MELISSA GALE JOHNSON ET AL.
RUTHERFORD COUNTY, TENNESSEE ET AL.
Session October 5, 2017
from the Circuit Court for Rutherford County No. 70031 M.
Keith Siskin, Judge
plaintiffs, as co-conservators for their adult son, filed
this action against the county, seeking payment of medical
expenses incurred by their son following an assault upon him
by another inmate while he was incarcerated at the county
jail facility. The plaintiffs later amended their complaint
to add allegations of civil rights violations, general
negligence, and health care liability. The county filed a
third-party complaint against the medical provider with whom
the county had contracted to provide medical services for the
inmates at the jail. The third-party complaint was based upon
an indemnity clause contained within the respective
parties' contract. The medical provider filed a motion to
dismiss the county's third-party complaint because the
county had not complied with the requirements of the
Tennessee Health Care Liability Act ("THCLA").
Following a hearing, the trial court dismissed the
county's third-party complaint by reason of the
county's failure to comply with the requirements of the
THCLA. The county timely appealed. Having determined that the
trial court erred by treating the county's third-party
complaint as a THCLA claim, we reverse the court's
dismissal of the county's third-party complaint.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed; Case Remanded
Garner and Nicholas Christiansen, Murfreesboro, Tennessee,
for the appellant, Rutherford County, Tennessee.
A. Hadley, Renee Levay Steward, and Brent A. Kinney,
Nashville, Tennessee, for the appellee, Rudd Medical
R. Frierson, II, J., delivered the opinion of the court, in
which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin,
R. FRIERSON, II, JUDGE
Factual and Procedural Background
plaintiffs' adult son, Robert L. Johnson, was arrested
and booked into the Rutherford County Adult Detention Center
("RCADC") on October 20, 2014. Mr. Johnson remained
in the custody of RCADC on December 20, 2014, when Mr.
Johnson was assaulted by another inmate, Guy Mitchell, with
whom Mr. Johnson shared a cell. As a result of this attack,
Mr. Johnson suffered life-threatening injuries, including a
severe brain injury, and was transported to the hospital,
where he remained in the intensive care unit for several
weeks. Mr. Johnson was allegedly rendered permanently
disabled as a result of his injuries.
co-plaintiffs, Melissa Gale Johnson and Ernest Wade Johnson,
acting as co-conservators for Robert L. Johnson
("Plaintiffs"), filed a complaint on July 24, 2015,
seeking payment of Mr. Johnson's medical expenses in the
amount of $293, 413. Plaintiffs sought payment of these
expenses from Rutherford County ("the County"),
pursuant to Tennessee Code Annotated § 41-4-115 (2014),
which provides in pertinent part: "The county
legislative bodies alone have the power, and it is their
duty, to provide medical attendance for all prisoners
confined in the jail in their respective counties." On
August 26, 2015, Plaintiffs filed a "First Amended
Complaint, " wherein they reduced the damages sought for
Mr. Johnson's medical bills to $230, 303.
County filed an answer to the amended complaint on October 7,
2015, admitting that it had not paid for all of Mr.
Johnson's medical expenses but denying that it was liable
for same. The County asserted, inter alia, that it
was immune from suit pursuant to the Governmental Tort
November 24, 2015, Plaintiffs filed a motion seeking to amend
their complaint in order to add claims of civil rights
violations and negligence. Plaintiffs also sought to add
Rutherford County Sheriff Robert Arnold and Ken Tucker as
named defendants. The trial court entered an order allowing
the amendment of Plaintiffs' complaint on December 11,
2015. The court noted in this order that Plaintiffs had
revised the proposed amended complaint.
subsequently filed a "Revised Second Amended
Complaint" on December 11, 2015, wherein Plaintiffs
added a negligence claim against the County for housing Mr.
Johnson with Mr. Mitchell, who allegedly suffered from mental
illness and had a known propensity for violent attacks
against other inmates. Plaintiffs asserted, inter alia,
that in October 2014, Mr. Mitchell's relatives had
contacted Ken Tucker, who was director of health care
services at RCADC, and informed him that Mr. Mitchell
suffered from mental illness and that Mr. Mitchell was a
danger to himself or others. According to the complaint, Mr.
Mitchell's relatives also informed Mr. Tucker that Mr.
Mitchell had assaulted other inmates in the past. Plaintiffs
further alleged that Mr. Mitchell threatened Mr. Johnson on
the day of the assault and that deputies were notified of
this threat but did not timely respond to it. Plaintiffs
sought damages in the amount of $300, 000 pursuant to the
Governmental Tort Liability Act.
