United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
A. TRAUGER UNITED STATES DISTRICT JUDGE
before the court are a Report and Recommendation of the
Magistrate Judge (Docket No. 57), Objections filed by
Plaintiffs (Docket Nos. 62 and 66), and a Response to the
Objections filed by Defendant (Docket No. 63). Pursuant to 28
U.S.C. § 636(b)(1), Fed.R.Civ.P. 72(b)(3) and Local Rule
72.03(b)(3), the court has reviewed de novo the
parts of the Report and Recommendation that have been
properly objected to. The Objections of the Plaintiffs will
brought this action against Rolling Hills Hospital for
alleged actions and inactions surrounding Plaintiff Amanda
Mullin's self-admitted stay at Rolling Hills in August of
2015. Plaintiffs assert that, soon after she arrived at
Rolling Hills, Amanda requested to be taken home. Thereafter,
Plaintiffs claim, Amanda was involuntarily detained for two
days at Rolling Hills. In their Amended Complaint (Docket No.
37), Plaintiffs allege the following causes of action: abuse
of process, false imprisonment, intentional infliction of
emotional distress, negligent infliction of emotional
distress, conversion, assault, and violation of a duty of
care. Defendant moved to dismiss this action, arguing, among
other things,  that Plaintiffs failed to provide the
required, pre-suit, written notice for this “health
care liability action” under Tennessee law.
Magistrate Judge, in a Report and Recommendation (Docket No.
57), recommended that Defendant's Motion to Dismiss be
granted, finding that Plaintiffs' causes of action fall
within the definition of “health care liability
action” and that Plaintiffs failed to provide the
required, pre-suit, written notice before filing this action.
Plaintiffs have filed Objections to the Report and
Recommendation, arguing that Defendant's commitment of
Amanda was fraudulent and that their claims do not constitute
a health care liability action.
CARE LIABILITY ACTIONS
law defines “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 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).
“Health care services” are defined to include
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
Tenn. Code Ann. § 29-26-101(b). The statute states that
any health care liability action is subject to this part
regardless of any other claims, causes of action, or theories
of liability alleged in the complaint. Tenn. Code Ann. §
law also provides that any person 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 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). The court
has discretion to excuse compliance with this section only
for extraordinary cause shown. Tenn. Code Ann. §
29-26-121(b). Here, it is undisputed that Plaintiffs did not
provide the required written pre-suit notice to Defendant
before filing this action.
motion to dismiss for failure to state a claim is the proper
method for challenging whether a plaintiff has complied with
the Health Care Liability Act pre-suit notice requirement.
Ellithorpe v. Weismark, 479 S.W.3d 818, 823 (Tenn.
2015). The Tennessee Supreme Court has interpreted this
notice requirement as mandatory, not directory. Runions
v. Jackson-Madison County General Hospital Dist., 2017
WL 514583 at * 5 (Tenn. Ct. App. Feb. 7, 2017) (citing
Myers v. AMISUB (SFH), Inc.,382 S.W.3d 300 (Tenn.