               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                               February 12, 2020 Session

                 JOSH CATHEY v. WILLIAM BEYER ET AL.

                 Appeal from the Circuit Court for Madison County
                   No. C-19-104       Roy B. Morgan, Jr., Judge
                     ___________________________________

                No. W2019-01603-COA-R3-CV – Filed April 24, 2020
                     ___________________________________


This is a health care liability case. Appellant brought a pro se action against two licensed
counselors alleging injuries arising from the altering and concealment of counseling
records of Appellant’s minor children. The trial court dismissed the complaint, under
Tennessee Rule Civil Procedure 12.02, for failure to comply with the pre-suit notice and
certificate of good faith requirements of the Tennessee Health Care Liability Act. Tenn.
Code Ann. §§ 29-26-121, 122. We conclude that Appellant’s claims relate to the provision
of health care services and are subject to the procedural requirements in Tennessee Code
Annotated § 29-26-101 et seq. Therefore, we affirm the trial court’s dismissal of
Appellant’s complaint.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J., W.S., and CARMA DENNIS MCGEE, J., joined.

Joshua D. Cathey, Jackson, Tennessee, appellant, pro se.

James E. Looper and Nathaniel T. Gorman, Nashville, Tennessee, for the appellees,
William Beyer and Nancy Plunk.

                                        OPINION

                                     I. Background

      Appellant Joshua Cathey is the father of two minor children. He and the children’s
mother, Tasha Escue, were never married. Unknown to Mr. Cathey, on January 3, 2018,
Ms. Escue took the children to counseling at Beyer Psychology Group where they were
seen by Appellee William Beyer, a licensed senior psychological examiner-health service
provider and licensed professional counselor.         Mr. Beyer performed an initial
psychological evaluation of the children. Then, from February 2018 until April 2, 2018,
Appellee Nancy Plunk (together with Mr. Beyer, “Appellees”), a licensed professional
counselor, provided counseling services to the minor children. In April 2018, Mr. Cathey
learned of the counseling services and contacted Beyer Psychology Group seeking the
children’s records; Appellees provided Mr. Cathey with copies of those records.

       On May 18, 2018, Ms. Escue filed a petition to modify custody. In support of her
petition, Ms. Escue relied in part on the testimony and records of Ms. Plunk and Mr. Beyer.
In his answer, Mr. Cathey stated that he had retained Dr. John V. Ciocca, Ph.D., who
reviewed Mr. Beyer and Ms. Plunk’s notes and opined that the APA [i.e., Academic
Pediatric Association] guidelines were not followed in relation to Appellees’ treatment of
the children. In October 2018, Mr. Cathey subpoenaed Ms. Escue to provide all the
evidence on which she would rely in the custody matter. Mr. Cathey alleges that the
documents he received from Ms. Escue were not identical to the records he received from
Appellees. Thus, he contends that Appellees falsified the records they tendered to him.

       On April 8, 2019, Mr. Cathey, acting pro se, filed a complaint against Nancy Plunk
and William Beyer, alleging that Ms. Plunk and Mr. Beyer falsified and concealed the
counseling records of Mr. Cathey’s children. Specifically, Mr. Cathey’s complaint
includes claims of: (1) falsifying healthcare records; (2) fraudulent concealment; (3)
spoliation of evidence; (4) defamation of character; and (5) intentional infliction of
emotional distress.

       In response to Mr. Cathey’s complaint, Appellees filed a motion to dismiss or, in
the alternative, for summary judgment. Appellees asserted that Mr. Cathey’s causes of
action sounded in health care liability and were, thus, subject to the procedural
requirements of the Tennessee Health Care Liability Act (“THCLA”). Tenn. Code Ann. §
29-26-101 et seq. Mr. Cathey filed a response to Appellees’ motion. Although Mr. Cathey
conceded that Appellees were health care providers, he maintained that his claims were not
health care liability claims.

        On July 8, 2019, the trial court held a hearing on Appellees’ motion. By order of
August 7, 2019, the trial court granted Appellees’ motion to dismiss pursuant to Tennessee
Rule of Civil Procedure 12.02. The trial court found that Mr. Cathey’s claims were “health
care liability claims within the meaning of the THCLA and are subject to its requirements.”
Furthermore, the trial court found that expert testimony was required to establish Mr.
Cathey’s claims. Because Mr. Cathey failed to file pre-suit notice and a certificate of good
faith with his complaint, the trial court dismissed all of Mr. Cathey’s claims with prejudice
pursuant to Tennessee Code Annotated section 29-26-122. Mr. Cathey appeals.

