Patient Alleging Rape at Hospital – Pre-suit Notice Not Required

In Cordell v. Cleveland Tenn. Hosp., LLC, No. M2016-01466-COA-R3-CV (Tenn. Ct. App. Feb. 27, 2017), the Court of Appeals reversed dismissal in a case filed against a hospital, determining that the complaint did not contain claims covered by the HCLA and that the plaintiff was thus not required to follow the HCLA statutory requirements.

Plaintiff was taken to defendant hospital by “police who were concerned that she had taken too high of a dosage of prescribed medication.” She was put in a hospital room, and her husband alleged that when he arrived to see her he was forced to leave. Plaintiff had her cell phone, and she called her husband to tell him that the security guard outside her room was making her uncomfortable. She stated that he “kept opening her door and coming into her room in order to stare at her.” Plaintiff’s husband called the hospital to complain, and plaintiff alleged that the security guard then took her phone away. Plaintiff was relocated to another room, but she allegedly had “no recollection of any events that took place in the twelve-plus hours following her relocation.” The next evening, she was told she was being transferred to another hospital, and while there she “noticed blood and soreness when she used the restroom.” After she was discharged, she felt pain while showering and her husband observed “several injuries on her vaginal and anal areas.” She went to her obstetrician the next day, where “evidence of rape, including semen, was discovered.”

Plaintiff filed this suit against the hospital and the security guard for “assault and battery, gross negligence, and intentional infliction of emotional distress.” Her claims were all based on the alleged rape, and her theory against the hospital was premised on the doctrine of respondeat superior.

Defendants filed a motion to dismiss asserting that the complaint was covered by the HCLA, and that it should be dismissed because plaintiff failed to comply with both the certificate of good faith and the pre-suit notice requirements. Before any hearing, plaintiff filed an amended complaint, adding a claim for negligence under the HCLA. The trial court ruled that the amended complaint could not be considered because the defendants’ motion to dismiss was a “responsive pleading,” and plaintiff was thus required under Rule 15 to file a motion for leave to amend her complaint. Because she did not do so, her amended complaint was barred. The trial court further granted defendants’ motion to dismiss with prejudice, holding that the claims were subject to the HCLA.

The Court of Appeals reversed dismissal, finding that its review of the original complaint showed “no facts alleging that a health care provider caused an injury related to the provision of, or failure to provide, health care services.” The Court stated that while the statutory definition of a health care liability claim “casts a wide net over civil claims that arise within a medical setting,” whether a specific action falls within the ambit of the HCLA depends on the facts therein.

Here, the Court noted that plaintiff’s claim against the hospital was not based on the hospital “failing to protect or monitor [plaintiff.]” Instead, all charges were based on the alleged rape and/or sexual assault and the hospital’s alleged liability for its employees’ actions. The Court reasoned:

Here, the threshold question is whether the alleged rape perpetrated by [security guard] is related to the provision of, or failure to provide, health care services. …No doubt, “related to” and other similar phrases carry a broad meaning. With that said, the meaning should not itself be twisted beyond its ordinary and common understanding. …With this in mind, does [plaintiff’s] original complaint allege that [security guard] has caused an injury related to the provision of, or failure to provide, health care services? We are of the opinion that such an allegation is absent. …In our view, it strains credulity to view the willful and malicious actions such as those alleged here as being related to the provision of, or failure to provide, health care services. …We fail to see how the alleged rape of a patient is logically connected with the provision of health care services. In particular, we fail to see how the mere presence of [plaintiff] in a hospital room severs the logical gap that exists between a rape of a patient and the provision of health care services. The two concepts are simply not related. In our view, were we to say otherwise, this would essentially mean that any actions or deeds by a health care provider, if committed within the confines of a medical facility, give rise to a health care liability action.

(internal citations omitted). Accordingly, the Court reversed dismissal of the claims contained in plaintiff’s original complaint.

The Court of Appeals further held that the amended complaint was “properly before the trial court, and it should be considered by the trial court on remand.” The Court pointed out that “it is well–settled in Tennessee that a motion to dismiss is not a responsive pleading.” (internal citation omitted). Accordingly, plaintiff was not required to seek leave to amend and was able to amend her complaint “once as a matter of course” under Tennessee Rule of Civil Procedure 15. The Court noted, however, that defendants were “certainly free to pursue” a challenge to plaintiff’s compliance with the HCLA requirements as to the additional claim in the amended complaint.

The Court of Appeals clearly got this case right. The rape of a patient as alleged here is not connected to providing health care, and to hold otherwise would be illogical. While it’s safest to follow HCLA requirements when filing a claim against a medical provider, this case illustrates that there are still claims that occur within a medical setting that are not covered by the HCLA.