Jessica Marie Forsythe v. Jackson Madison County General Hospital District ( 2022 )

11/28/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
September 13, 2022 Session
JESSICA MARIE FORSYTHE ET AL. v. JACKSON MADISON COUNTY
GENERAL HOSPITAL DISTRICT ET AL.
Appeal from the Circuit Court for Madison County
No. C-17-317 Roy B. Morgan, Jr., Judge
___________________________________
No. W2021-01228-COA-R3-CV
___________________________________
The trial court granted the defendant medical providers summary judgment on the basis of
the plaintiff’s failure to comply with the Tennessee Health Care Liability Act’s pre-suit
notice and good faith certificate requirements. On appeal, the plaintiff, an employee of the
defendants, argues that her claim does not relate to the provision of health care services
and that she was therefore not required to give pre-suit notice or file a good faith certificate.
Because we conclude that the trial court did not err in determining that the claim is related
to the provision of health care services, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J. STEVEN STAFFORD, P. J., W.S., delivered the opinion of the court, in which W. NEAL
MCBRAYER and KENNY ARMSTRONG, JJ., joined.
W. Bryan Smith, Memphis and T. Verner Smith, Jackson, Tennessee, for the appellants,
Jessica Marie Forsythe and Cody Forsythe.
Russell E. Reviere and Brandon W. Reedy, Jackson, Tennessee, for the appellee, Jackson
Madison County General Hospital District, Pathways of Tennessee, Inc., and West
Tennessee Healthcare, Inc.
OPINION
I. FACTUAL & PROCEDURAL BACKGROUND
Because this case was resolved by summary judgment, we take the facts from the
undisputed facts agreed to by the parties. On Thanksgiving Day in 2016, Don Fitzgerald
White presented at Defendant/Appellee Pathways of Tennessee, Inc., d/b/a Pathways
Behavioral Health Services (“Pathways”). Mr. White was accompanied by his father to
Pathways. Mr. White’s father brought him to this facility because Mr. White was seen in
the hospital emergency department the previous day, where he received stabilizing
treatment for a self-inflicted knife wound to his chest, as well as appropriate psychiatric
screening and treatment. The treating physician, after consulting with a crisis clinician,
ultimately determined that Mr. White was stable for discharge and, thus, discharged Mr.
White from the hospital emergency department with instructions to seek outpatient care at
Pathways if needed or his condition worsened.
Plaintiff/Appellant Jessica Marie Forsythe (“Plaintiff”) was employed as a
psychiatric technician at Pathways, and she was responsible for the intake and admission
of patients to the facility. Pathways implements policies, procedures, and practices
regarding a variety of subjects including, but not limited to, safety and security. Pathways
staff, including Plaintiff, participate in regular training regarding these policies and
procedures. One such policy, Policy No. 909.04 provides, in relevant part, as follows:
1. When a patient presents to Crisis Triage and is considered high risk
due to suicidal or homicidal ideations, psychosis, elopement potential,
and/or intoxication, the following precautions will be implemented:
A. If a patient is suicidal, homicidal, experiencing psychosis,
and/or an elopement risk, he/she will be monitored at all times
and his/her belongings will be kept at the desk with the staff.
B. Security may be contacted to be stationed in Crisis Triage for
closer monitoring. If the patient becomes violent, the Jackson
Police Department (JPD) may be contacted by phone or
through using panic buttons that are available throughout crisis
Triage. If a patient is a danger to himself/herself or others and
demands to leave Crisis Triage, the triage staff/security will
attempt to stop the patient. If unable to stop from leaving, the
JPD will be contacted. If the patient is in need of
restraint/seclusion, he/she will be transported to the emergency
room by the police.
This was the policy in place when Mr. White presented at Pathways with his father
around 10:00 am on Thanksgiving morning. After learning Mr. White’s name, Plaintiff
searched the computer system, learned that Mr. White had been admitted to the emergency
department the day before, and apprised herself of the reasons Mr. White presented for
treatment previously.1 As to her concerns about whether Mr. White posed a risk of
1
The previous day, Plaintiff had also heard “about a patient with a self-inflicted knife wound to the
chest and that the police were bringing him into the ER” through the scanner. After hearing this information,
Plaintiff thought, “[t]his is a Pathways patient”; however, Plaintiff had no involvement with the patient that
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violence, Plaintiff later testified that she
knew what he did the day before, but he didn’t give me any indication to,
you know, worry any more, I would say. You know, any more than normal.
