                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               September 18, 2012 Session

    JESSICA ABEYTA v. HCA HEALTH SERVICES OF TN, INC. d/b/a
                   PARTHENON PAVILLION

              Direct Appeal from the Circuit Court for Davidson County
                   No. 09C3286     Hamilton V. Gayden, Jr., Judge


                No. M2011-02254-COA-R3-CV - Filed October 24, 2012


This is an involuntary commitment case, in which we are asked to review the trial court’s
grant of Appellee/Hospital’s motion to dismiss. The trial court found that all of the claims
asserted in Appellant/Patient’s complaint sounded in medical malpractice. Because
Appellant failed to provide a certificate of good faith as required under the Tennessee
Medical Malpractice Act, Tennessee Code Annotated Section 29-26-115, et seq. (“TMMA”),
the trial court granted Appellee’s motion to dismiss. Appellant argues that not all of her
stated claims sound in medical malpractice. We affirm the dismissal of Appellant’s claim
asserting a violation of the Americans with Disabilities Act. However, we conclude that
Appellant has stated a claim for medical battery, as well as a claim for negligence per se
arising from alleged violations of the involuntary commitment statutes. Moreover, because
Appellant’s negligence per se claims survive the motion to dismiss, she may also maintain
the false imprisonment and invasion of privacy claims. Affirmed in part, reversed in part,
and remanded.


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

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.

Jessica Abeyta, Nashville, Tennessee, Pro Se.

Dixie W. Cooper, James C. Sperring, and Brian D. Cummings, Nashville, Tennessee, for the
appellee, Parthenon Pavilion of Centennial Medical Center.

                                         OPINION
        On September 18, 2009, Appellant Jessica Abeyta filed a complaint against Appellee
Parthenon Pavilion of Centennial Medical Center (“Parthenon”) in the Circuit Court at
Davidson County.1 The September 18, 2009 complaint also listed Dr. Cynthia Janes as a
party-defendant; however, Dr. Janes was dismissed from the case by order of October 26,
2010.2 On February 19, 2010, Parthenon filed a motion to dismiss on grounds that: (1) the
Appellant’s claims were medical malpractice claims and were, thereby governed by the
TMMA; (2) Appellant failed to provide pre-suit notice to Parthenon Pavilion, as required
under Tennessee Code Annotated Section 29-26-121; and (3) Appellant failed to file a
certificate of good faith, as required under Tennessee Code Annotated Section 29-26-122.

       On March 10, 2010, the trial court entered an order: (1) finding that Appellant’s
claims constituted medical malpractice claims; (2) excusing the Appellant’s failure to comply
with Tennessee Code Annotated Section 29-16-121 (i.e., the notice requirement); and (3)
allowing the Appellant an extension of time, until April 5, 2010, to file a certificate of good
faith. Ms. Abeyta did not file a certificate of good faith; rather, on April 4, 2010, she filed
a motion for permission to file an interlocutory appeal of the trial court’s March 10, 2010
order. The motion for interlocutory appeal was denied by order of April 14, 2010.

        On May 14, 2010, the trial court entered an order dismissing the Appellant’s medical
malpractice claims for failure to file a certificate of good faith. However, the court found
that the complaint arguably included claims that fell outside of what would be considered
medical malpractice claims; accordingly, the trial court ordered Ms. Abeyta to file an
amended complaint, setting out her claims with greater specificity. Ms. Abeyta filed her
amended complaint on the same day, i.e., May 14, 2010.

        On November 12, 2010, Ms. Abeyta’s attorney was granted permission to withdraw;
from that point, Ms. Abeyta has proceeded pro se in this case. On May 19, 2011, Parthenon
filed a motion to dismiss the amended complaint, arguing that all claims therein sounded in
medical malpractice and that the complaint should be dismissed because of Ms. Abeyta’s


        1
           We note that the case was originally filed on June 11, 2008 in the United States District Court for
the Middle District of Tennessee. On September 18, 2008, the District Court entered an order, finding that
a frivolity hearing was necessary. Before that hearing could take place, on November 24, 2008, Ms. Abeyta
filed a motion for voluntary dismissal without prejudice. This motion was granted on December 2, 2008 and
the case was subsequently re-filed in the Circuit Court as noted.
        2
          Specifically, Dr. Janes filed a motion to dismiss on September 13, 2010, arguing that Ms. Abeyta
had failed to comply with the TMMA by not filing a certificate of good faith. Ms. Abeyta countered that not
all of her claims sounded in medical malpractice. Upon review, the trial court agreed with Dr. Janes and
entered an order dismissing the case against her. Appellant has not appealed Dr. Janes’ dismissal.

                                                     -2-
alleged failure to provide a certificate of good faith as required under Tennessee Code
Annotated Section 29-26-122. After several delays, the motion to dismiss was heard on July
8, 2011. On September 16, 2011, the trial court entered an order granting Parthenon’s
motion to dismiss the complaint in its entirety with prejudice. In granting the motion, the
court specifically found that: (1) even assuming that the factual allegations asserted in the
complaint are true, each of the causes of action “involve a matter of medical science or art
requiring specialized skills not ordinarily possessed by lay persons;” (2) as such, Ms.
Abeyta’s claims sound in medical malpractice and not in ordinary negligence; (3) Ms. Abeyta
had failed to comply with the requirements of Tennessee Code Annotated Section 29-26-122
of the TMMA by failing to file a certificate of good faith; and (4) Ms. Abeyta had been given
proper notice and had been afforded due process.

       Ms. Abeyta filed a timely notice of appeal. The sole issue presented for review is:

               Whether the trial court erred in granting Parthenon’s motion to
               dismiss on the grounds that all of Ms. Abeyta’s claims sounded
               in legal malpractice and that she had failed to comply with the
               certificate of good faith requirement under the TMMA?

        We first note that, while we are cognizant of the fact that Ms. Abeyta is proceeding
pro se in this appeal, it is well settled that pro se litigants are held to the same procedural and
substantive standards to which lawyers must adhere. As recently explained by this Court:

               Parties who decide to represent themselves are entitled to fair
               and equal treatment by the courts. The courts should take into
               account that many pro se litigants have no legal training and
               little familiarity with the judicial system. However, the courts
               must also be mindful of the boundary between fairness to a pro
               se litigant and unfairness to the pro se litigant's adversary. Thus,
               the courts must not excuse pro se litigants from complying with
               the same substantive and procedural rules that represented
               parties are expected to observe.

Jackson v. Lanphere, No. M2010–01401–COA–R3–CV, 2011 WL 3566978, at *3 (Tenn.
Ct. App. Aug. 12, 2011) (quoting Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct.
App. 2003)).

        This case was adjudicated upon the grant of Parthenon’s motion to dismiss. It is well
settled that a motion to dismiss tests the legal sufficiency of the complaint itself. Cook v.
Spinnakers of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn.1994). The ground for such a

                                                -3-
motion is that the allegations of the complaint, if considered true, are not sufficient to
constitute a cause of action as a matter of law. Id. A motion to dismiss should be granted only
if it appears that the plaintiff cannot establish any facts in support of the claim that would
warrant relief. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.1999). We review a trial court's
award of a motion to dismiss de novo, with no presumption of correctness. Stein v. Davidson
Hotel Co., 945 S.W .2d 714, 716 (Tenn.1997).

        Because a motion to dismiss tests the legal sufficiency of the complaint alone, we
begin with a review of the relevant facts contained in the amended complaint. Therein, Ms.
Abeyta states that this case arose from an incident that occurred on June 11, 2007, while she
was at her mother’s home. Ms. Abeyta’s complaint states that, on that day, there was a gas
leak at the home. As a result of the gas leak, Ms. Abeyta avers that she suffered an asthma
attack. Her mother, who was allegedly very confused, called the Davidson County Mobile
Crisis Response Team, which arrived at the home shortly thereafter. When the crisis team
arrived, Ms. Abeyta states that she was unable to communicate due to her asthma and the
confusing circumstances. She was allegedly placed into a police car by the crisis team, where
she was prohibited from calling anyone for help. She was then taken to Parthenon. We note
that the crisis team and its members are not listed as party-defendants in this case. Rather,
we are concerned only with the allegations made against Parthenon, or its staff, in this case.3
Those factual allegations are set out in the amended complaint as follows:

                13. After inquiry from employees of [Parthenon], Plaintiff
                explained that she suffers from seizures and also explained her
                other health conditions. She also explained that she felt weak.
                Her explanations and health history were recorded simply that
                the patient had reported a history of seizures.

