By Daniel Horwitz:

In February of 2012, the Juvenile Court of Sumner County awarded temporary custody of “M.L.” – a minor child – to her great aunt and uncle.  However, the Court’s custody order also provided that M.L.’s biological parents – Adam and Ashley Ellithorpe – were permitted to participate in any counseling that she received.  After the Ellithorpes discovered that M.L. had received counseling for approximately two years without their knowledge, however, they sued M.L.’s counselor – Ms. Janet Weismark – for negligence.  According to M.L.’s parents, Ms. Weismark – a licensed clinical social worker – acted recklessly and caused their daughter substantial harm by providing her counseling services without first obtaining their consent to do so.

After receiving the Ellithorpes’ complaint, Ms. Weismark asked the court to dismiss it on the basis that the Ellithorpes had failed to comply with the pre-suit notice requirements of the Tennessee Health Care Liability Act (the “HCLA”).  In Tennessee, people who want to file lawsuits involving the provision of health care services are first required to comply with a variety of procedural requirements that are unique to health care claims.[1]  Given that the HCLA’s pre-suit notice requirements serve as a minefield to unwary litigants and frequently result in otherwise-valid claims being dismissed on technical procedural grounds, the author has previously characterized these requirements as “red tape with fangs.”  See Daniel A. Horwitz, The Law of Unintended Consequences:  Avoiding the Health Care Liability Act Booby Trap, Nashville Bar Journal (June 2015) (feature article), available at http://issuu.com/nbanikki/docs/nbjjune15/17.

Chief among the HCLA’s pre-suit notice requirements is a rule that “[i]n any health care liability action in which expert testimony is required by § 29-26-115, the plaintiff or plaintiff’s counsel shall file a certificate of good faith with the complaint.”[2]  This rule requires a plaintiff to certify that before filing the lawsuit, the plaintiff consulted at least one medical expert who concluded that there was a good faith basis to pursue the claim.[3]  Tennessee law also provides that a plaintiff’s failure to comply with this requirement results in his or her complaint being dismissed with prejudice,[4] which means that the lawsuit is over and it can never be brought again.

In this case, it was undisputed that the Ellithorpes did not file a certificate of good faith with their complaint.  Relying on the Tennessee Supreme Court’s decision in the 2011 case Estate of French v. Stratford House,[5] however, the Ellithorpes argued that they did not have to comply with the HCLA’s certificate of good faith requirement because their claim was not properly considered a “health care” claim.  Instead, they argued, their claim was just an ordinary negligence claim that dealt with Ms. Weismark’s failure to comply with a court order.  Thus, they argued, their claim was not subject to any of the HCLA’s special pre-suit notice requirements, including the certificate of good faith requirement.

The Ellithorpes’ argument enjoyed some judicial support.  Previously, in Estate of French, the Tennessee Supreme Court had articulated a distinction between health care liability claims – which required compliance with the HCLA – and ordinary negligence claims, which did not.  Specifically, the Estate of French court explained:

When a claim alleges negligent conduct which constitutes or bears a substantial relationship to the rendition of medical treatment by a medical professional, the [HCLA] is applicable.  Conversely, when the conduct alleged is not substantially related to the rendition of medical treatment by a medical professional, the [HCLA] does not apply.

 . . . .

The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring specialized skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of common everyday experience of the trier of fact.[6]

Under this standard, the Ellithorpes had at least a plausible argument that the HCLA was inapplicable to their claim against Ms. Weismark.  The problem for the Ellithorpes, however, was that the standard articulated in Estate of French was not the final word on the issue.  Instead, just a few months after Estate of French was decided, the Tennessee General Assembly amended the HCLA to state that it applies to:  “any civil action . . . alleging that a health care provider or providers have caused an injury related to the provision of . . . health care services to a person, regardless of the theory of liability on which the action is based.”[7]  Thus, based on this amendment, the Tennessee Supreme Court concluded that “the ‘nuanced’ approach for distinguishing ordinary negligence and health care liability claims as outlined in Estate of French has been statutorily abrogated.”[8]

Because social workers are licensed and regulated as health care providers,[9] and because the Ellithorpes’ complaint alleged, among other things, that Ms. Weismark had been “negligent in providing health services without following the parameters of the court order by notifying them and allowing them to participate,”[10] there was little doubt that their claim was at least “related to the provision of . . . health care services to a person” within the meaning of the amended version of the HCLA.[11]  Thus, the Tennessee Supreme Court concluded, the Ellithorpes’ failure to file a certificate of good faith with their complaint was fatal to their lawsuit against Ms. Weismark, and the HCLA mandated that it be dismissed with prejudice as a result.[12]

Read the Tennessee Supreme Court’s unanimous decision in Ellithorpe v. Weismark here.

Questions about this article?  Email Daniel Horwitz at [email protected].

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[1] See generally, Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 554 (Tenn. 2013); Tenn.Code Ann. § 29–26–121; Tenn. Code Ann. § 29-26-122.

[2] Tenn. Code Ann. § 29-26-122(a).

[3] Tenn. Code Ann. § 29-26-122(a)(1).

[4] See, e.g., Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 311 (Tenn. 2012) (“Subsection (c) of the statute provides that ‘[t]he failure of a plaintiff to file a certificate of good faith in compliance with this section shall, upon motion, make the action subject to dismissal with prejudice.’” (quoting Tenn. Code Ann. § 29–26–122(c)).

[5] 333 S.W.3d 546 (Tenn. 2011).

[6] Estate of French v. Stratford House, 333 S.W.3d 546, 555-56 (Tenn. 2011) (quotations omitted).

[7] Tenn. Code Ann. 29–26–101(a)(1) (Supp. 2011) (emphasis added).

[8] Ellithorpe v. Weismark, No. M201400279SCR11CV, 2015 WL 5853873, at *7 (Tenn. Oct. 8, 2015).

[9] See id. (“Social workers are a group licensed and regulated under title 63 of the Tennessee Code. See Tenn. Code Ann. § 63–23–105 (2010 & Supp. 2014). Thus, Ms. Weismark meets the definition of a “health care provider” under section 29–26101(a)(2).”).

[10] Id. (emphases removed).

[11] Tenn. Code Ann. 29–26–101(a)(1).

[12] See Tenn. Code Ann. § 29-26-122(c) (“The failure of a plaintiff to file a certificate of good faith in compliance with this section shall, upon motion, make the action subject to dismissal with prejudice.”).