§47.5 Cases Against Health Care Providers That Are Not Medical Malpractice Cases
The Basic Facts: Plaintiffs were the biological parents of a minor child but had lost custody of the child. The custodian arranged for and/or permitted defendant social worker to provide counseling to the child without the parents’ knowledge or consent. When the parents found out about the counseling, they brought this claim against defendant social worker. It was undisputed that the parents did not give pre-suit notice or file a certificate of good faith pursuant to the HCLA. Defendant filed a motion to dismiss based on parents’ failure to comply with the HCLA, to which parents responded that their claims sounded in ordinary negligence.
The Bottom Line:
- “While the 2008 and 2009 amendments to the Tennessee Medical Malpractice Act established new procedural requirements for plaintiffs seeking to file medical malpractice actions, these amendments failed to sufficiently define a medical malpractice claim and left Tennessee courts to distinguish between claims sounding in ordinary negligence and those involving medical malpractice. In January 2011, this Court decided Estate of French, which provided a comprehensive and detailed analysis of the interaction between ordinary negligence principles and the Tennessee Medical Malpractice Act, as then enacted.” 2015 WL 5853873, at *5.
- “However, roughly four months after this Court’s decision in Estate of French, at its next session, the Legislature passed the Tennessee Civil Justice Act of 2011, further amending the Tennessee Medical Malpractice Act. See Tennessee Civil Justice Act of 2011, ch. 510, 2011 Tenn. Pub Acts 1505 (codified at Tenn. Code Ann. 29-26-101 et seq. (Supp. 2011)). Notably, the Tennessee Civil Justice Act of 2011 amended the existing Tennessee Medical Malpractice Act by removing all references to ‘medical malpractice’ from the Tennessee Code and replacing them with ‘health care liability’ or ‘health care liability action’ as applicable. See id. Furthermore, section 29-26-101 was added to the Code which defined ‘health care liability action’ as ‘any civil action, including claims against the state or a political subdivision thereof, 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) (Supp. 2011) (emphasis added). This same section went on to provide that ‘[a]ny such civil action or claim is subject to the provisions of this part regardless of any other claims, causes of action, or theories of liability alleged in the complaint.’ Id. § 29-26-101(c).” Id. at *6.
- “Giving every word in this section its full effect and plain meaning, we hold that section 29-26-101 establishes a clear legislative intent that all civil actions alleging that a covered health care provider or providers have caused an injury related to the provision of, or failure to provide health care services be subject to the pre-suit notice and certificate of good faith requirements, regardless of any other claims, causes of action, or theories of liability alleged in the complaint. Furthermore, we are mindful of the fact that the Tennessee Civil Justice Act of 2011 was enacted mere months after this Court’s decision in Estate of French. Under the canons of statutory construction, we presume that the Legislature was aware of this Court’s decision in Estate of French and acted accordingly in passing an act that rendered it effectively moot. We need not engage in further statutory interpretation in the face of this clear legislative edict. Thus, we hold that the ‘nuanced’ approach for distinguishing ordinary negligence and health care liability claims as outlined in Estate of French has been statutorily abrogated.” Id. at *7.
- “Applying the clear language of the THCLA to Parents’ complaint, we conclude that the allegations contained therein meet the definition of a health care liability action as defined in section 29-26-101(a)(1). Parents’ complaint alleges that Ms. Weismark ‘is a licensed clinical social worker.’ Social workers are a group licensed and regulated under title 63 of the Tennessee Code. See Tenn. Code Ann. § 63-23-105 (2010 & Supp. 2014). Thus, Ms. Weismark meets the definition of a ‘health care provider’ under section 29-26-101(a)(2). Parents recognized Ms. Weismark’s status as a health care provider when they relied upon the Juvenile Court’s order as affording them a right to seek access Ms. Weismark’s treatment records of M.L. Specifically, Parents alleged at Paragraph 8 that the Juvenile Court’s order provided them with ‘the right to receive copies of the child’s medical, health or other treatment records directly from the physician or health care provider who provid[ed] such treatment....’ Additionally, Parents’ complaint is rife with allegations relating to Ms. Weismark’s provision of health care services to M.L. Paragraph 9 of the complaint alleges that Ms. Weismark ‘did an intake for counseling for [M.L.].’ Paragraphs 17 and 18 allege that Ms. Weismark did not have consent to counsel M.L. Paragraph 25 alleges that M.L. ‘has been harmed emotionally in not being allowed to counsel with her [p]arents’ and that Parents ‘will seek an independent mental health examination of the child to assess the harm caused by failing to counsel with them towards reunification.’ Paragraph 26 of the complaint alleges that ‘the secreted counseling with [M.L.] is the direct and proximate harm and injury to [parents] and [M.L.].’ Paragraph 29 alleges that Ms. Weismark ‘should be keenly aware that providing this secret counseling for the child is a gross deviation from the standard of care.’ Finally, Paragraph 31 alleges that ‘[Parents] would show that [Ms.] Weismark is negligent in providing health services without following the parameters of the court order by notifying [parents] and allowing them to participate in said counsel.’ (Bold in original) (second emphasis added). Thus, because Parents’ complaint alleges negligence in the provision of health care services by a covered health care provider, it is subject to the THCLA ‘regardless of any other claims, causes of action, or other theories of liability alleged in the complaint.’ Tenn. Code Ann. § 29-26-101(c). Because Parents failed to comply with the pre-suit notice and certificate of good faith requirements of the THCLA, dismissal of their complaint is appropriate.” Id.
