                                                                                        02/15/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                               January 10, 2019 Session

             UNITTA SUE NEWMAN V. STATE OF TENNESSEE

                  Appeal from the Tennessee Claims Commission
                No. T20150375    Robert N. Hibbett, Commissioner


                            No. M2018-00948-COA-R3-CV


A patient in a state psychiatric facility was killed by another patient. The surviving
spouse of the deceased patient brought suit against the State and was awarded damages
for the wrongful death of her husband. Because the Tennessee Health Care Liability Act
applies to the surviving spouse’s claim, and because she failed to comply with the Act’s
requirements of pre-suit notice and good faith certification, we must reverse the decision
of the Claims Commission.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission
                            Reversed and Remanded

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and KENNY W. ARMSTRONG, J., joined.

Herbert H. Slatery, III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor
General, Stephanie Renee Reevers, Deputy Attorney General, and Stephanie A.
Bergmeyer, Senior Assistant Attorney General, for the appellant, State of Tennessee.

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

                                       OPINION

      Billy Joe Newman, age 67, was admitted as a patient to Middle Tennessee Mental
Health Institute (“MTMHI”) on July 23, 2013, with depression and dementia. On August
4, 2013, Mr. Newman was attacked by another patient, Kevin Beazley, age 22. Mr.
Newman died nine days later from the injuries he sustained during this attack. Mr.
Beazley was admitted to MTMHI in early May 2013, after being tried for attempted first
degree murder and found not guilty by reason of insanity. His diagnoses on admission
were paranoid schizophrenia and mild mental retardation; he was noted to have a history
of violent and unpredictable behavior.1

       On August 4, 2014, Unitta Sue Newman, Mr. Newman’s surviving spouse, filed
suit against the State of Tennessee (MTMHI) in the Division of Claims Administration.
Mrs. Newman’s complaint includes the following allegations:

                  6. That on 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. That during 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 Defendant;

                 7. That on or about August 4, 2013, 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;

                  8. That on or about August 4, 2013, the staff at 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;

                   9. [Description of the attack.]

                  10. That during the attack referenced above, the staff and employees
           of MTMHI failed to assist Billy Joe Newman and allowed him to lay on the
           floor until an ambulance arrived. Further, the staff and employees of
           MTMHI failed to secure or restrain Kevin Beazley when he was violently
           attacking Billy Joe Newman;

                   ....

                  12. That the Defendant 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; that 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;

1
    Mr. Beazley had been a patient at MTMHI on previous occasions.

                                                      -2-
              13. That Kevin Beazley had previously been a patient at MTMHI
      for violent attacks against others, therefore, MTMHI had prior knowledge
      of his violent tendencies;

             14. That the conduct referenced above was observed by the
      administration and other employees of MTMHI, who had a duty to report
      this conduct and failed to do so or to take measures to protect their patients;

             15. That the Plaintiff would submit that it was “common
      knowledge” or suspected by the administration and employees of MTMHI
      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;

             16. That the acts complained of herein and the injuries/death of
      Billy Joe Newman were foreseeable to MTMHI given the prior complaints
      and conduct referenced herein;

            17. That the Defendants had actual knowledge prior to August 4,
      2013 that Kevin Beazley was dangerous, however, they failed to follow the
      appropriate rules and regulations in place to protect others;

              18. That the administration and employees present at MTMHI were
      all employees/agents of the MTMHI at the time of the actions complained
      of herein. Billy Newman was a patient at said time under the direction of
      MTMHI. Therefore, the employees of the MTMHI were responsible for
      supervising and protecting the patients during their stay; monitoring the
      activities and safety of the patients; resolving any problems that they knew
      or should have known were taking place on the grounds and between
      patients; taking actions when problems or inappropriate conduct is
      reported; to ensure that the patients are safe; and, to provide a safe and
      nurturing environment for the patients;

             ....

             23. That the negligent acts and omissions of the MTMHI employees
      [were] the sole, legal and proximate cause of the injuries and death of Billy
      Joe Newman[.]

The claim was transferred to the Claims Commission.



