                                                                                          03/24/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               January 21, 2020 Session

                 RICKY LEE JOHNSON v.
 KNOXVILLE HMA CARDIOLOGY PPM, LLC D/B/A EAST TENNESSEE
 HEART CONSULTANTS, INC. D/B/A TENNOVA HEART-NORTH ET AL.

                     Appeal from the Circuit Court for Knox County
                         No. 1-6-19    Kristi M. Davis, Judge


                             No. E2019-00818-COA-R3-CV


In this action involving injuries allegedly caused by the defendant medical providers’
failure to provide a safe examination table, the trial court determined that the plaintiff’s
negligence claim was actually a health care liability claim and granted the defendants’
motion to dismiss the complaint with prejudice for failure to provide written pre-suit
notice to the defendants within the one-year statute of limitations pursuant to Tennessee
Code Annotated § 29-26-121(a) (Supp. 2019) of the Tennessee Health Care Liability Act
(“THCLA”). The plaintiff has appealed, conceding that he failed to provide written pre-
suit notice but asserting that his claim should not have been dismissed because it was not
a health care liability claim. Having determined that the trial court properly found that
the plaintiff’s claim was a health care liability action, we affirm the dismissal of this
matter. However, having also determined that the proper sanction for the plaintiff’s
failure to provide pre-suit notice under the THCLA was dismissal without prejudice, we
modify the trial court’s dismissal of the claim to be without prejudice.

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Mark E. Brown, Knoxville, Tennessee, for the appellant, Ricky Lee Johnson.

C.J. Gideon, Jr.; C. Blake Carter; and Jed S. Crumbo, Nashville, Tennessee, for the
appellees, Knoxville HMA Cardiology PPM, LLC d/b/a East Tennessee Heart
Consultants, Inc. d/b/a Tennova Heart-North and Charles B. Treasure, M.D., as an
employee/agent and/or Charles B. Treasure, M.D., individually.
                                         OPINION

                          I. Factual and Procedural Background

       The facts underlying this action are essentially undisputed. In 2016, the plaintiff,
Ricky Lee Johnson, consulted the co-defendant, Charles B. Treasure, M.D., regarding
problems with dizziness and fatigue. Mr. Johnson subsequently had a pacemaker
implanted by Dr. Treasure to alleviate some of his symptoms. Mr. Johnson continued to
see Dr. Treasure for reprogramming of his pacemaker and other issues. On February 6,
2018, Mr. Johnson was at Dr. Treasure’s Knoxville office when he fell off an
examination table and into a wall, purportedly due to a fainting spell, resulting in injuries
to Mr. Johnson’s neck.

       Mr. Johnson filed a complaint in the Knox County Circuit Court (“trial court”) on
January 7, 2019, against Knoxville HMA Cardiology PPM, LLC d/b/a East Tennessee
Heart Consultants, Inc. d/b/a Tennova Heart-North, where Dr. Treasure’s office was
apparently located, and Dr. Treasure as an employee/agent and/or in his individual
capacity (collectively, “Defendants”). Mr. Johnson averred that Defendants had failed to
provide an examination table with railings to prevent falls or any padding or protection
on the walls and floor to prevent injury. He further averred that this failure resulted in his
fall and subsequent injuries after he suffered a fainting spell. Mr. Johnson alleged that
because Defendants knew that he suffered from fatigue and dizziness, they should have
been aware of the risk associated with leaving him unattended on the examination table.
Mr. Johnson also alleged that by failing to provide a safe examination room, Defendants
created a hazardous condition and breached their duty of care by failing to properly
inspect the premises, correct the hazardous condition, and warn Mr. Johnson of the
hazardous condition.

