothetically, without deciding, that the operation-of-law exception applies. Either the exception applies or it doesn't. If the exception does not apply, then there is no reason to resolve any conflict between it and the Act, and the parties on remand have an unresolved issue. By refusing to answer this threshold question, the opinion becomes merely an academic exercise. The parties need an answer, not an unresolved question. For that reason, I do not fully join Justice Campbell's opinion.
Respectfully, whether the operation-of-law exception applies is not a "difficult question." I agree with Justice Bivins’ opinion to the extent it holds that the operation-of-law exception applies because the statute of limitations operates as a procedural bar to the Plaintiff's claim. See Huber v. Marlow , No. E2007-01879-COA-R9-CV, 2008 WL 2199827, at *3–4 (Tenn. Ct. App. May 28, 2008) ; JRS Partners, GP v. Leech Tishman Fuscaldo & Lampl, LLC , No. 3:19-cv-00469, 2020 WL 5877131, at *15 (M.D. Tenn. Oct. 2, 2020) ; Smith v. Holston Med. Grp., PC , No. 2:12-CV-72, 2013 WL 11478937, at *3–4 (E.D. Tenn. June 20, 2013). Based on our previous holdings, the operation-of-law exception arises when a plaintiff tries to assert a vicarious liability claim against a principal after its right to assert a claim against the principal's agent has become procedurally barred. Abshure v. Methodist Healthcare-Memphis Hosps. , 325 S.W.3d 98, 106 (Tenn. 2010). While this case is not identical to Abshure , Huber , and Creech v. Addington , 281 S.W.3d 363 (Tenn. 2009), the principle is the same. Seldom do we have cases that are factually identical. Yet, we do not dodge the issue. We do our duty and interpret and apply existing law. Thus, I agree with Justice Bivins’ opinion that the operation-of-law exception applies.
However, I disagree with Justice Bivins’ opinion that the operation-of-law exception remains unaffected by the Act's statute of limitations provisions. In my view, this result ignores the directive from our legislature that health care liability claims are treated differently than other tort claims as evidenced by the requirement of pre-suit notice and the statute of limitations extension for plaintiffs meeting those requirements. By allowing the judicially created common law to prevail over the Act's statute of limitations extension, the opinion nullifies key provisions of the Act and deprives plaintiffs of the Act's benefits. Statutes displace the common law, not the other way around.
For these reasons, I do not fully join Justice Campbell's opinion or Justice Bivins’ opinion. Reading these opinions and my opinion together, the upshot is that a majority of the Court holds that the operation-of-law exception applies, and a majority of the Court holds that the Act's statute of limitations provisions prevail over the common law exception. Thus, I would affirm the decision of the Court of Appeals and remand this case to the trial court for further proceedings.
Jeffrey S. Bivins, J., delivered the opinion of the Court with respect to part II(A), in which Roger A. Page, C.J., and Sharon G. Lee, J., join, and an opinion dissenting in part, in which Roger A. Page, C.J., joins.
This appeal requires this Court to examine the intersection of a common law principle pertaining broadly to vicarious liability, known as the operation-of-law exception, and a series of relatively recent legislative enactments that apply to health care liability actions, known as the Health Care Liability Act ("HCLA"). The result reached by a majority of the Court turns on the longstanding rule that "[w]hen there is a conflict between the common law and a statute, the provision of the statute must prevail." Graves v. Ill. Cent. R.R. Co., 126 Tenn. 148, 148 S.W. 239, 242 (1912). The majority chooses not to give effect to the operation-of-law exception under the circumstances of this case, concluding that it would conflict with provisions of the HCLA. In my view, however, the majority abrogates the common law principle despite the lack of direct conflict between it and the HCLA. Applying the operation-of-law exception in this case, I would affirm the judgment of the trial court dismissing the vicarious liability claim against the principal because suit was filed after any health care liability claims against the principal's agents were procedurally barred by the applicable statute of limitations. Accordingly, I respectfully dissent from the result reached by the majority.
I. FACTUAL AND LEGAL BACKGROUND
The majority has fully described the factual and legal background of this case. I will repeat here only those points most salient to my analysis of the issues presented in this appeal.