I knew what he did the day before, but it wasn’t -- like, his behavior at the
time wasn’t showing anything erratic or -- you know, as I call it, my radar.
* * *
They’ll tell you, like, my radar was one of the best as far as, you know,
sensing that, or, you know, sensing what may come, as far as seeing a patient,
you know, what could possibly happen. Because I’ve called security many
times and was like, you know, Please come over here, just to prevent
something, or to get it from not getting to that point.
But Plaintiff’s “radar” did not go off with Mr. White:
If he would have been coming in screaming, yelling, saying he was seeing
things and all of that, I would have -- you know, the radar would have went
off. But he was -- you know, he was calm at the time, and he didn’t show any
of those behaviors. So I personally, you know, thought he was really trying
to get help at that point.
While Mr. White and his father were in the waiting room, an on-call counselor
arrived at Pathways to perform an assessment of Mr. White, at which time Plaintiff left the
area and went upstairs to get herself and the counselor something to eat. At that point,
neither Plaintiff nor the counselor had any concerns about Mr. White, and Plaintiff had no
concerns about leaving Mr. White alone with the counselor. Indeed, Plaintiff later testified
that had she had concerns, she would not have left the counselor alone for any reason, even
just to use the restroom.
Soon Plaintiff returned with food for both herself and the counselor. Because she
forgot drinks, the counselor left to retrieve drinks. Plaintiff remained in a downstairs area
with Mr. White and his father at this time. Plaintiff admitted that she had no concerns with
being left with Mr. White and his father. Unfortunately, Plaintiff’s trust in Mr. White was
misplaced, as he walked through a door to where Plaintiff was sitting at a desk and attacked
her with a knife after the counselor left. The attack was “sudden[] and without warning.”
Security guards and law enforcement arrived within minutes, but Mr. White refused to
comply with their directives to stop the attack. Mr. White was only subdued after he was
shot by a law enforcement officer. Plaintiff fortunately survived; Mr. White did not.
day.
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On November 22, 2017, Plaintiff, along with her husband Cody Forsythe,2 filed a
complaint against Pathways, and its owners or related entities, Defendant/Appellee Jackson
Madison County General Hospital District d/b/a Jackson Madison County General
Hospital and Defendant/Appellee West Tennessee Healthcare, Inc. (collectively,
“Defendants”). Plaintiff also named as defendants Abby Marie Rardin Grider, M.D., and
Emergency Medical Care Facilities, P.C. (“EMCF”), who were alleged to have provided
Mr. White with medical care the day prior to the attack. On June 11, 2018, the trial court
entered an order dismissing Dr. Grider and EMCF on the basis of Plaintiff’s admitted
failure to comply with the good faith certificate and pre-suit notice requirements of the
Tennessee Health Care Liability Act (“THCLA”). The trial court, however, later declined
to grant Defendants’ motion to dismiss on that basis. The trial court cautioned Plaintiff,
however, that any claim that survived the failure to comply with the THCLA could not
involve “medical decision making and judgment.”
Discovery ensued, including the deposition of Plaintiff. Eventually, Defendants
filed a motion for summary judgment arguing that (1) the undisputed facts demonstrated
that Plaintiff’s claim against Defendants was a health care liability action because it
involved medical judgment; (2) Defendants were immune from suit as government entities
performing discretionary functions; and (3) the incident was not reasonably foreseeable.
Defendants included with their motion a statement of undisputed material facts to support
their arguments. Plaintiff responded to Defendants’ motion by, inter alia, denying that the
claim against Defendants was a health care liability action. Instead, Plaintiff argued, her
claim involved only a premises liability-type action—that is, the claim was based “solely
on allegations of the failure to exercise ordinary care in providing security for, and
protection from, foreseeable acts of violence on the premises.” Plaintiff also submitted
additional undisputed facts that she argued were relevant to adjudication of Defendants’
motion. Defendants denied or objected to most of Plaintiff’s proffered facts. Defendants,
however, agreed that violent patients were often brought to Pathways by law enforcement
officers or group homes and that Pathways staff complained of and participated in meetings
involving the inadequate protection of the staff.
