Adam Ellithorpe v. Janet Weismark , 479 S.W.3d 818 ( 2015 )

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
June 3, 2015 Session
ADAM ELLITHORPE ET AL. V. JANET WEISMARK
Appeal by Permission from the Court of Appeals, Middle Section
Circuit Court for Davidson County
No. 13C2775 Thomas W. Brothers, Judge
No. M2014-00279-SC-R11-CV – Filed October 8, 2015
We granted review in this health care liability action to decide whether the trial court
erred by failing to apply this Court‟s analysis in Estate of French v. Stratford House, 333
S.W.3d 546 (Tenn. 2011), in determining whether it was necessary for plaintiffs to
provide pre-suit notice and a certificate of good faith under the Tennessee Health Care
Liability Act (“THCLA”), Tenn. Code Ann. § 29-26-101 et seq. We hold that the
Tennessee Civil Justice Act of 2011, which amended the THCLA, statutorily abrogated
our decision in Estate of French by providing that “[a]ny such civil action or claim is
subject to [the THCLA] regardless of any other claims, causes of action, or theories of
liability alleged in the complaint.” Because it is undisputed that the plaintiffs in this case
failed to provide pre-suit notice or file a certificate of good faith, the judgment of the
Court of Appeals is reversed and the judgment of the trial court dismissing the plaintiffs‟
complaint with prejudice is reinstated.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Reversed; Judgment of the Trial Court Reinstated
CORNELIA A. CLARK, J., delivered the opinion of the Court, in which SHARON G. LEE,
C.J., and GARY R. WADE, JEFFREY S. BIVINS, and HOLLY KIRBY, JJ., joined.
John F. Floyd and Daniel C. Todd, Nashville, Tennessee, for the appellant, Janet
Weismark.
Connie Reguli, Brentwood, Tennessee, for the appellees, Adam Ellithorpe, Ashley
Ellithorpe, and M.L. (a minor).
Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; Alexander S. Rieger and Paul Jordan Scott, Assistant Attorneys General, for the
intervenor, State of Tennessee.
OPINION
I. Factual and Procedural Background
On July 11, 2013, Adam and Ashley Ellithorpe (“Parents”)1 filed this action
against Janet Weismark (“Ms. Weismark”), a licensed clinical social worker, alleging that
she had provided counseling services to their minor child, M.L., without obtaining
Parents‟ valid consent. Parents‟ complaint includes claims for negligence, negligence per
se, and intentional infliction of emotional distress (“IIED”). Because this case comes to
us in the posture of Ms. Weismark‟s motion to dismiss the complaint for failure to state a
claim, we accept the allegations of the complaint as true. See Brown v. Tenn. Title
Loans, Inc., 328 S.W.3d 850, 853 (Tenn. 2010) (citing Leach v. Taylor, 124 S.W.3d 87,
90 (Tenn. 2004)).
Parents are the legal and biological parents of M.L. However, on February 1,
2012, the Juvenile Court of Sumner County, Tennessee, allegedly issued an order
(“Juvenile Court‟s order”) giving Ronda and Eugene Melton (collectively “the Meltons”)
temporary custody of M.L. The Meltons are the paternal great aunt and uncle of M.L.
Notably, the Juvenile Court‟s order is neither attached to Parents‟ complaint nor included
in the record on appeal.2 Nevertheless, Parents‟ complaint alleges that the Juvenile
1
Parents‟ minor child, who we will refer to as M.L. in this opinion to protect her anonymity, was
also named as a plaintiff in this action. For purposes of this appeal we will refer to the plaintiffs
collectively as “Parents.”
2
At oral argument, Parents‟ counsel expressed concern about disclosing a juvenile court record
as such records are placed under seal by statute. See Tenn. Code Ann. § 37-1-153(d)(1) (2010) (“Except
as otherwise permitted in this section, it is an offense for a person to intentionally disclose or disseminate
to the public the files and records of the juvenile court, including the child‟s name and address.”).