       Defendants filed a motion to dismiss pursuant to Tennessee Rule of Civil
Procedure 12.02(6). In support, Defendants asserted that Mr. Johnson’s negligence claim
was actually a health care liability claim and thus subject to the THCLA, which requires
written pre-suit notice to each defendant within a one-year statute of limitations and at
least sixty days prior to filing a complaint. See Tenn. Code Ann. § 29-26-121(a).
Defendants argued that because Mr. Johnson failed to comply with this requirement, the
complaint should be dismissed with prejudice. Mr. Johnson filed a response, asserting
that his claim was based on a theory of general negligence and did not fall under the
THCLA. Defendants filed a reply, reasserting their reasoning for the motion to dismiss.

       Following a hearing, the trial court entered an order granting Defendants’ motion
to dismiss on April 16, 2019. In its order, the trial court reviewed the allegations in the
complaint and determined that the complaint asserted a health care liability action as
                                              2
defined by Tennessee Code Annotated § 29-26-101(a)(1). In addition, the trial court
found the complaint’s allegations analogous to the plaintiff’s allegations in Osunde v.
Delta Med. Ctr., wherein this Court held that “the provision of [a] stool in connection
with [an] x-ray qualifies as a ‘health care service’ because such services include ‘staffing,
custodial or basic care, positioning, hydration and similar patient services.’” 505 S.W.3d
875, 888 (Tenn. Ct. App. 2016) (quoting Tenn. Code Ann. § 29-26-101(b)).

        The trial court also concluded in this action that it was reasonable to infer from the
allegations in the complaint that Mr. Johnson was on the examination table for the
purpose of “evaluation and/or treatment.” Noting that Mr. Johnson did not dispute that
he had failed to provide written pre-suit notice to either defendant within the one-year
statute of limitations, as required by Tennessee Code Annotated § 29-26-121(a), the trial
court determined that Mr. Johnson’s action should be dismissed with prejudice. Mr.
Johnson timely appealed.

                                     II. Issue Presented


   Mr. Johnson presents the following issue on appeal, which we have restated slightly:

         Whether the trial court erred by dismissing Mr. Johnson’s complaint with
         prejudice upon concluding that it was subject to the provisions of the
         THCLA.

                                  III. Standard of Review

       The trial court granted Defendants’ motion to dismiss, which was filed pursuant to
Tennessee Rule of Civil Procedure 12.02(6). Our Supreme Court has explained with
regard to Rule 12.02(6) motions generally:

              A Rule 12.02(6) motion challenges only the legal sufficiency of the
       complaint, not the strength of the plaintiff’s proof or evidence. The
       resolution of a 12.02(6) motion to dismiss is determined by an examination
       of the pleadings alone. A defendant who files a motion to dismiss “‘admits
       the truth of all of the relevant and material allegations contained in the
       complaint, but . . . asserts that the allegations fail to establish a cause of
       action.’” Brown v. Tenn. Title Loans, Inc., 328 S.W.3d 850, 854 (Tenn.
       2010) (quoting Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d
       512, 516 (Tenn. 2005))[.]



                                              3
             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.’” Tigg v. Pirelli Tire
      Corp., 232 S.W.3d 28, 31-32 (Tenn. 2007) (quoting Trau-Med, 71 S.W.3d
      [691,] 696 [Tenn. 2002])[.] A trial court should grant a motion to dismiss
      “only when it appears that the plaintiff can prove no set of facts in support
      of the claim that would entitle the plaintiff to relief.” We review the trial
      court’s legal conclusions regarding the adequacy of the complaint de novo.

Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011)
(additional internal citations omitted).

       Specifically regarding the standard of review applicable to a motion to dismiss a
health care liability action based on the plaintiff’s noncompliance with Tennessee Code
Annotated § 29-26-121 and Tennessee Code Annotated § 29-26-122 (2012), which
requires the plaintiff to file a certificate of good faith with the complaint when expert
testimony will be required, our Supreme Court has further explained:

              The proper way for a defendant to challenge a complaint’s
      compliance with Tennessee Code Annotated section 29-26-121 and
      Tennessee Code Annotated section 29-26-122 is to file a Tennessee Rule of
      Procedure 12.02 motion to dismiss. In the motion, the defendant should
      state how the plaintiff has failed to comply with the statutory requirements
      by referencing specific omissions in the complaint and/or by submitting
      affidavits or other proof. Once the defendant makes a properly supported
      motion under this rule, the burden shifts to the plaintiff to show either that
      it complied with the statutes or that it had extraordinary cause for failing to
      do so. Based on the complaint and any other relevant evidence submitted
      by the parties, the trial court must determine whether the plaintiff has
      complied with the statutes. If the trial court determines that the plaintiff has
      not complied with the statutes, then the trial court may consider whether the
      plaintiff has demonstrated extraordinary cause for its noncompliance. If the
      defendant prevails and the complaint is dismissed, the plaintiff is entitled to
      an appeal of right under Tennessee Rule of Appellate Procedure 3 using the
      standards of review in Tennessee Rule of Appellate Procedure 13. If the
      plaintiff prevails, the defendant may pursue an interlocutory appeal under
      either Tennessee Rule of Appellate Procedure 9 or 10 using the same
      standards.

             Because the trial court’s denial of [a defendant’s] motion involves a
      question of law, our review is de novo with no presumption of correctness.
                                             4
       Graham v. Caples, 325 S.W.3d 578, 581 (Tenn. 2010). The question of
       whether [the plaintiff] has demonstrated extraordinary cause that would
       excuse compliance with the statutes is a mixed question of law and fact,
       and our review of that determination is de novo with a presumption of
       correctness applying only to the trial court’s findings of fact and not to the
       legal effect of those findings. Starr v. Hill, 353 S.W.3d 478, 481-82 (Tenn.
       2011). We review the trial court’s decision to excuse compliance under an
       abuse of discretion standard. “A court abuses its discretion when it applies
       an incorrect legal standard or its decision is illogical or unreasonable, is
       based on a clearly erroneous assessment of the evidence, or utilizes
       reasoning that results in an injustice to the complaining party.” Wilson v.
       State, 367 S.W.3d 229, 235 (Tenn. 2012) (citing Wright ex rel. Wright v.
       Wright, 337 S.W.3d 166, 176 (Tenn. 2011)).

Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307-08 (Tenn. 2012).

      The Myers Court summarized the principles involved in statutory construction as
follows:

              The leading rule governing our construction of any statute is to
       ascertain and give effect to the legislature’s intent. Walker v. Sunrise
       Pontiac-GMC Truck, Inc., 249 S.W.3d 301, 309 (Tenn. 2008). To that end,
       we start with an examination of the statute’s language, Curtis v. G.E.
       Capital Modular Space, 155 S.W.3d 877, 881 (Tenn. 2005), presuming that
       the legislature intended that each word be given full effect. Lanier v. Rains,
       229 S.W.3d 656, 661 (Tenn. 2007). When the import of a statute is
       unambiguous, we discern legislative intent “from the natural and ordinary
       meaning of the statutory language within the context of the entire statute
       without any forced or subtle construction that would extend or limit the
       statute’s meaning.” State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000);
       see also In re Adoption of A.M.H., 215 S.W.3d 793, 808 (Tenn. 2007)
       (“Where the statutory language is not ambiguous . . . the plain and ordinary
       meaning of the statute must be given effect.”) (citing Calaway ex rel.
       Calaway v. Schucker, 193 S.W.3d 509, 516 (Tenn. 2005)). The
       construction of a statute is also a question of law which we review de novo
       without any presumption of correctness. Lind [v. Beaman Dodge, Inc.] 356
       S.W.3d [889,] 895 [(Tenn. 2011)].

Id. at 308.



                                             5
                           IV. Nature of Mr. Johnson’s Claim

       As his sole issue, Mr. Johnson contends that the trial court was incorrect in
determining that the allegations in his complaint set forth a claim that is subject to the
provisions of the THCLA. Specifically, Mr. Johnson argues that he did not allege in his
complaint that he was receiving medical services at the time of his fall. Defendants
contend that the trial court properly found Mr. Johnson’s claim to be one under the
umbrella of the THCLA. Upon thorough review of the record and applicable authorities,
we agree with the trial court and Defendants on this issue.