Defendants’ motion for summary judgment was heard on June 11, 2021. At the
conclusion of the hearing, the trial court ruled in favor of Defendants on the basis that
Plaintiff’s claim was, in essence, a health care liability claim. The trial court later entered
a written order on September 16, 2021, in which it expressly incorporated its oral ruling
and gave additional reasoning for its decision. The trial court ruled, however, that
Defendants were not entitled to summary judgment on the issue of foreseeability or
discretionary function immunity. Plaintiff thereafter appealed to this Court.
2
Although Mr. Forsythe was a party to this case, we refer to Mrs. Forsythe by the singular
“Plaintiff” for ease of reading, as this is how she is characterized in the undisputed material facts agreed to
by the parties.
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II. ISSUE PRESENTED
Plaintiff raises a single issue in this appeal, asking whether the trial court erred in
concluding that Plaintiff’s case “was a Health Care Liability Action and granting summary
judgment to Defendants on the basis that [Plaintiff] failed to comply with the pre-suit notice
and certificate-of-good-faith requirements contained in the Health Care Liability Act.”
III. STANDARD OF REVIEW
A party is entitled to summary judgment only if the “pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits . . . show that there
is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Tenn. R. Civ. P. 56.04. Our supreme court has held:
[I]n Tennessee, as in the federal system, when the moving party does not bear
the burden of proof at trial, the moving party may satisfy its burden of
production by either (1) affirmatively negating an essential element of the
nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s
evidence at the summary judgment stage is insufficient to establish the
nonmoving party’s claim or defense. . . . “[W]hen a motion for summary
judgment is made [and] . . . supported as provided in [Tennessee Rule 56],”
to survive summary judgment, the nonmoving party “may not rest upon the
mere allegations or denials of [its] pleading,” but must respond, and by
affidavits or one of the other means provided in Tennessee Rule 56, “set forth
specific facts” at the summary judgment stage “showing that there is a
genuine issue for trial.” Tenn. R. Civ. P. 56.06. . . . [S]ummary judgment
should be granted if the nonmoving party’s evidence at the summary
judgment stage is insufficient to establish the existence of a genuine issue of
material fact for trial. Tenn. R. Civ. P. 56.04, 56.06. . . .
Rye v. Women’s Care Center of Memphis, MPLLC, 477 S.W.3d 235, 264–65 (Tenn.
2015).
This Court reviews the trial court’s ruling on a motion for summary judgment de
novo with no presumption of correctness, as the resolution of the motion is a matter of law.
Rye, 477 S.W.3d at 250 (citing Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997); Abshure
v. Methodist Healthcare–Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010)). We view
the evidence in the light most favorable to the non-moving party and draw all reasonable
inferences in that party’s favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002).
IV. ANALYSIS
The genesis of the dispute in this case stems from Plaintiff’s decision to file suit
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against Defendants without giving Defendants pre-suit notice or obtaining a good faith
certificate as outlined in the THCLA. Plaintiff argues that no such notice or certificate was
required because this case is not governed by the THCLA. Defendants insist that it is, and
that Plaintiff’s failure to comply with the statute’s requirements should result in dismissal
of this case.
Under the THCLA, any plaintiff “asserting a potential claim for health care liability”
must give pre-suit notice to the defendants pursuant to Tennessee Code Annotated section
29-26-121. Additionally, “[i]n any health care liability action in which expert testimony is
required by § 29-26-115, the plaintiff or plaintiff’s counsel shall file a certificate of good
faith with the complaint.” Tenn. Code Ann. § 29-26-122(a).3 The remedy for failure to
comply with the pre-suit notice requirement is generally dismissal without prejudice.
Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 560
(Tenn. 2013). The remedy for failure to file a good faith certificate is dismissal with
prejudice. Tenn. Code Ann. § 29-26-122(c).
