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February 27, 2015

Health Care Liability Act

CaseAdam Ellithorpe, et al v. Janet Weismark

Issue:  What is the proper standard for determining whether all, or part, of a complaint is subject to the Health Care Liability Act’s pre-suit notice requirements?

Facts:  Parents alleged that Social Worker provider counseling services to child without Parents’ consent, and brought an action for negligence and intentional infliction of emotional distress. Social Worker moved to dismiss on the ground that Parents did not comply with the notice requirements of the Tennessee Health Care Liability Act. The trial court granted dismissal upon finding the suit fell within the Act’s scope.

Appellate Decision:  The intermediate court reversed dismissal and remanded, holding that the trial court applied an incorrect legal standard in concluding the Act governed the entire complaint. Specifically, the trial court improperly dismissed the complaint on the basis of the “gravamen” of the complaint rather than applying a more nuanced review to each particular cause of action. The lower court should have given more consideration to Parents’ argument that at least some of their claims sound in ordinary negligence rather than health care liability.

Review Granted:  February 13, 2015.

Prediction:  Ben thinks the Supreme Court will affirm the remand and provide further guidance into how lower courts should evaluate whether a cause of action is subject to the pre-suit notice requirement.