               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                March 22, 2016 Session

  UNITTA SUE NEWMAN v. GUARDIAN HEALTHCARE PROVIDERS,
                        INC. ET AL.

                 Appeal from the Circuit Court for Davidson County
                  No. 14C3186      Amanda J. McClendon, Judge


                 No. M2015-01315-COA-R3-CV – Filed July 27, 2016


On August 4, 2013, Kevin Beazley, a resident at Middle Tennessee Mental Health
Institute (MTMHI), attacked Billy Joe Newman, another patient and resident, causing
injuries that resulted in Newman‟s death. His widow, Unitta Sue Newman (plaintiff),
brought this action against several corporations (defendants) that provided nursing and
medical staff to MTMHI. The trial court dismissed the complaint with prejudice, on the
grounds that it was governed by the Tennessee Health Care Liability Act (THCLA), and
plaintiff did not comply with either the pre-suit notice requirement of Tenn. Code Ann. §
29-26-121 (Supp. 2015), or the certificate of good faith requirement of § 29-26-122
(2012). Plaintiff argues that the allegations of her complaint fall under the “common
knowledge” exception to the general rule requiring expert testimony to establish medical
negligence, and, thus, she was not required to file a certificate of good faith. She asserts
that the trial court should have dismissed her complaint without prejudice. Because
plaintiff‟s negligence claims involve matters of professsional medical knowledge,
judgment, and treatment not within the common knowledge of ordinary lay persons, we
affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which ANDY D.
BENNETT and JOHN W. MCCLARTY, JJ., joined.

Sheri S. Phillips, Clarksville, Tennessee, for the appellant, Unitta Sue Newman.

William B. Jakes, III, and William B. Jakes, IV, Nashville, Tennessee, for the appellee,
Guardian Health Care Providers, Inc.
James E. Looper, Jr., Jennifer M. Eberle, and Heather D. Piper, Nashville, Tennessee, for
the appellee, Allpro Staffnet, LLC.

Minton P. Mayer, Memphis, Tennessee, for the appellee, Milestone Staffing Services,
LLC.

                                       OPINION

                                            I.

        Plaintiff brought this action against Guardian Health Care Providers, Inc., Allpro
Staffnet, LLC, and Milestone Staffing Services, LLC. These defendants provided
nursing and medical staff to MTMHI, which the trial court found is “strictly a psychiatric
facility.” According to the allegations of the complaint,

             [O]n or about August 4, 2013, the deceased, Billy Joe
             Newman, was a patient at MTMHI and was to be monitored
             one on one at the facility. [D]uring his stay at MTMHI, he
             was to have the assistance of a wheel chair for ambulation,
             however, he was not provided with same by the Defendants;

             . . . Kevin Beazley was a patient at MTMHI and was also to
             be monitored one on one at the facility. Kevin Beazley was a
             known criminal and known to be extremely violent without
             provocation;

             [T]he staff of the Defendants working within MTMHI
             allowed Kevin Beazley to roam about the general population
             without supervision from a staff member. At the same time
             and place, Billy Newman was made to stand in line to retrieve
             his medication without supervision or the assistance of his
             wheel chair in the general population of the premises of
             MTMHI;

             . . . Kevin Beazley, without provocation, violently attacked
             Billy Joe Newman, causing life ending injuries to Mr.
             Newman. His actions were willful, intentional and without
             regard for human life and constitute an intentional tort;

             [D]uring the attack referenced above, the staff and employees
             of the Defendants, Guardian, Allpro and Milestone, failed to
                                            2
assist Billy Joe Newman and allowed him to lay on the floor
until an ambulance arrived. Further, the staff and employees
of the Defendants . . . failed to secure or restrain Kevin
Beazley when he was violently attacking Billy Joe Newman;

[T]he above situation was created and maintained by the
employees, agents and servants of the Defendants . . .
therefore, all acts complained of herein are imputed to their
respective employers/Defendants;

Defendants . . . had previously received complaints regarding
the supervision of their patients; had, prior to August 4, 2013,
received complaints and information that Kevin Beazley was
a dangerous person and was violent towards others without
provocation; [and] they allowed Kevin Beazley to roam about
the facility knowing that he was a danger to others; and, that
the acts complained of herein were foreseeable;

