Adam Ellithorpe v. Janet Weismark

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

June 3, 2015 Session

ADAM ELLITHORPE ET AL. V. JANET WEISMARK

Appeal by Permission from the Court of Appeals, Middle Section

Circuit Court for Davidson County

No. 13C2775 Thomas W. Brothers, Judge

No. M2014-00279-SC-R11-CV – Filed October 8, 2015

We granted review in this health care liability action to decide whether the trial court

erred by failing to apply this Court‟s analysis in Estate of French v. Stratford House, 333

S.W.3d 546 (Tenn. 2011), in determining whether it was necessary for plaintiffs to

provide pre-suit notice and a certificate of good faith under the Tennessee Health Care

Liability Act (“THCLA”), Tenn. Code Ann. § 29-26-101 et seq. We hold that the

Tennessee Civil Justice Act of 2011, which amended the THCLA, statutorily abrogated

our decision in Estate of French by providing that “[a]ny such civil action or claim is

subject to [the THCLA] regardless of any other claims, causes of action, or theories of

liability alleged in the complaint.” Because it is undisputed that the plaintiffs in this case

failed to provide pre-suit notice or file a certificate of good faith, the judgment of the

Court of Appeals is reversed and the judgment of the trial court dismissing the plaintiffs‟

complaint with prejudice is reinstated.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals

Reversed; Judgment of the Trial Court Reinstated

CORNELIA A. CLARK, J., delivered the opinion of the Court, in which SHARON G. LEE,

C.J., and GARY R. WADE, JEFFREY S. BIVINS, and HOLLY KIRBY, JJ., joined.

John F. Floyd and Daniel C. Todd, Nashville, Tennessee, for the appellant, Janet

Weismark.

Connie Reguli, Brentwood, Tennessee, for the appellees, Adam Ellithorpe, Ashley

Ellithorpe, and M.L. (a minor).

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor

General; Alexander S. Rieger and Paul Jordan Scott, Assistant Attorneys General, for the

intervenor, State of Tennessee.

OPINION

I. Factual and Procedural Background

On July 11, 2013, Adam and Ashley Ellithorpe (“Parents”)1 filed this action

against Janet Weismark (“Ms. Weismark”), a licensed clinical social worker, alleging that

she had provided counseling services to their minor child, M.L., without obtaining

Parents‟ valid consent. Parents‟ complaint includes claims for negligence, negligence per

se, and intentional infliction of emotional distress (“IIED”). Because this case comes to

us in the posture of Ms. Weismark‟s motion to dismiss the complaint for failure to state a

claim, we accept the allegations of the complaint as true. See Brown v. Tenn. Title

Loans, Inc., 328 S.W.3d 850, 853 (Tenn. 2010) (citing Leach v. Taylor, 124 S.W.3d 87,

90 (Tenn. 2004)).

Parents are the legal and biological parents of M.L. However, on February 1,

2012, the Juvenile Court of Sumner County, Tennessee, allegedly issued an order

(“Juvenile Court‟s order”) giving Ronda and Eugene Melton (collectively “the Meltons”)

temporary custody of M.L. The Meltons are the paternal great aunt and uncle of M.L.

Notably, the Juvenile Court‟s order is neither attached to Parents‟ complaint nor included

in the record on appeal.2 Nevertheless, Parents‟ complaint alleges that the Juvenile

1

Parents‟ minor child, who we will refer to as M.L. in this opinion to protect her anonymity, was

also named as a plaintiff in this action. For purposes of this appeal we will refer to the plaintiffs

collectively as “Parents.”

2

At oral argument, Parents‟ counsel expressed concern about disclosing a juvenile court record

as such records are placed under seal by statute. See Tenn. Code Ann. § 37-1-153(d)(1) (2010) (“Except

as otherwise permitted in this section, it is an offense for a person to intentionally disclose or disseminate

to the public the files and records of the juvenile court, including the child‟s name and address.”).

