Nuanced Determination Required to Distinguish Health Care Liability Claims from Ordinary Tort Claims
Not all claims brought against health care providers fall under the Tennessee Health Care Liability Act (THCLA), and a recent case from the Tennessee Court of Appeals gives crucial guidance on how to distinguish THCLA claims from ordinary, non-statutory tort claims. In Ellithorpe v. Weismark, No. M2014-00279-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2014), plaintiffs were parents of a minor child. Plaintiffs had lost custody pursuant to a juvenile court order, but plaintiffs alleged that the order required them to be informed of and allowed to participate in any counseling offered to the minor child. In their complaint, plaintiffs alleged that defendant social worker had provided counseling to minor child in violation of the court order. They asserted claims for negligence, negligence per se, and intentional infliction of emotional distress against the defendant.
Defendant moved to dismiss the complaint in its entirety, arguing that it fell under the THCLA and that plaintiffs had indisputably not followed the statute’s procedural requirements. The trial court granted the motion, finding that “the THCLA was ‘very broad’ and encompassed this claim because it related to the provision of health care services by a health care professional.” The Court of Appeals, however, reversed this dismissal, stating that the trial court had not used the proper analysis to determine whether the claims fell within the THCLA.
In determining the proper analysis, the Court first pointed to the Tennessee Supreme Court’s opinion in Gunter v. Laboratory Corp. of America, 121 S.W.3d 636 (Tenn. 2003). There, the Supreme Court indicated that the “crucial question” was whether the claim “constitutes or bears a substantial relationship to the rendition of medical treatment by a medical professional.” Later, though, the Supreme Court reexamined the analysis recommended by Gunter. In Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011), the Supreme Court noted that “all cases involving health or medical care do not automatically qualify as health care liability claims.” The Estate of French Court “somewhat abandoned the broad ‘gravamen of the complaint’ test outlined in Gunter, in favor of ‘a more nuanced approach’ in which the trial court must examine the claims individually to determine whether they sound in ordinary negligence or health care liability.” Instead of broadly characterizing the complaint, this analysis depended on factual inquiries to appropriately categorize the individual claims.
Based on the Estate of French case, the Court of Appeals in Ellithorpe outlined five factors that should be considered in determining whether a claim falls under the THCLA or another form of liability:
(1) whether a patient-physician relationship exists between the plaintiff and the defendant medical provider; (2) whether the alleged acts of negligence relate to a specific patient or to an entire group of people; (3) whether expert testimony is required to establish the standard of care; (4) whether the alleged negligence involves the provision of routine care; and (5) whether
the alleged negligent acts or omissions were properly classified as administrative, ministerial, or routine, rather than medical or professional.
Because the trial court here appeared to dismiss the claims based on the gravamen of the complaint and did not engage in the proper nuanced consideration of the allegations, the Court reversed the dismissal and remanded with instructions to consider the factors above.
This is an important case that synthesizes previous Tennessee decisions and gives some clear factors to consider when determining whether a claim sounds in ordinary negligence or health care liability. While some number of complaints that assert liability against a health care provider will include claims falling under both ordinary tort law and the THCLA, and thus will likely already meet the procedural requirements of the THCLA, this case could be especially helpful in a situation where either the pre-suit notice or certificate of good faith was found to be insufficient. Pursuant to the analysis here, a complaint should not be dismissed in total simply because it is generally a health care claim. Instead, a trial court should undergo a fact specific inquiry, categorizing each claim as falling under the THCLA or another theory of liability. In a sticky situation where the THCLA claims are likely to fail, then, a practitioner could potentially use the reasoning in this case to argue for at least some of the claims asserted to stand.