Lorshbaugh v. Cmty. Heath Sys., Inc., Case No. 3:18-CV-394

• Decision Date: 29 January 2019
• Docket Number: Case No. 3:18-CV-394
• Parties: JAMES LORSHBAUGH, Plaintiff, v. COMMUNITY HEATH SYSTEMS, INC., et. al., Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

JAMES LORSHBAUGH, Plaintiff, v. COMMUNITY HEATH SYSTEMS, INC., et. al., Defendants.

Case No. 3:18-CV-394

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE

January 29, 2019

Judge Curtis L. Collier

Magistrate Judge Debra C Poplin

MEMORANDUM

Before the Court is a motion by Defendant Metro Knoxville HMA, LLC d/b/a Tennova Healthcare — Physicians Regional Medical Center to dismiss Plaintiff's amended complaint. (Doc. 31.) Plaintiff has responded (Doc. 33), and Defendant has replied (Doc. 34.) For the reasons below, the Court will DENY the motion to dismiss Plaintiff's amended complaint (Doc. 31.)

The Court will also VACATE AS MOOT a motion by Defendant to dismiss Plaintiff's complaint (Doc. 12), which was filed before Plaintiff amended his complaint.

I. BACKGROUND

This action arises out of the provision of health care services to Plaintiff James Lorshbaugh, a resident of Knoxville, Tennessee.¹ Plaintiff is a deaf individual who communicates primarily through American Sign Language ("ASL"). Plaintiff also suffers from a heart condition which has previously required, and may continue to require, emergency treatment. From August 2017,Plaintiff has sought treatment for his heart condition at three medical facilities: Tennova Healthcare—Physicians Regional Medical Center ("Physicians Regional"); Knoxville HMA Cardiology PPM, LLC d/b/a Tennova Heart—Physicians Regional ("Tennova Heart"); and Metro Knoxville HMA d/b/a Tennova Heathcare—North Knoxville Medical Center ("North Knoxville"). Defendant plays a role in the operation and control of those facilities.

At an initial visit to Tennova Heart in August 2017, Plaintiff used Video Remote Interpreting ("VRI") to communicate with doctors concerning his medical treatment, but the technology had technical difficulties. The audio cut in and out, the image froze, and the service was interrupted, impeding Plaintiff's ability to communicate. The next month, Plaintiff was admitted to Physicians Regional for cardiac-bypass surgery. Physicians Regional is in the same building as Tennova Heart and uses the same VRI provider. Instead of again using VRI to attempt to communicate, and instead of Physicians Regional providing on-site interpreters, Plaintiff relied on two of his friends to communicate with doctors and translate ASL. Two months after Plaintiff's cardiac-bypass surgery, Plaintiff experienced spiking blood pressure and a racing heart, and was admitted to the emergency room at Physicians Regional. Plaintiff waited two hours for a method of communication to be provided, but ended up leaving before receiving an evaluation of his symptoms, an evaluation of his post-operative condition, or any other healthcare. Most recently, Plaintiff sought emergency care at North Knoxville in November 2018. Plaintiff believes he is at risk of being transported by ambulance service to North Knoxville without regard to whether Defendants have taken steps to ensure effective communication with Plaintiff at that facility.

Plaintiff alleges Defendants have violated Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 ("Section 504"), and its implementing regulations, 45 C.F.R. § 84.52; Title III of the Americans With Disabilities Act, 42 U.S.C. § 12182(a) ("Title III"), and itsimplementing regulations, 28 C.F.R. § 36; and Section 1557 of the Affordable Care Act ("ACA"), 42 U.S.C. § 18116, and its implementing regulations, 45 C.F.R. § 92.202(a).

Defendant moves to dismiss the action, arguing Plaintiff has failed to comply with the Tennessee Health Care Liability Act's ("THCLA") mandatory pre-suit notice and certificate of good faith requirements under §§ 29-26-101, et seq. Defendant argues Plaintiff's wholesale noncompliance with the THCLA's pre-suit requirements warrants dismissal of Plaintiff's claims with prejudice.