Both the pre-suit notice and good faith certificate requirements are predicated on
the fact that the plaintiff is pursuing a “health care liability action.” The THCLA provides
the following definition for this type of action:
“Health care liability action” means 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); see also Tenn. Code Ann. § 29-26-101(a)(2) (defining
health care provider). “Health care services” 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
patient services.
3
The good faith certificate requirements apply “only to health care liability claims requiring expert
testimony.” Newman v. State, 586 S.W.3d 921, 926 (Tenn. Ct. App. 2019), perm. app. denied (Tenn. June
20, 2019) (quoting Est. of Bradley v. Hamilton Cnty., No. E2014-02215-COA-R3-CV, 2015 WL 9946266,
at *5 (Tenn. Ct. App. Aug. 21, 2015)). Plaintiff does not raise as an issue, nor argue in her brief, that she
was not required to file a certificate of good faith because no expert proof was required to prove her case.
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Tenn. Code Ann. § 29-26-101(b). The statute further provides that “[a]ny such civil action
or claim is subject to this part regardless of any other claims, causes of action, or theories
of liability alleged in the complaint[.]” Tenn. Code Ann. § 29-26-101(c). Thus, a claim will
be governed by the THCLA when “(1) it is a civil action; (2) the claim is against a health
care provider; and (3) the harm complained of arises from “the provision of, or failure to
provide, health care services.” Igou v. Vanderbilt Univ., No. M2013-02837-COA-R3-CV,
2015 WL 1517794, at *4 (Tenn. Ct. App. Mar. 27, 2015) (citing Tenn. Code Ann. § 29-
26-101(a)(1)).
Here, there is no dispute that Plaintiff’s claim is civil in nature or that both
Defendants are healthcare providers within the meaning of section 29-26-101.4 Moreover,
there does not appear to be any dispute that the purpose of Mr. White’s visit to Pathways
on the day of the incident was to obtain health care services from Pathways. Rather,
Plaintiff argues that, despite these facts, the tortious conduct by Defendants does not arise
from the provision of health care services as required to fall within the ambit of the
THCLA. Instead, she likens Defendants’ allegedly tortious conduct to a physician causing
an automobile accident on the way into the office.
In support of this position, Plaintiff cites a range of cases in which this Court has
held that although torts were committed by health care providers in a health care setting,
the claims nevertheless did not arise from health care services. Many of these cases involve
assaults against patients. See C.D. v. Keystone Continuum, LLC, No. E2016-02528-COA-
R3-CV, 2018 WL 503536 (Tenn. Ct. App. Jan. 22, 2018) (involving a claim where the staff
member allegedly pulled a minor to the ground and stomped on his foot); Lacy v. St.
Thomas Hosp. West, No. M2016-01272-COA-R3-CV, 2017 WL 1827021 (Tenn. Ct. App.
May 4, 2017) (involving a claim that a doctor beat a patient); Lacy v. Mitchell, 541 S.W.3d
55 (Tenn. Ct. App. 2016) (involving a claim that a chiropractor hit the plaintiff with a
folder). Others cases run the gamut from rape of a patient to squeezing a patient’s hand too
firmly during a handshake. Compare Cordell v. Cleveland Tenn. Hosp., LLC, 544 S.W.3d
331 (Tenn. Ct. App. 2017) (involving rape), with Lacy v. Meharry Gen. Hosp., No.
M2016-01477-COA-R3-CV, 2017 WL 6501915 (Tenn. Ct. App. Dec. 19, 2017) (involving
a handshake). Like these cases, Plaintiff argues that her claim involves tortious conduct
that is too tenuously related to the provision of health care services to qualify as a health
care liability action. Plaintiff further distinguishes cases in which this Court has held that a
claim related to the provision of health care services, including when an x-ray technician
directed a patient to sit on a faulty stool during the test, see Osunde v. Delta Med. Ctr., 505
S.W.3d 875, 884-85 (Tenn. Ct. App. 2016), or when a patient was injured during a transfer
from a stretcher to a vehicle. See Estate of Thibodeau v. St. Thomas Hosp., No. M2014-
02030-COA-R3-CV, 2015 WL 6561223 (Tenn. Ct. App. Oct. 29, 2015). According to
4
Specifically, in her brief, Plaintiff states that “Defendants are, certainly, health care providers
under the statute.”