However, Tennessee Code Annotated section 37-1-153(a)(5) provides that juvenile court records are
open to inspection, “[w]ith permission of the court, [to] any other person or agency or institution having a
legitimate interest in the proceeding or in the work of the court.” Thus, Parents‟ counsel should have
sought permission from the juvenile court to file a copy of the order under seal in the Circuit Court along
with the complaint. See Tenn. R. Civ. P. 10.03 (“Whenever a claim or defense is founded upon a written
instrument other than a policy of insurance, a copy of such instrument or the pertinent parts thereof shall
be attached to the pleading as an exhibit.” (emphasis added)). Having failed to attach the order to the
complaint or include it in the record before the trial court, Parents‟ counsel should have filed a motion to
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Court‟s order gave the Meltons authority to make medical decisions for M.L. However,
the order also allegedly provided that Parents were to “be kept informed of counseling
progress and be allowed to participate, including counseling. . . .” Further, Parents allege
that the Juvenile Court‟s order gave them the right to receive copies of M.L.‟s medical,
health, and other treatment records directly from the physician or health care provider
who provided the treatment. Moreover, according to Parents‟ complaint, “the custodian
[Ms. Melton] was admonished by the [Juvenile] Court to work together with [parents] in
support of reuniting [parents] with [M.L.]”
Parents‟ complaint alleges that on June 11, 2011, Ms. Weismark completed an
intake form, signaling the beginning of Ms. Weismark‟s counseling with M.L. According
to Parents, they were completely unaware that Ms. Weismark had begun counseling M.L.
because they were never allowed to participate in the counseling. Ms. Weismark
allegedly continued to hold counseling sessions with M.L. without informing Parents until
at least April 9, 2013, but Parents believe that M.L. was still in counseling at the time they
filed their complaint against Ms. Weismark. Consequently, Parents allege that Ms.
Weismark “[was] negligent in providing health services without following the parameters
of the court order by notifying [parents] and allowing them to participate in said counsel
[sic].”
Parents‟ complaint further asserts that they first became aware of M.L.‟s
counseling sessions with Ms. Weismark on April 10, 2013, when the assigned Guardian
Ad Litem “let the information slip out.” Thereafter, Parents assert that the Guardian Ad
Litem “was asked to disclose the name and phone number of the counselor. He
reluctantly gave the name of [Ms. Weismark] and her phone number.”
Parents further assert that, after they became aware that counseling was occurring,
they asked Ms. Weismark to provide them with a copy of M.L.‟s treatment records:
[A] phone call was made to Ms. Weismark‟s office and she was asked to
provide a complete copy of [M.L.‟s] records to [Parents] and was told that
[Parents] would come by to pick up the records. She was reluctant and
stated that she would need $25 to pay for the records. She was told that
supplement the record in the appellate court pursuant to Rule 24 of the Tennessee Rules of Appellate
Procedure and complied with Rule 15(f) of the Rules of the Court of Appeals of Tennessee in filing the
Juvenile Court‟s order. See Tenn. Ct. App. R. 15(f) (“Documents made confidential or sealed pursuant
to a statute or rule, including those records and briefs filed in appeals from juvenile courts subject to
Tenn. Ct. App. R. 14, shall contain a prominent notation on their cover stating that they are confidential
or sealed and indicating the authority for such protection.”). Parents made no attempt to supplement the
record with the Juvenile Court‟s order before the Court of Appeals or this Court, even though the Court
of Appeals noticed and lamented its absence.
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would be fine.
According to Parents, Ms. Weismark called back “within [twenty] minutes” and left a
message that she had been “advised not to give out the records” but would not respond to
further inquiries about who had advised that the records be withheld.
Parents assert that they received Ms. Weismark‟s treatment records only after this
action was initiated and a subpoena was issued by the trial court. Parents contend that
Ms. Weismark did not have a copy of the Juvenile Court‟s order as a part of her records
for M.L. and that she neither confirmed Ms. Melton‟s identity nor verified any court-
ordered restrictions on Ms. Melton‟s authority. However, Parents allege that Ms.
Weismark knew that Ms. Melton was not M.L.‟s biological parent because she was listed
as a “great aunt” on the intake form. According to Parents, Ms. Weismark‟s actions
“demonstrate[] her reckless disregard” for their rights.
Parents also state that Ms. Weismark wrote a letter on January 16, 2013,
recommending that they be denied contact with M.L.3 According to Parents‟ complaint,
this recommendation directly contravened a “current court order for visitation.”
Finally, because of this allegedly “secret” counseling, Parents state that M.L. has
been “harmed emotionally in not being allowed to counsel” with them and that they too
have suffered emotional distress. Parents contend that the counseling is the direct and
proximate cause of these injuries. Further, Parents allege
that the proof will show that [M.L.] has suffered severe emotional harm
from being forcefully kept separated from her [P]arents. In fact, in the
notes of Ms. Weismark, it shows that [M.L.] calls [Ms. Melton] “mommy”
and Ms. Weismark has done nothing to correct this. [Ms. Melton] is NOT
the “mommy” of [M.L.] and should not be substituted in [M.L.‟s] mind as
her parent. This is evidence of the deep psychological damage that has
occurred to [M.L.] while in counseling with Ms. Weismark.
