Statute Trumps Court Decision – “Ordinary” Negligence Claims Essentially Gone in Medical Malpractice Cases

The Tennessee Supreme Court just issued an important decision regarding how to decide whether a claim falls under the Health Care Liability Act (HCLA) or ordinary negligence. In Ellithorpe v. Weismark, No. M2014-00279-SC-R11-CV (Tenn. Oct. 8, 2015), the Court held that the previous nuanced approach detailed in Estate of French v. Stratford House, 33 S.W.3d 546 (Tenn. 2011) had been abrogated by the HCLA amendments passed by the Tennessee legislature in 2011, and that the definition contained in the HCLA is now the authority under which a court should determine whether a claim falls under the HCLA.

In Ellithorpe, 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 trial court, however, granted defendant’s motion and dismissed the complaint, verbally ruling that “the THCLA was very broad and encompassed Parents’ claims because they related to the provision of health care services by a health care provider as those terms are defined by statute.”

On appeal, the Court of Appeals reversed the dismissal, finding that the trial court “had failed to utilize the correct analysis when determining if Parents’ claims sounded in ordinary negligence or health care liability.” The Court of Appeals relied on the Supreme Court’s decision in Estate of French, wherein the Supreme Court “abandoned the gravamen of the complaint test…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.” (internal citation and quotation omitted). Because the Court of Appeals determined that the trial court had used a “gravamen of the complaint” approach here, it reversed the dismissal and remanded with instructions to follow the outline from Estate of French. Defendant appealed this decision to the Supreme Court, and the Supreme Court reversed the Court of Appeals, reinstating the dismissal of parents’ complaint.

The case relied upon by the Court of Appeals was decided in January 2011, and the Supreme Court noted that it “provided a comprehensive and detailed analysis of the interaction between ordinary negligence and the Tennessee Medical Malpractice Act, as then enacted.” Under Estate of French, the Court found that “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.” (citing Estate of French).   Shortly after this decision came out, however, the legislature passed sweeping changes to the HCLA in its 2011 amendments. Included in these amendments was a definition for “health care liability action,” defining it 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.” (quoting Tenn. Code Ann. 29-26-101(a)(1)). Based on the new language included in the 2011 amendments, the Supreme Court held:

[S]ection 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. …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. …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.

In the present matter, the Court pointed out that parents’ complaint was full of allegations regarding defendant’s provision of health care services to the child—the complaint referenced the intake procedure, emotional harm caused by the counseling, and negligent provision of health care services. Accordingly, the Court affirmed the trial court’s finding that this complaint fell under the HCLA and that pre-suit notice and a certificate of good faith were thus required.

In an effort to save their case, the plaintiff parents argued that a dismissal without prejudice was the correct remedy, as that is all that is required by a failure to provide pre-suit notice. According to the parents, a certificate of good faith was not necessary in this matter. The Court rejected this argument, though, pointing out that the complaint alleged violations of the applicable standard of care, claims that would require expert proof under the HCLA. Because a certificate of good faith was required but not filed, plaintiffs’ claims were dismissed with prejudice.

This case is very important for medical malpractice attorneys, as it overrules a Court of Appeals case decided just last October and abrogates the previous method of separating ordinary negligence from health care liability claims. The holding is of no surprise to experienced malpractice lawyers – even under Estate of French – this case would have required expert testimony.  But now, the language of the statute  stands on its own as the means for determining whether a claim falls under the HCLA. Because this statutory language is so broad, the likelihood that a claim related to a health care professional will be deemed ordinary negligence appears to have drastically diminished. To be safe and if time permits, plaintiffs’ lawyers should follow the HCLA procedural requirements for all claims that relate to the provision of health care in any form.

Finally, remember that Section 29-26-121(e) provides that if the notice provision of the HCLA is relied upon in good faith and it is later determined the facts do not constitute a HCL claim the claimant still receives the benefit of the extension of the statute of limitations and statute of repose.  Given the broad definition of a HCLA and this decision, a claimant has a strong argument that appropriate notice of any claim by a patient against a health care provider related to the provision of health care service is, at a minimum, a good faith effort as contemplated by Section 29-26-212(e).