Day on Torts
In Lacy v. Mitchell, No. M2016-00677-COA-R3-CV (Tenn. Ct. App. Nov. 30, 2016), the trial court dismissed plaintiff’s case, finding that her claim fell under the Health Care Liability Act and that she uncontestedly failed to follow the HCLA’s pre-suit notice and certificate of good faith requirements. Interestingly, however, the Court of Appeals overturned a portion of the dismissal, finding that there was at least a chance that one of plaintiff’s claims fell outside the ambit of the HCLA.
In February 2015, plaintiff visited a chiropractor for treatment on her back. As the basis for this action, plaintiff alleged that during the visit the defendant chiropractor “jumped two times on [plaintiff’s] back” while she was lying on the treatment table, and that “as he walked out the door [the chiropractor] beat Plaintiff…in the back with her medical folder.”
Plaintiff filed this case pro se against both the chiropractor and the clinic in which he practiced, and the defendants moved for summary judgment based on plaintiff’s failure to give pre-suit notice and file a certificate of good faith under the HCLA. Plaintiff argued that she need not follow these procedural requirements “because her claims were for ‘beating and assault,’ rather than health care liability.” The trial court, however, granted defendant’s motion and dismissed the case in total.
On appeal, the Court determined that plaintiff had actually presented claims regarding “two separate, wrongful acts—“ one regarding defendant jumping on her back and one regarding defendant hitting her back with her medical folder. For the claim that the defendant jumped on her back, the Court of Appeals affirmed dismissal, finding that this claim fit the HCLA’s definition of a health care liability action. The Court noted that “[b]y its own wording, that allegation indicates that [plaintiff] was injured while lying on a chiropractic table, during a chiropractic appointment, when a chiropractor applied force to her back by jumping on it.” The Court determined that “such an injury would undeniably be related to the provision of chiropractic health care services” and affirmed the trial court’s dismissal of the case.
For the claim regarding plaintiff being hit on the back with her medical folder, however, the Court overturned the dismissal. The Court did not determine conclusively that this claim would not fall within the HCLA, but instead found that there was not enough information at this time to make such a finding. The Court noted that the complaint
alleges that the act took place after [defendant] finished jumping on her back…it does not state that [plaintiff] was lying on the chiropractic table when [defendant] hit her in the back with her medical folder. …Thus, while it is still reasonable to infer that the alleged act was related to the provision of health care services, it is equally reasonable, in our view, to infer that the act took place after [defendant] finished providing health care services to [plaintiff] and was leaving the appointment.
Essentially, the Court decided that it was premature to conclude as a matter of law that this claim fell under the HCLA, and thus reversed the dismissal and remanded this specific claim to the trial court.
When considering this case, it is important to remember that this plaintiff was proceeding pro se and the Court was likely being more lenient on her than it would be on an attorney. Nonetheless, this case is important to note, as a finding that a claim might not fall under the HCLA has been quite rare since the 2011 amendments to the HCLA broadly defined “health care liability action” (Tenn. Code Ann. § 29-26-101(a)(1)), and since the Supreme Court subsequently determined in Ellithorpe v. Weismark, 479 S.W.3d 818 (Tenn. 2015) that the statutory definition trumped the previously used nuanced approach to differentiating between claims of health care liability and ordinary negligence. As we have seen many times before, the best course of action when your case might fall under the HCLA is to follow the procedural requirements. Should you be in a situation, however, where the requirements were not followed and you are trying to save a claim or a portion thereof, this case could be useful to consider (pending any future outcome when more facts are developed).