On December 21, 2018, Dennis Harold Ultsch, as next of kin for Sheila Carol Warren, ("the Plaintiff") gave pre-suit notice of a potential health care liability claim to HTI Memorial Hospital Corporation ("the Defendant") related to the death of Ms. Warren. See Tenn. Code Ann. § 29-26-121(a)(1) (2012 & Supp. 2022). Ms. Warren passed away on January 12, 2018. The Plaintiff sent pre-suit notice solely to the Defendant. On May 6, 2019, the Plaintiff filed a health care liability action against the Defendant, alleging in part vicarious liability "for the acts or omissions of its employees and/or agents."
At the time the Plaintiff filed suit, the General Assembly had enacted a series of provisions—the HCLA—that apply to what are now known as health care liability actions. As the majority points out, the HCLA established a number of procedural requirements specific to health care liability actions. Among them is a requirement that persons seeking to pursue a health care liability action must provide pre-suit notice to "each health care provider that will be a named defendant" and wait a minimum prescribed period of time before filing suit. Tenn. Code Ann. § 29-26-121(a)(1). When a plaintiff has complied with the pre-suit notice requirement, "the applicable statutes of limitations and repose shall be extended for a period of one hundred twenty (120) days from the date of expiration of the statute of limitations and statute of repose applicable to that provider." Id. § 29-26-121(c) (2012 & Supp. 2022). As a general matter, the statute of limitations in a health care liability action is one year from the date the cause of action accrued. Id. §§ 28-3-104(a)(1) (2017), 29-26-116(a)(1) (2012).
Of course, what are now known as health care liability actions pre-date the legislative enactments of the HCLA, and governing principles previously developed over time through the common law. In particular, certain principles relevant to vicarious liability developed through the common law before the emergence of the HCLA. These principles applied broadly, including to what were formerly known as medical malpractice actions. See, e.g., Abshure v. Methodist Healthcare-Memphis Hosps., 325 S.W.3d 98, 100 (Tenn. 2010) (involving a medical malpractice suit against a hospital and individual health care providers alleging, in part, that the hospital was vicariously liable for the conduct of its agents); Johnson v. LeBonheur Child.’s Med. Ctr., 74 S.W.3d 338, 341 (Tenn. 2002) (same). Among these principles addressing vicarious liability is the general rule that ordinarily "a plaintiff may sue a principal based on its vicarious liability for the tortious conduct of its agents without suing the agent." Abshure, 325 S.W.3d at 105. However, through the common law, this Court identified certain exceptions to the general rule, recognizing that in those situations "it would be improper to permit a plaintiff to proceed solely against a principal based on its vicarious liability for the conduct of an agent." Id. at 106. Of particular import for this case, this Court recognized that it would be improper to permit a plaintiff to proceed solely against a principal based on its vicarious liability for the conduct of an agent "when the plaintiff's claim against the agent is procedurally barred by operation of law before the plaintiff asserts a vicarious liability claim against the principal." Id.; see also Creech v. Addington, 281 S.W.3d 363, 366 (Tenn. 2009). I will refer to this principle as the operation-of-law exception.
Certain relevant points flow from the background detailed above. First, the Plaintiff provided pre-suit notice to the Defendant before the one-year statute of limitations applicable to a health care liability claim expired. Second, the Plaintiff provided pre-suit notice only to the Defendant. Third, when the Plaintiff filed suit against the Defendant, the one-year statute of limitations applicable to health care liability claims against the Defendant's employees and/or agents had expired. Fourth, the Plaintiff, however, did file suit before the expiration of the extension of the statute of limitations provided by the HCLA as to the Defendant. Fifth, the Plaintiff's complaint alleged, in pertinent part, that the Defendant was "vicariously liable to plaintiff under the theory of respondent [sic] superior for the acts or omissions of its employees and/or agents."