                                           -3-
       After filing an answer setting forth its defenses, the State filed a motion to dismiss
pursuant to Tenn. R. Civ. P. 12.02(6) for failure to comply with the certificate of good
faith and pre-suit notice requirements of the Tennessee Health Care Liability Act
(“THCLA”), Tenn. Code Ann. §§ 29-26-121(a)(4), 122(a). Mrs. Newman thereafter filed
a motion to amend her complaint to add a claim under the THCLA. The Commissioner
heard the motion to dismiss and the motion to amend on November 10, 2016. In an order
entered on November 15, 2016, the Commissioner denied Mrs. Newman’s motion to
amend the complaint. The Commissioner found, however, that Mrs. Newman’s original
claim was not a healthcare liability claim, but a claim for negligent care, custody and
control of persons in state custody pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(E).
Likening the case to one in which prison officials may be found negligent for their failure
to prevent an assault by an inmate upon another inmate, the Commissioner denied the
State’s motion to dismiss.2

      The Claims Commission heard the case on December 5, 2017. On April 20, 2018,
the Claims Commissioner entered a final judgment in favor of Mrs. Newman in the
amount of $230,690.00.

       Mrs. Newman filed a separate lawsuit for negligence in Davidson County circuit
court against several corporations that provided nursing and medical staff to MTMHI.
That case was dismissed for failure to comply with the requirements of the THCLA. See
Newman v. Guardian Healthcare Providers, Inc., No. M2015-01315-COA-R3-CV, 2016
WL 4069052 (Tenn. Ct. App. July 27, 2016).

        The State appeals, and we summarize its issues as follows: (1) whether the Claims
Commission erred in denying the State’s motion to dismiss this health care liability
action in which the claimant failed to comply with the notice and filing requirements of
the THCLA; and (2) whether the Claims Commission erred in finding the State negligent
in this health care liability action despite the absence of the expert proof required by the
THCLA.

                                              ANALYSIS

       The first issue is whether the Commissioner erred in denying the State’s motion to
dismiss based upon Mrs. Newman’s failure to comply with the THCLA’s requirements of
pre-suit notice and certificate of good faith. For the reasons discussed below, we
conclude that this issue is dispositive in this case. We must, therefore, reverse the
decision of the Commissioner.



2
 The State filed a motion seeking permission for an interlocutory appeal pursuant to Tenn. R. App. P. 9.
The Claims Commission denied the motion.
                                                 -4-
       Our Supreme Court has held that “the proper way to challenge a plaintiff’s
compliance with the health care liability notice requirements is through a motion to
dismiss.” Estate of Bradley v. Hamilton Cnty., No. E2014-02215-COA-R3-CV, 2015
WL 9946266, at *3 (Tenn. Ct. App. Aug. 21, 2015) (citing Myers v. AMISUB (SFH),
Inc., 382 S.W.3d 300, 307 (Tenn. 2012)). A party filing a motion pursuant to Tenn. R.
Civ. P. 12.02(6) asserts that the plaintiff has failed to state a claim upon which relief can
be granted. The motion “challenges only the legal sufficiency of the complaint, not the
strength of the plaintiff’s proof or evidence.” Webb v. Nashville Area Habitat for
Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011); see also Willis v. Tenn. Dep’t of
Corr., 113 S.W.3d 706, 710 (Tenn. 2003). When ruling on Rule 12.02(6) motions, courts
are to “‘construe the complaint liberally, presuming all factual allegations to be true and
giving the plaintiff the benefit of all reasonable inferences.’” Webb, 346 S.W.3d at 426
(quoting Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 31-32 (Tenn. 2007)).

        When a defendant files a properly-supported motion to dismiss based on the
plaintiff’s failure to comply with Tenn. Code Ann. §§ 29-26-121 and -122, the plaintiff
must demonstrate either that he or she complied with the statutory requirements or that he
or she had “extraordinary cause for failing to do so.” Myers, 382 S.W.3d at 307. The
determination of whether a complaint should be dismissed for failure to state a claim is a
question of law that appellate courts review de novo, with no presumption of correctness
afforded to the trial court’s decision. Foster v. Chiles, 467 S.W.3d 911, 914 (Tenn. 2015);
Webb, 346 S.W.3d at 426.