Kevin Beazley had previously been a patient at MTMHI
under the care of the Defendants, Guardian, Allpro and
Milestone, for violent attacks against others, therefore, these
Defendants had prior knowledge of his violent tendencies;

[T]he conduct referenced above was observed by the
administration and other employees of the Defendants, . . .
who had a duty to report this conduct and failed to do so or to
take measures to protect their patients;

[T]he Plaintiff would submit that it was “common
knowledge” or suspected by the administration and
employees of the Defendants . . . that Kevin Beazley was
dangerous and would attack without provocation, therefore, it
was foreseeable that this incident would occur without
separating Kevin Beazley from other patients. That the harm
of Billy Joe Newman was foreseeable[.]

                        *      *      *

[T]he employees/agents of the Defendants . . . had a duty
under the law and pursuant to their Rules and Regulations to
take action when they received a complaint of inappropriate
                               3
              or violent conduct of patients and that they failed to take
              action when problems and complaints were reported to them
              regarding Kevin Beazley, therefore, their conduct endangered
              the safety and well being of Billy Newman causing his
              ultimate death on August 13, 2013;

              [T]he administration and employees of the Defendants . . .
              failed to take any action when the conduct referenced herein
              was reported to them, or when they witnessed or suspected
              this inappropriate or violent conduct was occurring, therefore,
              their actions and omissions were negligent and in violation of
              the rules and regulations in effect for protecting patients and
              maintaining the safety of other patients;

              Further, the employees of the Defendants . . . were negligent
              in that they failed to take action prior to August 4, 2013 when
              complaints and conduct was evident regarding the
              inappropriate or violent behavior of Mr. Beazley when this
              conduct was reported to them on numerous occasions; they
              failed to protect their patients; they failed to follow the rules
              and regulations in place for handling reported conduct, such
              as the conduct mentioned herein; they failed to take action
              against Mr. Beazley or seclude him from other patients when
              it was reported to them and was evident to them that his
              conduct was inappropriate, violent and dangerous; and, they
              failed to provide a safe environment for its patients when
              [they] had an absolute duty to do so[.]

(Numbering in original omitted.)

        The defendants filed a motion to dismiss the complaint for plaintiff‟s failure to
comply with Tenn. Code Ann. § 29-26-121, which requires that a plaintiff “asserting a
potential claim for health care liability shall give written notice of the potential claim to
each health care provider that will be a named defendant at least sixty (60) days before
the filing of a complaint,” and Tenn. Code Ann. § 29-26-122, which mandates that “[i]n
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.”
Plaintiff responded with the argument that she was not required to provide expert
testimony establishing a deviation from the professional standard of care, because her
allegations involved claims of ordinary negligence that could be readily understood and
evaluated by an ordinary layperson, based on common knowledge.
                                             4
       The trial court dismissed the complaint, finding that it “alleges negligent conduct
which constitutes or bears a substantial relationship to the rendition of medical treatment
by a medical professional. Thus, all provisions of the health care liability act are
applicable.” The trial court further stated,

              Because of their psychiatric diagnoses, both Mr. Beazley and
              Mr. Newman needed ongoing, skilled supervision. In the
              case of a psychiatric patient, it can be much more difficult to
              determine what constitutes basic care and what requires more
              specialized medical skills.

                                     *      *      *

              These allegations concerning the failure to take action against
              and properly seclude a psychiatric patient involve questions
              of professional medical management and not issues of
              ordinary negligence that can be judged by the common
              knowledge and experience of a jury. “The ordinary layman
              does not know the type of supervision or monitoring that is
              required of psychiatric patients in a psychiatric ward.” Dorris
              v. Detroit Osteopathic Hosp. Corp., 594 N.W.2d 455 (Mich.
              1999).

                                     *      *      *

              Mr. Beazley and Mr. Newman were patients in a psychiatric
              hospital and something about their respective conditions
              required a certain amount of supervision. Supervision of a
              psychiatric patient is an ongoing process that requires medical
              knowledge and skill.