                *                                     *                                  *

                15. The emergency room doctor was able to see that Plaintiff’s
                body was in distress. He performed some baseline tests, thus
                only being able to see that moment in time and with the
                influence of surrounding doubts. This doctor noted any
                abnormalities.

                16. Emergency room doctor and intake wrote in the medical
                chart that the Plaintiff suffers from delusions about her medical


        3
          In the first cause of action set out in the amended complaint, Ms. Abeyta asserts that Parthenon is
vicariously liable for the acts and omissions of its employees.

                                                    -4-
conditions. This resulted from the unproven comments that
were communicated by the strangers who were on the mobile
crisis team. . . .

17. Plaintiff was not able to contact anyone for help as
Parthenon Pavilion and its staff closed her within its
confinements.

18. At Parthenon Pavilion, Plaintiff was forced to wait without
food or water. She was also prohibited from contacting any
support and aid for some time.

19. Under these circumstances, Plaintiff bore a considerable
burden to assert the truth of her health conditions. She tried to
explain this to members of Parthenon Pavilion. Plaintiff was
concerned about the system and procedures of rushing people
through. She was also cognizant of the fact that no one would
take the time to believe her.

*                                *                            *

21. While waiting at Parthenon Pavilion, there were never any
actions taken by Parthenon Pavilion, or its staff, to confirm the
reality of her health condition under such straining influences.
Also, Plaintiff was never provided the opportunity to prove that
she did in fact suffer from the effects of her asthma.

*                                *                            *

23. While at Parthenon Pavilion, Plaintiff was asked a series of
questions through different admitting persons at a fast rate.
Some of these questions concerned whether Plaintiff wanted to
hurt herself or anyone else, or, if she heard voices.

24. Plaintiff tried answering the questions truthfully and was
not violent or acting as a threat to herself or others. Plaintiff
spoke in hopes that her communications would help someone
realize the invasions to her privacy and personal space.

25. Plaintiff was then forced to go into a padded room. Her

                               -5-
clothes were taken off of her against her will so she could be
screened. This was done near a group of individuals where a
male individual could see her being undressed.

26. Plaintiff had previously requested the opportunity to rest
and explained that she was feeling dizzy, yet she was prohibited
the opportunity to rest. Because she was repeatedly being seen
and questioned by employees of Parthenon Pavilion, she could
not take deep breaths or rest.


*                                    *                      *

29. On the evening of June 11, 2007, and thus before a probable
cause hearing was conducted, the Plaintiff was prescribed
Haldol, Depakote and Abilify.

30. Plaintiff was forcibly restrained and was administered the
above-referenced, including the psychotropic drug, despite
stating to the staff of Parthenon Pavilion that she was ready and
willing to go to sleep in peace.

31. All of these drugs have warnings of dangerous risks for
those with certain medical conditions. Haldol, in particular, is
a strong anti-psychotic drug, which causes adverse reactions to
anyone who suffers from seizure disorders.

32. This drug was contraindicated to her prior health issues.
The drug sped up her heart rhythms to a degree of pain.

*                                    *                          *

38. Plaintiff’s medical record shows the initiation of drugs to be
enforced by the staff of Parthenon Pavilion. . . . The Plaintiff
did not display or state any suicidal or homicidal ideation at any
time prior to, or while being held at Parthenon Pavilion.

*                                        *                          *

44. Plaintiff states that interruptions to her rest and privacy

                               -6-
              occurred almost every hour by individuals entering her room
              without her consent.

              45. Plaintiff was not allowed to take baths by herself.


              *                                      *                         *

              48. The effects of the drugs forcibly administered by the
              Defendants affected Plaintiff’s ability to defend herself during,
              and before, the probable cause hearing.

              49.    Plaintiff was detained in Parthenon Pavilion for
              approximately eleven days, which caused her health to
              deteriorate and prohibited her from possessing the liberties
              necessary to adequately fulfill her daily needs.

              50. During her detention, Plaintiff continually complained of
              sleep deprivation due to the constant interruptions by the
              Parthenon Pavilion staff. Her requests for peace and rest were
              at times recorded as attention seeking and were speculated to be
              part of a mental illness.

       The only issue presented in this appeal is whether the trial court correctly found that
Ms. Abeyta’s claims are medical malpractice claims, which are subject to the provisions of
Tennessee Code Annotated Section 29-26-122. Ms. Abeyta does not dispute the fact that she
did not file a certificate of good faith; consequently, if the claims asserted in the amended
complaint do, in fact, sound only in medical malpractice, then the trial court correctly
dismissed the case. However, Ms. Abeyta argues that the amended complaint contains
claims that do not sound in medical malpractice. Specifically, she contends that the amended
complaint supports claims of: (1) negligence per se; (2) medical battery; (3) invasion of
privacy; (4) false imprisonment; and (5) violation of the Americans with Disabilities Act, 42
U.S.C.A. §12101 et seq. (“ADA”). We will address each of these causes of action to
determine whether Ms. Abeyta has stated any valid claim, sounding outside the bounds of
medical malpractice, so as to survive the motion to dismiss.

                             Medical Malpractice: Generally

       The trial court dismissed all of Ms. Abeyta’s claims for failure to file a certificate of
good faith, which is required in all medical malpractice actions. Tennessee Code Annotated

                                              -7-
Section 29-26-122 provides that: “[i]f the certificate of good faith is not filed with the
complaint, the complaint shall be dismissed . . . absent a showing that the failure was due to
the failure of the provider to timely provide copies of the claimant's records requested ... or
demonstrated extraordinary cause.” In the very recent case of Myers v. AMISUB (SFH),
Inc., --- S.W.3d ----, No. W2010-00837-SC-R11-CV, 2012 WL 4712152 (Tenn. Oct. 4,
2012), our Supreme Court held that the certificate of good faith requirement is mandatory,
not directory, and therefore, strict rather than substantial compliance is required. Id. at *6–
*7. In the instant case, there is no dispute that Ms. Abeyta failed to make any filing that
could possibly be construed as a certificate of good faith. Moreover, Ms. Abeyta did not
argue, nor do we find anything in the record that would support a finding that there were
extraordinary circumstances in this case to excuse her failure to comply with the certificate
of good faith requirement. It is well settled that issues not raised at the trial level are
considered waived on appeal. Waters v. Farr, 291 S.W.3d 873, 918 (Tenn. 2009) (stating
that issues not raised in the trial court are waived on appeal); Tenn. R. App. P. 36(a)
("Nothing in this rule shall be construed as requiring relief be granted to a party responsible
for an error who failed to take whatever action was reasonably available to prevent or nullify
the harmful effect of an error."). Accordingly all of Ms. Abeyta’s claims that sound in
medical malpractice were properly dismissed by the trial court. Ms. Abeyta argues, however,
that the trial court erred in classifying her claims as sounding in medical malpractice. Instead,
Ms. Abeyta argues that ordinary negligence principles apply.

       Generally speaking, the elements of common law negligence include “(1) a duty of
care owed by defendant to plaintiff; (2) conduct below the applicable standard of care that
amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate,
or legal, cause.” Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009)
(quoting McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995)).