Other Sources of Note: Estate of Hardin v. Broadmore Senior Services, LLC , No. Nos. 3:05-0382, 3:06-0481, 2007 WL 2112670 (M. D. Tenn. 2007) (claims asserted against assisted living center were medical malpractice claims); Draper v. Westerfield, 181 S.W.3d 283 (Tenn. 2005) (claim against doctor for failing to report child abuse was not a medical malpractice claim); Smartt v. NHC Healthcare/McMinnville, LLC, No. M2007-02026-COA-R3-CV, 2009 WL 482475 (Tenn. Ct. App. Feb. 24, 2009) (affirming trial court's decision to permit ordinary negligence claims in nursing home case finding reasonable minds could differ as to whether an action for ordinary negligence existed in this case where some of the care patient received plaintiffs could have provided themselves); Cannon v. McKendree Village, Inc., 295 S.W.3d 278 (Tenn. Ct. App. 2008), perm. appeal denied, (Jun. 1, 2009) (holding medical malpractice act applied to claims against nursing home arising out of resident's fall from foot of bed and resulting injuries); Cunningham v. Jones, No. M2007-01112-COA-R3-CV, 2008 WL 695871 (Tenn. Ct. App. Mar. 14, 2008) (plaintiff sued radiologist for erroneously telling her health insurer that she was suffering from renal failure, which allegedly caused her to be unable to obtain private health insurance; court determined that the case was not a medical malpractice case); Turner v. Steriltek, Inc., No. M2006-01816-COA-R3-CV, 2007 WL 4523157 (Tenn. Ct. App. Dec. 20, 2007) (failure to provide sterile batteries and medical instruments is not a medical negligence claim); Ward v. Glover, 206 S.W.3d 17 (Tenn. Ct. App. 2006) (claims against obstetrician and anesthesiology group sounded in medical malpractice).
Estate of Thibodeau v. St. Thomas Hospital, No. M2014-02030-COA-R3-CV, 2015 WL 6561223 (Tenn. Ct. App. Oct. 29, 2015) (claim that hospital employees failed to properly support plaintiff while transporting her from a bariatric stretcher to her car sounded in health care liability, not ordinary negligence, pursuant to statutory definition of health care liability action); Estate of Bradley v. Hamilton County, No. E2014-02215-COA-R3-CV (Tenn. Ct. App. Aug. 21, 2015) (claim that jail failed to diagnose and/or properly treat inmate for tuberculosis sounded in health care liability, not ordinary negligence); Coggins v. Holston Valley Medical Center, No. E2014-00594-COA-R3-CV, 2015 WL 3657778 (Tenn. Ct. App. June 15, 2015) (plaintiff who filed under HCLA in good faith but was actually asserting an ordinary negligence claim was allowed to rely on 120-day extension pursuant to 29-26-121(e)); Igou v. Vanderbilt Univ., No. M2013-02837-COA-R3-CV, 2015 WL 1517794 (Tenn. Ct. App. March 27, 2015) (patient’s wife’s claim for loss of consortium fell under HCLA); Smith v. Testerman, No. E2014-00956-COA-R9-CV, 2015 WL 1118009 (Tenn. Ct. App. March 10, 2015) (where plaintiff’s claim related to sponge that was placed after complications with hernia surgery being left in body, claim fell under HCLA, not ordinary negligence; pre-suit notice and certificate of good faith requirements applied); Caldwell v. Vanderbilt Univ., No. M2012-00328-COA-R3-CV, 2013 WL 655239 (Tenn. Ct. App. Feb. 20, 2013) (affirming that claim regarding MRI technician’s decisions about whether a patient had too much metal on her body to undergo an MRI fell under health care liability act); Williams-Ali v. Mountain States Health Alliance, No. E2012-00724-COA-R3-CV, 2013 WL 357580 (Tenn. Ct. App. Jan. 30, 2013) (affirming trial court decision that claim sounded in medical malpractice, rather than ordinary negligence as plaintiff asserted, where claim involved injury from plaintiff falling off a table during a test where she