Day on Torts
In late 2015, the Tennessee Supreme Court overturned the nuanced approach previously used to distinguish ordinary negligence from medical malpractice. In Ellithorpe v. Weismark, No. M2014-00279-SC-R11-CV, 2015 WL 5853872 (Tenn. Oct. 8, 2015), the Supreme Court held that the statutory definition of “health care liability act” contained in the amendments to the HCLA passed in 2011 statutorily abrogated the nuanced approach, and that the definition contained in the statute was now the only guidance a court should consider when determining whether a claim fell under the HCLA. This ruling greatly broadened the scope of cases falling under the HCLA, and a recent Court of Appeals case is a good illustration of the effect of the Ellithorpe holding.
In Osunde v. Delta Medical Center, No. W2015-01005-COA-R9-CV (Tenn. Ct. App. Feb. 10, 2016), plaintiff sued defendant medical center after falling and sustaining a fibular fracture while getting an x-ray taken. Plaintiff went to the medical center complaining of ankle pain and was taken to radiology. There, the “radiology technician instructed [plaintiff] to stand up on a stool.” According to plaintiff, the stool was wooden and did not have rubber tips or handrails. When plaintiff was stepping off the stool, she fell. Plaintiff alleged that the stool was uneven and faulty.
When plaintiff initially filed her suit, she asserted claims for medical malpractice and ordinary negligence. The trial court entered a scheduling order with a deadline for expert disclosures, and plaintiff failed to disclose any expert witnesses by the given date. Defendant moved for summary judgment on the grounds that all the claims fell under the HCLA and, without experts, plaintiff could not prove her case. Plaintiff then argued that she would only be moving forward on her claims of ordinary negligence. The trial court granted summary judgment as to plaintiff’s HCLA claim, finding that her lack of expert proof was fatal to such claim, but ruled that she had also asserted an ordinary negligence claim and that this claim could move forward.
On interlocutory appeal, the Court addressed two issues: 1) whether plaintiff’s claims fell under the HCLA or ordinary negligence, and 2) whether plaintiff’s failure to disclose expert witnesses was fatal to her action.
After extensively quoting Ellithorpe regarding the history of distinguishing between HCLA and ordinary negligence claims, the Court of Appeals stated:
What we glean from Ellithorpe is the primacy of the recent statutory amendments to the THCLA, …. The ‘nuanced’ approach for distinguishing an ordinary negligence claim from a medical malpractice claim has been displaced because the statute now contains a comprehensive definition of what constitutes a ‘health care liability action.’ …The THCLA’s definition of a ‘health care liability action’ is conclusive….
Given the breadth of the statute, it should not be surprising if most claims now arising within a medical setting constitute health care liability actions. This is a noteworthy development within the law inasmuch as health care liability claims are subject to the strictures outlined in the THCLA.
Here, the Court determined that plaintiff’s entire claim fell within the ambit of the HCLA. Although “her counsel stressed that the only negligence she was alleging was on account of the radiology technician’s providing a faulty stool[,]”, the Court held that this claim fell within the definition of “health care liability action” contained within Tenn. Code Ann. Section 29-26-101. The Court ruled that the radiology technician fell under the definition of a “health care provider,” and that “the provision of a stool in connection with the x-ray qualifies as a ‘health care service’ because such services include ‘staffing, custodial or basic care, positioning, hydration and similar patient services.’”
Finding that plaintiff’s case fell under the HCLA, however, was not the end of the analysis. Although there is a “general requirement that an action filed under the THCLA be supported by expert proof, it is not absolute.” Expert testimony is not required “where the claim ‘falls within the common knowledge exception.’” (citing Ellithorpe). The need for a certificate of good faith and disclosure of an expert witness will not be triggered “if the matter lies within the common knowledge of a layperson[.]” Here, the Court viewed this as “simply a case of a wobbly stool.” Holding that “[i]t is within the common knowledge of a layperson to determine whether the provision of an unstable stool is negligent[,]” the Court overturned the dismissal of plaintiff’s HCLA claim.
Based on Tennessee law, the Court of Appeals got this one right on both issues. With the Supreme Court’s most recent interpretation of the HCLA, it appears that most all claims arising in a medical context will fall within the scope of the statute. This does not mean, however, that absolutely every case should require expert proof. As the Court noted, this was a case about a “wobbly stool.” It doesn’t take an expert to understand the facts and issues related to a wobbly stool, and the Court was right to let this claim proceed beyond the summary judgment stage. To be safe, however, plaintiffs in medical cases would be wise to disclose an expert, as the law surrounding when an expert will or will not be required is not completely clear.