TN Court of Appeals Upholds Dismissal for Failure to Comply with Notice Provision of The TMMA

Good morning and please review Peter’s report in the newest TN COA opinion that is very helpful to LTC providers in TN.

The Eastern Section COA upheld Judge Wheeler Rosenblum’s order in Long v. Hillcrest Healthcare-West ("Defendant"), dismissing Plaintiff’s entire lawsuit for failure to comply with the recent notice provision amendments to the TMMA (see attached opinion).  This is the first appellate decision on this important statutory issue and lends further credibility to the arguments we are now and have been advancing in many of our cases since the med mal amendments took effect.

In this case, Plaintiff Melinda Long filed a wrongful death complaint against Hillcrest Healthcare-West, alleging that a facility staff member injured Ms. Hughes ("Decedent") after failing to use a special wheelchair, lift, and shower chair while assisting Decedent during her shower.  Plaintiff also alleged that defendants failed to follow Decedent’s doctor’s orders and that Decedent suffered additional pain and deterioration and that she died as a result of her injuries.

Importantly, when filing her Complaint, Plaintiff purposely did NOT allege a claim for medical malpractice but instead classified her claim as one for simple negligence.  On the same day she filed her complaint, however, Plaintiff sent a notice of intent to sue to Defendant under the medical malpractice act pursuant to T.C.A. 29-26-121(a).  That provision requires Plaintiff, among other things, to wait 60 days after serving notice before filing a complaint "based upon medical malpractice."  Defendant filed a Motion to Dismiss and for Summary Judgment, arguing that Plaintiff’s claim sounded in medical malpractice and Plaintiff’s suit should be dismissed for failure to comply with the 60-day pre-suit notice provision.  Plaintiff argued in response that she was not required to wait 60 days before filing suit because the complaint asserted relief under ordinary negligence only and not medical malpractice.

The trial court agreed with Defendant.  Judge Rosenblum held that despite Plaintiff’s attempt to classify her claim as one for ordinary negligence, plaintiff’s claim sounded in medical malpractice.  Accordingly, since plaintiff failed to comply with the requirements of T.C.A. 29-26-121(a), the trial court granted summary judgment in Defendants’ favor.  The COA summarized relevant Tennessee decisional law on determining when the "gravamen" of the complaint sounds in medical malpractice vs. simple negligence:

1) Gunter v. Lab. Corp of America – when the claim constitutes or bears a substantial relationship to the rendition of medical treatment by a medical professional; and
2) Peete/Conley test – when the decision, act, or omission requires the assessment of a patient’s medical condition and/or a decision based upon medical science, specialized training or skill.

Here, the COA affirmed the trial court’s reasoning as well as that of the COA in Johnsey v. Northbrooke Manor, Inc (May 14, 2009 – previously reported by us on 8-10-09) in finding that "simply because the actor may have been an aide or nursing assistant, this did not take the claim out of the realm of medical malpractice. . ."  Although dissenting justice Susano opined that the complaint also probably stated a claim for ordinary negligence, the majority held that the gravamen of Plaintiff’s complaint sounded in medical malpractice and Plaintiff failed to comply with the recent amended requirements of the TMMA.

This decision is a landmark victory for LTC providers.  Plaintiffs should now beware that if they are going to allege claims sounding in medical malpractice, they better comply with the TMMA pre-suit notice provisions before filing a complaint at all, whether STYLED as one for medical malpractice or not.  If it sounds in malpractice, Plaintiff’s suit should be dismissed if it does not comply with the pre-suit notice provisions.  As noted above, this opinion will influence several of our pending motions and we will keep you advised of all further developments.  Have a wonderful day.

Peter

Rebecca Adelman

THE LAW AND MEDIATION OFFICES
OF REBECCA ADELMAN, PLC
545 S. Main St., Suite 111
Memphis, Tennessee 38103
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www.adelmanfirm.com
 

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