Pamela Moses v. Jayanta K. Dirghangi, MD
2013 Tenn. App. LEXIS 661
| Tenn. Ct. App. | 2013Background
- Pamela Moses filed suit after a vaginal exam by Dr. Jayanta Dirghangi while she was hospitalized to give birth; she alleged the exam was "forceful and abusive" causing tearing and injury.
- Moses initially sued in General Sessions, non-suited, then filed a Circuit Court complaint within the savings period.
- The complaint asserted assault/medical battery and/or medical malpractice; it did not expressly allege she did not consent to the exam.
- Dirghangi moved to dismiss under Tenn. R. Civ. P. 12.02(6), arguing (1) the complaint failed to plead medical battery (no allegation of lack of consent), and (2) any malpractice/informed-consent claims failed to comply with the Medical Malpractice Act (pre‑suit notice and certificate of good faith).
- The trial court dismissed (a) battery for failure to allege nonconsent and (b) malpractice for failure to file the certificate of good faith and for untimely pre-suit notice. Moses appealed pro se.
- The Court of Appeals affirmed: the complaint lacked allegations of lack of authorization (so no medical battery), and failure to file the required certificate of good faith is fatal to malpractice claims under Tennessee law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether complaint states a medical battery (assault) | Moses argued facts allow reasonable inference she lacked awareness/consent to the exam. | Dirghangi argued complaint contains no allegation of nonconsent or unawareness, so no battery. | Court held complaint failed to allege lack of authorization or awareness; medical battery dismissed. |
| Whether malpractice/informed-consent claims survive despite procedural defects | Moses contended pre-suit notice/certificate requirements did not apply to assault or were excused (extraordinary cause). | Dirghangi argued Moses failed to provide 60-day pre-suit notice and did not file a certificate of good faith; those defects require dismissal. | Court held failure to file the certificate of good faith (required where expert proof is needed) is fatal; extraordinary-cause argument waived and, even if considered, insufficient. Malpractice claims dismissed. |
Key Cases Cited
- Ashe v. Radiation Oncology Assocs., 9 S.W.3d 119 (Tenn. 1999) (defines narrow scope of medical battery).
- Blanchard v. Kellum, 975 S.W.2d 522 (Tenn. 1998) (two‑part inquiry: awareness and authorization govern medical battery).
- Trau‑Med of Am. v. Allstate Ins. Co., 71 S.W.3d 691 (Tenn. 2002) (pleading must allege essential elements; courts will not supply missing facts).
- Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422 (Tenn. 2011) (complaint must contain sufficient factual allegations to state a claim beyond speculation).
- Myers v. Amisub (SFH), Inc., 382 S.W.3d 300 (Tenn. 2012) (failure to file certificate of good faith with a malpractice complaint is mandatory and fatal).
- Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997) (motion to dismiss admits well‑pleaded facts but not legal conclusions).