       Generally stated, a medical malpractice action is an action for damages for personal
injury or death as a result of any medical malpractice by a health care provider, whether
based upon tort or contract law. Peete v. Shelby County Health Care Corp., 938 S.W.2d 693,
696 (Tenn. Ct. App. 1996), perm. app. denied (Tenn. Jan. 6, 1997). Medical malpractice
claims are governed by the TMMA. In order to prevail on a claim of medical malpractice,
a plaintiff must establish the following statutory elements: (1) the recognized standard of
professional care in the specialty and locality in which the defendant practices; (2) that the
defendant failed to act in accordance with the applicable standard of care; and (3) that as
proximate result of the defendant's negligent act or omission, the claimant suffered an injury
which otherwise would not have occurred. Tenn. Code Ann. § 29–26–115(a). In medical
malpractice cases, the negligence of the defendant physician usually must be proved by
expert testimony. Chambliss v. Stohler, 124 S.W.3d 116, 119 (Tenn. Ct. App. 2003). The
rationale behind the expert testimony requirement stems from the complicated and technical

                                               -8-
information presented in TMMA cases, much of which is “beyond the general knowledge
of a lay jury.” Seavers v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86, 92 (Tenn. 1999).
“Unless the negligence is obvious and readily understandable by an average layperson, expert
testimony will be required to demonstrate the applicable standard of care and breach of that
standard.” Barkes v. River Park Hosp., Inc., 328 S.W.3d 829, 892 n. 2 (Tenn. 2010).
Alternatively, no expert testimony is required in order to litigate an ordinary negligence
claim. Estate of French, 333 S.W.3d at 555.

       Because medical malpractice is a category of negligence, the distinction between
medical malpractice and ordinary negligence claims is subtle. There is no rigid analytical line
separating the two causes of action. Estate of French, 333 S.W.3d at 555. The Tennessee
Supreme Court has stated that the distinguishing feature between ordinary negligence and
medical malpractice cases is whether a plaintiff's claim is for injuries resulting from
negligent medical treatment. Id. Agreeing with a New York standard, the Estate of French
Court stated:

                [W]hen a claim alleges negligent conduct which constitutes or
                bears a substantial relationship to the rendition of medical
                treatment by a medical professional, the medical malpractice
                statute is applicable. Conversely, when the conduct alleged is
                not substantially related to the rendition of medical treatment by
                a medical professional, the medical malpractice statute does not
                apply.

Id.4

       However, not all cases involving health or medical care automatically qualify as
medical malpractice claims. Id. at 556. The distinction between ordinary negligence and
malpractice turns on whether the acts or omissions complained of involve a matter of medical
science or art requiring specialized skills not ordinarily possessed by lay persons, or whether
the conduct complained of can instead be assessed on the basis of common everyday
experience of the trier of fact. Id. In other words, in medical malpractice cases, courts look
to whether the decision, act, or omission complained of required the assessment of a patient's
medical condition and whether the decision, act, or omission required a decision based upon


        4
          In Estate of French, the court found that a claim that the plan of treatment for the decedent fell
short of the defendant's duty of care to its patient, thereby causing her injuries, was subject to the
requirements of the TMMA. Id. at 559. In contrast, allegations that the defendant's employees failed to
comply with the care plan's instructions due to a lack of training, understaffing or other causes, constituted
claims of ordinary common law negligence. Estate of French, 333 S.W.3d at 556.

                                                     -9-
medical science, specialized training or skill. See Holt ex rel. Waller v. City of Memphis,
No. W2000–00913–COA–R3–CV, 2001 WL 846081, at *6 (Tenn. Ct. App. July 20, 2001).
Where causes of action involve complaints about acts or omissions involving medical science
and expertise, they fall within the scope of the TMMA; where they do not involve such
training and knowledge, they generally sound in ordinary negligence. See generally Peete ,
938 S.W.2d at 693. Pleas or counts contained in a complaint will be given the effect required
by their content, without regard to the name given them by the pleader. State By and
Through Canale ex rel. Hall v. Minimum Salary Dept. of African Methodist Episcopal
Church, Inc., 477 S.W.2d 11 (Tenn. 1972). The characterization of the claim impacts the
means and procedures by which it must be litigated. Estate of French v. Stratford House,
333 S.W.3d 546, 555 (Tenn. 2011). Therefore, it is important that this Court correctly
categorize the nature of the Appellant's complaint so that the proper evidentiary requirements
will be applied in the case. We now turn to the amended complaint to examine the causes of
action asserted therein in light of the foregoing principles.

                                         ADA Claim

        We begin with Ms. Abeyta’s claim for violation of the ADA. In her amended
complaint, Ms. Abeyta asserts that Parthenon discriminated against her and, specifically,
violated the ADA by: (1) confining her against her will; (2) creating a medical record that
includes documentation of her psychiatric diagnoses and treatment; (3) removing her clothing
in a seclusion room without determination of clinical necessity; (4) “injecting a drug” without
determination of clinical necessity; (5) rejecting her “request for reasonable accommodations
for rest;” (6) administering psychiatric drugs; (7) placing her in a seclusion room,
“surrounded by staff;” (8) preventing a “friend” from meeting with her; (9) failing to provide
her with sufficient accommodations by placing her in a seclusion room; (10) failing to
provide her equal access to food by restricting meal times; and (11) setting up “barriers. . .to
any adequate means to get away from major sources of stress.” Elsewhere in the complaint,
Ms. Abeyta states that Parthenon is a “place of public accommodation.” The ADA, at 42
U.S.C.A. §12182, provides that:

              No individual shall be discriminated against on the basis of
              disability in the full and equal enjoyment of the goods, services,
              facilities, privileges, advantages, or accommodations of any
              place of public accommodation by any person who owns, leases
              (or leases to), or operates a place of public accommodation.

Id. (emphasis added).

       As discussed in 26 Am. Jur. Trials § 97 (1979), which addresses representation of a

                                              -10-
mentally ill client in a civil commitment proceeding:

                     Undue institutionalization of persons with mental
              disabilities qualifies as "discrimination" by reason of disability
              under public services portion of ADA. Americans with
              Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132. Olmstead
              v. L.C. ex rel. Zimring, 119 S. Ct. 2176 (U.S. 1999). . . .
                     For purpose of ADA and Rehabilitation Act, a program
              may discriminate on the basis of mental illness if it treats
              mentally ill individuals in a particular set of circumstances
              differently than it treats non-mentally ill individuals in the same
              circumstances. Rehabilitation Act of 1973, § 504, as amended,
              29 U.S.C.A. § 794; Americans with Disabilities Act of 1990, §
              202, 42 U.S.C.A. § 12132. Hargrave v. Vermont, 340 F.3d 27,
              14 A.D. Cas. (BNA) 1429 (2d Cir. 2003). . . .

Id.

        As stated in the factual averments in support of this claim, supra, Ms. Abeyta does not
allege discrimination on the part of Parthenon. Specifically, Ms. Abeyta does not claim that
she was denied treatment, or that she was treated differently because of any disability; rather,
she avers that the treatment she received was somehow flawed or unnecessary. The
averments contained in the amended complaint simply do not support the threshold
requirements for a violation of the ADA claim, namely, that she was treated differently than
other non-mentally ill patients, or even that she was treated differently than other mentally
ill patients. Accordingly, the trial court did not err in dismissing this cause of action.

                                   Medical Battery Claim

       In her third cause of action, which she titles “Medical Battery,” Ms. Abeyta states:

              67. Plaintiff was made aware that Defendants, and/or their
              employees or representative, prescribed medications for
              Plaintiff’s medical treatment and intended Plaintiff to consume,
              or otherwise ingest these medications.
              68. When Plaintiff was told that Defendants, and/or their
              employees or representatives, wanted to inject Plaintiff with
              medication, or otherwise force Plaintiff to consume medications,
              including psychotropic drugs, Plaintiff refused the treatment.
              69. Despite Plaintiff’s proper refusal to the consumption of

                                              -11-
              these medications, Defendants forcibly injected Plaintiff with
              medication, or otherwise forced Plaintiff to consume these
              medications, including psychotropic drugs.
              70. As a direct and proximate result of the medical battery and
              forced drugging caused by Defendants, Plaintiff has suffered
              damages, including pain and suffering, stress and mental
              anguish, and loss of enjoyment of life.

        The trial court determined that this cause of action sounded in medical malpractice
and was subject to the TMMA. In Tennessee, medical battery is a very narrow area of the
law. A medical battery typically occurs when “(1) a professional performs a procedure that
the patient was unaware the doctor was going to perform; or (2) the procedure was performed
in a part of the body other than that part explained to the patient (i.e., amputation of the
wrong leg).” Ashe v. Radiation Oncology Assoc., 9 S.W.3d 119, 121 (Tenn. 1999). This
Court has set forth a “simple inquiry” to determine whether a case constitutes a medical
battery:

              (1) was the patient aware that the doctor was going to perform
              the procedure (i.e., did the patient know that the dentist was
              going to perform a root canal on a specified tooth or that the
              doctor was going to perform surgery on the specified knee?);
              and, if so (2) did the patient authorize performance of the
              procedure? A plaintiff's cause of action may be classified as a
              medical battery only when answers to either of the above
              questions are in the negative.”

 Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn. 1998). Taking the above allegations as
true, Ms. Abeyta’s complaint alleges that she (1) was aware that Parthenon, and/or its staff,
were going to inject her with medications; and (2) did not authorize that treatment. The facts
alleged by Ms. Abeyta with regard to her medical battery case are similar to the recent case
of Hinkle v. Kindred Hospital, No. M2010-02499-COA-R3-CV, 2012 WL 3799215 (Tenn.
Ct. App. Aug. 31, 2012). In Hinkle, this Court denied summary judgment to the defendant
hospital on a medical battery claim when the plaintiff alleged that the staff of the hospital
administered treatment despite the patient’s refusal to submit to the treatment. Id. at *17.
Likewise in this case, Ms. Abeyta asserts that staff at Parthenon administered medications
to her despite her refusal to consent. Therefore, Ms. Abeyta has made out a claim for medical
battery. A claim for medical battery is not a medical malpractice claim governed by the
TMMA. As discussed in Hinkle:

              In the recent of case Barnett v. Elite Sports Medicine, M2010-

                                             -12-
               00619-COA-R3-CV, 2010 WL 5289669 (Tenn. Ct. App. Dec.
               17, 2010) (no Tenn. R. App. P. 11 app. filed), this court was
               faced with the question whether the filing of a certificate of
               good faith applies to a claim for medical battery. We noted that
               Tenn. Code Ann. § 29-26-122(a) states that the certificate is
               required “[i]n any medical malpractice action in which expert
               testimony is required by § 29-26-115.” Since expert testimony
               is not required to sustain a claim for medical battery, we
               concluded that the certificate need not be filed to support such
               claims. Barnett v. Elite Sports Medicine, 2010 WL 5289669 at
               *5.

Hinkle, 2012 WL 3799215, at n.11. Consequently, the trial court erred in dismissing Ms.
Abeyta’s claim for medical battery for failure to comply with the TMMA.

                                      Negligence Per Se

       In her second cause of action, Ms. Abeyta claims that Parthenon, or its employees,
committed negligence per se in violating the statutory guidelines for emergency involuntary
admission to inpatient treatment, Tennessee Code Annotated Section 33-6-401 et seq. This
Court has explained the doctrine of negligence per se as follows:

               The standard of conduct expected of a reasonable person may be
               prescribed in a statute and, consequently, a violation of the
               statute may be deemed to be negligence per se. When a statute
               provides that under certain circumstances particular acts shall or
               shall not be done, it may be interpreted as fixing a standard of
               care ... from which it is negligence to deviate. In order to
               establish negligence per se, it must be shown that the statute
               violated was designed to impose a duty or prohibit an act for the
               benefit of a person or the public. It must also be established that
               the injured party was within the class of persons that the statute
               was meant to protect.

Cook ex rel. Uithoven v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934, 937 (Tenn. 1994)
(citations omitted). A claim of negligence per se requires a plaintiff to prove that the
defendant: (1) violated a statute, ordinance, or regulation that requires or prohibits a
particular act for the benefit of the plaintiff or the general public; (2) that the injured person
was within the class of individuals the legislature intended to benefit and protect by enacting
the statute, ordinance, or regulation; and (3) that the defendant's negligence was the

                                               -13-
proximate cause of the injured party's injury. Smith v. Owen, 841 S.W.2d 828, 831 (Tenn.
Ct. App.1992); Holt ex rel. Waller, 2001 WL 846081 at *5. The negligence per se doctrine
applies not only to violations of statutes, but also to violations of regulations and ordinances
so long as the statute/regulation/ordinance was designed to impose a duty or prohibit an act
for the benefit of a person or the public and the injured party was within the class of
individuals the statute was meant to protect. Estate of French, 333 S.W.3d at 560–61.

        Accordingly, while both medical malpractice and negligence per se require proof of
a standard of care applicable to the defendant, like ordinary negligence and medical
malpractice (discussed above), they differ as to how that standard is to be established. It is
that difference that is the basis for the Tennessee Supreme Court's holding in Estate of
French that a medical malpractice claim cannot be based on negligence per se. The Estate
of French Court explained that declaring conduct negligent per se means that the conduct
is negligent as a matter of law, thus relieving plaintiffs from having to prove the standard of
care from which the defendant allegedly deviated. Id. at 561. The Court reasoned that relying
on federal and state regulations to prove a standard of care where medical malpractice is
alleged would be inconsistent with the TMMA's requirement that the plaintiff prove the
defendant violated “[t]he recognized standard of acceptable professional practice in the
profession . . . that the defendant practices in the community in which the defendant practices
or in a similar community at the time the alleged injury or wrongful action occurred.” Id.;
Tenn. Code Ann. § 29-26-115(a)(1).

              In order to prove a violation of the TMMA, a plaintiff must
              show that his or her injuries resulted because the defendant
              failed to act with ordinary and reasonable care when compared
              to the customs or practices of physicians from a particular
              geographic region. In consequence, the locality rule, which the
              legislature intended to apply to private causes of action for
              medical malpractice, precludes plaintiffs from proceeding on a
              negligence per se theory based upon alleged violations of
              nursing home regulations.

Estate of French, 333 S.W.3d at 562 (quoting Sutphin v. Platt, 720 S.W.2d 455, 457
(Tenn.1986); Conley v. Life Care Ctrs. of Am., 236 S.W.3d 713, 734 (Tenn. Ct. App. 2007)).
Consequently, the Estate of French Court held that a plaintiff cannot use a violation of
federal or state regulations to prove a deviation from the standard of care as a component of
a medical malpractice claim. Estate of French, 333. S. W.3d at 561. However, according to
Estate of French, a violation of a federal or state regulation may be the basis for a
negligence per se claim, which is not governed by the TMMA.



                                              -14-
        One of the initial questions in a negligence per se claim is whether the statute or
regulation at issue actually prescribes the standard of conduct. In King v. Danek Medical,
Inc., 37 S.W.3d 429 (Tenn. Ct. App. 2000), which involved allegations of negligence per se
against the manufacturer of pedicle screw devices based on its conduct in marketing the
device for a use that had not been approved by the FDA in violation of FDA regulatory
restraints., Id. at 455–56, this Court discussed the type of statute or regulation that can form
the basis for a claim of negligence per se:

               When alleging a statute or regulation based negligence per se
               claim, it is not sufficient for a plaintiff to assume . . . that the
               alleged violation of a statute automatically supports a claim of
               negligence per se. Even if the plaintiffs are within the class to be
               protected by the statute, . . . a statutory negligence per se claim
               cannot stand unless the statute establishes a standard of care.

Id. at 460. The King Court quoted a federal decision discussing when a regulation is not a
standard of care, but merely an administrative requirement:

               When a statutory provision does not define a standard of care
               but merely imposes an administrative requirement, such as the
               requirement to obtain a license or to file a report to support a
               regulatory scheme, violation of such requirement will not
               support a negligence per se claim. Even if the regulatory scheme
               as a whole is designed to protect the public or to promote safety,
               the licensing duty itself is not a standard of care, but an
               administrative requirement.

Id. In King, the Court held that the requirement that a device be “approved by the FDA
before being marketed—as opposed to a specific substantive requirement that a device be
safe and effective—is only a tool to facilitate administration of the underlying regulatory
scheme.” Id. at 457 (quoting Talley v. Danek Medical, Inc., 179 F.3d 154, 161 (4th Cir.
1999)). Concluding that the regulatory requirement “lacks any independent substantive
content,” the Court held that “it does not impose a standard of care.” Id. The court analogized
the regulatory infraction to the failure to have a driver's license. Id. It observed that
Tennessee cases involving a statutory or regulatory basis for a negligence per se claim “apply
statutes with substantive context, rather than . . . only administrative requirements.” Id. at 458
(citing Cook v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934, 937 (Tenn. 1994)). Because
the King Court found the regulation at issue to be only an administrative requirement, it did
not address the issue of whether the plaintiff was within the protection of the statute or
intended to be benefitted by it. Thus, the dismissal of the plaintiff's negligence claim was

                                              -15-
affirmed. Id.