(Capitalization in original.)
On August 15, 2013, Ms. Weismark answered Parents‟ complaint by denying that
Parents were entitled to any relief. She also asserted several affirmative defenses in her
3
Ms. Weismark admitted in her answer to Parents‟ complaint that “in a January 16, 2013
correspondence . . . she recommended that [M.L] have no further visits with her [P]arents at this time
because of her [P]arents‟ erratic and abusive behaviors and [M.L.‟s] fearful and confused feelings. In
addition, [] [Ms. Weismark] recommended that an investigation should be done to assess the [P]arents‟
parenting skills and home environment.” Neither Parents‟ complaint nor Ms. Weismark‟s answer
identifies the recipient of this correspondence.
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answer, including that Parents failed to comply with the pre-suit notice and certificate of
good faith requirements of the THCLA. See Tenn. Code Ann. §§ 29-26-121 to -122
(2012 & Supp. 2014).
On November 15, 2013, Ms. Weismark filed a motion to dismiss, also based on
Parents‟ failure to comply with the THCLA‟s procedural requirements. Parents filed their
response to the motion to dismiss on November 27, 2013, arguing that their claims were
not subject to the THCLA‟s procedural requirements because their claims sounded in
ordinary negligence.
On December 13, 2013, the trial court held a hearing on Ms. Weismark‟s motion to
dismiss. An order was entered on January 9, 2014, dismissing all of Parents‟ claims with
prejudice. In its verbal ruling on Ms. Weismark‟s motion to dismiss, the trial court stated
that the THCLA was “very broad” and encompassed Parents‟ claims because they related
to the provision of “health care services” by a “health care provider” as those terms are
defined by statute.4 See Tenn. Code Ann. § 29-26-101.
On February 7, 2014, Parents filed a notice of appeal raising only one issue, which
was restated5 by the Court of Appeals for clarity as follows: “Whether the trial court erred
in dismissing [Parents‟] negligence, negligence per se, and IIED claims for failure to
comply with the written notice and certificate of good faith requirements of the THCLA.”
Ellithorpe v. Weismark, No. M2014-00279-COA-R3-CV, 2014 WL 5511773, at *3
(Tenn. Ct. App. Oct. 31, 2014).
The Court of Appeals, relying primarily on Estate of French v. Stratford House,
held that the trial court had failed to utilize the correct analysis when determining if
Parents‟ claims sounded in ordinary negligence or health care liability. Weismark, 2014
4
We note that Parents filed a notice of no transcript citing Tennessee Rule of Appellate
Procedure 24(b) and stating that “there is no transcript from the December 13, 2013 hearing.” However,
Tennessee Supreme Court Rule 26 governs the preparation of the record in this appeal. Local Rule 8(a)
of the Twentieth Judicial District of Tennessee states, “The Sixth Circuit Court has been authorized by
the Supreme Court to use audio-visual recordings as the official record of court proceedings pursuant to
Supreme Court Rule 26.” Tenn. 20th J. Dist. R. § 8(a); see also Tenn. Sup. Ct. R. 26 § 1.01. Section
2.01 of Tennessee Supreme Court Rule 26 defines “the term „transcript‟ used in Rule 24, Tennessee
Rules of Appellate Procedure,” as including “an official electronic recording of court proceedings
recorded and maintained in accordance with [Tennessee Supreme Court Rule 26].” Tenn. Sup. Ct. R. 26
§ 2.01. Thus, because the official audio-visual recording of the December 13, 2013 hearing constitutes
the transcript, Parents‟ notice that no transcript would be filed was in error.
5
Parents stated the issue in their brief filed with the Court of Appeals as “[d]id the trial court err
in dismissing the appellants‟ case with prejudice for failure to comply with T.C.A. § 29-26-101 et seq.
when the cause of action is ordinary negligence?”
