In its decision filed on October 8, 2015, the Supreme Court of Tennessee (“Tennessee Supreme Court”) affirmed the dismissal of the plaintiffs’ health care liability lawsuit filed against a social worker because of the plaintiffs’ failure to provide timely pre-suit notice and their failure to provide a certificate of good faith, as required by the Tennessee Health Care Liability Act (“THCLA”), Tenn. Code Ann. section 29-26-101, et seq.
Amendments to the Tennessee Medical Malpractice Act in 2008 and 2009 established new procedural requirements for plaintiffs seeking to file medical malpractice actions, but the 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.
The Tennessee Supreme Court decided a case in January 2011 that provided a comprehensive and detailed analysis of the interaction between ordinary negligence principles and the Tennessee Medical Malpractice Act, as then enacted, stating that whether claims should be characterized as ordinary negligence or medical malpractice claims depended heavily on the facts of each individual case.
The 2011 Case
The Tennessee Supreme Court stated in Estate of French v. Stratford House, 333 S.W.3rd 546 (Tenn. 2011) that when a claim alleges negligent conduct which constitutes or bears a substantial relationship to the rendition of medical treatment by a medical professional, the medical malpractice statute is applicable. Conversely, when the conduct alleged is not substantially related to the rendition of medical treatment by a medical professional, the medical malpractice statute does not apply. Medical malpractice cases typically involve a medical diagnosis, treatment or other scientific matters. The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring specialized skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of common everyday experience of the trier of fact.
Four months after the Tennessee Supreme Court issued its decision in Estate of French, and in response to that decision, the Tennessee Legislature passed the Tennessee Civil Justice Act of 2011 that 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. 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” and further provided 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.”
In the current case that it was deciding, the Tennessee Supreme Court stated that it was undisputed that the plaintiffs, who alleged in their lawsuit filed against a licensed clinical social worker who had provided counseling services to their minor child that she did so without obtaining their valid consent, had failed to comply with the pre-suit notice and certificate of good faith provisions of Tennessee Code Annotated sections 29-26-121 and 122, and that the trial judge relied solely on the plain language of Tennessee Code Annotated sections 29-26-101, -121, and -122 to determine that all causes of action alleged in the plaintiffs’ complaint were covered by the THCLA because the plaintiffs’ claims relate to the provision of “health care services” by a “health care provider” as those terms are defined by statute.
The Tennessee Supreme Court stated that the resolution of the appeal depended on whether its decision in Estate of French has been statutorily abrogated by the Tennessee Civil Justice Act of 2011. The Tennessee Supreme Court held 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, noting that the Tennessee Civil Justice Act of 2011 was enacted mere months after its decision in Estate of French.
Applying the clear language of the THCLA to the plaintiffs’ complaint, the Tennessee Supreme Court concluded that the allegations contained therein met the definition of a health care liability action as defined in section 29-26-101(a)(1) – social workers are a group licensed and regulated under title 63 of the Tennessee Code and therefore meet the definition of a “health care provider” under section 29-26-101(a)(2).
The Tennessee Supreme Court held that because the plaintiffs failed to comply with the pre-suit notice and certificate of good faith requirements of the THCLA, dismissal of their complaint with prejudice was appropriate.
Source Ellithorpe, et al. v. Weismark, M2014-00279-SC-R11-CV.
If you or a family member were injured (or worse) as a result of health care negligence in Tennessee, you should promptly seek the legal advice of a Tennessee medical malpractice attorney who may investigate your health care negligence claim for you and represent you in a health care liability case, if appropriate.
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