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Plaintiff, these cases illustrate that the following must be present for a claim to relate to the
provision of health care services: (1) the claim must “sufficiently relate to the provision of
actual health care”; (2) “the services provided must be sufficiently related to what makes
the person undertaking to give the services a health care provider”; and (3) “the actions at
issue must call for the exercise of health care judgment or decision making[.]” And
according to Plaintiff, the “core problem” with Defendants’ position is a lack of medical
judgment—that is, Plaintiff’s claim “has nothing to do with the exercise of health care
judgment or decision making in the context of a patient/provider relationship.”
Respectfully, we disagree. As an initial matter, we note that the THCLA’s definition
of “health care liability action” is intended to be broad. See Cooper v. Mandy, 639 S.W.3d
29, 35 (Tenn. 2022) (noting that the Tennessee General Assembly “adopt[ed] a broad
definition of ‘health care liability action’ in section 29-26-101(a)(1)”). The purpose of this
enactment was to define “health care liability” “broadly enough to ‘cast[] a wide net over
civil claims that arise within a medical setting.’” Id. (quoting Cordell, 544 S.W.3d at 336).
“Because this definition is so broad, most claims arising in a medical setting will be health
care liability claims.” Id. (citing Osunde, 505 S.W.3d at 884–85 (“Given the breadth of the
statute, it should not be surprising if most claims now arising within a medical setting
constitute health care liability actions.”)). Keeping these principles in mind, we turn to
examine the claim alleged against Defendants in this case.
Here, Plaintiff frames her claim against Defendants as involving “Defendants’
failure to take actions their security policy required them to take[.]” To reiterate, Policy
No. 909.04 provides, in part, as follows:
1. When a patient presents to Crisis Triage and is considered high risk
due to suicidal or homicidal ideations, psychosis, elopement potential,
and/or intoxication, the following precautions will be implemented:
A. If a patient is suicidal, homicidal, experiencing psychosis,
and/or an elopement risk, he/she will be monitored at all times
and his/her belongings will be kept at the desk with the staff.
The trial court specifically found that Policy No. 909.04 requires that, in order for the
monitoring and removal of belongings to be required, “there was first to be a determination
made by a health care provider that the patient . . . is high risk due to suicidal or homicidal
ideations . . . . This prerequisite determination requires expert, medical judgment by a
health care provider.”
We agree with the trial court. As written, this portion of the policy has two steps.
First, certain precautions will be taken “when a patient presents” to triage and “is
considered high risk due to[, inter alia,] suicidal or homicidal ideations[.]” Once that hurdle
has been met, a patient who “is suicidal [or] homicidal” is required to be monitored at all
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times and have his or her belongings removed from his or her person. Thus, Policy No.
909.04 is not self-executing. Instead, the security requirements in Policy No. 909.04 are
not triggered unless and until the patient is deemed at high risk due to suicidal or homicidal
ideations and there is a determination that the patient is presently “suicidal or homicidal.”
Cf. In re D.A.H., 142 S.W.3d 267, 276 (Tenn. 2004) (noting that “is” is present tense).
And, of course, someone has to make that determination. In this case, that someone was
Plaintiff herself.5
Still, Plaintiff attempts to persuade this Court that no medical judgment was required
for this policy to be triggered because of the “objective, non-diagnostic fact that [Mr].
White had attempted suicide” the previous day. To be sure, Plaintiff would be correct if
the heightened security requirements were triggered by a past suicide attempt. But that is
not what the policy required. Instead, the policy required that the patient both suffer from
suicidal or homicidal ideations and be suicidal or homicidal. Perhaps it is true that a prior
suicide attempt is sufficient to qualify as having suicidal ideations or being suicidal. It is
also possible that there is no distinction between having suicidal or homicidal ideations and
being suicidal or homicidal, despite the difference in language chosen by the policy’s
drafter. A recent case confirms, however, that neither this Court nor a lay person are
qualified to make determinations as to whether certain past behaviors necessitate
heightened security measures, as these questions require medical expertise. See Newman
v. State, 586 S.W.3d 921 (Tenn. Ct. App. 2019), perm. app. denied (Tenn. June 20, 2019).
