Moses v. Dirghangi

• Decision Date: 03 October 2013
• Docket Number: No. W2011-02403-COA-R3-CV,W2011-02403-COA-R3-CV
• Parties: PAMELA MOSES v. JAYANTA K. DIRGHANGI, MD
• Court: Tennessee Court of Appeals

PAMELA MOSES v. JAYANTA K. DIRGHANGI, MD

No. W2011-02403-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT JACKSON

August 13, 2013 Session

Filed October 3, 2013

Appeal from the Circuit Court for Shelby County

No. CT00028911

Kay S. Robilio, Judge

This case involves allegations of medical battery and medical malpractice surrounding an exam performed on a patient while she was admitted to a hospital to give birth. The trial court dismissed any allegations for medical battery for failure to state a claim upon which relief could be granted, finding that the patient's complaint failed to include allegations that the exam was performed without the patient's authorization. The trial court further dismissed any remaining malpractice claims for failure to comply with the Tennessee Medical Malpractice Act notice requirements. Discerning no error, we affirm the decision of the trial court.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Affirmed

J. STEVEN STAFFORD, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and HOLLY M. KIRBY, J., joined.

Pamela Moses, Memphis, Tennessee, Pro Se.

Darrell E. Baker, Jr., Deborah Whitt, and M. Jason Martin, Memphis, Tennessee, for the Appellee, Jayanta K. Dirghangi, M.D.

OPINION

I. Background

On January 20, 2011, Plaintiff/Appellant Pamela Moses, filed a complaint in the Circuit Court of Shelby County arising from medical treatment provided by Defendant/Appellee Jayanta K. Dirghangi, M.D. ("Appellee").¹ The complaint alleged that while Ms. Moses was in Methodist Hospital Germantown to give birth, on July 18, 2008, Appellee performed a vaginal exam on Ms. Moses in a "forceful and abusive manner." Specifically, the complaint asserted that:

3. [O]n July 18, 2008, [Ms. Moses] was a patient of [Appellee] for childbirth and was confined to Methodist Hospital Germantown. After 5 pm on that date, [Appellee] came into her room in what appeared to be a very angry and aggressive mood and began to do a vaginal exam in such a forceful and abusive manner that she was torn and suffered injury requiring extensive medical treatment.

4. [Ms. Moses] alleged that the conduct of [Appellee] was intentional and amounted to an assault and as a direct and proximate result of the assault she suffered injuries [, including] excruciating pain and mental anguish[,] and that she will suffer pain and mental anguish in the future as a direct and proximate result of the injuries [caused] by [Appellee].

Appellee filed an Answer on February 24, 2011, denying the material allegations contained in the complaint. The Answer also sought attorneys fees on behalf of Appellee. On the same day, Appellee also filed a Motion to Dismiss the complaint, contending that Ms. Moses' complaint failed to state a claim for medical battery and that, with regard to any claims for medical malpractice, Ms. Moses failed to file a certificate of good faith pursuant to Tennessee Code Annotated Section 29-26-122. The Motion also alleged that Ms. Moses failed to provide timely pre-suit notice of the claim, and failed to file a copy of any pre-suit notice and proof of service with the complaint as required by the medical malpractice statutes. Ms. Moses filed a response in opposition on April 13, 2011. Specifically, Ms. Moses argued that her claim was for assault and/or medical battery and that pre-suit notice was, therefore, not required.

The trial court granted Appellee's Motion to Dismiss by order of April 29, 2011. The trial court concluded that Ms. Moses failed to make out a medical battery claim because there was no allegation that Ms. Moses was unaware of, or did not authorize, the vaginal exam performed by Appellee. The trial court further ruled that any medical negligence claims were also to be dismissed for failure to comply with the pre-suit notice requirement, or the certificate of good faith requirement. Thus, the trial court dismissed all of Ms. Moses' claims.

Ms. Moses filed a Motion to Alter or Amend the Judgment on May 31, 2011, alleging that her cause of action was for assault and that there were no pre-suit notice requirements for this cause of action. Appellee filed a response, arguing that Ms. Moses was asserting the same argument as she had been in response to Appellee's Motion to Dismiss. The trial court denied the Motion to Alter or Amend by order of September 30, 2011. The trial court later entered an order denying Appellee's request for attorney fees on November 30, 2012.

Ms. Moses appeals, raising a number of issues.² As we perceive it, however, there are two issues in this case:

1. Whether the trial court erred in concluding that Ms. Moses' complaint failed to state a cause of action for medical battery?

2. Whether the trial court erred in concluding that any claims of medical malpractice were barred by failure to file a certificate of good faith concurrent with the filing of the claim pursuant to the Tennessee Medical Malpractice Act?

Based on the analysis below, we affirm the decision of the trial court.

