Facts: Plaintiff alleged she was assaulted while receiving a massage at a day spa. She brought intentional tort and negligence claims against both the therapist and the business. She provided a pre-suit notice but did not file a certificate of good faith with her complaint, resulting in summary judgment for both defendants.
Appellate Decision: The intermediate court reversed in part, holding the Health Care Liability Act requirements were inapplicable to the intentional tort claims against the massage therapist. However, the negligence claims against the business were subject to the Act and thus were properly dismissed.
Judge Stafford dissented, writing that the Act did apply to the business but a certificate of good faith was unnecessary due to the “common knowledge exception,” which applies when “the matter is within the common knowledge of a layperson” such that expert proof is not required. Expert proof is not required to prove negligent hiring and retention in other kinds of cases, so it should not be required in this case simply because the defendant engaged in health care services.
Review Granted: August 21, 2019
Prediction: Ben thinks the supreme court allow the claims against the therapist to move forward, and agree with the dissent that the “common knowledge exception” should allow the claims against the business to move forward as well for the reasons stated by the dissent.