The trial court concluded that plaintiff “has shown no allegation of an act or omission
separate and distinct from the alleged acts or omissions this Court has found to be within
the scope of the [THCLA].” Plaintiff timely filed a notice of appeal.




                                            5
                                                II.

      The issue presented by plaintiff is whether the trial court erred in dismissing her
complaint with prejudice based on her failure to file a certificate of good faith with her
complaint, as required by the THCLA.1

                                                III.

       As this Court has recently observed,

               The Tennessee Supreme Court has previously held that the
               proper way to challenge a plaintiff‟s compliance with the
               health care liability notice requirements is through a motion
               to dismiss. Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300,
               307 (Tenn. 2012). “A complaint is subject to dismissal under
               rule 12.02(6) for failure to state a claim if an affirmative
               defense clearly and unequivocally appears on the face of the
               complaint.” Wilson v. Harris, 304 S.W.3d 824, 826 (Tenn.
               Ct. App. 2009) (citing Anthony v. Tidwell, 560 S.W.2d 908,
               909 (Tenn. 1977)). “In considering a motion to dismiss,
               courts must construe the complaint liberally, presuming all
               factual allegations to be true and giving the plaintiff the
               benefit of all reasonable inferences.” Stewart v. Schofield,
               368 S.W.3d 457, 462 (Tenn. 2012). “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.‟ ” Cartwright v. DMC–Memphis, Inc.,
               No. W2013-01614-COA-R3-CV, 2014 WL 6908420[,] at *3
               (Tenn. Ct. App. 2014) (citing Cullum v. McCool, 432 S.W.3d
               829, 832 (Tenn. 2013)). When reviewing a lower court‟s
               decision on a 12.02(6) motion to dismiss, the issues raised on
               such motion involve questions of law and will be reviewed de
               novo with no presumption of correctness. Winchester v.
               Little, 996 S.W.2d 818 (Tenn. Ct. App. 1998).

       1
         Plaintiff argued at trial and in her brief that her action was one for ordinary negligence,
and not health care liability, relying in large part upon the principles espoused in Estate of
French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011). Two days after plaintiff filed her
appellate brief, however, the Supreme Court issued its opinion in Ellithorpe v. Weismark, 479
S.W.3d 818, 827 (Tenn. 2015), which ruled that Estate of French had been statutorily abrogated.
During oral argument, plaintiff‟s counsel recognized this development in the law and stated her
position that the complaint should have been dismissed without prejudice.
                                                 6
Estate of Bradley v. Hamilton Cnty., No. E2014-02215-COA-R3-CV, 2015 WL
9946266, at *3 (Tenn. Ct. App., filed Aug. 21, 2015).

                                           IV.

       There is no dispute that plaintiff did not timely provide defendants with pre-suit
notice or file a certificate of good faith with her complaint. Dismissal without prejudice
is the proper sanction for noncompliance with the pre-suit notice requirement of Tenn.
Code Ann. § 29-26-121. Ellithorpe v. Weismark, 479 S.W.3d 818, 829 (Tenn. 2015)
(quoting Foster v. Chiles, 467 S.W.3d 911, 916 (Tenn. 2015)). However, failure to
comply with the certificate of good faith requirement codified at Tenn. Code Ann § 29-
26-122, results in dismissal of the complaint with prejudice. Id. Thus, if a certificate of
good faith was required in this case, the proper remedy is dismissal with prejudice.
Plaintiff argues that she was not required to file a certificate of good faith in this case
because this is not a “health care liability action in which expert testimony is required.”
Tenn. Code Ann. § 29-26-122(a). Consequently, according to the plaintiff, her action
should have been dismissed without prejudice.

