The Court of Appeals of Tennessee at Nashville (“Tennessee Appellate Court”) held in its opinion filed on December 19, 2017 that “[a]ccepting [the plaintiff’s] allegations as true and allowing [the plaintiff] the benefit of all reasonable inferences, we cannot conclude that [the defendant radiologist’s] handshake related to the provision of, or failure to provide, health care services. Rather, one reasonable inference is that [the plaintiff] extended her hand merely as a greeting, a formality upon meeting, and [the defendant radiologist] shook [the plaintiff’s] hand either with the same intent or to cause harm.”
The plaintiff filed her complaint on April 14, 2016 against the defendant radiologist, alleging two distinct claims. The plaintiff alleged that she made an appointment with the defendant “to check why she was getting so out of breath while doing her daily chores since February 11, 2015,” at which time the defendant, “upon entering the room . . . Plaintiff extended her right hand for the [defendant] to shake her hand and this is when he squeezed Plaintiff [sic] fingers to [sic] hard.” The plaintiff generally described this interaction as “a beating” or “assault.” The plaintiff alleged that as a result of the too hard handshake, her “hand is in constant pain” and “the fingers no longer have any strength.”
As to the plaintiff’s second claim against the defendant radiologist, she alleged that the defendant “was also in [sic] fault when he read the Sonogram and did not add it to Plaintiff … Medical Records.”
The plaintiff filed a certificate of good faith with the complaint, which she signed herself.
Tennessee Medical Malpractice Law
The Tennessee Health Care Liability Act (“Act”) requires any person with a potential health care liability claim to provide pre-suit notice of the claim to all health care providers who could be named as defendants. Tenn. Code Ann. § 29-26-121(a)(1). The Act further requires that the plaintiff file a certificate of good faith with the complaint when expert testimony is required. Tenn. Code Ann. § 29-26-122(a). § 29-26-122(c) provides: “The failure of a plaintiff to file a certificate of good faith . . . shall, upon motion, make the action subject to dismissal with prejudice.”
The Act defines a health care liability action as “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) (Supp. 2017). The Act defines “health care services” as, among other things, “care by health care providers,” including physicians, and “staffing, custodial or basic care, positioning, hydration and similar patient services.” Tenn. Code Ann. § 29-26-101(b).
The defendant radiologist filed a motion to dismiss the plaintiff’s complaint for the alleged failure of the plaintiff to comply with the pre-suit notice and certificate of good faith requirements under the Act, which the trial court granted. The plaintiff appealed.
Tennessee Appellate Court Decision
The Tennessee Appellate Court stated that the plaintiff’s complaint alleged two distinct claims against the defendant radiologist: (1) that he allegedly assaulted her by shaking her hand too hard causing injuries and (2) that he failed to properly document her medical files after he analyzed her sonogram.
The Tennessee Appellate Court held that any claim describing a doctor’s failure to analyze a diagnostic test result and to properly document the result in a patient’s medical records clearly relates to the provision of, or failure to provide, health care services, and thus, affirmed the dismissal of this claim based on the plaintiff’s failure to comply with the Act’s procedural requirements.
However, the Tennessee Appellate Court stated whether the claim that the defendant radiologist shook the plaintiff’s hand too hard relates to the provision of, or failure to provide, health care services is less clear.
The Tennessee Appellate Court stated that it appears that the plaintiff is arguing that the offending handshake operated either as a nonverbal greeting unconnected to any health care service or an assault. The defendant argued that handshakes at the outset of an appointment serve a medical purpose, namely to build the patient’s trust. In addition, a physician’s handshake can serve a diagnostic function. But the Tennessee Appellate Court stated that the defendant’s unspoken intent, even if true, is irrelevant at this stage in the litigation.
The Tennessee Appellate Court stated that in reviewing a trial court’s decision on a motion to dismiss for failure to state a claim upon which relief can be granted, it is limited to the allegations set out in the complaint and any reasonable inferences to be drawn from those allegations, which it must construe in the plaintiff’s favor. Accepting the plaintiff’s allegations as true and allowing the plaintiff the benefit of all reasonable inferences, the Tennessee Appellate Court held that it cannot conclude that the defendant’s handshake related to the provision of, or failure to provide, health care services. Rather, one reasonable inference is that the plaintiff extended her hand merely as a greeting, a formality upon meeting, and the defendant radiologist shook her hand either with the same intent or to cause harm.
The Tennessee Appellate Court held that while further evidence may demonstrate otherwise, at this stage of the proceedings it cannot conclude that the Act applies to the plaintiff’s handshake claim. Therefore, the Tennessee Appellate Court reversed the trial court’s dismissal of the plaintiff’s claim that the defendant radiologist shook her hand too hard based on her failure to comply with the requirements of the Act, and remanded the case for further proceedings as are necessary and consistent with its opinion.
Source Lacy v. Meharry General Hospital, No. M2016-01477-COA-R3-CV.
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