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 01/11/2018 IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE October 5, 2017 Session MELISSA GALE JOHNSON ET AL. v. RUTHERFORD COUNTY, TENNESSEE ET AL. Appeal from the Circuit Court for Rutherford County No. 70031 M. Keith Siskin, Judge No. M2017-00618-COA-R3-CV The 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. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; Case Remanded THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined. Blake Garner and Nicholas Christiansen, Murfreesboro, Tennessee, for the appellant,
Rutherford County, Tennessee. Edward A. Hadley, Renee Levay Steward, and Brent A. Kinney, Nashville, Tennessee,
for the appellee, Rudd Medical Services, PLC. OPINION I. Factual and Procedural Background The 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. The 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. The 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 Liability Act. On 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. Plaintiffs 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 2 had a known propensity for violent attacks against other inmates.1 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. On 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. On 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. On 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].” 1 No additional parties were added as defendants in this revised complaint. 3 Mr. 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. Dr. 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 facility. The 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.
The 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. On 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 4 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 claims, causes of action, or theories of liability alleged in the complaint. (Emphasis in original.) The trial court in this action further explained in pertinent part: [T]he County is alleging that Rudd obtained information during the course of its treatment of an inmate at the Jail (Guy Mitchell, Jr.) regarding the status of Mitchell’s mental health, compliance with his medications, and his propensity to be dangerous to other inmates. The County asserts that, after obtaining the pertinent mental health information about Mitchell, Rudd failed to warn the County that Mitchell posed a danger to other inmates. Mitchell then attacked another inmate in his pod (Robert Lee Johnson, a Plaintiff herein), causing the injuries at issue in this lawsuit. Clearly, these allegations by the County fit the broad definition of a “health care liability action” as set forth in the THCLA. This civil action alleges that a health care provider (Rudd) has caused an injury (to Johnson) related to the provision of health care services to a person (Mitchell), regardless of the theory of liability (indemnity) alleged in the Third Party Complaint. The County’s argument that the couching of its claim against Rudd as a contractual indemnity claim removes it from the purview of the THCLA is unpersuasive. As the Supreme Court of Tennessee emphasized in Ellithorpe, all qualifying legal actions are now encompassed by the THCLA, regardless of any other theories of liability in the complaint. See Id. Since the County failed to provide the necessary certificate of good faith along with its Third Party Complaint, the Third Party Complaint must be dismissed with prejudice. See Id. at 828. In light of this determination, Rudd’s alternative Motion for Summary Judgment need not be addressed. The County timely appealed this ruling. II. Issues Presented The County has presented two issues for our review, which we have restated
slightly: 5 1. Whether the trial court erred by determining that a contractual indemnity claim filed by a non-patient against a medical provider required compliance with the THCLA. 2. Whether the trial court erred by determining that a failure to warn claim filed by a non-patient against a medical provider was governed by the THCLA. Rudd raises the following additional issues, which we have also restated slightly: 3. Whether the County’s arguments raised for the first time on appeal have been waived. 4. If this Court determines that dismissal was inappropriate, whether Rudd is entitled to summary judgment as a matter of law. III. Standard of Review Our Supreme Court has elucidated the following regarding the standard of review
applicable to a motion to dismiss a health care liability action based upon a plaintiff’s
noncompliance with Tennessee Code Annotated §§ 29-26-121 and -122: The proper way for a defendant to challenge a complaint’s compliance with Tennessee Code Annotated section 29-26-121 and Tennessee Code Annotated section 29-26-122 is to file a Tennessee Rule of Procedure 12.02 motion to dismiss. In the motion, the defendant should state how the plaintiff has failed to comply with the statutory requirements by referencing specific omissions in the complaint and/or by submitting affidavits or other proof. Once the defendant makes a properly supported motion under this rule, the burden shifts to the plaintiff to show either that it complied with the statutes or that it had extraordinary cause for failing to do so. Based on the complaint and any other relevant evidence submitted by the parties, the trial court must determine whether the plaintiff has complied with the statutes. If the trial court determines that the plaintiff has not complied with the statutes, then the trial court may consider whether the plaintiff has demonstrated extraordinary cause for its noncompliance. If the defendant prevails and the complaint is dismissed, the plaintiff is entitled to an appeal of right under Tennessee Rule of Appellate Procedure 3 using the standards of review in Tennessee Rule of Appellate Procedure 13. If the plaintiff prevails, the defendant may pursue an interlocutory appeal under 6 either Tennessee Rule of Appellate Procedure 9 or 10 using the same
standards. Because the trial court’s denial of the Defendants’ motion involves a
question of law, our review is de novo with no presumption of correctness.
Graham v. Caples, 
325 S.W.3d 578
, 581 (Tenn. 2010). The question of
whether [the plaintiff] has demonstrated extraordinary cause that would
excuse compliance with the statutes is a mixed question of law and fact,
and our review of that determination is de novo with a presumption of
correctness applying only to the trial court’s findings of fact and not to the
legal effect of those findings. Starr v. Hill, 
353 S.W.3d 478
, 481-82 (Tenn.