                                         II. Issues
                                            -2-
Appellant raises two issues, which we restate as follows:

       1. Whether trial court erred in concluding that all of Appellant’s claims
          sounded in health care liability?

       2. If not, whether the trial court erred in dismissing Appellant’s complaint
          based on his failure to comply with the procedural requirements of the
          THCLA?

                                  III. 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 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) (internal citations
omitted). The resolution of such 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. Ellithorpe v. Weismark, 479
S.W.3d 818, 823-24 (Tenn. 2015) (citing Phillips, 442 S.W.3d at 237).

         Furthermore, we recognize that Mr. Cathey is representing himself on appeal as he
did in the trial court. Parties who decide to represent themselves are entitled to equal
treatment by the court. Murray v. Miracle, 457 S.W.3d 399, 402 (Tenn. Ct. App. 2014).
The court should take into account that many pro se litigants have no legal training and
little familiarity with the judicial system. Id. However, the court must also be mindful of
the boundary between fairness to the pro se litigant and unfairness to the pro se litigant’s
adversary. Id. While the court should give pro se litigants, who are untrained in the law,
a certain amount of leeway in drafting their pleadings and briefs, it must not excuse pro se
                                              -3-
litigants from complying with the same substantive and procedural rules that represented
parties are expected to observe. Lacy v. Mitchell, No. M2016-00677-COA-R3-CV, 2016
WL 6996366, at *2 (Tenn. Ct. App. Nov. 30, 2016), perm. app. denied (Tenn. Feb. 24,
2017) (citing Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003)).

                                             IV. Analysis

                                 A. Health Care Liability Action

        A claim is subject to the THCLA if the facts show that it qualifies as a “health care
liability action” as that term is statutorily defined. Osunde v. Delta Medical Ctr., 505
S.W.3d 875, 884 (Tenn. Ct. App. 2016) (citation omitted). A health care liability action is
defined 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) (emphasis added). This Court has noted that “[g]iven the breadth of the
statute, it should not be surprising if most claims now arising within a medical setting
constitute health care liability actions.” Osunde, 505 S.W.3d at 884-85. However,
“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 n.6.

       From the allegations, the first two elements are not in dispute: this lawsuit is a civil
action, and Appellees are health care providers.1 The issue here is whether the injuries
alleged by Mr. Cathey are “related to the provision, or failure to provide, health care
services to a person.” Tenn. Code Ann. § 29-26-101(a)(1). To determine whether a
defendant “caused an injury related to the provision, or failure to provide, health care
services,” we focus on whether the alleged conduct that caused the injury involved the
provision, or failure to provide, health care services. See C.D. v. Keystone Continuum,
LLC, No. E2016-02528-COA-R3-CV, 2018 WL 503536, at *5 (Tenn. Ct. App. Jan. 22,
2018) (quoting Tenn. Code Ann. § 29-26-101(a)(1)). Tennessee Code Annotated section
29-26-101(b) defines a “health care service” as “care by health care providers [. . .] and
also includes staffing, custodial or basic care, positioning, hydration and similar patient
services.”

        As discussed above, Appellant asserts claims against Ms. Plunk and Mr. Beyer for:
(1) falsifying health care records; (2) fraudulent concealment; (3) spoliation of evidence;
(4) defamation of character; and (5) intentional infliction of emotional distress.

        1
          This is a fact that Mr. Cathey conceded in his complaint where he stated that Mr. Beyer is a
“professional licensed senior psychological examiner” and “licensed professional counselor,” and Ms.
Plunk is a “licensed professional counselor, mental health service provider, and certified clinical trauma
professional.” As such, Appellees are licensed to provide health care services pursuant to chapter 63. See
Tenn. Code Ann. § 29-26-101 (defining “health care provider” as “[a] health care practitioner licensed,
authorized, certified, registered, or regulated under any chapter of title 63 or title 68[.]”).
                                                  -4-
Importantly, all claims arise out of the same set of facts. As stated in Mr. Cathey’s
complaint:

      12. Ms. Plunk and Mr. Beyer both stated that they had provided Mr. Cathey
      with the only records of the minor children they were permitted to, as every
      other record in their possession was allegedly confidential or privileged. []
      13. On May 18, 2018, Ms. Escue, through counsel filed a Motion to Modify
      Custody of the minor children versus Mr. Cathey in the Juvenile Court of
      Madison County. Said Motion’s evidentiary foundation was the minor
      children’s secret meetings and circumstances with Mr. Beyer and Ms. Plunk.
      14. Mr. Cathey soon retained the services of a rebuttal forensic psychology
      expert, Dr. John V. Ciocca, PHD (“Dr. Ciocca”). Dr. Ciocca reviewed Mr.
      Beyer’s typewritten psychological evaluation reports and Ms. Plunk’s notes
      of the minor children. Dr. Ciocca has also interviewed the minor children
      about the series of secret visits at Beyer Psychology Group. During one of
      the sessions with Dr. Ciocca he interviewed the children about alleged
      transcribed questions and answers within Mr. Beyer’s reports, in which the
      minor children stated to him, “Mr. William and Ms. Nancy only wanted us
      to talk about bad things about our dad, but we didn’t tell them all those things
      in the papers.”
      15. Dr. Ciocca stated that the APA guidelines were not followed at Beyer
      Psychology Group and the conduction [sic] of their sessions was in a very
      unorthodox manner. In addition, Dr. Ciocca expressed concerns in how Mr.
      Beyer was able to perform various testing and collect so much data from
      three different people in just a single half of day session.
      16. In October of 2018, Mr. Cathey, though counsel, sent discovery to Ms.
      Escue requesting her to produce all of the relevant evidence she would
      proffer to the court versus Mr. Cathey at her Motion to Modify Custody
      hearing. Ms. Escue produced numerous copies of Mr. Beyer’s and Ms.
      Plunk’s documents, statements, notes, reports, evaluations, and records of
      the minor children. In addition, Ms. Escue stated Mr. Beyer and Ms. Plunk
      would testify as her expert witnesses to their records.
      17. While examining Ms. Escue’s copy of Ms. Plunk’s records, Mr. Cathey
      discovered that Ms. Plunk had provided Ms. Escue with a substantially
      altered version of her handwritten records. [] The minor children’s health
      records should have been identical to the ones Ms. Plunk gave to Mr. Cathey
      in April, they are not.
      18. Mr. Cathey, through counsel, immediately issued subpoenas to Mr. Beyer
      and Ms. Plunk. Mr. Cathey requested, once again, the defendants to produce
      all of his minor children’s entire health records, documents, and also any
      email communications with Ms. Escue.
      19. In November of 2018, Mr. Cathey and his counsel received Mr. Beyer
      and Ms. Plunk’s answers to the subpoenas. Said answers included printouts
                                            -5-
       of an exchange of email communications between Mr. Beyer and Ms. Plunk
       to and from Ms. Escue. [] In addition, before any litigation began, Ms. Plunk
       was also communicating with Ms. Escue’s attorney seeking advice on “doing
       everything appropriately.” [] Finally, the email communications clearly show
       Mr. Beyer falsified and concealed from Mr. Cathey many versions of the
       minor children’s typewritten psychological evaluation reports. []
       20. In addition, it is evident that Mr. Beyer affirmatively prompted Ms. Escue
       to suggest her own alterations to the minor children’s psychological
       evaluation reports before he released them to her attorney. “Here are the
       edited reports, Let me know if you want me to forward a copy to Lanis.” “I
       think these are all of the corrections needed in terms of content” “I will email
       you the edited copy.”
       21. A review of the typewritten psychological evaluation reports that Mr.
       Beyer provided to Mr. Cathey substantiate that numerous non-transparent
       falsifying of content were carried out and concealed by Mr. Beyer. It is
       important to note that [o]n October 22, 2018, Ms. Escue, in sworn deposition,
       stated that she was not in the room, nor could she hear the interviews
       conducted to the minor children by Mr. Beyer.
       22. In answering the November 7, 2018 subpoena, Ms. Plunk produced non-
       confidential and non-privileged documents of the minor children that either
       existed on, before, or she created after Mr. Cathey’s April 13, 2018 request
       of her records. In addition Ms. Plunk concealed two of the minor children’s
       documents in her answer to the subpoena. []
       23. The malicious and intentional actions of the Beyer Psychology Group
       and its members/group including but not limited to Mr. William Beyer and
       Ms. Nancy Plunk caused damages to Mr. Cathey that are actionable under
       Tennessee State Law in which relief can be granted.