       In the case of Ellithorpe v. Weismark, 479 S.W.3d 818, 824 (Tenn. 2015), our
Supreme Court considered the effect of recent legislation on determining what constitutes
a health care liability action. The history and analysis in Ellithorpe provides important
guidance for the present case. The Court reviewed the 2008 and 2009 amendments to the
Tennessee Medical Malpractice Act, including the requirement that “a party initiating a
medical malpractice claim . . . give sixty days’ pre-suit notice to the implicated health
care providers,” and the requirement that “a plaintiff filing a medical malpractice action,
in which expert testimony was required, . . . file a certificate of good faith within ninety
days of the filing of the initial complaint.” Ellithorpe, 479 S.W.3d at 824-825 (citing
Tenn. Code Ann. §§ 29-26-121(a)(1), -122(a) (2008)). In Estate of French v. Stratford
House, 333 S.W.3d 546 (Tenn. 2011), the Court addressed “the interaction between
ordinary negligence principles and the Tennessee Medical Malpractice Act, as then
enacted.” Ellithorpe, 479 S.W.3d at 825. The Estate of French Court set forth the
following guiding principles:

       The TMMA applies only to those alleged acts that bear a substantial
       relationship to the rendition of medical treatment by a medical professional,
       or concern medical art or science, training, or expertise. If there are
       additional acts or omissions alleged that do not bear a substantial
       relationship to medical treatment, require no specialized skills, or could be

                                            -5-
       assessed by the trier of fact based upon ordinary everyday experiences, then
       the claims may be made under an ordinary negligence theory.

Estate of French, 333 S.W.3d at 557.

        Four months after the Court issued its opinion in Estate of French, however, the
legislature took action again, enacting the Tennessee Civil Justice Act of 2011, which
further amended the Tennessee Medical Malpractice Act. See 2011 TENN. PUB. ACTS ch.
510; Ellithorpe, 479 S.W.3d 826. The term “medical malpractice” was replaced with
“health care liability” or “health care liability action.” Ellithorpe, 479 S.W.3d at 826
(citing 2011 TENN. PUB. ACTS ch. 510). Two important definitions were added:

       (a) As used in this part, unless the context otherwise requires:

       (1) “Health care liability action” means 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;
       ....

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

Tenn. Code Ann. § 29-26-101(a)(1), (b) (emphasis added). The Supreme Court
determined, in Ellithorpe, that its decision in Estate of French had been “statutorily
abrogated by the Tennessee Civil Justice Act of 2011.” Ellithorpe, 479 S.W.3d at 827.

        In the case before us, Mrs. Newman does not assert that she filed pre-suit notice
and a certificate of good faith in compliance with the THCLA. Her position is that the
suit is one for ordinary negligence, not health care liability. In light of the definitions of
“health care liability action” and “health care services” set out above, we cannot agree
with Mrs. Newman’s argument. In particular, Tenn. Code Ann. § 29-26-101(b), specifies
that health care services includes “custodial or basic care,” and Tenn. Code Ann. § 29-26-
101(a)(1) states that a “health care liability action” includes “any civil action . . . 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.” Thus, the trial court’s determination that
this case involved the “care, custody and control of persons in state custody pursuant to

                                             -6-
Tenn. Code Ann. § 9-8-307(a)(1)(E),” not health care liability, was based upon an overly
restrictive definition of health care liability.