II. ANALYSIS
In the trial court, the Defendant moved to dismiss the Plaintiff's vicarious liability claim based on the operation-of-law exception. The Defendant pointed out that the Plaintiff filed suit more than one year after Ms. Warren's death, and thus, the statute of limitations had expired as to the Defendant's employees and/or agents. The Defendant argued that because any health care liability claims against the Defendant's employees and/or agents were barred by operation of law—that is, by the expiration of the statute of limitations applicable to those claims—it would be improper to permit the Plaintiff to proceed solely against the Defendant as principal. The trial court agreed and granted the Defendant's motion. Consistent with one of the Plaintiff's arguments, a majority of the Court now holds that applying the operation-of-law exception under the circumstances of this case would conflict with certain provisions of the HCLA, and therefore, the common law principle must yield to the HCLA. I respectfully disagree.
A. Application of the Operation-of-Law Exception Precludes the Plaintiff's Vicarious Liability Claim
The trial court found that at the time the Plaintiff filed suit, any health care liability claims against the Defendant's employees and/or agents were barred by operation of law, that is, by the expiration of the one-year statute of limitations as to claims against the employees and/or agents. See Tenn. Code Ann. §§ 28-3-104(a)(1), 29-26-116(a)(1). Applying the operation-of-law exception, the trial court correctly concluded that the Plaintiff's vicarious liability claim against the Defendant should be dismissed, see Abshure, 325 S.W.3d at 106 ; Creech, 281 S.W.3d at 366, unless the operation-of-law exception conflicts with the HCLA.
Under Tennessee common law, vicarious liability may be imposed upon a principal for the negligent acts of its agent so long as the agent acts within the scope of the agent's actual or apparent authority. See, e.g., Abshure, 325 S.W.3d at 105 ; Boren ex rel. Boren v. Weeks, 251 S.W.3d 426, 432 (Tenn. 2008). Typically, a plaintiff may choose to sue a principal, the principal's agent, or both. Abshure, 325 S.W.3d at 105. However, as previously explained, this Court has identified certain instances in which it is "improper to permit a plaintiff to proceed solely against a principal based on its vicarious liability for the conduct of an agent." Id. at 106. Among those instances is that a plaintiff may not proceed solely against a principal based on its vicarious liability for the conduct of an agent "when the plaintiff's claim against the agent is procedurally barred by operation of law before the plaintiff asserts a vicarious liability claim against the principal." Id.; see also Creech, 281 S.W.3d at 366.
The facts of this case are not on all fours with the facts of this Court's precedents that addressed the operation-of-law exception. For instance, in Creech, this Court rejected liability as to the principal on the plaintiff's amended complaint that added a vicarious liability claim—not included initially—after any claim as to the agents was barred by operation of law. In that case, the operation-of-law exception arose from the doctrine of res judicata. Creech, 281 S.W.3d at 371, 376, 383. As this Court later noted, Creech involved a belated effort to amend a complaint when the plaintiff did not assert vicarious liability upon first filing suit. Abshure, 325 S.W.3d at 111.
On the other hand, in Abshure, this Court allowed a vicarious liability claim to proceed when the plaintiffs timely alleged vicarious liability before medical malpractice claims against the agent were barred, even though such claims were later barred by operation of law, in that case by the statute of repose. Id. at 101–02, 102 n.3, 112. The result flowed from the fact that the plaintiffs had filed a proper vicarious liability claim against the principal before their claims against the agent were barred by operation of law. Id. at 112.
Unlike Creech, the Plaintiff in this case alleged vicarious liability in the initial complaint rather than attempting to add the claim after having initially omitted it. Unlike Abshure, the Plaintiff did not file suit before claims against the Defendant's employees and/or agents were barred. Regardless of the specific factual situation, the key principle from our precedents is that the operation-of-law "limitation arises when the plaintiff attempts to assert a vicarious liability claim against the principal after its right to assert a claim against the agent has become procedurally barred." Id. at 110. In this case, the Plaintiff did exactly what this key principle prohibits. At the time the Plaintiff filed suit against the Defendant—alleging, in part, vicarious liability—any health care liability claims against the Defendant's employees and/or agents were procedurally barred by operation of law—that is, by the expiration of the one-year statute of limitations. See JRS Partners, GP v. Leech Tishman Fuscaldo & Lampl, LLC, No. 3:19-CV-00469, 2020 WL 5877131, at *15 (M.D. Tenn. Oct. 2, 2020) ; Smith v. Holston Med. Grp., PC, No 2:12-CV-72, 2013 WL 11478937, at *3–4 (E.D. Tenn. June 20, 2013). Because any health care liability claims against the Defendant's employees and/or agents were procedurally barred by operation of law at the time the Plaintiff filed suit, the trial court correctly dismissed the Plaintiff's claim that was based on the Defendant's vicarious liability for the conduct of its employees and/or agents, unless the operation-of-law exception conflicts with the provisions of the HCLA.