        In Ellithorpe, the Supreme Court recently addressed the pre-suit notice and good
faith certificate requirements imposed by the Health Care Liability Act. After providing
a “brief history of the THCLA and its judicial interpretations,” the Ellithorpe Court
stated:

             Notably, the Tennessee Civil Justice Act of 2011 amended
             the existing Tennessee Medical Malpractice Act by removing
             all references to “medical malpractice” from the Tennessee
             Code and replacing them with “health care liability” or
             “health care liability action” as applicable.           See id.
             Furthermore, section 29–26–101 was added to the Code
             which defined “health care liability action” as “any civil
             action, including claims against the state or a political
             subdivision thereof, alleging that a health care provider or
             providers have caused an injury related to the provision of, or
             failure to provide, health care services to a person, regardless
             of the theory of liability on which the action is based.” Tenn.
             Code Ann. [§] 29–26–101(a)(1) (Supp. 2011) (emphasis
             added). This same section went on to provide that “[a]ny
             such civil action or claim is subject to the provisions of this
             part regardless of any other claims, causes of action, or

                                            7
             theories of liability alleged in the complaint.” Id. § 29–26–
             101(c).

                                     *      *       *

             [W]e hold that section 29–26–101 establishes a clear
             legislative intent that all civil actions alleging that a covered
             health care provider or providers have caused an injury
             related to the provision of, or failure to provide health care
             services be subject to the pre-suit notice and certificate of
             good faith requirements, regardless of any other claims,
             causes of action, or theories of liability alleged in the
             complaint.

                                     *      *       *

             In health care liability actions, such as this one, expert proof
             is required to establish the recognized standard of acceptable
             professional practice in the profession, unless the claim falls
             within the “common knowledge” exception that is not
             applicable here. See Tenn. Code Ann. § 29–26–115 (2012);
             Shipley v. Williams, 350 S.W.3d 527, 537 & n. 5 (Tenn.
             2011) (discussing the statutory expert proof requirements and
             citing Seavers v. Methodist Med. Ctr. of Oak Ridge, 9
             S.W.3d 86, 92 (Tenn. 1999), which discussed the “common
             knowledge” exception).

479 S.W.3d at 826, 827, 829 (emphasis in original).

       In Osunde v. Delta Med. Ctr., No. W2015-01005-COA-R9-CV, 2016 WL 537075
(Tenn. Ct. App., filed Feb. 10, 2016), this Court discussed the interplay between the
THCLA and the “common knowledge” exception recognized and developed by the
courts to aid in distinguishing between an action for medical malpractice and ordinary
negligence during the time before the Tennessee Civil Justice Act statutorily defined
“health care liability.” See Coggins v. Holston Valley Med. Ctr., No. E2014-00594-
COA-R3-CV, 2015 WL 3657778, at *4 (Tenn. Ct. App., filed June 15, 2015) (“From
1985 until 2011, the statutory scheme alluded to actions for „malpractice‟ and „medical
malpractice,‟ but did not statutorily define those terms.”) We said in Osunde:

             What we glean from Ellithorpe is the primacy of the recent
             statutory amendments to the THCLA, formerly known as the
                                            8
Tennessee Medical Malpractice Act.                The “nuanced”
approach for distinguishing an ordinary negligence claim
from a medical malpractice claim has been displaced because
the statute now contains a comprehensive definition of what
constitutes a “health care liability action.” . . . The THCLA‟s
definition of a “health care liability” action is conclusive[.] A
claim will be subject to the THCLA if the facts of the case
show that it qualifies as a “health care liability action” as that
term is statutorily defined.

                         *      *      *

Under the statute, a “health care provider” includes the
employee of a health care provider, such as a physician,
nurse, or technician, and the meaning of “health care
services” includes “staffing, custodial or basic care,
positioning, hydration and similar patient services.” Tenn.
Code Ann. § 29–26–101(a)(2), (b) (2012).

                         *      *      *

Notwithstanding the general requirement that an action filed
under the THCLA be supported by expert proof, it is not
absolute. As our Supreme Court acknowledged in Ellithorpe,
expert proof is not required in a health care liability action
where the claim “falls within the „common knowledge‟
exception.” . . . [E]xpert proof may be dispensed with when
the trier of fact can determine, based on common knowledge,
that the direct allegations against a defendant constitute
negligence. . . . Notwithstanding the differences in context in
which the common knowledge language has been discussed,
one salient point emerges as it concerns expert proof and the
application of the “common knowledge” exception itself:
expert testimony is not required where the act of alleged
wrongful conduct lies within the common knowledge of a
layperson. See Baldwin v. Knight, 569 S.W.2d 450, 456
(Tenn. 1978); Bowman v. Henard, 547 S.W.2d 527, 530–31
(Tenn. 1977); Tucker v. Metro. Gov’t of Nashville &
Davidson Cnty., 686 S.W.2d 87, 92 (Tenn. Ct. App. 1984).



