Supervision of Mental Patient Issue That Requires Expert Testimony

In Newman v. Guardian Healthcare Providers, Inc., No. M2015-01315-COA-R3-CV (Tenn. Ct. App. July 27, 2016), the Court of Appeals affirmed the dismissal with prejudice of a medical malpractice (now known as a “health care liability” or “HCLA”) claim because the plaintiff failed to file a certificate of good faith, and expert testimony was required in the case.

Plaintiff sued various companies that provided nursing and medical staff to a psychiatric facility. According to the complaint, plaintiff’s husband, who was a patient and resident at the facility, sustained life-ending injuries when he was attacked by another resident. Plaintiff alleged that defendants were negligence because her husband, who died, was supposed to have one-to-one care and supposed to have a wheelchair, yet had neither. She also alleged that the attacker was supposed to have one-to-one care and was known to be violent, and that defendants failed to take measures to protect the patients from the attacker.

When plaintiff filed her complaint, she did not give pre-suit notice or attach a certificate of good faith to her complaint, as required by the HCLA. At the time of this appeal, it was uncontested that this claim fell under the HCLA.

The trial court dismissed the complaint with prejudice due to plaintiff’s failure to comply with Tenn. Code Ann. § 29-26-121, which requires pre-suit notice, and § 29-26-122, which requires that a certificate of good faith be filed with the complaint. The trial court held that expert proof was required in this case, stating: “In the case of a psychiatric patient, it can be much more difficult to determine what constitutes basic care and what requires more specialized medical skills. …Supervision of a psychiatric patient is an ongoing process that requires medical knowledge and skill.”

On appeal, plaintiff argued that the dismissal should have been without prejudice. While she admittedly failed to give pre-suit notice, she asserted that expert proof was not necessary here, “that the allegations of her complaint [fell] under the ‘common knowledge’ exception to the general rue requiring expert testimony to establish medical negligence,” and that since the proper sanction for failing to comply with only the pre-suit notice requirement is dismissal without prejudice, that the dismissal with prejudice was improper here. (The sanction for failing to attach a certificate of good faith is dismissal with prejudice).

In affirming the trial court, the Court of Appeals looked extensively at case law surrounding the “common knowledge” exception to the need for expert proof in HCLA cases. “Expert 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. …[E]xpert testimony is not required where the act of alleged wrongful conduct lies within the common knowledge of a layperson.” (quoting Osunde v. Delta Med. Ctr., No. W2015-01005-COA-R9-CV, 2016 WL 537075 (Tenn. Ct. App. Feb. 10, 2016)). The Court noted that “only the most obvious forms of medical negligence may be established without expert testimony.” (internal citation omitted).

Before analyzing this particular fact pattern, the Court looked at past cases wherein, despite plaintiffs’ arguments otherwise, expert proof has been required in Tennessee. Expert proof has been required in cases where a plaintiff alleged she should not have been allowed to get down off the exam table without assistance; where a plaintiff alleged that doctors/staff were negligent in failing to “provide attendants or restraints” for her in the emergency room when she had suffered a stroke; and where a patient with serious mental problems was left unrestrained in a catatonic state on a stretcher in the ER, then woke up and ran away. (internal citations omitted).

Turning to the present matter, the Court determined:

[P]laintiff’s allegations involve matters that are not within the common knowledge of an ordinary person—matters involving the mental and physical capacities of both the attacking patient and the decedent. …[T]he question of whether and how to restrain and/or supervise a potentially dangerous mental patient involves knowledge and understanding of his diagnosis and medical history. Plaintiff argues that the physician’s orders to supervise the attacker [] on a ‘one-to-one’ basis were already in place, and the alleged negligence was simply a failure to carry out those orders. Nevertheless, we believe the issue of whether defendants’ agents, all of whom are professional healthcare providers, were negligent under the circumstances still requires an expert to inform the trier of fact of the standard of professional care of these mental patients in a psychiatric hospital setting.

Accordingly, the dismissal with prejudice was affirmed.

What can we learn here? Since the nuanced approach to distinguishing between common negligence and healthcare liability claims was done away with in Ellithorpe v. Weismark, 479 S.W.3d 818 (Tenn. 2015), plaintiffs filing a claim that relates to medical care are safest to assume that the claim will fall under the HCLA and be subject to its procedural requirements. It is always better to be overly cautious and file a certificate of good faith in a healthcare-related claim, as the penalty for failing to do so if one is deemed required is dismissal with prejudice and the end of your case.

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