was allegedly not secured correctly); Parker v. Portland Nursing & Nursing Rehab, No. M2011-02633-COA-R9-CV, 2012 WL 3776800 (Tenn. Ct. App. Aug. 30, 2012) (holding that plaintiff’s course of action in pursuing both ordinary negligence and medical malpractice claims was proper); Mathes v. DRD Knoxville Medical Clinic, No. E2010-01809- COA-R3-CV, 2011 WL 1402879 (Tenn. Ct. App. Apr. 13, 2011) (reversing dismissal of plaintiffs’ lawsuit finding that claims were for ordinary negligence not medical malpractice and therefore plaintiffs were not required to comply with Tennessee Medical Malpractice Act); Estate of Martha French v. Stratford House, 333 S.W.3d 546 (Tenn. Jan. 26, 2011) (clarifying factors distinguishing between ordinary negligence and medical malpractice; holding that federal and state regulations governing nursing homes cannot be relied upon to support negligence per se in a medical malpractice case but can be used to support negligence per se in an ordinary negligence claim; Barnett v. Elite Sports Medicine, No. M2010-00619-COA-R3-CV, 2010 WL 5289669 (Tenn. Ct. App. Dec. 17, 2010) (holding that a plaintiff who fails to comply with the certificate of good faith requirement is subject to dismissal of medical malpractice claims but not entire complaint if it includes other non-malpractice claims); Martins v. Williamson Medical Center, No. M2010-00258-COA-R3-CV, 2010 WL 4746238 (Tenn. Ct. App. Nov. 22, 2010) (affirming dismissal of claim finding certificate of good faith was required for claim arising out of failure to issue fall precautions for a postpartum mother because claim sounded in medical malpractice and not ordinary negligence); Stewart v. Fakhruddin, No. M2009-02010-COA-R3-CV, 2010 WL 2134150 (Tenn. Ct. App. May 26, 2010) (analyzing immunity under Tenn. Code Ann. § 33-3-209 for professional who has satisfied duty under Tenn. Code Ann. § 33-3-206 from any cause of action for “not predicting, warning of, or taking precautions to provide protection from violent behavior” by patient and finding cause of action was not barred by immunity in statute); Long v. Hillcrest Healthcare-West, No. E2009-01405-COA-R3-CV, 2010 WL 1526065 (Tenn. Ct. App. Apr. 16, 2010) (upholding dismissal of suit for failure to comply with notice requirements of medical malpractice statute holding claim for negligence in moving nursing home resident sounded in medical malpractice and not ordinary negligence); Turner ex rel. Turner v. Steriltek, No. M2009-00325-COA-R3-CV, 2010 WL 744519 (Tenn. Ct. App. Mar. 3, 2010) (reversing summary judgment on ordinary negligence claim for negligence of hospital finding expert affidavit on standard of care not dispositive because not a medical malpractice case).
Gentry v. Wagner , No. M2008-02369-COA-R3-CV, 2009 WL 1910959 (Tenn. Ct. App. Jun. 30, 2009) (affirming summary judgment finding implied physician-patient relationship where physician performed independent medical examination in personal injury case and finding cause of action for alleged injuries sustained during examination is governed by Tennessee Medical Malpractice Act); Johnsey v. Northbrooke Manor, Inc., No. W2008-01118-COA-R3-CV, 2009 WL 1349202 (Tenn. Ct. App. May 14, 2009) (finding plaintiff's claims against nursing home are for medical malpractice and not ordinary negligence but reversing summary judgment finding no scheduling orders in place that would prevent plaintiff from identifying additional witnesses to overcome summary judgment); Estate of French v. The Stratford House, No. E2008-00539-COA-R3-CV, 2009 WL 211898 (Tenn. Ct. App. Jan. 29, 2009) (finding case against nursing home for personal injuries and wrongful death was grounded in medical malpractice).