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WL 5511773, at *10. The Court of Appeals noted that in Estate of French, this Court
“abandoned the broad „gravamen of the complaint‟ test . . . in favor of „a more nuanced
approach‟ in which the trial court must examine the claims individually to determine
whether they sound in ordinary negligence or health care liability.” Weismark, 2014 WL
5511773, at *9 (quoting Estate of French, 333 S.W.3d at 560). The Court of Appeals
further determined that the trial court had not considered the standard outlined in Estate
of French and instead “relied on the gravamen of the complaint standard rejected in Estate
of French” when dismissing the complaint. Id. at *10. Thus, the Court of Appeals
vacated the trial court‟s order dismissing Parents‟ claims and remanded for
reconsideration of the entire complaint “pursuant to the standard articulated in Estate of
French.” Id.
We granted Ms. Weismark‟s Tennessee Rule of Appellate Procedure 11
application for permission to appeal.
II. Standard of Review
A motion to dismiss for failure to state a claim is the proper method for
challenging whether a plaintiff has complied with the THCLA‟s pre-suit notice and
certificate of good faith requirements. Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300,
307 (Tenn. 2012). A motion to dismiss based upon Tennessee Rule of Civil Procedure
12.02(6) challenges “only the legal sufficiency of the complaint, not the strength of the
plaintiff‟s proof or evidence.” Phillips v. Montgomery Cnty., 442 S.W.3d 233, 237
(Tenn. 2014) (quoting Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d
422, 426 (Tenn. 2011)).
A defendant filing a motion to dismiss “admits the truth of all the relevant and
material allegations contained in the complaint, but . . . asserts that the allegations fail to
establish a cause of action.” Id. (quoting Webb, 346 S.W.3d at 426 (alteration in original)
(internal quotation marks omitted)). The resolution of such a motion is determined by
examining the pleadings alone. Id.
In adjudicating such motions, courts “must construe the complaint liberally,
presuming all factual allegations to be true and giving the plaintiff the benefit of all
reasonable inferences.” Id. (citing Webb, 346 S.W.3d at 426; Cullum v. McCool, 432
S.W.3d 829, 832 (Tenn. 2013)). A motion to dismiss should be granted only if it appears
that “„the plaintiff can prove no set of facts in support of the claim that would entitle the
plaintiff to relief.‟” Webb, 346 S.W.3d at 426 (quoting Crews v. Buckman Labs. Int‟l,
Inc., 78 S.W.3d 852, 857 (Tenn. 2002)). We review a lower court‟s decision on such a
motion de novo without any presumption of correctness. Phillips, 442 S.W.3d at 237
(citing Cullum, 432 S.W.3d at 832).
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III. Analysis
Ms. Weismark asserts that the Legislature‟s 2011 amendments to the THCLA
precludes application of the “nuanced” approach found in Estate of French and that the
Court of Appeals erred by reversing the trial court‟s dismissal of Parents‟ complaint and
by remanding the case for analysis consistent with Estate of French. Conversely, Parents
assert that Estate of French is still good law, and that under the Estate of French analysis,
their claims sound in ordinary negligence instead of health care liability. Alternatively,
Parents assert that, even if the THCLA is applicable to their claims, dismissal with
prejudice is not compulsory. Finally, Parents assert for the first time before this Court a
constitutional challenge to the THCLA.
A. The Tennessee Health Care Liability Act
A brief history of the THCLA and its judicial interpretations is beneficial to our
analysis. In 2008, Tennessee‟s Medical Malpractice Act6 was amended, introducing new
requirements into medical malpractice litigation. See Act of April 24, 2008, ch. 919,
2008 Tenn. Pub. Acts 434; see generally Rebecca C. Blair, Med-Mal Obstacles, 44 Tenn.
B.J. 14 (2008). The 2008 amendment required a party initiating a medical malpractice
claim to give sixty days‟ pre-suit notice to the implicated health care providers. See
Tenn. Code Ann. § 29-26-121(a)(1) (Supp. 2008). Furthermore, the amendment
contained a certificate-of-good-faith provision requiring a plaintiff filing a medical
malpractice action, in which expert testimony was required, to file a certificate of good
faith within ninety days of the filing of the initial complaint. Id. § 29-26-122. This
certificate served to confirm that one or more experts had been consulted and provided a
signed written statement of their belief that there was a good faith basis for filing the
complaint. Id.
One year later, in 2009, the Act was again amended to clarify these new
requirements. See Act of June 4, 2009, ch. 425, 2009 Tenn. Pub. Acts 472; see generally
John A. Day, Med Mal Makeover: 2009 Act Improves on „08, 45 Tenn. B.J. 14 (2009).
