                                                                                         09/28/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 May 17, 2017 Session

NANCY YOUNGBLOOD EX REL. ESTATE OF DANIEL VAUGHN V. RIVER
                 PARK HOSPITAL, LLC

                  Appeal from the Circuit Court for Warren County
                         No. 559    Larry B. Stanley, Judge


                            No. M2016-02311-COA-R3-CV



On July 11, 2015, Daniel Vaughn, an 86-year-old patient, was recovering from surgery in
the intensive care unit of the defendant River Park Hospital. A nurse brought Mr.
Vaughn some coffee, after which she left the room. He spilled the coffee on himself,
suffering burns to his body. Nancy Youngblood, the executor of Mr. Vaughn’s estate,
brought this action alleging that, given his condition, he “should not have been left alone
to manage an extremely hot beverage.” River Park, arguing that her claim is a health care
liability action subject to the Tennessee Health Care Liability Act (THCLA), Tenn. Code
Ann. § 29-26-101 et seq. (2012 & Supp. 2017), moved to dismiss based on plaintiff’s
failure to provide pre-suit notice and a certificate of good faith as required by the
THCLA. Plaintiff argued that her claim does not fall within the definition of a “health
care liability action.” The trial court disagreed and dismissed her action. We hold that
the trial court correctly held her claim to be a health care liability complaint.
Accordingly, we affirm.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                            Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J.,W.S., and BRANDON O. GIBSON, J., joined.

John Robert Toy II, Murfreesboro, Tennessee, for the Appellant, Nancy Youngblood,
Executrix of the Estate of Daniel Vaughn.

Bryan Essary and Lee T. Nutini, Nashville, Tennessee, for the Appellee, River Park
Hospital, LLC, dba River Park Hospital.
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                                            OPINION

                                                 I.

        Mr. Vaughn fell and broke his hip on July 10, 2015. He went to River Park and
was scheduled for immediate surgery. It is not clear from the complaint whether the
surgery took place on July 10 or July 11, but on the later date, a doctor informed his
family that the surgery went well. That same day, the nurse brought him a cup of coffee
in his intensive care unit. The essence of plaintiff’s claim, as quoted from the complaint,
is as follows:

               Mr. Vaughn was an 86 year old man; who was in ICU
               following a major surgery; was on pain medication; had
               visible tremors in his hand; and had an O2 monitor on his
               index finger. Mr. Vaughn should not have been left alone to
               manage an extremely hot beverage.

(Reformatted with paragraph numbering in original omitted.)

        It is undisputed that plaintiff did not provide pre-suit notice to River Park. Such
notice is required of “any person . . . asserting a claim for health care liability.” Tenn.
Code Ann. § 29-26-121(a)(1). Furthermore, she did not file a certificate of good faith
with the complaint. Again, this is a requirement “[i]n any health care liability action in
which expert testimony is required by § 29-26-115.” Tenn. Code Ann. § 29-26-122(a).
Following a hearing, the trial court dismissed plaintiff’s action with prejudice, succinctly
stating that “the allegations of negligence . . . clearly fall within the definition of a ‘health
care liability action.’ ” Plaintiff timely filed a notice of appeal.

                                                 II.

       The issue presented is whether the trial court erred in dismissing plaintiff’s claim
based upon the court’s determination that it falls within the THCLA’s definition of a
“health care liability action.”1

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          This Court has held on several recent occasions that “[t]he need for expert proof will not
lie if the matter is within the common knowledge of a layperson, and if there is no need for
expert proof, a plaintiff’s complaint will not fail for failure to attach a certificate of good faith
under section 29–26–122.” Redick v. St. Thomas Midtown Hosp., 515 S.W.3d 853, 857 (Tenn.
Ct. App. 2016) (quoting Newman v. Guardian Healthcare Providers, Inc., No. M2015-01315-
COA-R3-CV, 2016 WL 4069052, at *5 (Tenn. Ct. App., filed July 27, 2016)); Zink v.
Rural/Metro of Tenn., L.P., No. E2016-01581-COA-R3-CV, 2017 WL 1659349, at *7 (Tenn.
Ct. App., filed May 2, 2017). In this case, plaintiff has not alleged nor argued that her claim falls
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                                             III.