2011). We review the trial court’s decision to excuse compliance under an
abuse of discretion standard. “A court abuses its discretion when it applies
an incorrect legal standard or its decision is illogical or unreasonable, is
based on a clearly erroneous assessment of the evidence, or utilizes
reasoning that results in an injustice to the complaining party.” Wilson v.
State, 
367 S.W.3d 229
, 235 (Tenn. 2012) (citing Wright ex rel. Wright v.
Wright, 
337 S.W.3d 166
, 176 (Tenn. 2011)). We examine the legal
sufficiency of the complaint and do not consider the strength of the
plaintiff’s evidence; thus, all factual allegations in the complaint are
accepted as true and construed in flavor of the plaintiff. Lind v. Beaman
Dodge, Inc., 
356 S.W.3d 889
, 894 (Tenn. 2011). *** The leading rule governing our construction of any statute is to ascertain
and give effect to the legislature’s intent. Walker v. Sunrise Pontiac-GMC
Truck, Inc., 
249 S.W.3d 301
, 309 (Tenn. 2008). To that end, we start with
an examination of the statute’s language, Curtis v. G.E. Capital Modular
Space, 
155 S.W.3d 877
, 881 (Tenn. 2005), presuming that the legislature
intended that each word be given full effect. Lanier v. Rains, 
229 S.W.3d 656
, 661 (Tenn. 2007). When the import of a statute is unambiguous, we
discern legislative intent “from the natural and ordinary meaning of the
statutory language within the context of the entire statute without any
forced or subtle construction that would extend or limit the statute’s
meaning.” State v. Flemming, 
19 S.W.3d 195
, 197 (Tenn. 2000); see also
In re Adoption of A.M.H., 
215 S.W.3d 793
, 808 (Tenn. 2007) (“Where the
statutory language is not ambiguous . . . the plain and ordinary meaning of
the statute must be given effect.”) (citing Calaway ex rel. Calaway v.
Schucker, 
193 S.W.3d 509
, 516 (Tenn. 2005)). The construction of a 7 statute is also a question of law which we review de novo without any presumption of correctness. Lind, 356 S.W.3d at 895. Myers v. AMISUB (SFH), Inc., 
382 S.W.3d 300
, 307-08 (Tenn. 2012). IV. Waiver As a threshold matter, Rudd argues that the County has waived certain arguments
by failing to raise them at the trial court level. According to Rudd, the County raised the
following arguments for the first time on appeal: 1) that the THCLA does not apply to
third-party complaints, 2) that it is a practical impossibility for the County to comply with
the THCLA in this case, and 3) that the third-party complaint asserts a claim for
contractual indemnification rather than the provision of health care services. Although it
is true that this Court does not entertain issues raised for the first time on appeal, see Dye
v. Witco Corp., 
216 S.W.3d 317
, 321 (Tenn. 2007), the general issue of whether the
County’s third-party claim against Rudd was subject to the THCLA was fully litigated in
the trial court. When opposing the motion to dismiss, the County consistently maintained
that it was asserting a claim for contractual indemnity and not a health care liability
claim. The County’s arguments regarding application of the THCLA to third-party
claims and the impossibility of compliance are not novel issues on appeal because they
relate to the overarching issue of whether the THCLA is applicable to the County’s third-
party claim against Rudd. We therefore determine Rudd’s waiver argument to be
unavailing. V. Applicability of the THCLA The County’s issues on appeal concern whether the trial court properly determined
that the THCLA would be applicable to its third-party claim against Rudd. The County
maintains that its claim is simply one for contractual indemnity rather than health care
liability. The County further argues that federal court precedent establishes that the
THCLA does not apply to third-party complaints. Regarding compliance with the
THCLA’s requirements, the County asserts that it could not comply because it was not a
plaintiff or person within the meaning of the THCLA and because no care or treatment
was provided to the County. Finally, the County contends that a “failure to warn” claim
is different from a typical THCLA claim. The THCLA incorporates certain requirements for the filing of a health care
liability claim. For example, Tennessee Code Annotated § 29-26-121(a)(1) (Supp. 2017)
provides: 8 Any person, or that person’s authorized agent, 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 (60) days before the filing of a complaint based upon health care liability in any court of this state. Likewise, Tennessee Code Annotated § 29-26-122(a) (2012) provides in pertinent part: In 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. If the certificate is not filed with the complaint, the complaint shall be dismissed . . . . With regard to the general provisions of the THCLA, Tennessee Code Annotated
§ 29-26-101(a)(1) (Supp. 2017) supplies the following definition of a “health care
liability 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 . . . . Tennessee Code Annotated § 29-26-101(c) (Supp. 2017) further declares in pertinent
part: “Any 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 . . . .” The County argues that its third-party complaint does not allege an injury related
to the provision of health care services by a Rudd employee. Rather, the County
maintains that its claim is based on the above-quoted clause contained within the
respective parties’ contract, which states that Rudd would indemnify the County from: 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. In addition, the County contends that the provisions of Tennessee Code Annotated
§§ 29-26-121 and -122 were not intended to apply to unrelated third-party claims. See
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