Tennessee Code Annotated section 29-26-121(a)(1) was amended to require that pre-suit
notice only be given to persons or entities named as defendants in the action, see Tenn.
Code Ann. § 29-26-121(a)(1) (Supp. 2009), and section 121(a)(2) was amended to specify
what information was required to be included in the pre-suit notice. See id. § 29-26-
121(a)(2). Additionally, Tennessee Code Annotated section 29-26-122 was amended to
6
In 2011, pursuant to the Tennessee Civil Justice Act of 2011, Tennessee Code Annotated
sections 29-26-115 through 122 and 202 of the Medical Malpractice Act were amended to replace the
term “medical malpractice” with the term “health care liability.” Tennessee Civil Justice Act of 2011,
ch. 510 § 9, 2011 Tenn. Pub Acts 1505. It is important to note that because the title “Tennessee Medical
Malpractice Act” and the term “medical malpractice” were used in the discussed statutes prior to 2011,
the terms will continue to be appropriately used throughout this opinion.
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require the filing of the certificate of good faith with the complaint instead of within
ninety days after its filing. See id. § 29-26-122.
While the 2008 and 2009 amendments to the Tennessee Medical Malpractice Act
established new procedural requirements for plaintiffs seeking to file medical malpractice
actions, these amendments failed to sufficiently define a medical malpractice claim and
left Tennessee courts to distinguish between claims sounding in ordinary negligence and
those involving medical malpractice. In January 2011, this Court decided Estate of
French, which provided a comprehensive and detailed analysis of the interaction between
ordinary negligence principles and the Tennessee Medical Malpractice Act, as then
enacted.
In Estate of French, the administratrix of the estate of a deceased nursing home
resident brought a wrongful death suit against the nursing home alleging claims of
ordinary negligence, negligence per se, and violations of the Tennessee Adult Protection
Act. 333 S.W.3d at 549. The trial court granted partial summary judgment for the
nursing home, holding that the Tennessee Medical Malpractice Act applied to the
administratrix‟s ordinary negligence claims and precluded allegations of negligence per
se or violations of the Tennessee Adult Protection Act. Id. at 549-50. The Court of
Appeals affirmed, holding that “the gravamen of the case sounds in medical malpractice.”
Id. at 553 (internal quotation marks omitted). This Court granted the administratrix‟s
application for permission to appeal to address whether the administratrix‟s claims were
“based upon ordinary common law negligence, medical malpractice, or both.” Id. at 554.
We explained that, “[b]ecause medical malpractice is a category of negligence, the
distinction between medical malpractice and negligence claims is subtle; there is no rigid
analytical line separating the two causes of action.” Id. at 555 (citations omitted). Thus,
the Court resolved that “whether claims should be characterized as ordinary negligence or
medical malpractice claims obviously depends heavily on the facts of each individual
case.” Id. at 556. However, the Court provided the following guidance in distinguishing
between ordinary negligence and medical malpractice:
[W]hen a claim alleges negligent conduct which constitutes or bears
a substantial relationship to the rendition of medical treatment by a medical
professional, the medical malpractice statute is applicable. Conversely,
when the conduct alleged is not substantially related to the rendition of
medical treatment by a medical professional, the medical malpractice statute
does not apply.
....
-8-
Medical malpractice cases typically involve a medical diagnosis,
treatment or other scientific matters. 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.
Id. at 555-56 (alteration in original) (citations omitted); see also Draper v. Westerfield,
181 S.W.3d 283, 290 (Tenn. 2005) (“[I]n determining whether an action is for medical
malpractice or for common law negligence, the issue is whether the alleged negligent
conduct „bears a substantial relationship to the rendition of medical treatment by a
medical professional.‟” (citing Gunter v. Lab. Corp. of Am., 121 S.W.3d 636, 641 (Tenn.
2003))). The Court ultimately concluded that it is “the responsibility of the courts to
ascertain the nature and substance of a claim” and that the “designation given those
claims by either the plaintiff or the defendant is not determinative.” Estate of French, 333
S.W.3d at 557.
