Tennessee Supreme Court Clarifies Which Cases Are Subject to Tennessee Health Care Liability Act Requirements

The Tennessee Supreme Court recently handed down a very important medical malpractice decision in Adam Ellithorpe v. Janet Weismark, 2015 WL 5853873 (Tenn. 2015).  In this new decision, the Tennessee Supreme Court considered whether its prior opinion of Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011) was overruled by legislation found in the Tennessee Civil Justice Act in 2011.  In the Estate of French decision, the Tennessee Supreme Court previously ruled that claims could be characterized as ordinary negligence as opposed to medical malpractice when the conduct alleged is not substantially related to the rendition of medical treatment by a medical professional.  Following that decision, the Tennessee Legislature passed the Tennessee Civil Justice Act of 2011 which amended the definition of a “healthcare liability action” to the following:

(1) “Health care liability action” means 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;

T.C.A. § 29-26-101(a)(1). 

As a result, the question in the Ellithorpe case was whether the new definition of a “Health care liability action” overruled the Estate of French decision when determining if a case came within the Health Care Liability Act.  In Ellithorpe the Tennessee Supreme Court found that the Tennessee legislator overruled the Estate of French decision.  The Court held 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 of, or failure to provide healthcare services be subject to the pre-suit notice and certificate of good faith requirements, regardless of any other claims, cause of action or theories of liability alleged in the complaint.”  Ellithorpe at ­­­7.

As a result, it is now very clear in Tennessee, based on the current status of the law, that if a cause of action has any relationship to a health care liability action as defined in the newly amended statute, that the pre-suit notice requirements must be met by the plaintiff or the case can be dismissed with prejudice.  This decision makes it very clear that plaintiff’s attorneys must be very careful when filing a suit that in any way has any relationship to a health care provider or any type of health care liability action.  If there is any question whatsoever that the cause of action is a health care liability action, attorneys need to err on the side of caution and comply with the pre-suit notice statutory requirements. 

From a defense perspective, any cause of action that is filed without complying with the certificate of good faith and pre-suit notice requirements, and has any semblance to a health care liability action, should be defended on that basis.  This is an excellent defense in many causes of actions against health care providers because there are still attorneys in Tennessee who file these cause of actions inappropriately without complying with the pre-suit notice and certificate of good faith requirements.  This case provides great ammunition for the dismissal of these cases.