However, Tennessee Code Annotated section 37-1-153(a)(5) provides that juvenile court records are

open to inspection, “[w]ith permission of the court, [to] any other person or agency or institution having a

legitimate interest in the proceeding or in the work of the court.” Thus, Parents‟ counsel should have

sought permission from the juvenile court to file a copy of the order under seal in the Circuit Court along

with the complaint. See Tenn. R. Civ. P. 10.03 (“Whenever a claim or defense is founded upon a written

instrument other than a policy of insurance, a copy of such instrument or the pertinent parts thereof shall

be attached to the pleading as an exhibit.” (emphasis added)). Having failed to attach the order to the

complaint or include it in the record before the trial court, Parents‟ counsel should have filed a motion to

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Court‟s order gave the Meltons authority to make medical decisions for M.L. However,

the order also allegedly provided that Parents were to “be kept informed of counseling

progress and be allowed to participate, including counseling. . . .” Further, Parents allege

that the Juvenile Court‟s order gave them the right to receive copies of M.L.‟s medical,

health, and other treatment records directly from the physician or health care provider

who provided the treatment. Moreover, according to Parents‟ complaint, “the custodian

[Ms. Melton] was admonished by the [Juvenile] Court to work together with [parents] in

support of reuniting [parents] with [M.L.]”

Parents‟ complaint alleges that on June 11, 2011, Ms. Weismark completed an

intake form, signaling the beginning of Ms. Weismark‟s counseling with M.L. According

to Parents, they were completely unaware that Ms. Weismark had begun counseling M.L.

because they were never allowed to participate in the counseling. Ms. Weismark

allegedly continued to hold counseling sessions with M.L. without informing Parents until

at least April 9, 2013, but Parents believe that M.L. was still in counseling at the time they

filed their complaint against Ms. Weismark. Consequently, Parents allege that Ms.

Weismark “[was] negligent in providing health services without following the parameters

of the court order by notifying [parents] and allowing them to participate in said counsel

[sic].”

Parents‟ complaint further asserts that they first became aware of M.L.‟s

counseling sessions with Ms. Weismark on April 10, 2013, when the assigned Guardian

Ad Litem “let the information slip out.” Thereafter, Parents assert that the Guardian Ad

Litem “was asked to disclose the name and phone number of the counselor. He

reluctantly gave the name of [Ms. Weismark] and her phone number.”

Parents further assert that, after they became aware that counseling was occurring,

they asked Ms. Weismark to provide them with a copy of M.L.‟s treatment records:

[A] phone call was made to Ms. Weismark‟s office and she was asked to

provide a complete copy of [M.L.‟s] records to [Parents] and was told that

[Parents] would come by to pick up the records. She was reluctant and

stated that she would need $25 to pay for the records. She was told that

supplement the record in the appellate court pursuant to Rule 24 of the Tennessee Rules of Appellate

Procedure and complied with Rule 15(f) of the Rules of the Court of Appeals of Tennessee in filing the

Juvenile Court‟s order. See Tenn. Ct. App. R. 15(f) (“Documents made confidential or sealed pursuant

to a statute or rule, including those records and briefs filed in appeals from juvenile courts subject to

Tenn. Ct. App. R. 14, shall contain a prominent notation on their cover stating that they are confidential

or sealed and indicating the authority for such protection.”). Parents made no attempt to supplement the

record with the Juvenile Court‟s order before the Court of Appeals or this Court, even though the Court

of Appeals noticed and lamented its absence.

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would be fine.

According to Parents, Ms. Weismark called back “within [twenty] minutes” and left a

message that she had been “advised not to give out the records” but would not respond to

further inquiries about who had advised that the records be withheld.

Parents assert that they received Ms. Weismark‟s treatment records only after this

action was initiated and a subpoena was issued by the trial court. Parents contend that

Ms. Weismark did not have a copy of the Juvenile Court‟s order as a part of her records

for M.L. and that she neither confirmed Ms. Melton‟s identity nor verified any court-

ordered restrictions on Ms. Melton‟s authority. However, Parents allege that Ms.

Weismark knew that Ms. Melton was not M.L.‟s biological parent because she was listed

as a “great aunt” on the intake form. According to Parents, Ms. Weismark‟s actions

“demonstrate[] her reckless disregard” for their rights.

Parents also state that Ms. Weismark wrote a letter on January 16, 2013,

recommending that they be denied contact with M.L.3 According to Parents‟ complaint,

this recommendation directly contravened a “current court order for visitation.”

