In Smith v. Testerman, No. E2014-00956-COA-R9-CV (Tenn. Ct. App. March 10, 2015), the Court of Appeals recently took up the issue of whether a case sounds in ordinary negligence or health care liability. After a hernia repair, plaintiff developed an infection requiring additional surgery to place a wound vacuum and a sponge. One defendant was allegedly tasked with changing the sponge as necessary, and another of the defendants was charged with removing the sponge at the appropriate time. When the wound vacuum was removed the sponge was not, eventually leading the wound to burst. Plaintiff sued defendants alleging that they “were negligent by failing to either remove the sponge or communicate with the other physicians to ensure that the sponge had been removed.”
Defendant filed a motion to dismiss asserting that the claims fell under the Health Care Liability Act (“HCLA”) and that plaintiff’s failure to comply with the pre-suit notice and certificate of good faith requirements thus necessitated dismissal of the case. Plaintiff responded that he was claiming only ordinary negligence and was therefore not required to comply with the HCLA. Plaintiff asserted that “the fact that the alleged malpractice lies within the common knowledge of laypersons” and therefore did not require expert testimony was proof that the claim sounded in ordinary negligence.
The trial court denied the motion to dismiss, and the Court of Appeals granted interlocutory appeal to address “[w]hether an action seeking compensatory damages for injuries sustained as a result of a foreign object having been left in the patient’s body following surgery is a ‘health care liability action’ as defined by the [HCLA], such that the mandatory presuit provisions set forth in Tennessee Code Annotated sections 29-26-121 and 29-26-122 apply.”
In its analysis, the Court noted that “cases involving health or medical entities do not automatically fall within the health care liability statute.” (Quoting Draper v. Westerfield, 181 S.W.3d 283 (Tenn. 2005). To determine whether a case falls within the parameters of the HCLA, the Court pointed to and quoted extensively from the 2011 amendments to the definitions contained in Tenn. Code Ann. § 29-26-101(a), which includes fairly detailed definitions for health care liability action, health care provider, and health care services.
The Court found that in this particular case, “[e]ach defendant in this case meets the definition of a health care provider.” Further, “the complaint asserts that Defendants were negligent in their care of Plaintiff by failing to remove a sponge that had been placed to aid in Plaintiff’s recovery. Accordingly, Plaintiff’s action should be classified as a health care liability action, unless the context suggests otherwise…[.]”
Plaintiff’s primary argument was that expert testimony would not be required here, so the claim was simply for ordinary negligence. The Court pointed out that Tennessee case law establishes that “[a] health care liability claimant must establish the statutory elements through the testimony of an expert who meets the qualifications set forth in [the Act],” but that “expert testimony is not required if the negligence is obvious and readily understandable by an average layperson.” (Internal citations omitted). Thus, the Court rejected the argument that the lack of a need for expert testimony automatically excluded a claim from the requirements of the HCLA. Because the need for expert testimony is not dispositive on the issue of whether a claim falls under the HCLA, and because plaintiff’s claims otherwise met the applicable HCLA definitions, the Court held that this was an HCLA case and that the pre-suit notice provisions of § 29-26-121 applied.
After finding that this was an HCLA claim, the Court determined that this case would require expert testimony, as “[t]he care at issue here goes beyond the type of ‘basic’ or ‘routine’ care that the Supreme Court referred to in [Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011)] as not requiring expert testimony to establish the standard of care.” The Court determined that this “was not the type of case where a sponge was simply left in the body during surgery,” but that a specific surgery to place the sponge and continued care was needed. The certificate of good faith requirement found in § 29-26-122 was thus applicable, and because plaintiff failed to comply with such requirement his case was dismissed with prejudice.
This case is a great reminder that when a case involves doctors and medical treatment, it is safest to assume it will under the HCLA and comply with pre-suit notice and certificate of good faith requirements. While it may seem like common sense that a certain action failed to meet the standard of care, if the courts disagree this mistake will likely be fatal to your client’s case.