Adam Ellithorpe v. Janet Weismark
2015 Tenn. LEXIS 827
| Tenn. | 2015Background
- Parents filed a health care liability action against a licensed clinical social worker alleging counseling without valid consent for their minor child M.L.
- The Juvenile Court order allegedly authorized Meltons to make medical decisions but required parental participation and access to records; the order was not attached to the complaint.
- Plaintiffs learned of the counseling in 2013 and alleged secrecy and lack of opportunity to participate in treatment and record access.
- Weismark answered and asserted THCLA pre-suit notice and certificate of good faith; the trial court dismissed the claims with prejudice in early 2014.
- Court of Appeals reversed, applying Estate of French's nuanced approach to distinguish ordinary negligence from health care liability, and remanded for analysis under Estate of French.
- Supreme Court held that the Tennessee Civil Justice Act of 2011 abrogated Estate of French and universally subjects health care liability actions to THCLA pre-suit notice and good-faith certificate requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does THCLA abrogate Estate of French analysis | Ellithorpe asserts Estate of French controls the analysis. | Weismark contends THCLA abrogates Estate of French via 2011 Act. | THCLA abrogates Estate of French. |
| Are plaintiffs' claims health care liability actions under THCLA | Claims may sound in ordinary negligence; THCLA may not apply. | THCLA applies to all claims alleging harm related to health care services. | Claims fall within health care liability action. |
| Remedy for noncompliance: dismissal with or without prejudice | Noncompliance with notice may warrant dismissal without prejudice; certificate of good faith requires dismissal with prejudice. | Noncompliance with certificate of good faith mandates dismissal with prejudice; pre-suit notice may be without prejudice. | Dismissal with prejudice for certificate; dismissal without prejudice for lack of pre-suit notice. |
| Constitutional challenge raised by Parents | THCLA provisions violate equal protection and access to courts. | THCLA constitutional challenges obsolete or foreclosed by waiver. | Constitutional challenge waived; not addressed. |
Key Cases Cited
- Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011) (detailed framework for distinguishing ordinary negligence from medical/mhealth care liability prior to THCLA abrogation)
- Gunter v. Lab. Corp. of Am., 121 S.W.3d 636 (Tenn. 2003) (test for substantial relation to rendition of medical treatment)
- Draper v. Westerfield, 181 S.W.3d 283 (Tenn. 2005) ( elaborates on ordinary negligence vs. medical malpractice distinction)
- Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011) (discusses expert proof requirements in THCLA actions)