II. Standard of Review

Ms. Moses' complaint was dismissed for failure to state a claim upon which relief can be granted. Accordingly, we will consider her appeal under the standard of review applicable to motions to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(6). An essential purpose of a pleading is to give notice of the issues to be tried so that the opposing party will be able to prepare for trial. Abshure v. Methodist Healthcare-Memphis Hosps., 325 S.W.3d 98, 103 (Tenn. 2010). A Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss a complaint for failure to state a claim upon which relief can be granted tests the legal sufficiency of the complaint. Lanier v. Rains, 229 S.W.3d 656, 660 (Tenn. 2007). It admits the truth of all relevant and material allegations, but asserts that such allegations do not constitute a cause of action as a matter of law. See Riggs v. Burson, 941 S.W.2d 44, 47(Tenn. 1997). These motions are not favored and are rarely granted in light of the liberal pleading standards contained in the Tennessee Rules of Civil Procedure. Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn. Ct. App. 1992). Moreover, pleas or counts contained in a complaint will be given the effect required by their content, without regard to the name given them by the pleader. State By and Through Canale ex rel. Hall v. Minimum Salary Dept. of African Methodist Episcopal Church, Inc., 477 S.W.2d 11 (Tenn. 1972).

When considering a motion to dismiss for failure to state a claim upon which relief can be granted, we are limited to an examination of the complaint alone. See Wolcotts Fin. Serv., Inc. v. McReynolds, 807 S.W.2d 708, 710 (Tenn. Ct. App. 1990). The basis for the motion is that the allegations in the complaint, when considered alone and taken as true, are insufficient to state a claim as a matter of law. See Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn. 1975). Although allegations of pure legal conclusion will not sustain a complaint, see Ruth v. Ruth, 213 Tenn. 82, 372 S.W.2d 285, 287 (1963), a complaint "need not contain in minute detail the facts that give rise to the claim," so long as the complaint does "contain allegations from which an inference may fairly be drawn that evidence on these material points will be introduced at trial." Donaldson v. Donaldson, 557 S.W.2d 60, 61 (Tenn. 1977); White v. Revco Discount Drug Centers, 33 S.W.3d 713, 718, 725 (Tenn. 2000); accord, Givens v. Mullikin ex rel McElwaney, 75 S.W.3d 383, 391, 399, 403-404 (Tenn. 2002). In short, a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss seeks only to determine whether the pleadings state a claim upon which relief can be granted, and such a motion challenges the legal sufficiency of the complaint, not the strength of the plaintiff's proof. Bell ex rel. Snyder v. Icard, 986 S.W.2d 550, 554 (Tenn.1999). In considering such a motion, the court should construe the complaint liberally in favor of the plaintiff, taking all the allegations of fact therein as true. See Cook ex. rel. Uithoven v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn.1994). However, we are not required to accept as true factual inferences or conclusions of law. Riggs v. Burson, 941 S.W.2d 44, 47-48 (Tenn.1997). An appellate court should uphold the grant of a motion to dismiss only when it appears that the plaintiff can prove no set of facts in support of a claim that will entitle him or her to relief. Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003).

We further note that Tennessee Rule of Civil Procedure 12.02(6) motions are not designed to correct inartfully drafted pleadings. Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn. Ct. App. 1992). However, a complaint should not be dismissed, no matter how inartfully drafted, if it states a cause of action. Id. (citing Paschall's, Inc. v. Dozier, 219 Tenn. 45, 407 S.W.2d 150, 152 (Tenn.1966); Collier v. Slayden Bros. Ltd. Partnership, 712 S.W.2d 106, 108 (Tenn. Ct. App.1985)). Nonetheless, there is no duty on the part of the court to create a claim that the pleader does not spell out in his complaint. Utter v. Sherrod, 132 S.W.3d 344 (Tenn. Ct. App. 2003), perm. app. denied (Tenn. March 8, 2004). But while we should not endeavor to create claims where none exist, we must always look to the substanceof the pleading rather than to its form. Dobbs, 846 S.W.2d at 273 (citing Donaldson v. Donaldson, 557 S.W.2d 60, 62 (Tenn. 1977); Usrey v. Lewis, 553 S.W.2d 612, 614 (Tenn. Ct. App. 1977)).

As a point of practice, we note that although Ms. Moses was represented by counsel in the trial court, she is proceeding pro se in this appeal. However, it is well-settled that, "[w]hile a party who chooses to represent himself or herself is entitled to the fair and equal treatment of the courts, [p]ro se litigants are not . . . entitled to shift the burden of litigating their case to the courts." Chiozza v. Chiozza, 315 S.W.3d 482, 487 (Tenn. Ct. App. 2009). Accordingly, "[p...