Ellithorpe v. Weismark

• Citation: 479 S.W.3d 818
• Parties: Adam Ellithorpe et al. v. Janet Weismark
• Decision Date: 08 October 2015
• Court: Supreme Court of Tennessee

479 S.W.3d 818

Adam Ellithorpe et al.

v.Janet Weismark

Supreme Court of Tennessee, AT KNOXVILLE.

June 3, 2015 Session

Filed October 8, 2015

John F. Floyd and Daniel C. Todd, Nashville, Tennessee, for the appellant, Janet Weismark.

Connie Reguli, Brentwood, Tennessee, for the appellees, Adam Ellithorpe, Ashley Ellithorpe, and M.L. (a minor).

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Alexander S. Rieger and Paul Jordan Scott, Assistant Attorneys General, for the intervenor, State of Tennessee.

Cornelia A. Clark, J., delivered the opinion of the Court, in which Sharon G. Lee, C.J., and Gary R. Wade, Jeffrey S. Bivins, and Holly Kirby, JJ., joined.

OPINION

Cornelia A. Clark, J.

We granted review in this health care liability action to decide whether the trial court erred by failing to apply this Court's analysis in Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011), in determining whether it was necessary for plaintiffs to provide pre-suit notice and a certificate of good faith under the Tennessee Health Care Liability Act ("THCLA"), Tenn. Code Ann. § 29–26–101 et seq. We hold that the Tennessee Civil Justice Act of 2011, which amended the THCLA, statutorily abrogated our decision in Estate of French by providing that "[a]ny such civil action or claim is subject to [the THCLA] regardless of any other claims, causes of action, or theories of liability alleged in the complaint." Because it is undisputed that the plaintiffs in this case failed to provide pre-suit notice or file a certificate of good faith, the judgment of the Court of Appeals is reversed and the judgment of the trial court dismissing the plaintiffs' complaint with prejudice is reinstated.

I. Factual and Procedural Background

On July 11, 2013, Adam and Ashley Ellithorpe ("Parents")¹ filed this action against Janet Weismark ("Ms. Weismark"), a licensed clinical social worker, alleging that she had provided counseling services to their minor child, M.L., without obtaining Parents' valid consent. Parents' complaint includes claims for negligence, negligence per se, and intentional infliction of emotional distress ("IIED"). Because this case comes to us in the posture of Ms. Weismark's motion to dismiss the complaint for failure to state a claim, we accept the allegations of the complaint as true. See Brown v. Tenn. Title Loans, Inc., 328 S.W.3d 850, 853 (Tenn. 2010) (citing Leach v. Taylor, 124 S.W.3d 87, 90 (Tenn. 2004) ).

Parents are the legal and biological parents of M.L. However, on February 1, 2012, the Juvenile Court of Sumner County, Tennessee, allegedly issued an order ("Juvenile Court's order") giving Ronda and Eugene Melton (collectively "the Meltons") temporary custody of M.L. The Meltons are the paternal great aunt and uncle of M.L. Notably, the Juvenile Court's order is neither attached to Parents' complaint nor included in the record on appeal.² Nevertheless, Parents' complaint alleges that the Juvenile Court's order gave the Meltons authority to make medical decisions for M.L. However, the order also allegedly provided that Parents were to "be kept informed of counseling progress and be allowed to participate, including counseling...." Further, Parents allege that the Juvenile Court's order gave them the right to receive copies of M.L.'s medical, health, and other treatment records directly from the physician or health care provider who provided the treatment. Moreover, according to Parents' complaint, "the custodian [Ms. Melton] was admonished by the [Juvenile] Court to work together with [parents] in support of reuniting [parents] with [M.L.]"

Parents' complaint alleges that on June 11, 2011, Ms. Weismark completed an intake form, signaling the beginning of Ms. Weismark's counseling with M.L. According to Parents, they were completely unaware that Ms. Weismark had begun counseling M.L. because they were never allowed to participate in the counseling. Ms. Weismark allegedly continued to hold counseling sessions with M.L. without informing Parents until at least April 9, 2013, but Parents believe that M.L. was still in counseling at the time they filed their complaint against Ms. Weismark. Consequently, Parents allege that Ms. Weismark "[was] negligent in providing health services without following the parameters of the court order by notifying [parents] and allowing them to participate in said counsel [sic]."

Parents' complaint further asserts that they first became aware of M.L.'s counseling sessions with Ms. Weismark on April 10, 2013, when the assigned Guardian Ad Litem "let the information slip out." Thereafter, Parents assert that the Guardian Ad Litem "was asked to disclose the name and phone number of the counselor. He reluctantly gave the name of [Ms. Weismark] and her phone number."