       In its order granting Defendants’ motion to dismiss, the trial court stated in
pertinent part:

              The Court finds the Complaint’s factual allegations assert a health
      care liability action as defined by the Health Care Liability Act. See TENN.
      CODE ANN. § 29-26-101(a)(1). The Complaint’s allegations are essentially
      the same as the allegations in Osunde v. Delta Medical Center, 505 S.W.3d
      875 (Tenn. Ct. App. 2016), where the Court of Appeals ruled that the
      provision of an allegedly unsafe stool to a patient in connection with an x-
      ray was a “health care service.” See id. at 888. Here, the Defendants’
      provision of an allegedly unsafe examination table (and surrounding area)
      to [Mr. Johnson] for the purpose of evaluation and/or treatment is not
      distinguishable from Osunde. While the Complaint does not explicitly
      allege [Mr. Johnson] was on the examination table for the purpose of
      evaluation and/or treatment, that is the only reasonable inference from the
      allegations in the Complaint.

              Because the Complaint asserts a health care liability action, it is
      subject to the requirements of the Health Care Liability Act, including
      written pre-suit notice to all named Defendants. See TENN. CODE ANN. §
      29-26-121(a). There is no dispute [Mr. Johnson] did not provide written
      pre-suit notice to either Defendant within the one (1)-year statute of
      limitations. See TENN. CODE ANN. § 29-26-116(a)(1). As a matter of law,
      the Complaint fails to comply with the Health Care Liability Act, and must
      be dismissed with prejudice.

       We begin our analysis by examining the definitions contained in the THCLA that
are pertinent to this action. The THCLA defines a “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
                                            6
       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. 2019). The THCLA defines “health care
services” as including:

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

Tenn. Code Ann. § 29-26-101(b) (Supp. 2019).

       The THCLA requires in relevant part:

       Any person, or that person’s authorized agent, 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 based upon health care liability in any
       court of this state.

Tenn. Code Ann. § 29-26-121(a)(1). In addition, “[t]he requirement of service of written
notice prior to suit is deemed satisfied if, within the statutes of limitations and statutes of
repose applicable to the provider,” the notice is served personally or by mail, “which
shall be filed with the complaint.” Tenn. Code Ann. § 29-26-121(a)(3).

      Regarding what constitutes a health care liability action under these definitions,
our Supreme Court has held:

               Giving every word in this section its full effect and plain meaning,
       we 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.

                                              7
Ellithorpe v. Weismark, 479 S.W.3d 818, 827 (Tenn. 2015). The statutory definition of
“health care liability action” is conclusive, and most civil claims arising in the medical
setting will fall under the “wide net” of the definition. Cordell v. Cleveland Tenn. Hosp.,
LLC, 544 S.W.3d 331, 336 (Tenn. Ct. App. 2017); see Osunde, 505 S.W.3d at 884-85
(“Given the breadth of the statute, it should not be surprising if most claims now arising
within a medical setting constitute health care liability actions.”).

       However, “whether a health care liability action is implicated is entirely dependent
on whether the factual allegations meet the definition outlined in the statute.” Cordell,
544 S.W.3d at 336 (quoting Osunde, 505 S.W.3d at 885 n.6) ; see Estate of Thibodeau v.
St. Thomas Hosp., No. M2014-02030-COA-R3-CV, 2015 WL 6561223, at *6 (Tenn. Ct.
App. Oct. 29, 2015) (explaining that the plain language of the statute is applied to the
allegations in the complaint to determine if a claim constitutes a health care liability
action). Although “the analytical line” that separates THCLA claims from non-THCLA
claims is “sometimes unclear,” it is this Court’s task to determine on which side of the
line Mr. Johnson’s claim falls. See Lacy v. Vanderbilt Univ. Med. Ctr., No. M2016-
02014-COA-R3-CV, 2017 WL 6273316, at *7 (Tenn. Ct. App. May 4, 2017).