II. STANDARD OF REVIEW

A motion to dismiss for failure to state a claim is the proper method for challenging whether a plaintiff has complied with the pre-suit requirements of the THCLA. See Riley v. Methodist Healthcare Memphis Hosps., 731 F. App'x 481, 831 (6th Cir. 2018); Mullin v. Rolling Hills Hosp., No. 3:16-CV-2609, 2017 WL 2953357, at *2 (M.D. Tenn. July 11, 2017); Ellithorpe v. Weismark, 479 S.W.3d 818, 823 (Tenn. 2015). Rather than engaging in a more typical analysis concerning the adequacy of Plaintiff's complaint,² the Court must analyze the legal issue of whether the THCLA applies to Plaintiff's action. Where relevant to the Court's analysis, the Court has taken all of the factual allegations in Plaintiff's complaint as true, apart from any legal conclusions couched as factual allegations, as required under Federal Rule of Civil Procedure 12(b)(6). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

III. DISCUSSION

Tennessee state law provides that plaintiffs must comply with two primary requirements prior to filing a healthcare liability action. First, the plaintiff, or their authorized agent, must give written notice of any probable claims to each healthcare provider that will be a named defendant at least sixty days prior to the filing of a complaint. Tenn. Code Ann. § 29-26-121(a)(1). Second, if expert testimony is required in the action, the plaintiff, or his or her counsel, must file a certificate of good faith with the complaint. Tenn. Code Ann. § 29-26-122(a). The certificate must state that plaintiff, or his or her counsel, has consulted with one or more experts who have prepared a written statement confirming they are competent to express an opinion on the case, and that they believe there is a good faith basis to maintain the action. Id. § 29-26-122(a)(1)-(2).

It is undisputed that Plaintiff did not comply with either of these requirements. Instead, Plaintiff argues that his suit is not subject to the THCLA. Plaintiff makes arguments regarding the applicable scope of the THCLA as interpreted by Tennessee courts, proposing that the law does not capture his suit based on federal antidiscrimination law. Instead, Plaintiff believes that the Tennessee state law only applies to causes of action sounding in negligence, medical malpractice, tort, or contract. In so doing, Plaintiff jumps to assessing whether the breadth of the state statute captures his claims without pausing to assess whether this Court should even apply state law in the first place.

When a lawsuit is filed in federal court, the court must determine what law is to govern the case. On different occasions, federal courts may be called on to apply and interpret federal law, state law, or other bodies of law, to the facts and issues before them. Most notably, the doctrine that has emerged from Erie Railroad Company v. Thomkins, 304 U.S. 64 (1938), dictates that federal courts hearing cases in diversity apply federal law when it governs the issue, but otherwiseapply state substantive law, having its source in either state statutes or state court decisions. State law can also be applied, however, in cases predicated on a federal court's "federal question" jurisdiction under 28 U.S.C. § 1331. Jonathan R. Siegel, Federal Courts 352 (2015). It has long been said that "it is the source of the right sued upon, and not the ground on which federal jurisdiction over the case is founded, which determines the governing law." Maternally Yours v. Your Maternity Shop, 234 F.2d 538, 541 (2d Cir. 1956). For example, a federal court would apply state law to state-law claims when exercising supplemental jurisdiction over those claims pursuant to 28 U.S.C. § 1367.

Here, Plaintiff has brought a lawsuit in federal court, bringing causes of action solely under federal law. When the source of the right sued upon is federal law, federal law generally applies to the issues involved. 13B Fed. Prac. & Proc. Juris. § 3531.14 (3d ed.) ("As to litigation commenced in federal courts to enforce federal rights, federal law almost always controls"); Sola Elec. Co. v. Jefferson Elec. Co., 317 U.S. 173, 176 (1942) (the doctrine of Erie "is inapplicable to those areas of judicial decision within which the policy of the law is so dominated by the sweep of federal statutes that legal relations which they affect must be deemed governed by federal law having its source in those statutes, rather than by local law"). Accordingly, the Court finds no reason to apply Tennessee state law to Plaintiff's federal causes of action.

There is also a general presumption that, "in the absence of a plain indication to the contrary[,] . . . when [Congress] enacts a statute[, it] is not making the application of the federal act dependent on state law." Jerome v. United States, 318 U.S. 101, 104 (1943); see also Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43 (1989); NLRB v. Nat. Gas Util. Dist. of Hawkins Cty., Tenn., 402 U.S. 600, 604 (1971). One reason for this presumption is that federal statutes are generally intended to have uniform, nationwide application. Miss. Band of ChoctawIndians, 490 U.S. at 43. Another reason for the presumption against the application of state law is the danger that the application of state law may impair a federal program. Id. Following the presumption against applying the THCLA pre-suit notice and expert requirements to Plaintiff's case makes sense under both rationales: application of the THCLA would (1) tend to interfere with the uniformity of the procedure for bringing ADA, Section 504, and ACA lawsuits in the state of Tennessee as compared to the forty-nine other states in this union; and (2) could impair the federal program of those civil rights laws by adding further procedural requirements to plaintiffs who wish to curb discrimination through the vehicle of federal law.

Defendant cites no case in which a federal court has applied the requirements of the THCLA to a federal cause of action—or, more accurately stated, to a federal cause of action which does not expressly incorporate state law. Federal courts in the Sixth Circuit have certainly assessed a plaintiff's compliance...