Parents further assert that, after they became aware that counseling was occurring, they asked Ms. Weismark to provide them with a copy of M.L.'s treatment records:

[A] phone call was made to Ms. Weismark's office and she was asked to provide a complete copy of [M.L.'s] records to [Parents] and was told that [Parents] would come by to pick up the records. She was reluctant and stated that she would need $25 to pay for the records. She was told that would be fine.

According to Parents, Ms. Weismark called back "within [twenty] minutes" and left a message that she had been "advised not to give out the records" but would not respond to further inquiries about who had advised that the records be withheld.

Parents assert that they received Ms. Weismark's treatment records only after this action was initiated and a subpoena was issued by the trial court. Parents contend that Ms. Weismark did not have a copy of the Juvenile Court's order as a part of her records for M.L. and that she neither confirmed Ms. Melton's identity nor verified any court-ordered restrictions on Ms. Melton's authority. However, Parents allege that Ms. Weismark knew that Ms. Melton was not M.L.'s biological parent because she was listed as a "great aunt" on the intake form. According to Parents, Ms. Weismark's actions "demonstrate[ ] her reckless disregard" for their rights.

Parents also state that Ms. Weismark wrote a letter on January 16, 2013, recommending that they be denied contact with M.L.³ According to Parents' complaint, this recommendation directly contravened a "current court order for visitation."

Finally, because of this allegedly "secret" counseling, Parents state that M.L. has been "harmed emotionally in not being allowed to counsel" with them and that they too have suffered emotional distress. Parents contend that the counseling is the direct and proximate cause of these injuries. Further, Parents allege

that the proof will show that [M.L.] has suffered severe emotional harm from being forcefully kept separated from her [P]arents. In fact, in the notes of Ms. Weismark, it shows that [M.L.] calls [Ms. Melton] "mommy" and Ms. Weismark has done nothing to correct this. [Ms. Melton] is NOT the "mommy" of [M.L.] and should not be substituted in [M.L.'s] mind as her parent. This is evidence of the deep psychological damage that has occurred to [M.L.] while in counseling with Ms. Weismark.

(Capitalization in original.)

On August 15, 2013, Ms. Weismark answered Parents' complaint by denying that Parents were entitled to any relief. She also asserted several affirmative defenses in her answer, including that Parents failed to comply with the pre-suit notice and certificate of good faith requirements of the THCLA. See Tenn. Code Ann. §§ 29–26–121 to –122 (2012 & Supp. 2014).

On November 15, 2013, Ms. Weismark filed a motion to dismiss, also based on Parents' failure to comply with the THCLA's procedural requirements. Parents filed their response to the motion to dismiss on November 27, 2013, arguing that their claims were not subject to the THCLA's procedural requirements because their claims sounded in ordinary negligence.

On December 13, 2013, the trial court held a hearing on Ms. Weismark's motion to dismiss. An order was entered on January 9, 2014, dismissing all of Parents' claims with prejudice. In its verbal ruling on Ms. Weismark's motion to dismiss, the trial court stated that the THCLA was "very broad" and encompassed Parents' claims because they related to the provision of "health care services" by a "health care provider" as those terms are defined by statute.⁴ See Tenn. Code Ann. § 29–26–101.

On February 7, 2014, Parents filed a notice of appeal raising only one issue, which was restated⁵ by the Court of Appeals for clarity as follows: "Whether the trial court erred in dismissing [Parents'] negligence, negligence per se, and IIED claims for failure to comply with the written notice and certificate of good faith requirements of the THCLA." Ellithorpe v. Weismark, No. M2014–00279–COA–R3–CV, 2014 WL 5511773, at *3 (Tenn.Ct.App. Oct. 31, 2014).

The Court of Appeals, relying primarily on Estate of French v. Stratford House, held that the trial court had failed to utilize the correct analysis when determining if Parents' claims sounded in ordinary negligence or health care liability. Weismark, 2014 WL 5511773, at *10. The Court of Appeals noted that in Estate of French, this Court "abandoned the broad ‘gravamen of the complaint’ test ... in favor of ‘a more nuanced approach’ in which the trial court must examine the claims individually to determine whether they sound in ordinary negligence or health care liability. Weismark, 2014 WL 5511773, at *9 (quoting Estate of French, 333 S.W.3d at 560 ). The Court of Appeals further determined that the trial court had not considered the standard outlined in Estate of French and instead "relied on the gravamen of the complaint standard rejected in Estate of French" when dismissing the complaint. Id. at *10. Thus, the Court of Appeals vacated the trial court's order dismissing Parents' claims and remanded for reconsideration of the entire complaint pursuant to the standard articulated in ...