        In the instant case, Ms. Abeyta asserts her claim for negligence per se on grounds that
Parthenon, or its employees, violated the statutory guidelines for emergency involuntary
admission to inpatient treatment, Tennessee Code Annotated Section 33-6-401 et seq. This
Court has previously addressed the question of whether the involuntary commitment statutes
prescribe only administrative requirements (which would make them exempt from negligence
per se claims), or whether the statutes define the standard of care (so as to be subject to
negligence per se claims). In Vickroy v. Pathways, Inc., No. W2003-02620-COA-R3-CV,
2004 WL 3048972 (Tenn. Ct. App. Dec. 30, 2004), Pamela Vickroy, who had been
diagnosed with bipolar disorder, sued Dr. James Forest-Lam for involuntarily committing her
to a mental institution without personally examining her. The trial court granted the physician
summary judgment, finding that Ms. Vickroy had failed to offer adequate expert proof as
required under the TMMA, Tennessee Code Annotated Section 29-26-115. Like the case at
bar, in Vickroy, the involuntary commitment statutes were at issue, specifically Tennessee
Code Annotated Section 33-6-404, which states:

                IF
                (1)(A) a licensed physician, psychologist, or designated
                professional takes a person into custody under Section 33-6-402;
                OR
                (B) a person is brought to such a physician, psychologist, or
                designated professional for examination under this section,
                THEN
                (2) the physician, psychologist, or designated professional shall
                immediately examine the person and decide whether the person
                is subject to admission to a hospital or treatment resource under
                Section 33-6-403, AND
                (3)(A) IF
                (i) the person is not subject to admission, THEN
                (ii) the physician, psychologist, or designated professional shall
                release the person, AND
                (B) IF (I) the person is subject to admission, THEN (ii) the
                physician, psychologist, or designated professional shall
                complete a certificate of need for such emergency diagnosis,
                evaluation, and treatment showing the factual foundation for the
                conclusions on each item of Section 33-6-403, AND (iii) the
                physician, psychologist, or designated professional shall assess
                the person's clinical needs and need for physical restraint or
                vehicle security and determine the mode of transportation to the

                                               -16-
                hospital in consultation with the mandatory pre-screening agent,
                other mental health professional familiar with the person, or a
                knowledgeable family member.

 The Vickroy Court held that this statute requires a medical professional, who involuntarily
commits a patient to a mental institution, to have first personally examined the patient before
signing the certificate of need. Id. at *8. In Vickroy, the defendant physician signed the
certificate of need to commit the plaintiff, relying on a physical examination performed
earlier by another physician who had since gone off duty. Id. at * 1–2. The plaintiff's claims
included a claim of negligence per se based on the physician's failure to personally examine
her before signing the certificate. The court rejected the plaintiff's claim of medical
malpractice on the basis that the plaintiff had not produced expert testimony on the issue of
causation. Id. at *8. The Vickroy court found, however, that, apart from medical malpractice,
the statute established the standard of conduct for a claim of negligence per se based on a
violation of Tennessee Code Annotated Section 33-6-404.5 The defendant in Vickroy did
not expressly argue that the statute was merely an “administrative” requirement; rather, he
argued that it did not create a duty on his part to personally examine the plaintiff, only to
make certain that a medical professional had examined her before he signed the certificate
of need for her commitment. Id. at *6. This argument was rejected. The Vickroy Court
looked at other statutes on commitment, as well as the statute at issue, and concluded that the
“legislative expectation was that the involuntary commitment of a patient must be done by
a professional who has examined the patient, and not based on the statements and
observations of others.” Id. Thus, the Court found that the legislature had, by enacting the
statute, established this as a standard of conduct for a medical professional in involuntary
commitments:

                        In her complaint, Vickroy recounts the events of February
                4, 2001. She asserts that Dr. Forest-Lam falsely certified in the
                certificate of need that he had personally examined Vickroy, and
                that he made no personal judgment about her condition before
                causing her to be involuntarily transported to Western without
                proper cause. She alleges that Dr. Forest-Lam's actions "were
                negligent and caused serious emotional distress and unlawful


        5
           In Vickroy, some of the plaintiff's claims were deemed not to be medical malpractice because the
certificate of need to commit a patient could be signed by a "designated professional" who was not a
physician, and the plaintiff claimed damages not arising out of the defendant physician's medical judgment.
Vickroy, 2004 WL 3048972, at *10-11. In dicta, however, the Vickroy court observed that it was unlikely
that the standard of care would permit a physician to commit a patient without a personal examination, in
light of the statute. Id. at *8 n.10.

                                                   -17-
              restraint on the liberty of" Vickroy. Vickroy sought
              compensatory and punitive damages for her “physical and
              emotional distress” and the deprivation of her liberty.

                    To the extent that Vickroy's claim is based on a theory of
              medical malpractice, it must fail based on the inadequacy of Dr.
              Menkes' affidavit. . . .

              *                                     *                         *

                      However, Vickory's cause of action against Dr.
              Forest-Lam is not limited to claims arising out of alleged
              medical malpractice. As stated above, in the September 30, 2003
              hearing on the motions for summary judgment, Vickroy argued
              that Section 33-6-404 establishes the standard of care and no
              expert proof is needed to prove that Dr. Forest-Lam did not meet
              this standard. We agree with the general reasoning of this
              statement but clarify that the statute establishes a standard of
              conduct for any person qualified to sign a certificate of need for
              involuntary commitment. “The standard of conduct expected of
              a reasonable person may be prescribed in a statute and,
              consequently, a violation of the statute may be deemed to be
              negligence per se.” Cook ex rel. Uithoven v. Spinnaker's of
              Rivergate, Inc., 878 S.W.2d 934, 937 (Tenn. 1994) In a
              negligence per se action, the plaintiff must show that the “statute
              violated was designed to impose a duty or prohibit an act for the
              benefit of the public. (citations omitted) It must also be
              established that the injured party was within the class of persons
              that the statute was meant to protect.” Id. at 937. Vickroy argues
              that her damages arise from Dr. Forest-Lam's violation of the
              commitment statute. Thus, in essence, Vickroy states a claim of
              negligence per se.

Vickroy, 2004 WL 3048972 at *8.

        Although the averments made by Ms. Abeyta in support of her negligence per se claim
are not exactly the same as those made by the plaintiff in Vickroy, we nonetheless conclude
that the Vickroy holding that the involuntary commitment statute establishes the applicable
standard or care, without the need of medical expertise, is controlling in this appeal.



                                             -18-
        In her amended complaint, Ms. Abeyta claims, in relevant part, that, when she arrived
at Parthenon: (1) the examining physician did not record her explanations and health history,
but simply recorded “that the patient had reported a history of seizures[;]” (2) the emergency
room doctor performed only “baseline tests, thus only being able to see that moment in time
and with the influence of surrounding doubts;” (3) the emergency room doctor based his
opinion that “Plaintiff suffers from delusions about her medical conditions” on “unproven
comments that were communicated by the strangers who were on the mobile crises team,”
and (inferentially) not upon his own examination and expertise; (4) Parthenon employees
forced her to wait without food or water; (7) Parthenon employees shifted the burden to Ms.
Abeyta “to assert the truth of her health conditions,” rather than taking actions “to confirm
the reality of her health condition.” Based, in part, upon these allegations, Ms. Abeyta avers,
at Paragraph fifty-nine of the amended complaint, that Parthenon, and its staff, “owed [Ms.
Abeyta], as well as all individuals, a statutory duty of care as described and set out in the
statutes governing the involuntary admission of patients for treatment.” These allegations
go specifically to the question of whether the treating physician(s) followed the requirements
and standards contained in the involuntary commitment statutes, namely proper examination
of the patient prior to commitment. Although Ms. Abeyta does not aver that she was not
examined by the committing physician, this distinction from the Vickroy case is not
dispositive. The foregoing facts, if taken as true and viewed in a light most favorable to Ms.
Abeyta as the non-moving party, support, at this stage, a claim for negligence per se for
violation of Tennessee Code Annotated Section 33-6-404(2), which requires that “the
physician, psychologist, or designated professional shall immediately examine the person and
decide whether the person is subject to admission to a hospital or treatment resource under
Section 33-6-403.” The averments set out above, if taken as true, indicate that the admitting
staff at Parthenon did not properly examine Ms. Abeyta; rather, she avers that the
examination was not thorough, and was not based on the physician’s own diagnosis, but was
instead based upon statements made by “unproven comments of strangers. . . .”