Finally, because of this allegedly “secret” counseling, Parents state that M.L. has

been “harmed emotionally in not being allowed to counsel” with them and that they too

have suffered emotional distress. Parents contend that the counseling is the direct and

proximate cause of these injuries. Further, Parents allege

that the proof will show that [M.L.] has suffered severe emotional harm

from being forcefully kept separated from her [P]arents. In fact, in the

notes of Ms. Weismark, it shows that [M.L.] calls [Ms. Melton] “mommy”

and Ms. Weismark has done nothing to correct this. [Ms. Melton] is NOT

the “mommy” of [M.L.] and should not be substituted in [M.L.‟s] mind as

her parent. This is evidence of the deep psychological damage that has

occurred to [M.L.] while in counseling with Ms. Weismark.

(Capitalization in original.)

On August 15, 2013, Ms. Weismark answered Parents‟ complaint by denying that

Parents were entitled to any relief. She also asserted several affirmative defenses in her

3

Ms. Weismark admitted in her answer to Parents‟ complaint that “in a January 16, 2013

correspondence . . . she recommended that [M.L] have no further visits with her [P]arents at this time

because of her [P]arents‟ erratic and abusive behaviors and [M.L.‟s] fearful and confused feelings. In

addition, [] [Ms. Weismark] recommended that an investigation should be done to assess the [P]arents‟

parenting skills and home environment.” Neither Parents‟ complaint nor Ms. Weismark‟s answer

identifies the recipient of this correspondence.

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answer, including that Parents failed to comply with the pre-suit notice and certificate of

good faith requirements of the THCLA. See Tenn. Code Ann. §§ 29-26-121 to -122

(2012 & Supp. 2014).

On November 15, 2013, Ms. Weismark filed a motion to dismiss, also based on

Parents‟ failure to comply with the THCLA‟s procedural requirements. Parents filed their

response to the motion to dismiss on November 27, 2013, arguing that their claims were

not subject to the THCLA‟s procedural requirements because their claims sounded in

ordinary negligence.

On December 13, 2013, the trial court held a hearing on Ms. Weismark‟s motion to

dismiss. An order was entered on January 9, 2014, dismissing all of Parents‟ claims with

prejudice. In its verbal ruling on Ms. Weismark‟s motion to dismiss, the trial court stated

that the THCLA was “very broad” and encompassed Parents‟ claims because they related

to the provision of “health care services” by a “health care provider” as those terms are

defined by statute.4 See Tenn. Code Ann. § 29-26-101.

On February 7, 2014, Parents filed a notice of appeal raising only one issue, which

was restated5 by the Court of Appeals for clarity as follows: “Whether the trial court erred

in dismissing [Parents‟] negligence, negligence per se, and IIED claims for failure to

comply with the written notice and certificate of good faith requirements of the THCLA.”

Ellithorpe v. Weismark, No. M2014-00279-COA-R3-CV, 2014 WL 5511773, at *3

(Tenn. Ct. App. Oct. 31, 2014).

The Court of Appeals, relying primarily on Estate of French v. Stratford House,

held that the trial court had failed to utilize the correct analysis when determining if

Parents‟ claims sounded in ordinary negligence or health care liability. Weismark, 2014

4

We note that Parents filed a notice of no transcript citing Tennessee Rule of Appellate

Procedure 24(b) and stating that “there is no transcript from the December 13, 2013 hearing.” However,

Tennessee Supreme Court Rule 26 governs the preparation of the record in this appeal. Local Rule 8(a)

of the Twentieth Judicial District of Tennessee states, “The Sixth Circuit Court has been authorized by

the Supreme Court to use audio-visual recordings as the official record of court proceedings pursuant to

Supreme Court Rule 26.” Tenn. 20th J. Dist. R. § 8(a); see also Tenn. Sup. Ct. R. 26 § 1.01. Section

2.01 of Tennessee Supreme Court Rule 26 defines “the term „transcript‟ used in Rule 24, Tennessee

Rules of Appellate Procedure,” as including “an official electronic recording of court proceedings

recorded and maintained in accordance with [Tennessee Supreme Court Rule 26].” Tenn. Sup. Ct. R. 26

§ 2.01. Thus, because the official audio-visual recording of the December 13, 2013 hearing constitutes

the transcript, Parents‟ notice that no transcript would be filed was in error.