                                9
             Given this understanding, a determination that a claim falls
             within the THCLA does not automatically trigger all of the
             statute‟s requirements. The need for expert proof will not lie
             if the matter is within the common knowledge of a layperson,
             and if there is no need for expert proof, a plaintiff‟s complaint
             will not fail for failure to attach a certificate of good faith
             under section 29–26–122. 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.”) (emphasis added). Thus, although determining
             that a claim constitutes a health care liability action will
             subject it to the pre-suit notice requirement in section 29–26–
             121, additional analysis is needed to determine whether
             expert proof is necessary. See Smith v. Testerman, No.
             E2014–00956–COA–R9–CV, 2015 WL 1118009, at *5
             (Tenn. Ct. App. Mar. 10, 2015), perm. app. denied (Tenn.
             June 15, 2015).

2016 WL 537075, at *7-9 (footnote and internal citations omitted); see also Estate of
Bradley, 2015 WL 9946266, at *5 (“While the requirements of Tennessee Code
Annotated section 29–26–121 always apply to health care liability claims, section 29–26-
122 applies only to health care liability claims requiring expert testimony. Expert
testimony is not required in a HCLA claim if the negligence is obvious and readily
understandable by an average layperson.”) (emphasis in original; internal quotation
marks and brackets in original omitted).

       In the present case, plaintiff does not dispute that her complaint states a “health
care liability action” falling within the broad ambit of the THCLA, because the
defendants have employed and provided “health care providers” accused of negligence ‒
specifically, certified nursing assistants working at MTMHI when the fatal assault on Mr.
Newman occurred. See Tenn. Code Ann. § 29-26-101. Plaintiff argues that the common
knowledge exception, discussed above, applies to relieve her of the general requirement
to provide expert testimony and Tenn. Code Ann. § 29-26-122‟s good faith certificate
requirement.

       The question of whether a plaintiff has made claims of medical negligence that are
so obvious and understandable as to be within the common knowledge of a layperson,
thereby relieving a plaintiff of the expert testimony requirement, has been frequently
addressed by Tennessee appellate courts. We have observed that “only the most obvious
forms of [medical] negligence may be established without expert testimony.” Ayers v.
                                             10
Rutherford Hosp., Inc., 689 S.W.2d 155, 160 (Tenn. Ct. App. 1984); accord Payne v.
Pelmore, No. M2004-02281-COA-R3-CV, 2006 WL 482922, at *3 (Tenn. Ct. App., filed
Feb. 28, 2006); Graniger v. Methodist Hosp. Healthcare Sys., Inc., No. 02A01-9309-
CV-00201, 1994 WL 496781, at *3 (Tenn. Ct. App., filed Sept. 9, 1994) (“The common
knowledge exception applies to cases in which the medical negligence is as blatant as a
„fly floating in a bowl of buttermilk‟ so that all mankind knows that such things are not
done absent negligence”) (citing Murphy v. Schwartz, 739 S.W.2d 777, 778 (Tenn. Ct.
App. 1986)).

        In Graniger, this Court held that allegations that the defendant medical
professionals “were negligent in allowing plaintiff to attempt to get down from the
examination table in her impaired condition without any assistance,” and “should have
instructed the hospital employees under . . . supervision to assist plaintiff in her attempt to
get down from the table,” did not fall within the common knowledge exception. 1994
WL 496781, at *1. In Murphy, we addressed an allegation that “the failure of the doctors
to provide attendants or restraints for Mrs. Murphy while she was in the emergency room
. . . was medical malpractice,” and rejected the argument that “it is plain and patent
medical negligence to leave a stroke victim unattended or unrestrained in an emergency
room, and therefore no medical affidavits are required.” 739 S.W.2d at 778. In Tucker,
the plaintiff alleged negligent supervision, where the decedent was left unrestrained on an
emergency room stretcher in a catatonic state, woke up and ran away suddenly, and was
killed in an accident. We stated,

              plaintiff seems to find fault with the degree of supervision.
              We are of the opinion that these are matters requiring expert
              medical evidence and are not within the knowledge of
              ordinary lay persons.