      In addition, Tennessee Code Annotated Section 33-6-403 describes the circumstances
under which a patient may be involuntarily committed to treatment:

                 IF AND ONLY IF
                 (1) a person has a mental illness or serious emotional
                 disturbance, AND
                 (2) the person poses an immediate substantial likelihood of
                 serious harm, under § 33-6-501,6 because of the mental illness


       6
           Tennessee Code Annotated Section 33-6-501 provides:

                                                                                   (continued...)

                                                 -19-
                 or serious emotional disturbance, AND
                 (3) the person needs care, training, or treatment because of the
                 mental illness or serious emotional disturbance, AND
                 (4) all available less drastic alternatives to placement in a
                 hospital or treatment resource are unsuitable to meet the needs
                 of the person,
                 THEN
                 (5) the person may be admitted and detained by a hospital or
                 treatment resource for emergency diagnosis, evaluation, and
                 treatment under this part.

        At paragraph twenty-four of the amended complaint, Ms. Abeyta states that, when she
was brought to Parthenon, she “was not violent or acting as a threat to herself or others,” and
that she “did not display or state any suicidal or homicidal ideation at any time prior to, or
while being held at Parthenon Pavilion.” Taking these allegations as true, Ms. Abeyta is
ostensibly arguing that at least one of the criteria for involuntary admission, namely that the
person “poses an immediate substantial likelihood of serious harm. . . . ,” was not satisfied
so as to justify her involuntary admission. If we take as true the averment that Ms. Abeyta
was not a threat to herself or other, which we must do at the motion to dismiss stage, then her
condition did not satisfy a mandatory criterion for involuntary commitment.
        Furthermore, Ms. Abeyta avers that:




       6
           (...continued)
                   IF AND ONLY IF

                 (1)(A) a person has threatened or attempted suicide or to inflict serious
                 bodily harm on the person, OR
                 (B) the person has threatened or attempted homicide or other violent
                 behavior, OR
                 (C) the person has placed others in reasonable fear of violent behavior and
                 serious physical harm to them, OR
                 (D) the person is unable to avoid severe impairment or injury from specific
                 risks, AND
                 (2) there is a substantial likelihood that the harm will occur unless the
                 person is placed under involuntary treatment,

                 THEN

                 (3) the person poses a “substantial likelihood of serious harm” for purposes
                 of this title.


                                                    -20-
              60. T.C.A. §33-6-415 provides, in part, that “Pending the
              probable cause hearing under §33-6-422, no treatment shall be
              given that will make the defendant unable to consult with
              counsel or to prepare a defense in proceedings for involuntary
              care and treatment.
              61. Defendants violated §33-6-415 by injecting Plaintiff with
              psychotropic drugs, including Haldol, without Plaintiff’s
              consent, prior to her probabl[e] cause hearing.
              62. The forced treatment of Plaintiff with these drugs affected
              Plaintiff’s mental faculties adversely and prohibited Plaintiff
              from properly preparing a defense in her proceedings, which is
              in violation of the statute.

      Although, as discussed above, the question of whether and what types of medication
were administered would require expert medical testimony, in the negligence per se claim,
we are concerned with the timing of the administration of the medication and not with
whether the medication was medically necessary or counterindicated. This is a subtle, but
important, distinction. As pointed out by Ms. Abeyta, Tennessee Code Annotated Section
33-6-415 provides:

              Pending the probable cause hearing under § 33-6-422, no
              treatment shall be given that will make the defendant unable to
              consult with counsel or to prepare a defense in proceedings for
              involuntary care and treatment. No psychosurgery, convulsive
              treatments, or insulin treatment shall be undertaken for any
              psychiatric disorder until an order has been entered, after the §
              33-6-422 probable cause hearing in accordance with the
              provisions of this part, requiring continued involuntary care and
              treatment of the defendant.

In her amended complaint, Ms. Abeyta states that a probable cause hearing was held “on or
about June 15, 2007;” however, she indicates that psychotropic medications were
administered prior to the probable cause hearing, beginning on June 11, 2007:

              On the evening of June 11, 2007, and thus before a probable
              cause hearing was conducted, the Plaintiff was prescribed
              Haldol, Depakote and Abilify.

Not only does Ms. Abeyta aver that these medications were counterindicated (a question of
medical treatment), but, as is important to the negligence per se claim, she states that the

                                            -21-
medication made her unable to “properly prepar[e] a defense in her proceedings, which is in
violation of the statute.” Taking the allegations in the complaint as true, Ms. Abeyta has
stated a claim for negligence per se based upon the timing of the administration of the drugs
and the stated fact that the medication caused her to be unable to participate in her defense.
Unlike the question of whether the drugs were medically necessary, the questions of timing
and effect of the drugs on her ability to defend herself are not questions outside the
knowledge of the average lay person. Thus, if the drugs were administered prior to the
probable cause hearing (as Ms. Abeyta asserts), and if those medications cause Ms. Abeyta
a disadvantage in objecting to the involuntary commitment and/or in preparing for the
probable cause hearing (which she also asserts), then she has made out a claim for negligence
per se for violation of Section 33-6-415.

       Finally, Ms. Abeyta states:

               63. T.C.A. §33-6-416 provides, in part, that “If the court orders
               the admission of the defendant for diagnosis, evaluation and
               treatment under §33-6-413, the chief officer shall give notice of
               the order to the defendant. . . . The notice shall state specifically
               the basis for the defendant’s detention and the standards for
               possible future commitment. The notice shall also inform the
               defendant of the defendant’s right to counsel during the course
               of proceedings for involuntary care and treatment.”
               64. Defendants violated §33-6-416 by not giving proper notice
               to Plaintiff as required by statute.

         In its order, the court specifically finds that “proper notice was given [to Ms. Abeyta],
as she was afforded due process through a timely emergency court hearing in compliance
with the statute.” There is no indication that the court looked outside the pleadings in this
case so as to convert the motion to dismiss to one for summary judgment. See Tenn. R. Civ.
P. 12.02 (“If. . .matters outside the pleadings are presented to and not excluded by the court,
the motion shall be treated as one for summary judgment and disposed of as provided in Rule
56. . . .”). However, we have been unable to determine the factual basis utilized by the trial
court for its finding that due process was satisfied in this case. Although Ms. Abeyta’s
amended complaint does indicate that a probable cause hearing was held, in paragraphs sixty-
three and sixty-four, supra, she indicates that she received no notice, or that the notice was
insufficient pursuant to the statute. Again, at the motion to dismiss stage, we must take the
averments as true and give inferences in favor of the non-moving party. Doing so here, we
can only conclude, based on Ms. Abeyta’s statements, above, that notice was not given, or,
if it was, that it was flawed.



                                               -22-
      Based upon the foregoing, we conclude that the trial court erred in dismissing Ms.
Abeyta’s negligence per se claims.7

                                          Invasion of Privacy

      Ms. Abeyta’s fourth cause of action is for invasion of privacy. In the amended
complaint, she specifically avers that:

                71. The Defendants, and/or their employees or representatives,
                intentionally intruded upon the Plaintiff’s solitude or seclusion
                or the private affairs or concerns of the Plaintiff.
                72. Specifically, Defendants disrobed Plaintiff against her will
                in the presence of a male individual and continually invaded her
                privacy by entering the area in which she was housed at all
                hours of the night without her consent.
                73. Additionally, the Defendants intentionally intruded upon her
                physically by forcibly requiring her to consume medications
                despite her refusal.
                74. The Defendants’ intrusions and invasions to her privacy would be
                highly offensive to a reasonable person.