       Although the pre-suit notice requirements of Tenn. Code Ann. § 29-26-121 apply
to all THCLA actions, the good-faith-certification requirements of § 29-26-122 apply
“only to health care liability claims requiring expert testimony.” Estate of Bradley, 2015
WL 9946266, at *5. No expert testimony is required if “‘the negligence is obvious and
readily understandable by an average layperson.’” Id. (quoting Smith v. Testerman, No.
E2014-00956-COA-R9-CV, 2015 WL 1118009, at *4 (Tenn. Ct. App. Mar. 10, 2015)).
The courts have found this common knowledge exception applicable in cases involving
“only the most obvious forms of [medical] negligence.” Ayers v. Rutherford Hosp., Inc.,
689 S.W.2d 155, 160 (Tenn. Ct. App. 1984); see also Osunde v. Delta Med. Ctr., 505
S.W.3d 875, 886 (Tenn. Ct. App. 2016); Graniger v. Methodist Hosp. Healthcare Sys.,
Inc., No. 02A01-9309-CV-00201, 1994 WL 496781, at *3 (Tenn. Ct. App., Sept. 9,
1994) (describing common knowledge exception cases as being “as blatant as a ‘fly
floating in a bowl of buttermilk’ so that all mankind knows that such things are not done
absent negligence”) (quoting Murphy v. Schwartz, 739 S.W.2d 777, 778 (Tenn. Ct. App.
1986)).

        We turn now to this court’s analysis in the appeal of the companion case to this
one—Mrs. Newman’s claim in chancery court. See Newman, 2016 WL 4069052, at *1.
After a summary of the law similar to that above, the court examined cases involving the
supervision of impaired patients. Id. at *6-7. In Tucker v. Metropolitan Government of
Nashville and Davidson County, 686 S.W.2d 87, 89-90 (Tenn. Ct. App. 1984), a
catatonic patient who was left unrestrained on an emergency room stretcher woke up and
ran away, resulting in the patient’s accidental death. The court determined that “[t]he
proper treatment of a patient with serious mental problems . . . and who is in a catatonic
state, is not within the common knowledge of ordinary lay persons.” Id. at 94. In
Cannon v. McKendree Village, Inc., 295 S.W.3d 278, 283 (Tenn. Ct. App. 2008), the
court held that the decision regarding whether to restrain a patient with dementia was “a
matter of medical science or art requiring skills not ordinarily possessed by lay persons”
and that “such a decision requires specialized knowledge regarding the mental capacity
and proclivities of such a patient.”

        The last case examined by this court in the companion appeal was Turner v.
Jordan, 957 S.W.2d 815 (Tenn. 1997). Although the main issue in Turner was not the
common knowledge exception, but a psychiatrist’s duty of care to protect a nurse from a
violent, mentally ill patient, this court inferred from the higher court’s discussion that “a
trier of fact must be informed of ‘accepted standards of the profession’ when determining
the liability of a defendant” and that “[t]his is a matter requiring expert testimony, clearly
beyond the common knowledge of the average layperson.” Newman, 2016 WL 4069052,
at *7. We concluded in the companion appeal that all of the cases discussed supported
our conclusion that “when the issue of negligence involves ‘the mental capacity and

                                            -7-
proclivities of’ a psychiatric patient, expert testimony is required.” Id. (quoting Cannon,
295 S.W.3d at 283).

       The facts in the present case are the same as those we considered in the companion
appeal. Although this case involves a different defendant, the THCLA applies just as it
did in the companion case. We believe the reasoning applied in the previous appeal also
applies here:

       [P]laintiff’s allegations involve matters that are not within the common
       knowledge of an ordinary person—matters involving the mental and
       physical 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.

Newman, 2016 WL 4069052, at *7. Moreover, Mrs. Newman failed to file pre-suit
notice as required by Tenn. Code Ann. § 29-26-121.

        Because Mrs. Newman’s claim is a health care liability action and she failed to
comply with the THCLA, the Commissioner erred in failing to grant the State’s motion to
dismiss. See Ellithorpe, 479 S.W.3d at 828-29 (holding that the appropriate sanction for
failure to comply with the pre-suit notice requirement is dismissal without prejudice; but
for failure to comply with the good faith certificate requirement, dismissal with prejudice
is the proper result). The State’s second issue is pretermitted.

                                       CONCLUSION

       The judgment of the Claims Commission is reversed, and this matter is remanded
with costs of appeal assessed against the appellee, Unitta Sue Newman, for which
execution may issue if necessary.


                                                   ________________________________
                                                   ANDY D. BENNETT, JUDGE

                                            -8-