However, roughly four months after this Court‟s decision in Estate of French, at its
next session, the Legislature passed the Tennessee Civil Justice Act of 2011, further
amending the Tennessee Medical Malpractice Act. See Tennessee Civil Justice Act of
2011, ch. 510, 2011 Tenn. Pub Acts 1505 (codified at Tenn. Code Ann. § 29-26-101 et
seq. (Supp. 2011)). Notably, the Tennessee Civil Justice Act of 2011 amended the
existing Tennessee Medical Malpractice Act by removing all references to “medical
malpractice” from the Tennessee Code and replacing them with “health care liability” or
“health care liability action” as applicable. See id. Furthermore, section 29-26-101 was
added to the Code which defined “health care liability action” as “any civil action,
including claims against the state or a political subdivision thereof, alleging that a health
care provider or providers have caused an injury related to the provision of, or failure to
provide, health care services to a person, regardless of the theory of liability on which the
action is based.” Tenn. Code Ann. 29-26-101(a)(1) (Supp. 2011) (emphasis added). This
same section went on to provide that “[a]ny such civil action or claim is subject to the
provisions of this part regardless of any other claims, causes of action, or theories of
liability alleged in the complaint.” Id. § 29-26-101(c).
With the foregoing history in mind we turn to the issues raised in this appeal.
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B. Effect of THCLA on Estate of French Analysis
It is undisputed that Parents failed to comply with the pre-suit notice and
certificate of good faith provisions of Tennessee Code Annotated sections 29-26-121 and
122. See Weismark, 2014 WL 5511773, at *4. Moreover, after a thorough review of the
trial court‟s ruling on Ms. Weismark‟s motion to dismiss, we agree with the Court of
Appeals that “[n]othing in the trial court‟s written order or oral ruling indicates that the
trial court considered the standard outlined in Estate of French in dismissing the
complaint.” Id. at *9. The trial judge relied solely on the plain language of Tennessee
Code Annotated sections 29-26-101, -121, and -122 to determine that all causes of action
alleged in the complaint were covered by the THCLA. Specifically, the trial court stated
that the THCLA is “very broad” and encompasses Parents‟ claims because they relate to
the provision of “health care services” by a “health care provider” as those terms are
defined by statute. Thus, the resolution of this appeal depends on whether our decision in
Estate of French has been statutorily abrogated by the Tennessee Civil Justice Act of
2011.
When determining the meaning of statutes, our primary goal “is to carry out
legislative intent without broadening or restricting the statute beyond its intended scope.”
Johnson v. Hopkins, 432 S.W.3d 840, 848 (Tenn. 2013) (quoting Lind v. Beaman Dodge,
Inc., 356 S.W.3d 889, 895 (Tenn. 2011)). We presume that every word in a statute has
meaning and purpose and that each word‟s meaning should be given full effect as long as
doing so does not frustrate the General Assembly‟s obvious intention. Id. Words “„must
be given their natural and ordinary meaning in the context in which they appear and in
light of the statute‟s general purpose.‟” Id. (quoting Mills v. Fulmarque, Inc., 360 S.W.3d
362, 368 (Tenn. 2012)). When a statute‟s meaning is clear, we “„apply the plain meaning
without complicating the task‟ and enforce the statute as written.” Id. (quoting Lind, 356
S.W.3d at 895). Finally, we presume that the Legislature knows the law and makes new
laws accordingly. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 527 (Tenn. 2010).
Tennessee Code Annotated section 29-26-101(a)(1) defines health care liability
action as “any civil action. . . alleging that a health care provider or providers have caused
an injury related to the provision of, or failure to provide, health care services to a person,
regardless of the theory of liability on which the action is based.” Furthermore subsection
101(a)(2) defines a health care provider as “[a] health care practitioner licensed,
authorized, certified, registered, or regulated under any chapter of title 63 or title 68. . . .”
Finally, subsection 101(c) makes “[a]ny such civil action or claim [] subject to this part
regardless of any other claims, causes of action, or theories of liability alleged in the
complaint.”
Giving every word in this section its full effect and plain meaning, we hold that
section 29-26-101 establishes a clear legislative intent that all civil actions alleging that a
covered health care provider or providers have caused an injury related to the provision
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of, or failure to provide health care services be subject to the pre-suit notice and
certificate of good faith requirements, regardless of any other claims, causes of action, or
theories of liability alleged in the complaint. Furthermore, we are mindful of the fact that
the Tennessee Civil Justice Act of 2011 was enacted mere months after this Court‟s
decision in Estate of French. Under the canons of statutory construction, we presume that
the Legislature was aware of this Court‟s decision in Estate of French and acted
accordingly in passing an act that rendered it effectively moot. We need not engage in
further statutory interpretation in the face of this clear legislative edict. Thus, we hold
that the “nuanced” approach for distinguishing ordinary negligence and health care
liability claims as outlined in Estate of French has been statutorily abrogated.