     Our standard of review is as recently stated by the Supreme Court in Ellithorpe v.
Weismark, 479 S.W.3d 818, 823-34 (Tenn. 2015):

              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).


within the “common knowledge” exception, so that issue is not before us.
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                                            IV.

      The THCLA defines a “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[.]

Tenn. Code Ann. § 29-26-101(a)(1). It is undisputed that plaintiff’s claims implicate a
“health care provider.” The THCLA defines “health care services” as follows:

             Health care services to persons includes care by health care
             providers, which includes care by physicians, nurses, licensed
             practical nurses, pharmacists, pharmacy interns or pharmacy
             technicians under the supervision of a pharmacist, orderlies,
             certified nursing assistants, advance practice nurses,
             physician assistants, nursing technicians and other agents,
             employees and representatives of the provider, and also
             includes staffing, custodial or basic care, positioning,
             hydration and similar patient services.

Tenn. Code Ann. § 29-26-101(b) (emphasis added). As this Court has recently observed,

             [t]his statutory definition is conclusive, and it casts a wide net
             over civil claims that arise within a medical setting. In fact,
             this Court has previously remarked that “it should not be
             surprising if most claims now arising within a medical setting
             constitute health care liability actions.” Osunde [v. Delta
             Med. Ctr., 505 S.W.3d 875, 884-85 (Tenn. Ct. App. 2016)].
             We hasten to add, however, that “whether a health care
             liability action is implicated is entirely dependent on whether
             the factual allegations meet the definition outlined in the
             statute.” Id. at [885] n.6.

Cordell v. Cleveland Tenn. Hosp., LLC, No. M2016-01466-COA-R3-CV, 2017 WL
830434, at *5 (Tenn. Ct. App., filed Feb. 27, 2017); accord Newman, 2016 WL 4069052,
at *6 (noting “the broad ambit of the THCLA” in defining health care liability action).

       To provide a full background of plaintiff’s factual allegations, the following is a
verbatim quote from the complaint, reformatted with numbering omitted:
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At all times relevant to this action, the nursing staff
referenced herein were employed by River Park and acting in
the scope and course of their employment with River Park.
On or about July 10, 2015, Mr. Vaughn fell and broke his hip,
necessitating his transport by ambulance to River Park. Dr.
Patel informed the family that Mr. Vaughn was cleared for
surgery, being considered low-risk for immediate surgery.
Dr. Patel also informed the family that Mr. Vaughn would be
admitted to ICU following the surgery for at least 24 hours.
On or about July 11, 2015, Dr. Peterson informed the family
that the surgery went great.

At approximately 4:30pm on July 11, 2015, Ms. Youngblood
received a call from Mr. Vaughn’s nurse, Heather, asking if
Ms. Youngblood knew where Mr. Vaughn’s teeth were. Ms.
Youngblood informed Heather that Ms. Youngblood ha[d] in
fact taken Mr. Vaughn’s teeth home by accident and would
bring his teeth to the hospital right away. Ms. Youngblood
was told by Heather that there was no need since the nursing
staff had already taken care of Mr. Vaughn’s dinner and that
Ms. Youngblood should just wait until the following day to
bring his teeth. Later in the evening of July 11, 2015, Ms.
Youngblood received a phone call from Mr. Vaughn’s pastor,
Bro. Burns, informing Ms. Youngblood that Mr. Vaughn
ha[d] spilled some coffee on himself and Mr. Vaughn was
being treated by the nursing staff.

