Day on Torts
Where plaintiff’s claims were all based on the allegation that defendant counselors falsified or altered his minor children’s counseling records, the claims fell within the HCLA and pre-suit notice and a certificate of good faith was required.
In Cathey v. Beyer, No. W2019-01603-COA-R3-CV (Tenn. Ct. App. April 24, 2020), plaintiff was the father of two minor children and was not married to the children’s mother. The mother took the children to see the two defendants, both of who were licensed professional counselors. One defendant performed an initial psychological evaluation on the children, and the other provided counseling to them for approximately two months.
When plaintiff learned that the children had been in counseling, he requested the children’s records from defendants and was provided copies. During a subsequent custody dispute, he allegedly received a different copy of the records via a subpoena to the child’s mother, which he asserted showed that defendants had “falsified the records they tendered to him.”
Based on these allegedly falsified records, plaintiff filed this pro se case against the two counselors for “(1) falsifying healthcare records; (2) fraudulent concealment; (3) spoliation of evidence; (4) defamation of character; and (5) intentional infliction of emotional distress.” Defendants filed a motion to dismiss on the basis that the case fell within the HCLA and was therefore subject to the pre-suit notice and certificate of good faith requirements, neither of which plaintiff complied with. The trial court agreed and dismissed the case, and the Court of Appeals affirmed.
Because defendants were clearly health care providers, the issue in this case was “whether the injuries alleged by [plaintiff were] ‘related to the provision of, or failure to provide, health care services to a person.’” (quoting Tenn. Code Ann. § 29-26-101(a)(1)). The statute defines “health care service as care by health care providers…and also includes staffing, custodial or basic care, positioning, hydration and similar patient services.” (internal citation omitted).
Looking to the facts as alleged in the complaint, the Court determined that “all of [plaintiff’s] claims originate from [defendants’] reportedly fraudulent creation and/or alteration of the children’s counseling records.” While plaintiff argued that the alterations occurred after the provision of health care to the children was complete and that the claims thus did not fall under the HCLA, the Court disagreed. The Court reasoned:
The documentation of medical diagnostic and treatment services is an essential part of modern health care. …While documentation may occur outside the presence of a patient, we note that a ‘health care service’ as defined [by the HCLA] is not limited to conduct that occurs in the presence of a specific person, i.e. a patient, or in a specific location, i.e. a health care facility. …[A]n injury from a health care provider must only be related to the provision of, or failure to provide, health care services to a person in order to qualify as a health care liability action under the THCLA. …Claims such as [plaintiff’s], disputing the validity of medical records would require a determination as to whether the disputed records are an accurate representation of the health care services received by the children. As such, the documentation of health care services in this instant case clearly relates to the provision of health care services.
(internal quotations and citations omitted). The Court thus affirmed the finding that this was an HCLA case.
Plaintiff next argued that notwithstanding his failure to provide pre-suit notice, no certificate of good faith was required here because his claims fell under the “common knowledge exception,” meaning expert testimony was not necessary in his case. The Court of Appeals, however, found that “each of [plaintiff’s] claims rests on the contents of the children’s counseling records—specifically, the manner in which the records were created, altered, maintained, and distributed.” The Court ruled that “the creation and maintenance of counseling records is not within the scope of a layman’s knowledge,” and that expert testimony and a certificate of good faith was accordingly required.
Because plaintiff’s claims fell within the HCLA and he failed to give pre-suit notice or file a certificate of good faith, dismissal with prejudice was affirmed.
As we have repeatedly seen, this case shows us yet again that most cases arising in a medical context will be deemed to fall under the HCLA. When preparing a case against health care providers, one must be aware of the requirements of the HCLA.
NOTE: This opinion was released just over two months after oral arguments were heard.