5

Parents stated the issue in their brief filed with the Court of Appeals as “[d]id the trial court err

in dismissing the appellants‟ case with prejudice for failure to comply with T.C.A. § 29-26-101 et seq.

when the cause of action is ordinary negligence?”

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WL 5511773, at *10. The Court of Appeals noted that in Estate of French, this Court

“abandoned the broad „gravamen of the complaint‟ test . . . in favor of „a more nuanced

approach‟ in which the trial court must examine the claims individually to determine

whether they sound in ordinary negligence or health care liability.” Weismark, 2014 WL

5511773, at *9 (quoting Estate of French, 333 S.W.3d at 560). The Court of Appeals

further determined that the trial court had not considered the standard outlined in Estate

of French and instead “relied on the gravamen of the complaint standard rejected in Estate

of French” when dismissing the complaint. Id. at *10. Thus, the Court of Appeals

vacated the trial court‟s order dismissing Parents‟ claims and remanded for

reconsideration of the entire complaint “pursuant to the standard articulated in Estate of

French.” Id.

We granted Ms. Weismark‟s Tennessee Rule of Appellate Procedure 11

application for permission to appeal.

II. Standard of Review

A motion to dismiss for failure to state a claim is the proper method for

challenging whether a plaintiff has complied with the THCLA‟s pre-suit notice and

certificate of good faith requirements. Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300,

307 (Tenn. 2012). A motion to dismiss based upon Tennessee Rule of Civil Procedure

12.02(6) challenges “only the legal sufficiency of the complaint, not the strength of the

plaintiff‟s proof or evidence.” Phillips v. Montgomery Cnty., 442 S.W.3d 233, 237

(Tenn. 2014) (quoting Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d

422, 426 (Tenn. 2011)).

A defendant filing a motion to dismiss “admits the truth of all the relevant and

material allegations contained in the complaint, but . . . asserts that the allegations fail to

establish a cause of action.” Id. (quoting Webb, 346 S.W.3d at 426 (alteration in original)

(internal quotation marks omitted)). The resolution of such a motion is determined by

examining the pleadings alone. Id.

In adjudicating such motions, courts “must construe the complaint liberally,

presuming all factual allegations to be true and giving the plaintiff the benefit of all

reasonable inferences.” Id. (citing Webb, 346 S.W.3d at 426; Cullum v. McCool, 432

S.W.3d 829, 832 (Tenn. 2013)). 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.‟” Webb, 346 S.W.3d at 426 (quoting Crews v. Buckman Labs. Int‟l,

Inc., 78 S.W.3d 852, 857 (Tenn. 2002)). We review a lower court‟s decision on such a

motion de novo without any presumption of correctness. Phillips, 442 S.W.3d at 237

(citing Cullum, 432 S.W.3d at 832).

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III. Analysis

Ms. Weismark asserts that the Legislature‟s 2011 amendments to the THCLA

precludes application of the “nuanced” approach found in Estate of French and that the

Court of Appeals erred by reversing the trial court‟s dismissal of Parents‟ complaint and

by remanding the case for analysis consistent with Estate of French. Conversely, Parents

assert that Estate of French is still good law, and that under the Estate of French analysis,

their claims sound in ordinary negligence instead of health care liability. Alternatively,

Parents assert that, even if the THCLA is applicable to their claims, dismissal with

prejudice is not compulsory. Finally, Parents assert for the first time before this Court a

constitutional challenge to the THCLA.