On July 12, 2015, Ms. Youngblood received another phone
call from Heather asking when Ms. Youngblood planned to
bring Mr. Vaughn’s teeth to River Park. At no time during
this phone call on the morning of July 12, 2015 did Heather
or any other River Park staff mention the coffee spill to Ms.
Youngblood. Ms. Youngblood arrived at the hospital around
12:30pm on July 12, 2015, and asked about the coffee spill
incident. Ms. Youngblood was told that a nurse named
Ashley had brought Mr. Vaughn a cup of coffee; placed the
coffee on his bedside table; left the room; and returned to Mr.
Vaughn upon hearing him cry out. Mr. Vaughn had
apparently attempted to drink his coffee left by his nurse and
spilled the coffee on himself.
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              Mr. Vaughn was an 86 year old man; who was in ICU
              following a major surgery; was on pain medication; had
              visible tremors in his hand; and had an O2 monitor on his
              index finger. Mr. Vaughn should not have been left alone to
              manage an extremely hot beverage. As a direct and
              proximate result of the above described events and actions of
              employees of River Park, Mr. Vaughn suffered serious
              personal injury. River Park is made the defendant to this
              action as it was River Park’s agents, servants, and employees
              committing the negligent acts, which occurred in the scope
              and course of their agency, servitude, or employment.

        As already discussed, the essence of this claim is that the nurse was negligent
because she knew, or should have known, that given Mr. Vaughn’s mental and physical
state, including the fact that he was under medication and recovering from a recent major
surgery, he “should not have been left alone to manage an extremely hot beverage.” The
question is whether the nurse’s actions in bringing a cup of coffee to his hospital room
and leaving it on his bedside table were “related to the provision of, or failure to provide,
health care services.” Tenn. Code Ann. § 29-26-101(a)(1). We believe the trial court
correctly answered “yes” to this question. The THCLA broadly defines “health care
services” to include “custodial or basic care, positioning, hydration and similar patient
services.” Id. § 29-26-101(b). In her brief, plaintiff argues that “[e]ven the statutory
express consideration of hydration fails in this instance as coffee is a diuretic ‒ providing
the opposite of hydrating care.” We find this argument creative, but spurious. We doubt
that the Legislature, on the one hand, intended to include a hydrating beverage within its
definition, but, on the other hand, intended to exclude a beverage that can be said to be
dehydrating. Even if a cup of coffee does not qualify as a “vehicle” of hydration, it
certainly falls within the general statutory definition of “similar patient services.”

       In several recent decisions, this Court has held that not all alleged injuries that
occur within a health care provider setting necessarily fall within the definition of a
health care liability action. See Lacy v. Mitchell, No. M2016-00677-COA-R3-CV, 2016
WL 6996366, at *4 (Tenn. Ct. App., filed Nov. 30, 2016) (vacating dismissal of
complaint and holding allegation that chiropractor “beat Plaintiff . . . in the back with her
medical folder” supports a reasonable inference that “the act took place after Dr. Mitchell
finished providing health care services”); Cordell, 2017 WL 830434, at *5-*6 (plaintiff’s
claims stemming from alleged rape in a hospital by hospital employees do not constitute
a health care liability action). As River Park points out, however, in Cordell we stated,



                                             6
              had the original complaint brought a negligence claim against
              [the hospital] directly and asserted that it was liable due to its
              failure to provide appropriate care, supervision, or
              monitoring, the complaint would have alleged that a “health
              care provider . . . caused an injury related to the . . . failure to
              provide . . . health care services.”

Id. at *7 (emphasis added; ellipses in original). In the present case, plaintiff has alleged
such a claim ‒ that River Park’s employee failed to provide appropriate supervision and
monitoring of Mr. Vaughn and his cup of dangerously hot coffee.

                                              V.

      The judgment of the trial court is affirmed. Costs on appeal are assessed to the
Appellant, Nancy Youngblood, Executor of the Estate of Daniel Vaughn. The case is
remanded for collection of costs assessed below.


                                            _______________________________
                                            CHARLES D. SUSANO, JR., JUDGE




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