B. The Operation-of-Law Exception Does Not Conflict with the HCLA
Tennessee is a common law state, Hodge v. Craig, 382 S.W.3d 325, 337 (Tenn. 2012), and the operation-of-law exception developed through the common law. Clearly, the General Assembly has the authority, within constitutional limits, to alter the common law legislatively. See, e.g., McClay v. Airport Mgmt. Servs., Inc., 596 S.W.3d 686, 690 (Tenn. 2020) ; Lavin v. Jordon, 16 S.W.3d 362, 368 (Tenn. 2000). Thus, I certainly agree with the majority that "[w]hen there is a conflict between the common law and a statute, the provision of the statute must prevail." Graves, 148 S.W. at 242 ; see also Lavin, 16 S.W.3d at 368. On the other hand, to the extent common law principles are not in conflict with a statute, the legislation "leaves the law as it was before its enactment." Lavin, 16 S.W.3d at 368 ; see also Hodge, 382 S.W.3d at 338.
To determine whether a statute conflicts with the common law, this Court necessarily is called upon to construe the statute. The typical rules of statutory construction apply. See Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405, 423 (Tenn. 2013). For instance, the General Assembly is presumed to know the state of the existing law when it enacts legislation—including the state of the common law—and, thus, legislation is interpreted in light of the common law. Seals v. H & F, Inc., 301 S.W.3d 237, 256–57 (Tenn. 2010) (Koch, J., concurring in part and dissenting in part); Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 899 (Tenn. 1992). The touchstone and "most basic principle of statutory construction is to ascertain and give effect to the legislative intent without unduly restricting or expanding a statute's coverage beyond its intended scope." Yebuah v. Ctr. for Urological Treatment, PLC, 624 S.W.3d 481, 486 (Tenn. 2021) (quoting State v. Howard, 504 S.W.3d 260, 269 (Tenn. 2016) ).
However, in the specific context of determining whether the common law conflicts with a statute, this Court must be mindful of additional principles employed to aid in construing the statute. As a general matter, although the General Assembly has the authority to abrogate the common law, the intention to abrogate must be clear. Howard, 504 S.W.3d at 270. In recognition of this principle, courts do not broadly construe statutes that are in derogation of the common law. Shore, 411 S.W.3d at 423. Instead, "statutes in derogation of the common law are to be strictly construed and confined to their express terms." Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 679 (Tenn. 2002) (quoting Ezell v. Cockrell, 902 S.W.2d 394, 399 (Tenn. 1995) ); see also Yebuah, 624 S.W.3d at 486 (stating that the common law is not displaced by a legislative enactment except to the extent required by the statute itself). The legislature need not affirmatively proscribe a common law principle to abrogate it, but courts should presume that the legislature acted with the expectation that a common law principle applies except when a statute's purpose to the contrary is evident. United States v. Texas, 507 U.S. 529, 534, 113 S.Ct. 1631, 123 L.Ed.2d 245 (1993) (also stating that "to abrogate a common-law principle, the statute must ‘speak directly’ to the question addressed by the common law"); see also Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 599 (Tenn. 1999) (observing that strict construction "amounts to a recognition of a presumption against the legislature's intention to change existing law"). Stated another way, legislative acts should not be construed to displace the common law any further than they expressly declare or necessarily imply. Shore, 411 S.W.3d at 423 ; Seals, 301 S.W.3d at 257 (Koch, J., concurring in part and dissenting in part); In re Deskins' Estates, 214 Tenn. 608, 381 S.W.2d 921, 922 (1964).
