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Zink v. Rural/Metro of Tennessee, L.P.

Court of Appeals of Tennessee, Knoxville

May 2, 2017

JONATHAN FITZRANDOLPH ZINK
v.
RURAL/METRO OF TENNESSEE, L.P. ET AL.

          Session February 27, 2017

         Appeal from the Circuit Court for Knox County No. 2-202-15 Kristi M. Davis, Judge

         In this 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

          Alexander J. Winston, Knoxville, Tennessee, for the appellant, Jonathan Fitzrandolph Zink.

          P. 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.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Charles D. Susano, Jr., J., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         The 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").[1] 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.

         Defendants 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.

         The 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."

         Because 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.

         In 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 timely appealed.

         II. Issues Presented

Mr. Zink presents the following issues, which we have restated slightly:[2]
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.

         III. Standard of Review

         Our 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 noncompliance ...


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