A. The Tennessee Health Care Liability Act

A brief history of the THCLA and its judicial interpretations is beneficial to our

analysis. In 2008, Tennessee‟s Medical Malpractice Act6 was amended, introducing new

requirements into medical malpractice litigation. See Act of April 24, 2008, ch. 919,

2008 Tenn. Pub. Acts 434; see generally Rebecca C. Blair, Med-Mal Obstacles, 44 Tenn.

B.J. 14 (2008). The 2008 amendment required a party initiating a medical malpractice

claim to give sixty days‟ pre-suit notice to the implicated health care providers. See

Tenn. Code Ann. § 29-26-121(a)(1) (Supp. 2008). Furthermore, the amendment

contained a certificate-of-good-faith provision requiring a plaintiff filing a medical

malpractice action, in which expert testimony was required, to file a certificate of good

faith within ninety days of the filing of the initial complaint. Id. § 29-26-122. This

certificate served to confirm that one or more experts had been consulted and provided a

signed written statement of their belief that there was a good faith basis for filing the

complaint. Id.

One year later, in 2009, the Act was again amended to clarify these new

requirements. See Act of June 4, 2009, ch. 425, 2009 Tenn. Pub. Acts 472; see generally

John A. Day, Med Mal Makeover: 2009 Act Improves on „08, 45 Tenn. B.J. 14 (2009).

Tennessee Code Annotated section 29-26-121(a)(1) was amended to require that pre-suit

notice only be given to persons or entities named as defendants in the action, see Tenn.

Code Ann. § 29-26-121(a)(1) (Supp. 2009), and section 121(a)(2) was amended to specify

what information was required to be included in the pre-suit notice. See id. § 29-26-

121(a)(2). Additionally, Tennessee Code Annotated section 29-26-122 was amended to

6

In 2011, pursuant to the Tennessee Civil Justice Act of 2011, Tennessee Code Annotated

sections 29-26-115 through 122 and 202 of the Medical Malpractice Act were amended to replace the

term “medical malpractice” with the term “health care liability.” Tennessee Civil Justice Act of 2011,

ch. 510 § 9, 2011 Tenn. Pub Acts 1505. It is important to note that because the title “Tennessee Medical

Malpractice Act” and the term “medical malpractice” were used in the discussed statutes prior to 2011,

the terms will continue to be appropriately used throughout this opinion.

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require the filing of the certificate of good faith with the complaint instead of within

ninety days after its filing. See id. § 29-26-122.

While the 2008 and 2009 amendments to the Tennessee Medical Malpractice Act

established new procedural requirements for plaintiffs seeking to file medical malpractice

actions, these amendments failed to sufficiently define a medical malpractice claim and

left Tennessee courts to distinguish between claims sounding in ordinary negligence and

those involving medical malpractice. In January 2011, this Court decided Estate of

French, which provided a comprehensive and detailed analysis of the interaction between

ordinary negligence principles and the Tennessee Medical Malpractice Act, as then

enacted.

In Estate of French, the administratrix of the estate of a deceased nursing home

resident brought a wrongful death suit against the nursing home alleging claims of

ordinary negligence, negligence per se, and violations of the Tennessee Adult Protection

Act. 333 S.W.3d at 549. The trial court granted partial summary judgment for the

nursing home, holding that the Tennessee Medical Malpractice Act applied to the

administratrix‟s ordinary negligence claims and precluded allegations of negligence per

se or violations of the Tennessee Adult Protection Act. Id. at 549-50. The Court of

Appeals affirmed, holding that “the gravamen of the case sounds in medical malpractice.”

Id. at 553 (internal quotation marks omitted). This Court granted the administratrix‟s

application for permission to appeal to address whether the administratrix‟s claims were

“based upon ordinary common law negligence, medical malpractice, or both.” Id. at 554.

We explained that, “[b]ecause medical malpractice is a category of negligence, the

distinction between medical malpractice and negligence claims is subtle; there is no rigid

analytical line separating the two causes of action.” Id. at 555 (citations omitted). Thus,

the Court resolved that “whether claims should be characterized as ordinary negligence or

medical malpractice claims obviously depends heavily on the facts of each individual

case.” Id. at 556. However, the Court provided the following guidance in distinguishing

between ordinary negligence and medical malpractice:

[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.

....

-8-

Medical malpractice cases typically involve a medical diagnosis,

treatment or other scientific matters. 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. at 555-56 (alteration in original) (citations omitted); see also Draper v. Westerfield,

181 S.W.3d 283, 290 (Tenn. 2005) (“[I]n determining whether an action is for medical

malpractice or for common law negligence, the issue is whether the alleged negligent

conduct „bears a substantial relationship to the rendition of medical treatment by a

medical professional.‟” (citing Gunter v. Lab. Corp. of Am., 121 S.W.3d 636, 641 (Tenn.