In Newman v. State, a patient in a state-run psychiatric facility was attacked and
killed by another patient. The attacker was well-known by the facility staff to be violent
without provocation, but was allowed to roam the facility unsupervised. Id. at 923. The
5
In particular, Plaintiff agreed to the following statement of undisputed material fact proffered by
Defendants: “Plaintiff . . . a psychiatric technician, was . . . responsible for the intake and admission of
patients to the facility. Defendants’ statement of undisputed material facts also alleged the following:
31. Plaintiff was the first point of contact [Mr.] White had with Pathways when he arrived
with his father on Thanksgiving Day in 2016.
32. When Plaintiff was on duty at Pathways, she was responsible for notifying Defendants
of potential risks of harm of which she was aware.
(Citations omitted).
Plaintiff admitted the first allegation but denied the second. In her denial, however, Plaintiff did
not cite any countervailing proof. As such, this allegation will be considered undisputed for purposes of
summary judgment. See Kidd v. Dickerson, No. M2018-01133-COA-R3-CV, 2020 WL 5912808, at *11
(Tenn. Ct. App. Oct. 5, 2020), perm. app. denied (Tenn. Feb. 4, 2021) (“Three responses by the Plaintiff
were not supported by citation to the record; we therefore consider them to be undisputed.”) (citing Duncan
v. Lloyd, No. M2004-01054-COA-R3CV, 2005 WL 1996624, at *5 (Tenn. Ct. App. Aug. 18, 2005)
(“Merely informing the trial court that the record demonstrates disputed facts, without specifically
addressing those facts in the response and specifically citing to portions of the record evidencing dispute,
does not satisfy Rule 56. Any fact not specifically disputed with citations to the record to support the alleged
dispute may be deemed admitted.”)).
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patient’s surviving spouse filed a claim against the State in the Tennessee Claims
Commission. The State moved to dismiss on the basis that the plaintiff’s claim was a health
care liability claim subject to pre-suit notice and the certificate of good faith requirements.
The Claims Commissioner denied the motion to dismiss and eventually awarded the
plaintiff $230,690.00 in damages. The State thereafter appealed to this Court. Id. at 924.
Like in this case, the plaintiff in Newman did not assert that she complied with any
of the THCLA’s requirements; rather, she argued that her suit involved only ordinary
negligence, rather than health care liability. Id. at 926. In addressing this argument, the
Court focused on older cases involving whether expert proof was required to show
negligence in how an impaired patient was supervised. In those cases, this Court held that
expert proof was necessary to determine whether the patients were properly supervised.
See id. at 927 (citing Cannon v. McKendree Village, Inc., 295 S.W.3d 278, 283 (Tenn. Ct.
App. 2008) (holding that the decision of whether to restrain a patient is “a matter of medical
science or art requiring skills not ordinarily possessed by lay persons”); Tucker v. Metro.
Gov’t of Nashville & Davidson Cnty., 686 S.W.2d 87, 94 (Tenn. Ct. App. 1984) (“The
proper treatment of a patient with serious mental problems . . . and who is in a catatonic
state, is not within the common knowledge of ordinary lay persons.”)); see also Turner v.
Jordan, 957 S.W.2d 815 (Tenn. 1997) (noting that the case did not involve the necessity
of expert proof but holding that it suggested that expert proof is necessary to determine the
acceptable standard for a psychiatrist to protect a nurse from a violent patient). Based on
these cases, the Court of Appeals held that “the question of whether and how to restrain
and/or supervise a potentially dangerous mental patient involves knowledge and
understanding of his diagnosis and medical history.” Newman, 586 S.W.3d at 927 (quoting
Newman v. Guardian Healthcare Providers, Inc., No. M2015-01315-COA-R3-CV, 2016
WL 4069052, at *7 (Tenn. Ct. App. July 27, 2016) (companion case involving same
allegations against different defendant)). The Court therefore held that medical testimony
was necessary, that the claim was governed by the THCLA, and that the plaintiff’s failure
to file a good faith certificate was fatal to her action. Id. at 928 (“[W]hen the issue of
negligence involves ‘the mental capacity and proclivities of’ a psychiatric patient, expert
testimony is required.” (quoting Guardian Healthcare, 2016 WL 4069052, at *7)).
