Day on Torts
In Zink v. Rural/Metro of Tennessee, L.P., No. E2016-01581-COA-R3-CV (Tenn. Ct. App. May 2, 2017), the Court of Appeals held that plaintiff’s allegations fell within the HCLA, but that no certificate of good faith was required because the claimed negligence was “subject to the common knowledge exception.”
In his complaint, plaintiff alleged that defendant EMT “’negligently and carelessly’ struck [plaintiff] in the face with his fist.” Plaintiff asserted that he was strapped to a gurney at the time, and that defendant “assaulted and battered him, using excessive force.” Further, plaintiff claimed that defendant’s actions caused him permanent injury and medical expenses. Plaintiff brought this action for negligence against defendant EMT and his employer.
Defendants filed a motion to dismiss, asserting that plaintiff’s claims were subject to the HCLA and that plaintiff did not follow the procedural requirements of the statute. The trial court granted the motion, dismissing plaintiff’s complaint with prejudice due to his failure to file a certificate of good faith pursuant to Tenn. Code Ann. § 29-26-122. The trial court rejected plaintiff’s argument that no certificate of good faith was needed because his allegations fell within the common knowledge exception to the expert testimony requirement. On appeal, however, this decision was reversed.
In his appellate brief, plaintiff conceded that his complaint should have been dismissed without prejudice due to his failure to give pre-suit notice. He argued, though, that the dismissal with prejudice was incorrect, as no certificate of good faith was required “because expert proof would not be necessary to prove his claims.” Though a certificate of good faith showing that an expert has been consulted and believes there is a good faith basis for the claim is typically required in an HCLA case, there is an exception “where the act of alleged wrongful conduct lies within the common knowledge of a layperson.” (quoting Osunde v. Delta Med. Ctr., 505 S.W.3d 875 (Tenn. Ct. App. 2016)). “[E]xpert proof may be dispensed with when the trier of fact can determine, based on common knowledge, that the direct allegations against a defendant constitute negligence.” (quoting Osunde).
Here, the Court of Appeals agreed that the allegation that plaintiff was punched by defendant EMT while he was strapped to a gurney would fall within the common knowledge exception to the expert testimony requirement. The Court reasoned:
[W]e determine that it would be within the common knowledge of a layperson whether an EMT’s alleged negligent, reckless, or intentional striking of a patient’s face while the patient is strapped to a gurney would fall below the standard of care. Because this alleged act would not require expert proof to ‘aid in the understanding of this issue,’ the trial court erred by failing to determine that this case fell within the common knowledge exception.
Further, the Court rejected defendant’s argument that plaintiff would need expert testimony to “establish whether [defendant’s] actions actually caused [plaintiff’s] claimed injuries and whether damages resulted therefrom.” Defendant argued that this case was like a previous one where the plaintiff had fallen due to hospital personnel putting the toilet too far from her bed and not assisting her properly. In that case, the Court had determined that the negligent act would fall within the common knowledge exception, but that plaintiff would nonetheless need expert proof to show that her alleged damages were related to the fall at issue, as she had suffered from previous recent falls. Here, though, the Court held that there was “nothing in the record to suggest that [plaintiff’s] underlying injuries or medical condition that precipitated his contact with [the EMT] were in any way related or similar to the injuries he allegedly suffered from being struck in the face.” The Court ruled that “[d]rawing all reasonable inferences in [plaintiff’s] favor, as we must, does not unavoidably lead to the conclusion that [plaintiff] could not prove causation or damages without expert medical proof.” Accordingly, the case was remanded with an order to enter the dismissal without prejudice.
This is a good example of a case falling within the HCLA but being analyzed using a more common sense approach. As case law grows following the 2011 amendments to the HCLA, we are beginning to get a better sense of how both the broad definitions and the very specific requirements within the statute will be enforced. As always, when filing a health care claim, the best tactic is to thoroughly follow each procedural requirement, including pre-suit notice and a certificate of good faith. This case, though, shows that there will still be health-related cases that can be pursued without employment of an expert.
One other note on this case—the Court of Appeals made one additional finding in its opinion. The trial court, when considering the motion to dismiss, inferred that the contact made by the EMT was an effort to restrain plaintiff. Plaintiff asserted on appeal that this was an improper inference, and the Court agreed. Plaintiff’s complaint did not allege that the contact was an effort to restrain, but instead asserted that plaintiff was already strapped to a gurney when the hit occurred. The Court concluded that the trial court’s inference that the hit was an effort to restrain suggested that defendant’s use of force “might have been justified,” and that it was thus “an inference in favor of [defendant].” At the motion to dismiss stage, however, all reasonable inferences are to be drawn in plaintiff’s favor, and the trial court therefore erred in its analysis.