2003))). The Court ultimately concluded that it is “the responsibility of the courts to

ascertain the nature and substance of a claim” and that the “designation given those

claims by either the plaintiff or the defendant is not determinative.” Estate of French, 333

S.W.3d at 557.

However, roughly four months after this Court‟s decision in Estate of French, at its

next session, the Legislature passed the Tennessee Civil Justice Act of 2011, further

amending the Tennessee Medical Malpractice Act. See Tennessee Civil Justice Act of

2011, ch. 510, 2011 Tenn. Pub Acts 1505 (codified at Tenn. Code Ann. § 29-26-101 et

seq. (Supp. 2011)). 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 theories of

liability alleged in the complaint.” Id. § 29-26-101(c).

With the foregoing history in mind we turn to the issues raised in this appeal.

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B. Effect of THCLA on Estate of French Analysis

It is undisputed that Parents failed to comply with the pre-suit notice and

certificate of good faith provisions of Tennessee Code Annotated sections 29-26-121 and

122. See Weismark, 2014 WL 5511773, at *4. Moreover, after a thorough review of the

trial court‟s ruling on Ms. Weismark‟s motion to dismiss, we agree with the Court of

Appeals that “[n]othing in the trial court‟s written order or oral ruling indicates that the

trial court considered the standard outlined in Estate of French in dismissing the

complaint.” Id. at *9. The trial judge relied solely on the plain language of Tennessee

Code Annotated sections 29-26-101, -121, and -122 to determine that all causes of action

alleged in the complaint were covered by the THCLA. Specifically, the trial court stated

that the THCLA is “very broad” and encompasses Parents‟ claims because they relate to

the provision of “health care services” by a “health care provider” as those terms are

defined by statute. Thus, the resolution of this appeal depends on whether our decision in

Estate of French has been statutorily abrogated by the Tennessee Civil Justice Act of

2011.

When determining the meaning of statutes, our primary goal “is to carry out

legislative intent without broadening or restricting the statute beyond its intended scope.”

Johnson v. Hopkins, 432 S.W.3d 840, 848 (Tenn. 2013) (quoting Lind v. Beaman Dodge,

Inc., 356 S.W.3d 889, 895 (Tenn. 2011)). We presume that every word in a statute has

meaning and purpose and that each word‟s meaning should be given full effect as long as

doing so does not frustrate the General Assembly‟s obvious intention. Id. Words “„must

be given their natural and ordinary meaning in the context in which they appear and in

light of the statute‟s general purpose.‟” Id. (quoting Mills v. Fulmarque, Inc., 360 S.W.3d

362, 368 (Tenn. 2012)). When a statute‟s meaning is clear, we “„apply the plain meaning

without complicating the task‟ and enforce the statute as written.” Id. (quoting Lind, 356

S.W.3d at 895). Finally, we presume that the Legislature knows the law and makes new

laws accordingly. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 527 (Tenn. 2010).

Tennessee Code Annotated section 29-26-101(a)(1) defines health care liability

action as “any civil action. . . 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.” Furthermore subsection

101(a)(2) defines a health care provider as “[a] health care practitioner licensed,

authorized, certified, registered, or regulated under any chapter of title 63 or title 68. . . .”

Finally, subsection 101(c) makes “[a]ny such civil action or claim [] subject to this part

regardless of any other claims, causes of action, or theories of liability alleged in the

complaint.”

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

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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. Furthermore, we are mindful of the fact that

the Tennessee Civil Justice Act of 2011 was enacted mere months after this Court‟s

decision in Estate of French. Under the canons of statutory construction, we presume that

the Legislature was aware of this Court‟s decision in Estate of French and acted

accordingly in passing an act that rendered it effectively moot. We need not engage in

further statutory interpretation in the face of this clear legislative edict. Thus, we hold

that the “nuanced” approach for distinguishing ordinary negligence and health care

liability claims as outlined in Estate of French has been statutorily abrogated.