Plaintiff assets, however, that Newman is distinguishable because that case did not
involve the failure to follow a “clear, non-discretionary safety and security policy[.]”
According to Plaintiff, the critical allegation in Newman was that the defendants “failed to
assess either [patient’s] need for constant monitoring correctly and failed to execute that
monitoring correctly in the confines of the mental health facility. Both of those failures
required the use of health care judgment.” The difference, Plaintiff contends, is that Policy
No. 909.04 removed all discretion—all medical judgment—from the equation in this case.
Respectfully, we fail to see the distinction. Here, Pathways had a policy that a
patient was to be monitored and have his or her belongings removed only once it was
determined that the patient was suffering from, inter alia, suicidal or homicidal ideations
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and was suicidal or homicidal. While this policy may arguably have removed some
discretion as to “how to restrain and/or supervise a potentially dangerous mental patient[,]”
it simply does not remove the medical judgment necessary to determine “whether” to do
so. Newman, 586 S.W.3d at 927 (emphasis added). Instead, some person, and in this case
Plaintiff herself, was required to determine whether the patient should be subject to the
heightened security requirements due to, inter alia, suicidal or homicidal ideations. And the
question of “whether . . . to restrain and/or supervise a potentially dangerous mental patient
involves knowledge and understanding of his diagnosis and medical history[.]” Id. This is
the exact question that Plaintiff was both tasked with making and trained to make. And
despite knowing of Mr. White’s previous suicide attempt, Plaintiff did not believe that his
present state of mind required such precautions.6
We further note that while Mr. White’s actions certainly involved the kind of
intentional conduct that has been held to not relate to the provision of health care services,
the claim asserted by Plaintiff against Defendants does not involve intentional acts of
violence but negligence in how Defendants’ staff is trained and its security policy is
implemented. A case cited by Plaintiff illustrates this distinction. See C.D. v. Keystone
Continuum, LLC, No. E2016-02528-CO A-R3-CV, 2018 WL 503536 (Tenn. Ct. App. Jan.
22, 2018). In C.D. v. Keystone Continuum LLC, the plaintiff raised, inter alia, two claims:
(1) that a staff member at a youth residential treatment facility attacked him; and (2) that
the defendant residential treatment facility failed to supervise and train its employees in
order to ensure the safety of the minor residents. Id. at *5, 6. As previously discussed, we
held that the claim of “willful assault and battery” did not relate to the provision of health
care services. Id. at *5.
The Court concluded, however, that the claim of negligent training and supervision
regarding the safety of residents did relate to the provision of health care services. Id. at
*6. First, we noted that the THCLA specifically provides that heath care services includes
“staffing, custodial or basic care . . . and similar patient services” Tenn. Code Ann. § 29-
26-101(b). The Court further cited the dicta of an earlier case that considered a hypothetical
similar to that presented in C.D.:
Negligence is not charged against [the hospital] for failing to protect or
monitor [the plaintiff]. As far as the original complaint will admit, the
liability of [the hospital] appears to be predicated entirely on the doctrine of
respondeat superior.
***
6
In her deposition, Plaintiff did claim to ask Mr. White if he had anything sharp and testified that
she would have asked him to give it to her if he did. This fact, however, was not submitted as a statement
of undisputed material fact by Plaintiff, nor is it argued in any fashion in Plaintiff’s brief. While it may be
true that Plaintiff asked Mr. White to produce any sharp objects that he possessed, Plaintiff’s other
testimony indicates that she was not concerned that Mr. White needed additional security due to the
possibility of violence.
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[H]ad the original complaint brought a negligence claim against [the
hospital] directly and asserted that it was liable due to its failure to provide
appropriate care, supervision, or monitoring, the complaint would have
alleged that a “health care provider . . . caused an injury related to the . . .
failure to provide . . . health care services.” . . .