As the majority notes, there is no suggestion that the HCLA expressly abrogates the common law principle that it is improper to permit a plaintiff to proceed solely against a principal based on vicarious liability "when the plaintiff's claim against the agent is procedurally barred by operation of law before the plaintiff asserts a vicarious liability claim against the principal." Abshure, 325 S.W.3d at 105. Indeed, the text of the HCLA contains no such express language. See Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 536 (Tenn. 2002) (looking to "the clear and plain language" of a statute to determine whether it displaced a common law remedy); Heirs of Ellis v. Estate of Ellis, 71 S.W.3d 705, 712 (Tenn. 2002) (noting the absence of "express language" indicating that the General Assembly intended to revise the common law principle at issue). Thus, if the HCLA is to displace the operation-of-law exception, it must be by necessary implication. A necessary implication is not derived from mere consistency or compatibility with the legislation. Rather, a necessary implication is "one that is so strong in its probability that the contrary cannot reasonably be supposed." Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction § 55:3 (7th ed. 2012).
The majority concludes that application of the operation-of-law exception would directly conflict with the HCLA based on the interplay among certain primarily procedural statutory provisions. In particular, the HCLA requires pre-suit notice of a potential health care liability claim, as well as an accompanying waiting period before suit may be filed, but provides for an extension of the statute of limitations as to a health care provider when pre-suit notice is given to that provider. Tenn. Code Ann. § 29-26-121(a)(1), -121(c). Additionally, although the HCLA mandates pre-suit notice, it requires notice only as to those health care providers "that will be a named defendant." Id. § 29-26-121(a)(1). According to the majority, the operation-of-law exception cannot be squared with these provisions.
More specifically, the majority claims that the Plaintiff would face untenable options, the first of which would require the Plaintiff to file suit against the Defendant before the expiration of the one-year statute of limitations. The majority concludes that this option essentially nullifies the extension of the statute of limitations provided by the HCLA upon the Plaintiff's sending the Defendant the statutorily required pre-suit notice. I do not share the majority's view that this option essentially nullifies the extension of the statute of limitations. A plaintiff knows if it will assert a claim based on vicarious liability. Thus, a plaintiff is free to obtain the benefit of the extension of the statute of limitations by sending pre-suit notice to the agent(s) as well as the principal. Alternatively, a plaintiff also is free to file suit within the one-year statute of limitations and comply with the procedural requirements of the HCLA. I do not believe that the latter course of action—choosing to file suit within the one-year limitations period—would mean that the operation-of-law exception has essentially nullified the extension provision of the HCLA. Thus, in my view, these circumstances do not exhibit a legally sufficient conflict between the operation-of-law exception and the HCLA to displace the operation-of-law exception by necessary implication.
The other option would entail the Plaintiff's sending pre-suit notice to the Defendant's relevant employees and/or agents to obtain the benefit of the extension of the statute of limitations as to them. Thereafter, the Plaintiff simply could choose to sue only the Defendant. The majority concludes that this option cannot be squared with the HCLA's provision that requires pre-suit notice only as "to each health care provider that will be a named defendant." Id. § 29-26-121(a)(1). Alternatively, the Plaintiff could elect to sue the Defendant and its relevant employees and/or agents, but the majority concludes that this course of action would run afoul of the general common law principle that a plaintiff may choose to sue a principal, an agent, or both. As to this two-pronged option, I note that although the HCLA generally requires named defendants to have been sent pre-suit notice, it does not require that all who are sent pre-suit notice ultimately be named defendants. See id. § 29-26-121(a)(1). Thus, in my view, sending pre-suit notice to an agent but not later naming that agent as a defendant does not essentially nullify any provision of the HCLA. Likewise, nothing about the operation-of-law exception requires a plaintiff, having sent pre-suit notices, to sue both the principal and its agents any more than it would require a plaintiff to sue only the principal or its agents. Rather, upon sending the required pre-suit notices, a plaintiff may choose how to proceed. Nothing about these circumstances demonstrates a legally sufficient conflict between the operation-of-law exception and the HCLA to displace the operation-of-law exception by necessary implication.