Applying the clear language of the THCLA to Parents‟ complaint, we conclude

that the allegations contained therein meet the definition of a health care liability action as

defined in section 29-26-101(a)(1). Parents‟ complaint alleges that Ms. Weismark “is a

licensed clinical social worker.” Social workers are a group licensed and regulated under

title 63 of the Tennessee Code. See Tenn. Code Ann. § 63-23-105 (2010 & Supp. 2014).

Thus, Ms. Weismark meets the definition of a “health care provider” under section 29-26-

101(a)(2). Parents recognized Ms. Weismark‟s status as a health care provider when they

relied upon the Juvenile Court‟s order as affording them a right to seek access Ms.

Weismark‟s treatment records of M.L. Specifically, Parents alleged at Paragraph 8 that

the Juvenile Court‟s order provided them with “the right to receive copies of the child‟s

medical, health or other treatment records directly from the physician or health care

provider who provid[ed] such treatment. . . .”

Additionally, Parents‟ complaint is rife with allegations relating to Ms.

Weismark‟s provision of health care services to M.L. Paragraph 9 of the complaint

alleges that Ms. Weismark “did an intake for counseling for [M.L.]”. Paragraphs 17 and

18 allege that Ms. Weismark did not have consent to counsel M.L. Paragraph 25 alleges

that M.L. “has been harmed emotionally in not being allowed to counsel with her

[p]arents” and that Parents “will seek an independent mental health examination of the

child to assess the harm caused by failing to counsel with them towards reunification.”

Paragraph 26 of the complaint alleges that “the secreted counseling with [M.L.] is the

direct and proximate harm and injury to [parents] and [M.L.].” Paragraph 29 alleges that

Ms. Weismark “should be keenly aware that providing this secret counseling for the child

is a gross deviation from the standard of care.” Finally, Paragraph 31 alleges that

“[Parents] would show that [Ms.] Weismark is negligent in providing health services

without following the parameters of the court order by notifying [parents] and allowing

them to participate in said counsel.” (Bold in original) (second emphasis added). Thus,

because Parents‟ complaint alleges negligence in the provision of health care services by

a covered health care provider, it is subject to the THCLA “regardless of any other

claims, causes of action, or other theories of liability alleged in the complaint.” Tenn.

Code Ann. § 29-26-101(c). Because Parents failed to comply with the pre-suit notice and

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certificate of good faith requirements of the THCLA, dismissal of their complaint is

appropriate.

C. Remedy

We next consider Parents‟ assertion that, even if the THCLA is applicable to their

complaint, dismissal with prejudice is not mandatory. Parents rely upon the language of

sections 29-26-121 and -122 as support for this argument. Section 29-26-122 requires a

certificate of good faith only in health care liability actions “in which expert testimony is

required by [section 29-26-115].” Furthermore, under 29-26-122(c), “[t]he failure of a

plaintiff to file a certificate of good faith in compliance with this section shall, upon

motion, make the action subject to dismissal with prejudice.” (Emphasis added.).

However, section 29-26-121 includes no similar provision requiring dismissal with

prejudice for failure to provide pre-suit notice. 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:

[Section] 29-26-121 does not provide for a penalty or consequence for

failing to provide pre-suit notice . . . . Whereas [section] 29-26-122

expressly require[s] a dismissal with prejudice for a plaintiff‟s failure to file

a certificate of good faith. These code sections, [] 29-6-121 and -122, were

enacted together as part of the Tennessee Health Care Liability Act;

therefore, we interpret these sections together and must presume that the

Legislature intended for them to carry different sanctions for

noncompliance. The Legislature could have, but did not, provide for

dismissal with prejudice for noncompliance with [section] 29-26-121(a)(1).

Therefore, we hold that dismissal without prejudice is the proper sanction

for noncompliance with [Tennessee Code Annotated section] 29-26-

121(a)(1).

Foster v. Chiles, No. E2012-01780-SC-R11-CV, 2015 WL 343872, at *4 (Tenn. Jan. 27,

2015) (internal citations omitted).