              We do not believe it can be said that the ordinary layman
              possesses the knowledge concerning whether a mental patient
              in a catatonic state should or should not be restrained. We are
              of the opinion that only a medical expert is competent to
              testify whether the decedent should have been put in a strait
              jacket or locked in a room alone, or kept in an area where
              medical personnel were standing over him.

              We hold that when taken in the totality of the circumstances,
              the alleged negligent acts of Dr. Doyle do not fall within the
              common knowledge exception. The proper treatment of a
              patient with serious mental problems who had previously
              been hospitalized for such problems, and who is in a catatonic
                                              11
              state, is not within the common knowledge of ordinary lay
              persons.

686 S.W.2d at 93-94 (emphasis added). In Cannon v. McKendree Village, Inc., 295
S.W.3d 278, 283 (Tenn. Ct. App. 2008), we held that the decision of whether to restrain a
patient suffering from dementia “was one that involves a matter of medical science or art
requiring skills not ordinarily possessed by lay persons,” reasoning that “such a decision
requires specialized knowledge regarding the mental capacity and proclivities of such a
patient.”

      In Turner v. Jordan, 957 S.W.2d 815, 816 (Tenn. 1997), the Supreme Court
addressed the question of “whether a psychiatrist owed a duty of care to protect a hospital
nurse from the violent and intentional acts of a hospitalized mentally ill patient.”
Concluding that Tennessee law imposes such a duty, the Court stated,

              The majority of courts . . . have held that where a psychiatrist,
              in accordance with accepted standards of the profession,
              knows or reasonably should know that a mentally ill patient
              poses an unreasonable risk of harm to a foreseeable third
              party, he or she must take reasonable steps to prevent that
              harm.

                                      *      *       *

              [W]e . . . hold that a duty of care may exist where a
              psychiatrist, in accordance with professional standards,
              knows or reasonably should know that a patient poses an
              unreasonable risk of harm to a foreseeable, readily
              identifiable third person.

Id. at 819, 820-21 (emphasis added). Although Turner did not address the common
knowledge exception, it suggests that a trier of fact must be informed of “accepted
standards of the profession” when determining the liability of a defendant who allegedly
negligently allows a dangerous patient to harm someone else. This is a matter requiring
expert testimony, clearly beyond the common knowledge of the average layperson.
Similarly, the opinions cited and discussed above support the conclusion that when the
issue of negligence involves “the mental capacity and proclivities of” a psychiatric
patient, Cannon, 295 S.W.3d at 283, expert testimony is required.

     In the present case, plaintiff‟s allegations involve matters that are not within the
common knowledge of an ordinary person ‒ matters involving the mental and physical
                                             12
capacities of both the attacking patient and the decedent. As the trial court correctly
noted, the question of whether and how to restrain and/or supervise a potentially
dangerous mental patient involves knowledge and understanding of his diagnosis and
medical history. Plaintiff argues that the physician‟s orders to supervise the attacker
Beazley on a “one-on-one” basis were already in place, and the alleged negligence was
simply a failure to carry out those orders. Nevertheless, we believe the issue of whether
defendants‟ agents, all of whom are professional health care providers, were negligent
under the circumstances still requires an expert to inform the trier of fact of the standard
of professional care of these mental patients in a psychiatric hospital setting.
Consequently, Tenn. Code Ann § 29-26-122 requires the filing of a certificate of good
faith with the complaint. Failure to do so results in a dismissal with prejudice, as
discussed above.

                                            V.

       The judgment of the trial court is affirmed. Costs on appeal are assessed to the
appellant, Unitta Sue Newman. The case is remanded to the trial court for collection of
costs assessed below.


                                                    _______________________________
                                                    CHARLES D. SUSANO, JR., JUDGE




                                            13