Indeed, one purpose of the pre-suit notice requirement is to foster the possibility of dispute resolution or to bring focus to the dispute before a plaintiff actually sues any provider. See Runions v. Jackson-Madison Cnty. Gen. Hosp. Dist., 549 S.W.3d 77, 86 (Tenn. 2018) ; Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 554 (Tenn. 2013). In other words, the HCLA clearly contemplates that a potential defendant may receive pre-suit notice and yet never become an actual defendant.
As this discussion makes clear, I recognize that the operation-of-law exception could introduce a tactical choice for a plaintiff, the resolution of which would depend on the facts surrounding the plaintiff's case. However, I do not agree that this circumstance reveals a legally sufficient conflict between the operation-of-law exception and the provisions of the HCLA so as to displace the operation-of-law exception. Nor do I believe that the common law principle cannot coexist with the provisions of the HCLA. The options detailed by the majority simply call for a strategic decision that is neither a Catch-22 nor a Hobson's choice. Unlike the majority, I do not believe that being faced with this tactical choice essentially nullifies or effectively negates any provision of the HCLA.
Because Tennessee is a common law state, the General Assembly often does not write upon a clean slate. See United States v. Texas, 507 U.S. at 534, 113 S.Ct. 1631. Accordingly, this Court is called upon "to perceive the impact of major legislative innovations and to interweave the new legislative policies with the inherited body of common-law principles." Moragne v. States Marine Lines, Inc., 398 U.S. 375, 392, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). The majority makes a case that abrogating the operation-of-law exception is consistent or compatible with the legislative changes brought about by the HCLA, and I acknowledge its appeal. However, I do not believe that consistency or compatibility with legislation suffices to abrogate a common law principle by necessary implication. The bar should be, and is, higher. See Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction § 55:3 (7th ed. 2012) (stating that a necessary implication is "one so strong in its probability that the contrary cannot reasonably be supposed").
The majority recognizes that a necessary implication is one "so strong in its probability that anything to the contrary would be unreasonable." Necessary Implication, Black's Law Dictionary (11th ed. 2019). According to the majority, the standard is met here because it would be unreasonable to deprive a plaintiff who wishes to sue only the principal of the HCLA's extension of the statute of limitations or force that plaintiff to give pre-suit notice to providers that will not be named defendants. I disagree. The common law principle and the HCLA easily can be interwoven, in that a plaintiff can comply with both. Because the two can coexist, it is not unreasonable to conclude that the General Assembly, when enacting the HCLA provisions, did not intend to abrogate the operation-of-law exception. See Chelsea Hous. Auth. v. McLaughlin, 482 Mass. 579, 125 N.E.3d 711, 721 (2019) (stating that a statute abrogates a common law principle by necessary implication when the principle "is so repugnant to and inconsistent with the statute that both cannot stand" (internal quotation marks omitted)). Accordingly, I do not believe that the Plaintiff has carried the burden of demonstrating abrogation by necessary implication. I would hold that the common law principle does not conflict with the HCLA, and thus, the enactment of the HCLA did not displace the operation-of-law exception in health care liability actions.
The majority states that this Court has never adopted a "cannot coexist" standard. However, the majority does not indicate that the language is inconsistent with the high bar required for abrogation by necessary implication.
The party contending that legislation changed the common law bears the burden of showing that the legislature intended such a change. Tome v. United States, 513 U.S. 150, 163, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995).
III. CONCLUSION
The Plaintiff filed suit against the Defendant alleging, in part, vicarious liability, but only after the right to assert a health care liability claim against the Defendant's employees and/or agents was procedurally barred by the applicable statute of limitations. This circumstance implicates the operation-of-law exception and requires dismissal of the Plaintiff's claim that was based on the Defendant's vicarious liability for the conduct of its employees and/or agents. Unlike the majority, I cannot conclude that the HCLA's provisions necessarily imply a legislative intent to abrogate the operation-of-law exception. I, therefore, respectfully dissent from the result reached by a majority of the Court.