        As noted in 26 Am. Jur. Trials §133 (1979):

                A basic right that is lost almost immediately by an individual
                entering an institution is his [or her] right to privacy. Patients are
                often required to live in dormitory-like facilities where there is
                little or no allowance made for personal privacy. Again,
                although there has been surprisingly little litigation as to this


        7
          We note that Ms. Abeyta’s claims for violations of the involuntary commitment statutes were
dismissed on a motion to dismiss in the trial court, and, as such, Parthenon never filed an answer or asserted
any defenses. While we hold that violations of the involuntary commitment statute as alleged by Ms. Abeyta
constitute negligence per se, this holding does not preclude Parthenon from asserting or establishing any
applicable defenses on remand. We note the existence of Tennessee Code Annotated Section 33-9-901(d),
which states that:

                All persons acting in good faith, reasonably and without negligence in
                connection with the preparation of petitions, applications, certificates or
                other documents or the apprehension, detention, discharge, examination,
                transportation or treatment of a person under this title shall be free from all
                liability, civil or criminal, by reason of the acts.

                                                     -23-
              basic right, a few courts have held that mental patients do have
              a right to privacy taking into consideration the needs of their
              treatment program. . . .

Id. (footnote omitted). Some states have passed legislation to ensure a mental patient’s right
to privacy. Id.

       Tennessee Code Annotated Section 33-3-102 provides:

              a) No person with mental illness, serious emotional disturbance,
              or developmental disability hospitalized or admitted, whether
              voluntarily or involuntarily, or ordered to participate in
              nonresidential treatment or service under this title, shall, solely
              by reason of the hospitalization, admission, or order, be denied
              the right to dispose of property, execute instruments, make
              purchases, enter into contractual relationships, give informed
              consent to treatment, and vote, unless;
              (1) The service recipient has been adjudicated incompetent by
              a court of competent jurisdiction and has not been restored to
              legal capacity; or
              (2) The denial is authorized by state or federal statute.
              (b) No person shall make decisions for a service recipient on the
              basis of a claim to be the service recipient's conservator, legal
              guardian, guardian ad litem, caregiver under title 34, chapter 6,
              part 3, or to be acting under a durable power of attorney for
              health care under title 34, chapter 6, part 2, until the person has
              presented written evidence of the person's status.

Id. (Emphasis added). In addition, the Tennessee Constitution, Article I, Section 8 provides:
“That no [person] shall be taken or imprisoned, or disseized of his freehold, liberties or
privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty
or property, but by the judgment of his peers or the law of the land.” To date, Tennessee
courts have not had the opportunity to discuss either Tennessee Code Annotated Section 33-
3-102, or our constitutional guaranties, in the context of alleged invasions of privacy in
involuntary commitment cases. Accordingly, we find guidance in cases decided by our sister
states.

       “The law recognizes the right of an individual to make decisions about her life out of
respect for the dignity and autonomy of the individual, that interest is no less significant
when the individual is mentally . . . ill.” In re Mental Health of K.K.B., 609 P.2d 747, 752

                                             -24-
(Okla. 1980). The right to be free from bodily intrusions is so fundamental that, when there
is a decision about whether to comply with medical treatment, it is the individual who must
make that decision in order to protect his or her right to privacy. Rivers v. Katz, 495 N.E.2d
337, 341 (N.Y. 1986) (citing Erickson v. Dilgard, 44 Misc. 2d 27, 28 (N.Y. Sup. Ct. 1962)).
It is well settled that it is a constitutional invasion to treat medically a competent person
without consent, unless there is an emergency present. See Cruzan v. Director, Mo. Dep't
of Health, 497 U.S. 261, 278 (1990) ("The principle that a competent person has a
constitutionally protected liberty interest in refusing unwanted medical treatment may be
inferred from our prior decisions."). Logically, this principle is true of mental patients as
well. Roederick C. White, Sr., What Right to Privacy? The Risk to the Voluntary Mental
Health Patient as a Result of Louisiana's Current Forcible Medication Statute, 24 S.U. L.
Rev. 1, 8 (1996). And, while in the past the decision of commitment may have been
synonymous with a patient's incompetency, it is almost unanimously accepted now by both
medical and legal professionals that there is no significant relationship between the need for
commitment of a mentally ill patient and the patient's ability to make treatment decisions.
Rivers, 495 N.E.2d at 342 (exploring the relationship between involuntary commitment and
a finding of incompetency); see also Riese v. St. Mary's Hosp. & Med. Ctr., 271 Cal. Rptr.
199, 206 (Ct. App. 1987); In re Conticchio, 696 N.Y.S.2d 769, 773 (N.Y. Sup. Ct. 1999);
see also Washington v. Harper, 494 U.S. 210, 222-23 (1990) (discussing a Tenth Circuit
panel's determination that, under the balance formulated by the Court in Washington, a
finding of incompetency of the mentally ill patient was needed for forced treatment)).

       A legal determination of a patient's competency bears upon the state's ability to invoke
its parens patriae power to medicate patients forcibly. In re Conticchio, 696 N.Y.S.2d at
773 (determining when the state's parens patriae power can be used as a compelling interest
of the state to override the patient's liberty interest). The parens patriae doctrine conflicts
with the patient's liberty interest in refusing treatment by allowing the state to administer
treatment without consent. Mary C. McCarron, The Right to Refuse Antipsychotic Drugs:
Safeguarding the Mentally Incompetent Patient's Right to Procedural Due Process, 73 Marq.
L. Rev. 477, 489–91 (1990) (discussing the origins and limits of the parens patriae power
of the state). The prerequisite to the use of such power by the state, however, is a judicial
determination that a patient lacks the capacity to make treatment decisions. In re Conticchio,
696 N.Y.S.2d at 773. Once the state has obtained a judicial finding of the patient's
incompetency, it can provide treatment over the patient's objections by relying on the state's
parens patriae power to act in its citizens' best interest. See William M. Brooks, Reevaluating
Substantive Due Process as a Source of Protection for Psychiatric Patients to Refuse Drugs,
31 Ind. L. Rev. 937, 1000–01 & n. 435 (1998) (discussing the Supreme Court's consideration
of cases concerning the right to refuse medication in two other contexts: medicating a
prisoner and medicating a criminal defendant to induce competency).



                                             -25-
        The only interest that should override a patient's decision to refuse treatment, when
there has been no judicial finding of incompetency, is the need to medicate an involuntarily
committed mental patient in an emergency situation. Chris R. Hogle, Woodland v. Angus:
The Right to Refuse Antipsychotic Drugs and Safeguards Appropriate for Its Protection,
1994 Utah L. Rev. 1169, 1179–80 (stating that most courts are more inclined to leave
discretion to medical professionals in emergency situations). If the patient presents a danger
to herself or others or engages in destructive behavior in the institution, the state may
administer antipsychotic medication over the patient's objections. Rivers, 495 N.E.2d at 343
(citing Addington v. Texas, 441 U.S. 418, 426 (1979); Davis v. Hubbard, 506 F. Supp. 915,
934-35 (N.D. Ohio 1980); Colorado v. Medina, 705 P.2d 961, 971 (Colo. 1985); Gundy v.
Pauley, 619 S.W.2d 730, 731 (Ky. Ct. App. 1981); and In re Mental Health of K.K.B., 609
P.2d 747, 751 (Okla. 1980)). “In situations where the patient ‘poses an imminent threat of
harm to himself or others,’ and [where] there is no less intrusive alternative [to the forcible
medication of the patient], . . . the State may [legitimately] invoke its police . . . power[]” to
prevent possible harm. In re Guardianship of Linda, 519 N.E.2d 1296, 1299 (Mass. 1988)
(citation omitted).

       It is important to note that, even if the initial commitment of the patient was based on
the exercise of the state's police power in an emergency situation, that commitment decision
does not justify forcible medication of the patient. See Hogle, supra, at 1179. To override a
patient's right to refuse medication, the emergency must be a legitimate one that has arisen
within the institution. Id. Forced medication has been deemed acceptable in such situations
only when the need to eliminate the danger has been found to outweigh the possible harm to
the medicated patient and all other reasonable alternatives have been ruled out. See Rogers
v. Okin, 634 F.2d 650, 656 (1st Cir. 1980).