Applying the clear language of the THCLA to Parents‟ complaint, we conclude
that the allegations contained therein meet the definition of a health care liability action as
defined in section 29-26-101(a)(1). Parents‟ complaint alleges that Ms. Weismark “is a
licensed clinical social worker.” 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 29-26-
101(a)(2). Parents recognized Ms. Weismark‟s status as a health care provider when they
relied upon the Juvenile Court‟s order as affording them a right to seek access Ms.
Weismark‟s treatment records of M.L. Specifically, Parents alleged at Paragraph 8 that
the Juvenile Court‟s order provided them with “the right to receive copies of the child‟s
medical, health or other treatment records directly from the physician or health care
provider who provid[ed] such treatment. . . .”
Additionally, Parents‟ complaint is rife with allegations relating to Ms.
Weismark‟s provision of health care services to M.L. Paragraph 9 of the complaint
alleges that Ms. Weismark “did an intake for counseling for [M.L.]”. Paragraphs 17 and
18 allege that Ms. Weismark did not have consent to counsel M.L. Paragraph 25 alleges
that M.L. “has been harmed emotionally in not being allowed to counsel with her
[p]arents” and that Parents “will seek an independent mental health examination of the
child to assess the harm caused by failing to counsel with them towards reunification.”
Paragraph 26 of the complaint alleges that “the secreted counseling with [M.L.] is the
direct and proximate harm and injury to [parents] and [M.L.].” Paragraph 29 alleges that
Ms. Weismark “should be keenly aware that providing this secret counseling for the child
is a gross deviation from the standard of care.” Finally, Paragraph 31 alleges that
“[Parents] would show that [Ms.] Weismark is negligent in providing health services
without following the parameters of the court order by notifying [parents] and allowing
them to participate in said counsel.” (Bold in original) (second emphasis added). Thus,
because Parents‟ complaint alleges negligence in the provision of health care services by
a covered health care provider, it is subject to the THCLA “regardless of any other
claims, causes of action, or other theories of liability alleged in the complaint.” Tenn.
Code Ann. § 29-26-101(c). Because Parents failed to comply with the pre-suit notice and
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certificate of good faith requirements of the THCLA, dismissal of their complaint is
appropriate.
C. Remedy
We next consider Parents‟ assertion that, even if the THCLA is applicable to their
complaint, dismissal with prejudice is not mandatory. Parents rely upon the language of
sections 29-26-121 and -122 as support for this argument. Section 29-26-122 requires a
certificate of good faith only in health care liability actions “in which expert testimony is
required by [section 29-26-115].” Furthermore, under 29-26-122(c), “[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.” (Emphasis added.).
However, section 29-26-121 includes no similar provision requiring dismissal with
prejudice for failure to provide pre-suit notice. This Court has interpreted the disparity
between sections 29-26-121 and -122 as indicative of the Legislature‟s intent that failure
to provide pre-suit notice result only in dismissal without prejudice:
[Section] 29-26-121 does not provide for a penalty or consequence for
failing to provide pre-suit notice . . . . Whereas [section] 29-26-122
expressly require[s] a dismissal with prejudice for a plaintiff‟s failure to file
a certificate of good faith. These code sections, [] 29-6-121 and -122, were
enacted together as part of the Tennessee Health Care Liability Act;
therefore, we interpret these sections together and must presume that the
Legislature intended for them to carry different sanctions for
noncompliance. The Legislature could have, but did not, provide for
dismissal with prejudice for noncompliance with [section] 29-26-121(a)(1).
Therefore, we hold that dismissal without prejudice is the proper sanction
for noncompliance with [Tennessee Code Annotated section] 29-26-
121(a)(1).
Foster v. Chiles, No. E2012-01780-SC-R11-CV, 2015 WL 343872, at *4 (Tenn. Jan. 27,
2015) (internal citations omitted).
1. Dismissal without Prejudice
Parents argue that because the acts alleged in their complaint do not require expert
testimony by a medical professional, dismissal with prejudice under section 29-26-122(c)
is not required. At most, Parents say, the dismissal should be without prejudice under
section 29-26-121, based on their failure to file pre-suit notice. If the only failing was
lack of pre-suit notice then dismissal without prejudice would be the proper remedy. See
Foster, 2015 WL 343872, at *4. But that is not the only failing.
