Day on Torts
In early October, the Tennessee Supreme Court decided in Ellithorpe v. Weismark, 2015 WL 5853873 (Tenn. Oct. 8, 2015) that the statutory definition of “health care liability act” contained in the 2011 amendments to the HCLA abrogated the previously used nuanced approach for distinguishing between health care actions and common law negligence. In light of the broad language used in the statutory definition, the Ellithorpe decision made it highly unlikely that any negligence claim related to a health care professional would be deemed ordinary negligence, and litigants are now beginning to feel the effects of this opinion.
In Estate of Thibodeau v. St. Thomas Hospital, No. M2014-02030-COA-R3-CV (Tenn. Ct. App. Oct. 29, 2015), plaintiff sued defendant hospital after she was injured when hospital employees failed to “properly support [her] as they attempted to transfer her from a bariatric stretcher to her automobile.” Plaintiff was on a road trip with her husband, and while in Nashville she began having arthritic knee pain. She was transported by ambulance to the hospital, and after being seen and discharged, she was assisted to her car by two registered nurses and a patient care technician. Plaintiff weighed almost 500 pounds, and the hospital employees worked with plaintiff and her husband to develop a plan to move her back to her vehicle while requiring her to stand as few times as possible because of her knee pain. The employees transferred plaintiff by bariatric stretcher to her waiting car, but when plaintiff was “near her vehicle and ready to come to a standing position, she fell and experienced the onset of ‘terrible pain’ in her left ankle.” She was then readmitted to the hospital and treated.
Plaintiff brought suit for negligence, and it was undisputed that she did not follow the pre-suit notice or certificate of good faith requirements of the HCLA. Hospital moved for summary judgment, asserting that the action fell under the HCLA. Plaintiff maintained that her action was for ordinary negligence. The trial court analyzed the case under both the statutory definition of “health care liability action” and the nuanced approach to distinguishing health care liability from common law negligence contained in prior Tennessee cases. Under both approaches, the trial court determined that plaintiff’s claim did fall under the HCLA and that, because she failed to provide pre-suit notice or a certificate of good faith, summary judgment was therefore appropriate. The Court of Appeals affirmed.
In its opinion, the Court first pointed out that analyzing the case under the nuanced common law approach was unnecessary. In Ellithorpe, which came out after the trial court considered this case, the Supreme Court held that the statutory definition of “health care liability action” contained in the 2011 HCLA amendments abrogated the previous common law approach. Accordingly, the Court looked at the issue only from the perspective of the definition contained in Tenn. Code Ann. § 29-26-101(a)(1), which states that a health care liability action is “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[.]” In a somewhat cursory analysis, the Court found that plaintiff’s claim did meet the definition of health care liability action. The Court stated:
It is undisputed that Plaintiffs’ action is a civil action against a health care provider. Moreover, Plaintiffs’ complaint alleges that a health care provider caused an injury to Mrs. Thibodeau ‘related to the provision of, or failure to provide, health care services to a person.’ Tenn. Code Ann. § 29-26-101(a)(1). Specifically, the complaint alleges that St. Thomas owed ‘Ms. Thibodeau a duty of care and is vicariously liable for its employees, servants, and/or agents’ failure to properly support Mrs. Thibodeau as they attempted to transfer her from a bariatric stretcher to her automobile.’ The broad plain language of Tenn. Code Ann. § 29-26-101(b) provides that in order for conduct to constitute ‘health care services’ it need only constitute ‘care by health care providers,’ which specifically includes ‘custodial or basic care, positioning…and similar patient services.’ Here, the alleged conduct at issue constitutes the provision of health care service involving the ‘positioning’ of Mrs. Thibodeau.
Because the Court found that plaintiff’s claim fell under the HCLA, it affirmed summary judgment based on plaintiff’s failure to provide pre-suit notice and/or a certificate of good faith.
This case affirms what was clear after the Ellithorpe decision came out—if a claim involves any interaction with a health care provider on the premises of a health care provider, it is safest to treat it as an HCLA claim. Arguing that a case related in any way to medical providers should be treated as an ordinary negligence claim is now more difficult than ever. Remember too that the notice law has a safe harbor clause in the event your good faith judgment on this point is determined to be wrong.