SCOTN: All Claims for Providing Health Care Services Fall Under Health Care Liability Act

PRESS RELEASE from the Administrative Office of the Tennessee Courts, Oct. 9, 2015:

The Tennessee Supreme Court has determined that the Tennessee Health Care Liability Act (the Act) applies to all claims relating to the delivery of health care services by covered health care providers. As a result, the Supreme Court dismissed the claims of Nashville-area parents against a licensed clinical social worker because the couple failed to give pre-suit notice or provide a certificate of good faith as required by the Act.

In 2013, Adam and Ashley Ellithorpe filed a lawsuit against Janet Weismark, a licensed clinical social worker, who had provided counseling services to their minor child for nearly two years, while the child was in the custody of its great-aunt and great-uncle, Ronda and Eugene Melton. The Ellithorpes alleged that Ms. Weismark had been negligent because she failed to obtain their consent prior to providing counseling services to the minor child and failed to allow them to participate in the counseling sessions.

The Ellithorpes neither gave Ms. Weismark 90 day’s pre-suit notice of their claim, nor provided a certificate from a medical expert confirming the existence of a good faith basis for filing the complaint, both of which are required by the Act. The trial court dismissed their complaint for failure to comply with these provisions of the Act.

The Court of Appeals set aside the dismissal and sent the case back to the trial court for further consideration. In doing so, the Court of Appeals relied on a Supreme Court decision, Estate of French v. Stratford House, which required an examination of each claim of a complaint to determine the applicability of the Act.

The Supreme Court granted Ms. Weismark permission to appeal and reversed the Court of Appeals’ decision. The Court explained that the Tennessee General Assembly had amended the Act in 2011, not long after Estate of French was decided. The 2011 amendments clarified that the Act applies to any complaint alleging negligence in the provision of health care services by a covered health care provider, “regardless of any other claims, causes of action, or other theories of liability alleged in the complaint.”

The Court concluded that the Ellithorpe’s complaint was subject to the Act because it alleged claims of negligence in the provision of health care services by a covered health care provider – the social worker. The Court reinstated the trial court’s judgment dismissing the Ellithorpes’s complaint with prejudice because they failed to give pre-suit notice or provide a certificate of good faith as required by the Act.

Read the unanimous opinion in Ellithorpe v. Weismark, authored by Justice Cornelia A. Clark.