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2. Dismissal with Prejudice
As stated earlier and reiterated below, Parents have alleged health care liability
claims based on allegations that Ms. Weismark deviated from the standard of care. In
health care liability actions, such as this one, expert proof is required to establish the
recognized standard of acceptable professional practice in the profession, unless the claim
falls within the “common knowledge” exception that is not applicable here. See Tenn.
Code Ann. § 29-26-115 (2012); Shipley v. Williams, 350 S.W.3d 527, 537 & n.5 (Tenn.
2011) (discussing the statutory expert proof requirements and citing Seavers v. Methodist
Med. Ctr. of Oak Ridge, 9 S.W.3d 86, 92 (Tenn.1999), which discussed the “common
knowledge” exception). Parents‟ attempt to couch their health care liability claims in the
guise of a violation of a court order is not convincing.7 Parents‟ complaint contains
numerous allegations that Ms. Weismark deviated from the standard of care and was
negligent in providing counseling services to M.L. Most telling are paragraphs 25, 26,
27, 29, and 31, which allege that: (1) M.L. has been harmed emotionally because she was
not allowed to counsel with Parents; (2) Parents will seek an independent mental health
examination of M.L. to assess the harm caused by Ms. Weismark‟s failure to counsel with
Parents towards reunification; (3) Ms. Weismark‟s “secreted counseling” with M.L. has
directly and proximately caused Parents “severe emotional harm”; (4) M.L. has suffered
“severe emotional harm from being forcefully kept separated from her parents”; and (5)
Ms. Weismark‟s “secret counseling” was a “gross deviation from the standard of care.”
Expert testimony clearly would be required to prove these allegations. Consequently,
Parents were required to provide a certificate of good faith under Tennessee Code
Annotated section 29-26-122, and their failure to comply with this statutory requirement
warrants dismissal with prejudice. See Tenn. Code Ann. § 29-26-122(c).
D. Constitutional Challenge
Parents have also raised a constitutional challenge to the THCLA for the first time
in this Court. Parents assert that if this Court interprets the THCLA as abrogating Estate
of French, “[t]he Forfeiture provisions of Title 29, Section 26 are unconstitutional in that
they restrict the [Parents‟] property right in their cause of action, it [sic] violates the equal
protection clause, and unconstitutionally restricts the right of free access to the courts.”
“It is axiomatic that parties will not be permitted to raise issues on appeal that they
did not first raise in the trial court.” Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496,
511 (Tenn. 2010) (citing Barnes v. Barnes, 193 S.W.3d 495, 501 (Tenn. 2006)). This
principle applies equally to constitutional challenges. See In re M.L.P., 281 S.W.3d 387,
7
We note that when Parents‟ counsel was asked at oral argument before this Court why Parents
did not file a motion for contempt with the Juvenile Court, she responded that the “Juvenile Court cannot
cure those damages.” By this statement, counsel acknowledged that this case involves more than
violation of a court order.
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394 (Tenn. 2009) (“Because Father did not properly raise [his constitutional challenge] in
the trial court, he has waived his right to argue this issue for the first time on appeal.”).
Thus, Parents waived their constitutional challenge, and we will not address it in this
appeal.8
IV. Conclusion
For the reasons stated herein, we hold that Estate of French has been abrogated
by statute. We further hold that Parents‟ complaint is subject to the THCLA, which
required them to file pre-suit notice and a certificate of good faith. Accordingly, due to
Parents‟ undisputed failure to meet either requirement, the judgment of the Court of
Appeals is reversed, and the judgment of the trial court dismissing Parents‟ complaint
with prejudice is reinstated. Costs of this appeal are taxed to Adam and Ashley
Ellithorpe, for which execution, if necessary, may issue.
_________________________________
CORNELIA A. CLARK, JUSTICE
8
On April 24, 2015, the Attorney General filed a motion to strike Parents‟ constitutional
challenge, or, in the alternative, a motion for permission to intervene. This Court entered an order on
April 27, 2015, granting the Attorney General permission to file a brief as an intervening party and taking
the Attorney General‟s motion to strike under advisement. Ellithorpe v. Weismark, No. M2014-00279-
SC-R11-CV (Tenn. Apr. 27, 2015) (order granting Attorney General permission to intervene and taking
motion to strike under advisement). Because Parents have waived their constitutional challenge, the
Attorney General‟s motion to strike is dismissed as moot.
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