        In this case, under a claim labeled “Negligence,” Mr. Johnson specifically alleged
in his complaint:

              [Mr. Johnson] sues the Defendants for personal injury suffered as a
       result of his fall from the examination table. Specifically, the Defendants
       knew that [Mr. Johnson] had suffered from dizziness and fatigue in the past
       as noted in [Mr. Johnson’s] medical records which led—at least in part—to
       the implantation of a pacemaker. The Defendants were thus aware or
       should have been aware of the risk associated with [Mr. Johnson’s]
       remaining unattended on an examination table without proper safety
       protocols. By failing to have railings or other security devices on the
       examination table the Defendants created a hazardous condition that was
       not open and obvious and was a breach of the duty of care and the actual
       and proximate cause of [Mr. Johnson’s] injuries.

              [Mr. Johnson] alleges that the Defendants owed a duty of care to
       inspect the premises at its office for hazardous conditions. [Mr. Johnson]
       alleges that the Defendants’ failure to properly inspect the premises is a
       breach of the duty of care and the actual and proximate cause of [Mr.
       Johnson’s] injuries.

             [Mr. Johnson] alleges that the Defendants owed a duty of care to him
       to repair, replace or correct the unsafe and hazardous conditions at its
                                            8
        office. [Mr. Johnson] alleges that the Defendants’ failure to properly
        repair, replace or correct the unsafe or hazardous conditions at its office is a
        breach of the duty of care and the actual and proximate cause of [Mr.
        Johnson’s] injuries.

               [Mr. Johnson] alleges that the Defendants owed a duty of care to
        warn of any unsafe conditions at its office. [Mr. Johnson] alleges that the
        Defendants’ failure to warn [Mr. Johnson] of such unsafe and hazardous
        conditions is a breach of the duty of care and the actual and proximate
        cause of [Mr. Johnson’s] injuries.

               As a result of the fall and injury [Mr. Johnson] has been forced to
        undergo medical treatment for a broken neck, and damage to an artery in
        his neck which would have not occurred but-for the breach of duty on
        behalf of the Defendants.

              As a result of the Defendants’ negligence, [Mr. Johnson] is entitled
        to damages in the form of medical expenses, pain and suffering, loss of
        enjoyment of life and loss of earning capacity.

(Paragraph numbering omitted.)

        In determining that Mr. Johnson’s claim was subject to THCLA requirements, the
trial court found it analogous to the plaintiff’s claim in Osunde, 505 S.W.3d 875. Mr.
Johnson argues that this action is factually distinguishable because unlike the plaintiff in
Osunde, Mr. Johnson has not alleged that he was receiving medical services at the time of
his fall. He therefore asserts that his claim is not subject to the pre-suit notice
requirement of the THCLA. Defendants argue that the trial court properly found that Mr.
Johnson’s allegations mirrored those of the Osunde plaintiff. We agree with Defendants.

       In Osunde, the plaintiff was a patient at the defendant hospital when she was asked
to step onto a stool in order to undergo an x-ray. Osunde, 505 S.W.3d at 877. After the
x-ray was completed, the plaintiff tried to step off the stool and fell, incurring injuries.
Id. In her complaint, the plaintiff asserted “medical malpractice” and common law
negligence.1 Id. at 876. The defendant hospital filed a motion for summary judgment
when the plaintiff missed a deadline to disclose experts. Id. at 876-77. The trial court
dismissed the medical malpractice claim but denied the motion regarding the common

1
  We note that “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 Ellithorpe,
479 S.W.3d at 826 (citing 2011 Pub. Acts, Ch. 510 § 9 (H.B. 2008)).
                                                      9
law negligence claim. Id. at 877. On interlocutory appeal, this Court determined that the
common law negligence claim was actually a health care liability action, stating:

       Although [the plaintiff’s] counsel [has] argued that the facts surrounding
       this asserted negligence claim do not give rise to a health care liability
       action, we must respectfully disagree. The asserted conduct on which [the
       plaintiff] bases her recovery fits within the definition of a health care
       liability action stated in section 29-26-101. Again, such an action alleges
       that a health care provider “caused an injury related to the provision of, or
       failure to provide, health care services.” Id. Here, [the plaintiff] has
       alleged that the radiology technician caused an injury to her when he
       provided her with a faulty stool in connection with an x-ray taken at [the
       defendant’s hospital]. Under the statute, the radiology technician qualifies
       as a “health care provider” because that term includes the employees of
       health care providers such as “physicians, nurses, licensed practical nurses,
       advance practice nurses, physician assistants, nursing technicians,
       pharmacy technicians, orderlies, certified nursing assistants, [and]
       technicians.” Id. § 29-26-101(a)(2)(D). Moreover, the provision of the
       stool in connection with the x-ray qualifies as a “health care service”
       because such services include “staffing, custodial or basic care, positioning,
       hydration and similar patient services.” Id. § 29-26-101(b). Measuring the
       facts asserted by [the plaintiff] against the backdrop of the definitions
       contained within the statute, it is inescapable that she has alleged that a
       “health care provider” has injured her in relation to its provision of “health
       care services.” As such, her action is subject to the THCLA.

Id. at 887-88. We determine, as did the trial court, that the provision of the stool in
Osunde is comparable to the provision of an examination table in the instant action.

        Similarly, Defendants posit that Mr. Johnson’s claim is comparable to that of the
plaintiff in Youngblood ex rel. Estate of Vaughn v. River Park Hosp., LLC, No. M2016-
02311-COA-R3-CV, 2017 WL 4331042, at *1-4 (Tenn. Ct. App. Sept. 28, 2017). Again,
we agree. In Youngblood, a nurse employed by the defendant hospital brought the
eighty-six-year-old plaintiff a cup of coffee while the plaintiff was recovering from a
major surgery. Id. at *1. The plaintiff burned himself after the nurse left the room. Id.
The plaintiff sued the hospital, alleging that given his condition, he should not have been
left alone to manage an extremely hot beverage. Id. The plaintiff did not provide written
pre-suit notice to the defendant hospital as required by the THCLA. Id. The trial court
determined that “the actions in bringing a cup of coffee to [the plaintiff’s] hospital room
and leaving it on his bedside table were ‘related to the provision of, or failure to provide,
health care services.’” Id. at *3 (quoting Tenn. Code Ann. § 29-26-101(a)(1)).
                                             10
         We conclude that Mr. Johnson’s allegations are “related to the provision of, or
failure to provide, health care services” as defined by Tennessee Code Annotated § 29-
26-101(a)(1). The provision of an examination table for an appointment with a doctor is
a “health care service” as defined by Tennessee Code Annotated § 29-26-101(b) because
it falls under “custodial or basic care, positioning . . . and similar patient services.” See
Osunde, 505 S.W.3d at 888 (quoting Tenn. Code Ann. § 29-26-101(b)). Although Mr.
Johnson did not specifically allege that he was at Defendants’ office to receive medical
services at the time of his fall, we agree with the trial court that this is the only reasonable
inference to make from the complaint. Despite Mr. Johnson’s attempt to base liability on
a premises liability theory, if a claim meets the definition, it is a health care liability
action “regardless of any other claims, causes of action, or theories of liability alleged in
the complaint.” See Ellithorpe, 479 S.W.3d at 827 (citing Tenn. Code Ann. § 29-26-
101).