Id. at *6 (quoting Cordell, 544 S.W.3d at 339). Applying this reasoning, we concluded that
the allegation of the treatment facility’s failure to train and monitor its staff to ensure the
protection of residents was related to the provision of health care services. Id.; accord
Youngblood ex rel. Est. of Vaughn v. River Park Hosp., LLC, No. M2016-02311-COA-
R3-CV, 2017 WL 4331042, at *3–4 (Tenn. Ct. App. Sept. 28, 2017) (holding that failure
to monitor a patient with dangerously hot coffee related to the provision of health care
services). Plaintiff raises a very similar allegation in this case—that Defendants failed to
ensure implementation of their own security policy in order to protect the safety of its staff
and patients. As such, the reasoning in C.D. dictates that we reach the same conclusion
here.
In sum, despite the interjection of Policy No. 909.04, this case presents the same
question as in Newman—whether Pathways failed to properly assess Mr. White’s need for
monitoring and failed to execute the monitoring in a way to prevent Plaintiff’s injuries.
Because the question of whether and to what extent a mental health patient should be
monitored is a question involving medical expertise, Newman, 586 S.W.3d at 927, the
alleged failure to implement Policy No. 909.04 occurred as part and parcel of the health
care services that Pathways offered to Mr. White. See also C.D., 2018 WL 503536, at *6.
The allegation that Pathways negligently failed to follow its own security policy is
therefore “related to” the provision of health care services. Tenn. Code Ann. § 29-26-
101(a)(1). As such, the trial court did not err in concluding that Plaintiff’s claim, however
characterized, was a health care liability action subject to the intendent responsibilities of
the THCLA.
Plaintiff makes a final argument involving the medical records portions of the
THCLA in support of reversal of the trial court’s judgment. Plaintiff notes that under the
THCLA, a plaintiff must include a HIPAA-compliant medical release allowing the
defendants to obtain the record from each other. But, Plaintiff asserts, she was never a
patient of Defendants and therefore they held no medical records of hers that are relevant
to her claim. Because a HIPAA release would serve little function here, Plaintiff asserts
that this situation illustrates why her claim should not constitute a health care liability
action subject to the THCLA’s requirements.
To be sure, Plaintiff’s argument is a novel one. However, we can find no instance
where this argument was raised in the trial court. It is well-settled that an appeal is not an
opportunity for a litigant to assert new arguments not raised before the trial court or
“change its strategy or theory in midstream, and advocate a different ground or reason in
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this Court.” State v. Abbott, No. 01C01-9607-CC-00293, 1996 WL 411645, at *2 (Tenn.
Crim. App. July 24, 1996) (citing State v. Aucoin, 756 S.W.2d 705, 715 (Tenn. Crim. App.
1988)). The purpose of this rule is to prevent a litigant from raising an issue on appeal when
his or her adversary had no “opportunity to rebut the issue with evidence and argument.”
Kendall v. State, No. W2007-02828-CCA-R3-PC, 2009 WL 1424192, at *2 (Tenn. Crim.
App. May 21, 2009). Because this argument was not raised in the trial court, Defendants
were not presented an opportunity to submit proof as to how the medical records would
have been relevant in this case. As a result, we decline to address this argument beyond
noting that the Tennessee General Assembly chose to draft the THCLA in a particularly
broad manner. Cooper, 639 S.W.3d at 35. This choice means that cases that might not
have been traditionally characterized as medical malpractice may be caught in the
THCLA’s net. We are simply not permitted to question the logic of the Tennessee General
Assembly’s decision to place these types of cases within the THCLA’s ambit. Suffice it to
say that Plaintiff’s claim is related to the provision of health care services and therefore is
subject to the pre-suit and good faith certificate requirements of the THCLA. Because
Plaintiff complied with neither requirement, dismissal with prejudice was proper. Tenn.
Code Ann. § 29-26-122(c).
V. CONCLUSION
The judgment of the Madison County Circuit Court is affirmed, and this cause is
remanded to the trial court for all further proceedings as may be necessary and consistent
with this Opinion. Costs of this appeal are taxed to Appellants, Jessica Marie Forsythe and
Cody Forsythe, for which execution may issue if necessary.
S/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE
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