1. Dismissal without Prejudice

Parents argue that because the acts alleged in their complaint do not require expert

testimony by a medical professional, dismissal with prejudice under section 29-26-122(c)

is not required. At most, Parents say, the dismissal should be without prejudice under

section 29-26-121, based on their failure to file pre-suit notice. If the only failing was

lack of pre-suit notice then dismissal without prejudice would be the proper remedy. See

Foster, 2015 WL 343872, at *4. But that is not the only failing.

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2. Dismissal with Prejudice

As stated earlier and reiterated below, Parents have alleged health care liability

claims based on allegations that Ms. Weismark deviated from the standard of care. 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). Parents‟ attempt to couch their health care liability claims in the

guise of a violation of a court order is not convincing.7 Parents‟ complaint contains

numerous allegations that Ms. Weismark deviated from the standard of care and was

negligent in providing counseling services to M.L. Most telling are paragraphs 25, 26,

27, 29, and 31, which allege that: (1) M.L. has been harmed emotionally because she was

not allowed to counsel with Parents; (2) Parents will seek an independent mental health

examination of M.L. to assess the harm caused by Ms. Weismark‟s failure to counsel with

Parents towards reunification; (3) Ms. Weismark‟s “secreted counseling” with M.L. has

directly and proximately caused Parents “severe emotional harm”; (4) M.L. has suffered

“severe emotional harm from being forcefully kept separated from her parents”; and (5)

Ms. Weismark‟s “secret counseling” was a “gross deviation from the standard of care.”

Expert testimony clearly would be required to prove these allegations. Consequently,

Parents were required to provide a certificate of good faith under Tennessee Code

Annotated section 29-26-122, and their failure to comply with this statutory requirement

warrants dismissal with prejudice. See Tenn. Code Ann. § 29-26-122(c).

D. Constitutional Challenge

Parents have also raised a constitutional challenge to the THCLA for the first time

in this Court. Parents assert that if this Court interprets the THCLA as abrogating Estate

of French, “[t]he Forfeiture provisions of Title 29, Section 26 are unconstitutional in that

they restrict the [Parents‟] property right in their cause of action, it [sic] violates the equal

protection clause, and unconstitutionally restricts the right of free access to the courts.”

“It is axiomatic that parties will not be permitted to raise issues on appeal that they

did not first raise in the trial court.” Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496,

511 (Tenn. 2010) (citing Barnes v. Barnes, 193 S.W.3d 495, 501 (Tenn. 2006)). This

principle applies equally to constitutional challenges. See In re M.L.P., 281 S.W.3d 387,

7

We note that when Parents‟ counsel was asked at oral argument before this Court why Parents

did not file a motion for contempt with the Juvenile Court, she responded that the “Juvenile Court cannot

cure those damages.” By this statement, counsel acknowledged that this case involves more than

violation of a court order.

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394 (Tenn. 2009) (“Because Father did not properly raise [his constitutional challenge] in

the trial court, he has waived his right to argue this issue for the first time on appeal.”).

Thus, Parents waived their constitutional challenge, and we will not address it in this

appeal.8

IV. Conclusion

For the reasons stated herein, we hold that Estate of French has been abrogated

by statute. We further hold that Parents‟ complaint is subject to the THCLA, which

required them to file pre-suit notice and a certificate of good faith. Accordingly, due to

Parents‟ undisputed failure to meet either requirement, the judgment of the Court of

Appeals is reversed, and the judgment of the trial court dismissing Parents‟ complaint

with prejudice is reinstated. Costs of this appeal are taxed to Adam and Ashley

Ellithorpe, for which execution, if necessary, may issue.

_________________________________

CORNELIA A. CLARK, JUSTICE

8

On April 24, 2015, the Attorney General filed a motion to strike Parents‟ constitutional

challenge, or, in the alternative, a motion for permission to intervene. This Court entered an order on

April 27, 2015, granting the Attorney General permission to file a brief as an intervening party and taking

the Attorney General‟s motion to strike under advisement. Ellithorpe v. Weismark, No. M2014-00279-

SC-R11-CV (Tenn. Apr. 27, 2015) (order granting Attorney General permission to intervene and taking

motion to strike under advisement). Because Parents have waived their constitutional challenge, the

Attorney General‟s motion to strike is dismissed as moot.

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