        Since “forced drugging abridges a patient's fundamental right to bodily autonomy, due
process [should] require[] [that forced medication] be the least restrictive means of satisfying
the state interest in question.” Brooks, supra, at 1008 (citing Riggins v. Nevada, 504 U.S.
127, 135 (1992) (discussing when a state's overriding interests of controlling hospital
emergencies and treating incompetent patients may justify forcing medication)). While an
emergency situation may justify the invocation of the state's police power to medicate an
involuntarily committed mental patient forcibly, this justification would last only as long as
the emergency exists. Rivers, 495 N.E.2d at 343. Without a least-restrictive-means
consideration, the patient's fundamental right to refuse medication may be compromised by
allowing treatment to be administered or continued when no real emergency exists.
McCarron, supra, at 492. In order to protect the patient's right to refuse medication in
situations where the state's police power may override the patient's liberty interest, it is
important that the interest deemed compelling is immediate and the justification for
medication last only as long as the emergency does. Rivers, 495 N.E.2d at 343.

                                              -26-
        Ms. Abeyta asserts that Parthenon, or its employee, invaded her right to privacy in
three ways: (1) forcing her to ingest medication; (2) coming into her room at all hours; and
(3) forcing her to disrobe in front of a male person. According to the amended complaint,
all of these events took place “without her consent.” Taking these allegations as true, and
applying the foregoing principles, we conclude that Ms. Abeyta has stated a cause of action
for invasion of her privacy. Ms. Abetya clearly asserts that all of these “invasions” occurred
before the probable cause hearing. Consequently, at the time of the offensive events, there
was no adjudication of mental incompetence so as to preclude Ms. Abeyta’s right to refuse
specific treatments and to allow the state’s power of parens patriae to operate. Moreover,
Ms. Abeyta clearly avers that she was not a danger to herself or others at the time the alleged
invasions of privacy occurred. Thus, she claims that there was no emergency situation
requiring administration of drugs, or other actions (i.e., making her disrobe, or interrupting
her sleep). Taking these statements as true, at the motion to dismiss stage, no factual basis
exists to countenance Parthenon’s actions in medicating or treating Ms. Abeyta against her
will.

        In Jarvis v. Levine, 418 N.W.2d 139 (Minn. 1988), the plaintiff patient had been
civilly committed to a mental hospital after shooting his sister, and, during the period of his
commitment, was involuntarily treated with neuroleptic medication four times. The
Minnesota Supreme Court recognized that the involuntary administration of neuroleptic
drugs constituted intrusive treatment requiring procedural safeguards and held that the right
to privacy under the state constitution protected the integrity of a person's body and included
the right not to have it altered or invaded without consent. The court rejected the state's
argument that the court should not interfere with the proposed method of treatment of a
patient by a physician because people committed to mental institutions were committed for
the specific purpose of receiving treatment and were therefore different from people in free
society. The court declared that commitment to an institution did not deprive an individual
of all legal rights, especially fundamental rights guaranteed by the state constitution, and,
while acknowledging that it would be both unreasonable and unnecessary for the courts to
become involved in every post-commitment treatment decision, it nevertheless determined
that the courts could not abdicate all responsibility for protecting a committed person's
fundamental rights simply because some degree of medical judgment was implicated. Id. at
147–48. The court explained that, when medical judgments collided with a patient's
fundamental rights, as in the case of involuntary administration of neuroleptic drugs, it was
the court, not the doctors, who possessed the necessary expertise to decide. Id. The Court
explained that, “[u]nless extraordinary circumstances exist, a competent person has the right
to refuse to accept the type of intrusive treatment recommended here.” Id. The court stated
that an institutionalized patient should have the same right as one in a free and open society
to refuse to accept the intrusive treatment and further stated that, to deny mentally ill
individuals the opportunity to exercise that right, was to deprive them of basic human dignity

                                             -27-
by denying their personal autonomy. Id.

                                    False Imprisonment

      In her fifth cause of action, Ms. Abeyta alleges that she was falsely imprisoned by
Parthenon, or its staff. Specifically, the amended complaint states:

              76. Defendants infringed on the personal liberty of the Plaintiff
              by intentionally and unlawfully restraining and confining
              Plaintiff against her will.
              77. Defendants used force to restrain the Plaintiff against her
              will.
              78. Defendants’ intentional and unwarranted restraint of
              Plaintiff prevented Plaintiff from properly addressing and
              getting adequate care for her legitimate health concerns.
              79. Defendants’ restrained Plaintiff’s personal liberties without
              regard to the harm that was being done to her health and
              welfare.

       Tennessee Code Annotated Section 39-13-302 states:

              (a) A person commits the offense of false imprisonment who
              knowingly removes or confines another unlawfully so as to
              interfere substantially with the other's liberty.

According to 8 Tennessee Practice: Tennessee Pattern Jury Instructions—Civil § 8.10, “false
imprisonment is the unlawful violation of the personal liberty of another. It is an intentional
and unlawful restraint, confinement, or detention that compels the person to stay or go
somewhere against the person's will.” In the context of mental illness, Tennessee Code
Annotated Section 33-3-901 provides:

              (a) A person commits a Class E felony who:

              (1) Without probable cause to believe a person has
              developmental disability, mental illness, or serious emotional
              disturbance, causes or conspires with or assists a third person to
              cause the hospitalization or admission of the person under this
              title; or
              (2) Causes or conspires with or assists another to cause the
              denial to a person of any right accorded to a person under this

                                             -28-
      title.

      (b) A person commits a Class E felony who:

      (1) Without probable cause to believe a person has
      developmental disability, mental illness, or serious emotional
      disturbance executes a petition, application, or certificate under
      this title, or otherwise secures or attempts to secure the
      apprehension, detention, hospitalization, admission, or restraint
      of the person; or
      (2) Knowingly makes any false certificate or application under
      this title.
      (c) The commissioner or the chief officer of any hospital,
      developmental center, or treatment resource acting pursuant to
      this title shall be entitled to rely in good faith upon the
      representations made for admission by any person or any
      certification with respect to any person made by a professional
      authorized to provide certificates under this title or any court.
      (d) All persons acting in good faith, reasonably and without
      negligence in connection with the preparation of petitions,
      applications, certificates or other documents or the
      apprehension, detention, discharge, examination, transportation
      or treatment of a person under this title shall be free from all
      liability, civil or criminal, by reason of the acts.

As discussed in 35 C.J.S. False Imprisonment § 23 (2012):

      The detention of mentally ill persons presenting a risk of serious
      harm is a statutory privilege, and a physician who signs in good
      faith a certificate attesting to a person's need of commitment to
      a mental institution is immune from prosecution for false
      imprisonment. In particular, under statutory provisions
      authorizing the detention of alleged mentally ill persons without
      application to a court, those restraining such persons pursuant
      to the terms of the statute are not liable for false
      imprisonment. Thus, where a person is taken into custody
      pursuant to the procedurally valid certificate of a physician
      authorizing involuntary mental treatment, the resulting detention
      is not unlawful. However, where a hospital or physician fail
      to comply with the statutory procedural safeguards

                                     -29-
              governing the involuntary commitment of a patient,
              including a hearing as prescribed by law, the commitment is
              not privileged even though it was allegedly on an emergency
              basis because of the patient's alleged suicidal state.
              Compliance with state statutory provisions, however, will confer
              immunity from a claim of false imprisonment.

Id. (Emphasis added). Accordingly, the gravamen of false imprisonment within the context
of involuntary commitment is whether the statutory procedure was followed, or whether the
person accused of false imprisonment acted in good faith belief that the applicable procedure
was followed. Having determined above that Ms. Abeyta may maintain her negligence per
se claims in this case, a question necessarily exists as to whether the proper procedure for
involuntary commitment was followed in this case. Until that question is answered, Ms.
Abeyta may maintain her false imprisonment claim.

       For the foregoing reasons, we affirm the order of the trial court dismissing the claim
for violation of the ADA. We reverse the order of the trial court dismissing the claims of
medical battery, negligence per se, invasion of privacy, and false imprisonment. The case
is remanded for all further proceedings as may be necessary and are consistent with this
Opinion. Costs of this appeal are assessed against the Appellee, HCA Health Services of
Tennessee, Inc., d/b/a Parthenon Pavilion at Centennial. Execution may issue for costs if
necessary.




                                                   _________________________________
                                                   J. STEVEN STAFFORD, JUDGE




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