January 15, 2016, the County filed an answer and third-party
complaint, asserting a claim against Rudd Medical Services,
PLC, a/k/a Rudd Medical Management Services, LLC
("Rudd"), Mr. Tucker's employer and the entity
that provided medical services to the prisoners housed at
RCADC. The County alleged that it had entered into a contract
with Rudd for the provision of health care services to
inmates, which contract contained a clause requiring Rudd to
indemnify and hold the County harmless from any claims based
upon, inter alia, the actions of Rudd employees.
April 8, 2016, Plaintiffs filed another motion to amend their
complaint, seeking to assert negligence claims pursuant to
the THCLA against Rudd and Mr. Tucker. Plaintiffs stated that
they had complied with the pre-suit notice requirements of
Tennessee Code Annotated §§ 29-26-121 and -122.
Plaintiffs attached to their motion a "Third Amended
Complaint, " which asserted a health care liability
claim, and also attached a copy of the pre-suit notice
documents, "HIPPA-Compliant Release, " and
Certificate of Good Faith provided to the defendants.
Plaintiffs later struck their April 8, 2016 motion to amend
and concomitantly filed an additional motion to amend along
with a revised "Third Amended Complaint." This
complaint contained additional allegations of negligence
against the County based on the County's purported
knowledge of Mr. Mitchell's previous violent behavior. On
May 24, 2016, the trial court entered an order allowing
Plaintiffs to amend their complaint. The Third Amended
Complaint was filed on May 16, 2016.
December 19, 2016, Rudd filed a motion to dismiss the
County's third-party complaint against Rudd or, in the
alternative, a motion for summary judgment. Rudd asserted
that the County had failed to file a certificate of good
faith with its third-party complaint, as required by
Tennessee Code Annotated § 29-26-122. Rudd further
averred that it had attached affidavits executed by Mr.
Tucker and John Rudd, M.D., which "clearly and
completely negate[d] essential elements of [the County's]
claim against [Rudd]."
Tucker stated in his attached affidavit that he was a
registered nurse and director of health services for Rudd,
such that he was responsible for the "supervision and
oversight of medical care of inmates" at RCADC. Mr.
Tucker opined that he had complied with the applicable
standard of care at all times. Mr. Tucker also stated that
Mr. Mitchell was under the treatment of Dr. Rudd and was
routinely receiving medication for his mental health needs
prior to the incident at issue. According to Mr. Tucker, he
had no control over where or how an inmate was housed.
Rudd stated in his affidavit that he was a physician who
provided medical services to inmates at RCADC, including Mr.
Mitchell, and that he also supervised the medical staff
there. Dr. Rudd opined that he had complied with the
applicable standard of care concerning his treatment of Mr.
Mitchell. Dr. Rudd explained that Mr. Mitchell was under his
medical care and supervision at the time of the incident in
question. Dr. Rudd further stated that Mr. Mitchell did not
meet the criteria for transfer to a secure psychiatric
County filed a response in opposition to Rudd's motion to
dismiss, arguing that its claim against Rudd was not a
healthcare liability action. The County cited the indemnity
clause contained within its contract with Rudd, which states:
[Rudd] shall indemnify and hold the Sheriff, the County and
each of their elected officials, officers, employees and
agents (hereinafter collectively referred to as the
"indemnified persons") whole and harmless from and
against all costs, liabilities and claims for damages of any
kind (including judgments, interest, attorney's fees and
costs of investigation and defense) arising out of the
performance of [Rudd], its agents or servants under this
Proposal and resulting contract and/or negligent, wanton,
intentional or deliberate acts or omissions of [Rudd] or any
of its agents, servants or employees.
County further asserted that because its claim involved
contractual indemnification for ordinary negligence, rather
than medical malpractice, it was not required to comply with
Tennessee Code Annotated § 29-26-122.
February 27, 2017, the trial court entered an order granting
Rudd's motion to dismiss. The court stated that the THCLA
defined a health care liability action as "any civil
action . . . 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." See Tenn. Code Ann. §
29-26-101(a)(1). The trial court relied upon our Supreme
Court's opinion in Ellithorpe v. Weismark, 479
S.W.3d 818, 827 (Tenn. 2015), echoing the High Court's
statement that the THCLA established
a clear legislative intent that all civil actions
alleging that a covered health care provider or providers
have caused an injury related to the provision of, or failure
to provide health care services be subject to the pre-suit
notice and certificate of good faith requirements, regardless
of any other ...