        On appeal, Mr. Johnson also relies on this Court’s decision in Lacy v. Mitchell,
541 S.W.3d 55 (Tenn. Ct. App. 2016), to argue that it is reasonable to conclude that
because Mr. Johnson’s medical appointment had ended, his fall was not related to
medical services. In Lacy, the plaintiff sued for injuries she purportedly sustained when a
chiropractor allegedly assaulted her by jumping on her back while she was lying face
down on a table and by hitting her on the back with a medical folder as the chiropractor
was walking out the door. Lacy, 541 S.W.3d at 57-58. The trial court dismissed the
action for failure to comply with the THCLA pre-suit notice requirement. Id. at 58. This
Court, vacating the dismissal in part, determined that Ms. Lacy had two separate
cognizable claims, one for the provider’s allegedly jumping on her back and another for
the provider’s allegedly hitting her in the back with a medical folder. Id. at 60.
Reasoning that it was equally reasonable to infer that the strike on the back with the
folder occurred after the chiropractor finished rendering medical services, this Court
determined that it was not apparent from the face of the complaint that the second claim
fit the definition of a health care liability action. Id. at 61.

       We find the instant action to be highly factually distinguishable from Lacy because
allegations of assaulting a patient by striking her on the back with a folder while she was
walking out the door are in no way comparable to allegations of a patient’s falling off an
examination table while in the examination room. Regardless of whether Mr. Johnson’s
medical appointment had ended, his position on the examination table was “related to the
provision of, or failure to provide, health care services.” See Tenn. Code Ann. § 29-26-
101(a)(1). Mr. Johnson’s reliance on Lacy is unavailing. Assuming that all of the factual
allegations in Mr. Johnson’s complaint are true, as we must in considering a motion to
dismiss, see Webb, 346 S.W.3d at 426, we conclude that Mr. Johnson has pled a health

                                              11
care liability claim subject to the requirements of the THCLA. See Tenn. Code Ann. §
29-26-101(a)(1).

       We now address the consequences of Mr. Johnson’s failure to give Defendants
pre-suit notice as required by Tennessee Code Annotated § 29-26-121(a)(1). Our
Supreme Court held in Foster v. Chiles that “dismissal without prejudice is the proper
sanction for noncompliance with Tenn. Code Ann. § 29-26-121(a)(1).” 467 S.W.3d 911,
916 (Tenn. 2015) (footnote omitted); see Ellithorpe, 479 S.W.3d at 828 (“This Court has
interpreted the disparity between sections 29-26-121 and -122 as indicative of the
Legislature’s intent that failure to provide pre-suit notice result only in dismissal without
prejudice.” (citing Foster, 467 S.W.3d at 916)). In this case, Mr. Johnson concedes that
he has failed to give Defendants pre-suit notice as required by Tennessee Code Annotated
§ 29-26-121(a)(1). We therefore modify the trial court’s dismissal of this action to be
without prejudice.2

                                           V. Conclusion

      For the foregoing reasons, we affirm the trial court’s judgment dismissing Mr.
Johnson’s claim. We modify the trial court’s judgment, however, to be a dismissal
without prejudice. We remand for enforcement of the judgment and collection of costs
below. Costs on appeal are taxed to the appellant, Ricky Lee Johnson.




                                                        _________________________________
                                                        THOMAS R. FRIERSON, II, JUDGE




2
  We note that the written pre-suit notice requirement of Tennessee Code Annotated § 29-26-121(a)(1)
must be served within the one-year statute of limitations as required by Tennessee Code Annotated § 29-
26-121(a)(3). In this case, the one-year statute of limitations expired in February 2019. See Tenn. Code
Ann. § 29-26-116(a)(1) (2012). We therefore acknowledge that although we are directing Mr. Johnson’s
claim to be dismissed without prejudice, any further claims by Mr. Johnson will be time-barred. See
Givens v. Vanderbilt Univ., No. M2013-00266-COA-R3-CV, 2014 WL 820622 at *6 (Tenn. Ct. App.
Feb. 27, 2014) (affirming the dismissal of the plaintiff’s claim without prejudice but acknowledging that
any further claims would be time-barred).
                                                     12
