Session February 27, 2017
from the Circuit Court for Knox County No. 2-202-15 Kristi M.
action regarding injury allegedly caused by an emergency
medical technician in the course of rendering medical aid,
the trial court determined that the plaintiff's claims
were subject to the Tennessee Health Care Liability Act
("THCLA") and dismissed the claims with prejudice
based on the plaintiff's failure to file a certificate of
good faith pursuant to Tennessee Code Annotated §
29-26-122. The plaintiff has appealed, conceding that his
claims sounded in health care liability but asserting that
they should not have been dismissed with prejudice because a
certificate of good faith was not required. Following our
review of the complaint, we conclude that the plaintiff's
claims were subject to the common knowledge exception such
that a certificate of good faith was not required pursuant to
Tennessee Code Annotated § 29-26-122. We therefore
reverse the trial court's dismissal with prejudice and
remand this matter to the trial court for entry of an order
dismissing the plaintiff's claims without prejudice based
upon his failure to provide pre-suit notice.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Alexander J. Winston, Knoxville, Tennessee, for the
appellant, Jonathan Fitzrandolph Zink.
Edward Pratt and Andrew J. Droke, Knoxville, Tennessee, for
the appellees, Rural/Metro of Tennessee, L.P.; Rural/Metro
Corporation of Tennessee; and Randy Osborne.
R. Frierson, II, J., delivered the opinion of the court, in
which D. Michael Swiney, C.J., and Charles D. Susano, Jr.,
R. FRIERSON, II, JUDGE
Factual and Procedural Background
plaintiff, Jonathan Fitzrandolph Zink, filed the instant
action on April 13, 2015, alleging that he sustained injuries
on April 21, 2014, when one of the defendants, who was an
emergency medical technician ("EMT"),
"negligently and carelessly" struck Mr. Zink in the
face with his fist. Mr. Zink filed the present action against
the EMT in question, Randy Osborne, and his employer,
Rural/Metro of Tennessee, L.P. (collectively,
"Defendants"). In his complaint, Mr. Zink asserted
that he was strapped to a gurney and under Mr. Osborne's
care at the time the blow occurred. Mr. Zink claimed,
inter alia, that Mr. Osborne assaulted and battered
him, using excessive force. Mr. Zink alleged that he suffered
permanent injuries as a result of Mr. Osborne's
"negligent, reckless, or intentional acts, "
incurring resultant medical expenses and loss of enjoyment of
life. Mr. Zink further asserted that Mr. Osborne was acting
in the scope of his employment and that his employer should
be held vicariously liable.
filed a motion to dismiss pursuant to Tennessee Rule of Civil
Procedure 12.02(6). In support, Defendants asserted that Mr.
Zink's action was, in actuality, a health care liability
action because Mr. Osborne was a health care provider and Mr.
Zink's injuries were "related to" the provision
of health care services. See Tenn. Code Ann. §
29-26-101(a)(1). Defendants thereby argued that Mr.
Zink's claims should be dismissed because he failed to
provide the requisite pre-suit notice and failed to file a
certificate of good faith. See Tenn. Code Ann.
§§ 29-26-121 and -122.
trial court conducted a hearing on April 29, 2016, regarding
the motion to dismiss. On July 15, 2016, the court issued an
order granting the motion. In its order, the trial court
reviewed the facts alleged in the complaint. Based on the
definition of a health care liability action contained in
Tennessee Code Annotated § 29-26-101(a)(1), the court
determined that Mr. Zink's complaint asserted a health
care liability claim. The court found that Mr. Osborne was a
health care provider and that the incident occurred
"while the plaintiff was strapped to a gurney and
'under Mr. Osborne's care.'" Relying upon
the Tennessee Supreme Court's opinion in Ellithorpe
v. Weismark, 479 S.W.3d 818, 828 (Tenn. 2015), the court
also determined that Mr. Zink's claims were "subject
to the THCLA 'regardless of any other claims, causes of
action, or other theories of liability alleged in the
complaint.'" See Tenn. Code Ann. §
29-26-101(d). The court specifically noted that "the
degree of restraint necessary to contain a patient in order
to provide medical treatment certainly involves the provision
of medical services."
there was no dispute that Mr. Zink had failed to comply with
the pre-suit notice provisions of Tennessee Code Annotated
§ 29-26-121, the trial court determined that the
appropriate remedy for that omission would be dismissal
without prejudice. Due to Mr. Zink's failure to comply
with the provisions of Tennessee Code Annotated §
29-26-122, however, regarding the filing of a certificate of
good faith, the court concluded that Mr. Zink's action
should be dismissed with prejudice.
ruling on the motion, the trial court considered Mr.
Zink's argument that he should be excused from filing a
certificate of good faith because the alleged act of
negligence was "within the common knowledge of a
layperson, " such that expert proof was not necessary.
See Osunde v. Delta Med. Ctr., 505 S.W.3d 875, 886
(Tenn. Ct. App. 2016). See also Ellithorpe, 479
S.W.3d at 829 ("[E]xpert proof is required to establish
the recognized standard of acceptable professional practice
in the profession, unless the claim falls within the
'common knowledge' exception . . . ."). The
trial court in the present action determined that the
"common knowledge" exception did not apply because
"as set forth previously, the degree of restraint
necessary to contain an individual in order to provide
medical treatment is not something that is within the common
knowledge of a lay person." The trial court accordingly
dismissed Mr. Zink's claims with prejudice by reason of
his failure to file a certificate of good faith. Mr. Zink
Mr. Zink presents the following issues, which we have
1. Whether the trial court erred by drawing the inference
that Mr. Osborne was attempting to restrain Mr. Zink at the
time of the incident when such information was not contained
within the complaint.
2. Whether the trial court erred by granting a dismissal of
Mr. Zink's claims with prejudice due to his failure to
file a certificate of good faith because the alleged act of
negligence was within the common knowledge of a layperson.
Standard of Review
Supreme Court has elucidated the following regarding the
standard of review applicable to a motion to dismiss a health
care liability action based upon the plaintiff's