Ricky Lee Johnson v. Knoxville HMA Cardiology PPM, LLC

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

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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.

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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.

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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

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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.

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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

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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)).

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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

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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).

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