        Presuming all factual allegations are true and giving Mr. Cathey the benefit of all
reasonable inferences, as we must do when reviewing the trial court’s grant of a Tennessee
Rule of Civil Procedure 12 motion, all of Mr. Cathey’s claims originate from Appellees’
reportedly fraudulent creation and/or alteration of the children’s counseling records.
Specifically, Mr. Cathey alleged that the records showed that Appellees “intentionally
falsified” some if not all of the healthcare records of the minor children, and Appellees
concealed the falsifications “by failing to use transparent healthcare editing techniques.”
In addition, Mr. Cathey alleged that Appellees “inserted false statements” that related to
the “physical, emotional, and mental harm and/or abuse of the minor children by Mr.
Cathey.” Mr. Cathey asserted that Appellees’ actions caused him emotional distress
because the “records would be read and relied upon by the Court and the Guardian ad litem
at the Motion to Modify Custody hearing.”

      In support of his contention that his claims do not sound in health care liability, Mr.
Cathey argues that the injuries resulting from Appellees’ alteration of the children’s records
                                             -6-
arose after the completion of Appellees’ health care services (i.e., during the custody case).
Therefore, he maintains that his claims are not sufficiently related to the underlying
counseling services so as to qualify as a health care liability action. We disagree.

        The “[d]ocumentation of medical diagnostic and treatment services is an essential
part of modern health care.” 87 Am. Jur. 3d Proof of Facts § 2. Documents or notes
created during the course of counseling services may include, but are not limited to,
demographic or administrative information, client’s statements, professional observations,
progress notes, assessments, evaluations, and treatment plans. See id. The resulting
contents of these records are generated as a direct consequence of the counseling services
and constitute an important aspect of a patient’s care. While documentation may occur
outside the presence of a patient, we note that a “health care service” as defined in
Tennessee Code Annotated section 29-26-101(b) is not limited to conduct that occurs in
the presence of a specific person, i.e. a patient, or in a specific location, i.e. a health care
facility. See Tenn. Code Ann. § 29-26-101(b). For example, in Ellithorpe v. Weismark,
parents alleged they suffered emotional distress after a licensed, clinical social worker
provided counseling to their child without their consent, involvement, or knowledge. 479
S.W.3d 818, 820-22 (Tenn. 2015). The Tennessee Supreme Court held that the parents’
negligence claims fell under the THCLA, reasoning that the complaint alleged an injury
related to the provision of health care services. Id. at 828.

        As illustrated in Ellithorpe, an injury from a health care provider must only be
“related to the provision of, or failure to provide health care services to a person” in order
to qualify as a health care liability action under the THCLA. Tenn. Code Ann. § 29-26-
101(a)(1) (emphasis added). “[W]hile the precise location of the analytical lines that
separates THCLA claims from non-THCLA claims is sometimes unclear, our task is only
to determine on which side of the line [Appellant’s] claims fall.” Lacy v. Vanderbilt Univ.
Med, Ctr., No. M2016-02014-COA-R3-CV, 2017 WL 6273316, at *7 (Tenn. Ct. App. May
4, 2017). Claims, such as Appellant’s, disputing the validity of medical records would
require a determination as to whether the disputed records are an accurate representation
of the health care services received by the children. As such, the documentation of health
care services in this instant case clearly relates to the provision of health care services.
Because Mr. Cathey’s claims relate to and arise out of the provision of, or failure to
provide, health care services to his children, Mr. Cathey’s claims constitute a health care
liability action.

                                B. Procedural Implications

        When a claim is determined to fall within the scope of the THCLA, the
consequences are significant. Osunde, 505 S.W.3d at 885. A health care liability action
is subject to a sixty-day pre-suit notice requirement pursuant to Tennessee Code Annotated
section 29-26-121. Failure to file pre-suit notice may result in dismissal without prejudice.
See Foster v. Chiles, 467 S.W.3d 911, 916 (Tenn. 2015). Although the pre-suit notice
                                              -7-
requirements of Tennessee Code Annotated section 29-26-121 apply to all THCLA
actions, the good faith certification requirements of section 29-26-122 apply “only to health
care liability claims requiring expert testimony.” Estate of Bradley v. Hamilton Cnty., No.
E2014-02215-COA-R3-CV, 2015 WL 9946266, at *5 (Tenn. Ct. App. Aug. 21, 2015)
(emphasis in original). Generally, in health care liability actions, “expert proof is required
to establish the recognized standard of acceptable professional practice in the
profession[.]” Ellithorpe, 479 S.W.3d at 829. However, “[t]he need for expert proof will
not lie if the matter is within the common knowledge of a layperson.” Osunde, 505 S.W.3d
at 887; see Tenn. Code Ann. § 29-26-122(a) (2012) (“In any health care liability action in
which expert testimony is required by § 29-26-115, the plaintiff or plaintiff’s counsel shall
file a certificate of good faith with the complaint.”). When expert testimony is determined
to be required pursuant to Tennessee Code Annotated section 29-26-115, then a plaintiff’s
failure to file a certificate of good faith results in dismissal with prejudice, absent a
showing that the failure was not the fault of the claimant or demonstrated “extraordinary
cause.” Tenn. Code Ann. § 29-26-122(a), (c) (emphasis added).

