                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                        March 10, 2010 Session

MELINDA LONG, AS ADMINISTRATOR OF THE ESTATE OF OPAL HUGHES
          v. HILLCREST HEALTHCARE - WEST ET AL.

                        Appeal from the Circuit Court for Knox County
                        No. 3-119-09    Wheeler A. Rosenbalm, Judge


                     No. E2009-01405-COA-R3-CV - Filed April 16, 2010




C HARLES D. S USANO, JR., J., concurring in part and dissenting in part.

        I agree with the majority’s conclusion that, to the extent the allegations of the
complaint allege medical malpractice,1 the defendants are entitled to summary disposition
of that claim. This is true because the material filed by the defendants in support of their
motion clearly establishes that the plaintiff failed to satisfy the pre-filing requirements of the
applicable statute as it pertains to a complaint sounding exclusively in medical malpractice.
See Tenn. Code Ann. § 29-26-121 (Supp. 20092 ). I cannot concur, however, that the
allegations of the complaint sound exclusively in medical malpractice.

        Since the material filed by the defendants addresses only a medical malpractice claim,
there is no basis for dismissing a claim for simple negligence if the plaintiff’s complaint
reasonably can be construed as alleging such a claim. It is well-established that a complaint
should not be dismissed on a defendant’s Tenn. R. Civ. P. 12.02(6) motion if there is a set
of facts that would make out a claim under the well-pleaded factual allegations of the


        1
           It is not entirely clear to me that the plaintiff in her complaint alleges or even attempts to allege a
cause of action sounding in medical malpractice. Certainly the language of such a claim, e.g., medical
malpractice, standard of care, deviation, injury/damages caused by the deviation, is nowhere to be found in
the complaint. The only reference to “medical malpractice” is contained in the letters mailed by the
plaintiff’s attorney to the defendants on March 16, 2009, but these letters are not a part of the plaintiff’s
complaint, nor exhibits to it. In any event, I agree with the majority that any claim for medical malpractice
that is alleged has been properly dismissed.
        2
         While Tenn. Code Ann. § 29-26-121, et seq., was amended effective July 1, 2009, after the trial
court’s decision in this case, the plaintiff’s filing was defective under the earlier version of the statutory
scheme as well as under the as-amended version.
complaint. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999) (“In ruling on a [Tenn. R.
Civ. P. 12.02(6)] motion, courts must construe the complaint in favor of the plaintiff, accept
the allegations of fact as true, and deny the motion unless it appears that the plaintiff can
establish no facts supporting the claim that would warrant relief.”).

        The plaintiff alleges that the defendants posted a sign outside the decedent’s door
reciting – in the words of the majority opinion – “that a special lift had to be used to move
[the decedent] and that a special chair/wheelchair had to be employed.” If the plaintiff can
prove this fact and if the plaintiff can also prove that the staff member who picked up the
decedent saw or should have seen the sign, the staff member’s conduct can be evaluated by
a fact-finder as to whether the staff member acted appropriately in ignoring the sign or in
how he attempted to carry the decedent. I do not believe that such an assessment requires
any specialized medical knowledge. A lay person can make this call.

       The negligent conduct alleged in this case does not bear “a substantial relationship to
the rendition of medical treatment.” Gunter v. Lab. Corp. of America, 121 S.W.3d 636, 641
(Tenn. 2003). This case is similar to Harvey v. Wolfer, 03A01-9512-CV-00452, 1996 WL
94819 (Tenn. Ct. App. E.S., filed March 6, 1996) (genuine issue of material fact as to
whether defendant was guilty of “ordinary” negligence in dropping the plaintiff). It seems
to me that, as in Harvey, the instant case rises or falls on the issue of simple negligence.

       The proof may well demonstrate that, in view of the sign and the staff member’s
knowledge or imputed knowledge, the staff member acted negligently in physically picking
up the decedent and/or in how the staff person carried or attempted to carry her. If all of
these facts are proven by a preponderance of the evidence, as reflected by a fact finder’s
decision, the plaintiff, by showing resulting damages, would be entitled to a recovery. I
believe the trial court erred in dismissing what I perceive to be a claim for simple negligence.


       Accordingly, I concur in part and dissent in part.


                                                    _______________________________
                                                    CHARLES D. SUSANO, JR., JUDGE




                                              -2-