        It is undisputed that Appellant did not send pre-suit notice to Appellees, nor did
Appellant attach a certificate of good faith to his complaint. However, Appellant contends
that all of his claims are subject to the “common knowledge exception”; as such, he
contends that he is not required to file a certificate of good faith with his complaint. In his
complaint, Mr. Cathey alleged that Ms. Plunk (1) “intentionally falsified some if not all
records of the minor children”; (2) “intentionally concealed her falsifications by
intentionally failing to use transparent healthcare editing techniques”; (3) failed to produce
authentic copies of her records pursuant to Rule 45.02 of the Tennessee Rules of Civil
Procedure; (4) “intentionally fabricated and inserted malicious, false, and defamatory
statements about Mr. Cathey into the minor children’s records knowing other people would
review her records”; and (5) “falsified her records on the minor children” so that “Mr.
Cathey experienced emotional distress her records would be read and relied upon by the
Court.” Similarly, Appellant alleged that Mr. Beyer: (1) “falsified some if not all health
care records of the minor children”; (2) “concealed the fact that he intentionally falsified
some, if not all, of the minor children’s psychological evaluation reports by not using
transparent editing techniques such as the proper strikethrough method”; (3)“intentionally,
recklessly, and knowingly concealed, falsified, fabricated, and deleted evidence to be
relevant during a legal proceeding”; (4) “intentionally fabricated and inserted malicious,
false, and defamatory statements about Mr. Cathey into the minor children’s records”; and
(5) “constructed falsified typewritten psychological evaluation reports on the minor
children.”

       From the allegations in his complaint, it is clear that each of Appellant’s claims rests
on the contents of his children’s counseling records—specifically, the manner in which the
records were created, altered, maintained, and/or distributed.2 In other words, all of Mr.

       2
           While dismissal must be considered on a claim-by-claim basis, see Lacy v. Mitchell, No.M2016-
                                                  -8-
Cathey’s claims ostensibly allege that Appellees deviated from the applicable standard of
care in maintaining their respective counseling records. Because the creation and
maintenance of counseling records is not within the scope of a layman’s knowledge, expert
proof would be required to establish that Appellant’s injuries resulted from Appellees’
failure to adhere to the applicable standard of acceptable professional practice vis-à-vis the
children’s records. Indeed, the need for expert testimony is acknowledged in Appellant’s
complaint wherein he states that he retained forensic psychologist, Dr. John V. Ciocca,
Ph.D., to establish that “the APA guidelines were not followed at Beyer Psychology
Group[,] . . . [and] the conduction [sic] of their sessions was in a very unorthodox manner.”
Because expert proof was required to establish that Appellees failed to follow the APA
guidelines in their treatment, Appellant was required to file a certificate of good faith in
compliance with Tennessee Code Annotated section 29-26-122. It is undisputed that he
did not do so. Accordingly, the trial court did not err in dismissing his complaint, in toto,
with prejudice. Tenn. Code Ann. § 29-26-122.

                                            V. Conclusion

      For the foregoing reasons, we affirm the trial court’s order dismissing Appellant’s
complaint with prejudice. The case is remanded for such further proceedings as may be
necessary and are consistent with this opinion. Costs of the appeal are assessed to the
Appellant, Joshua Cathey, for all of which execution may issue if necessary.




                                                         _________________________________
                                                         KENNY ARMSTRONG, JUDGE




00677-COA-R3-CV, 2016 WL 6996366, at *4 (Tenn. Ct. App. Nov. 30, 2016), appeal denied (Feb. 24,
2017), all of Appellant’s asserted claims originate from the same alleged conduct, i.e. the altering of the
children’s health care records.
                                                   -9-
