The question presented in this health care liability case is whether the plaintiff’s claim against a salon for negligent training, supervision, and retention of a massage therapist should be dismissed because the plaintiff did not file a certificate of good faith with her complaint under section 29-26-122 of the Tennessee Health Care Liability Act . . . . Our answer depends on whether the common knowledge exception applies—that is, whether laypersons using their common knowledge and without expert testimony could decide whether the salon was negligent. If the common knowledge exception does not come into play and expert testimony is necessary, then the plaintiff needed to file a certificate of good faith with her complaint certifying that her negligence claim was supported by a competent expert witness and that there was a good faith basis for the claim. Here, the plaintiff alleged that a massage therapist working for the salon sexually assaulted her during a massage. In support of her claim of negligent training, supervision, and retention, the plaintiff presented evidence that before her assault, the salon had received complaints from two customers that the massage therapist had acted inappropriately and made them feel uncomfortable. The trial court granted summary judgment to the salon because the plaintiff had not filed a certificate of good faith. The Court of Appeals affirmed, ruling that the plaintiff had waived the common knowledge exception and that, in any event, expert testimony was necessary. We reverse and hold that 1) the plaintiff did not waive the common knowledge exception; and 2) the plaintiff’s claim against the salon for negligent training, supervision, and retention of the massage therapist was within the common knowledge of laypersons and did not require expert testimony about the standard of care in the massage industry. Thus, the plaintiff did not have to present expert proof to establish her negligence claim against the salon. It follows then that the plaintiff had no reason to file a certificate of good faith under section 29-26- 122, and her claim is not subject to dismissal for noncompliance with this section. The trial court’s award of summary judgment is vacated.
Sunday, June 14, 2020
New Tennessee Health Care Liability Action Opinion: SCOTN Holds Common Knowledge Exception Applies in Case Involving a Massage Therapist
The Tennessee Supreme Court released its opinion Friday in Jackson v. Burrell, No. W2018-00057-SC-R11-CV (Tenn. June 12, 2020). The syllabus form the slip opinion reads:
Here is a link to that opinion:
NOTE: This opinion reaches a fair result under the law (which is similar in a number of other states as well) regarding the common knowledge exception to the general requirement of expert testimony to prove both negligence and causation in a health care liability action under Tennessee law (formerly known as a medical malpractice case). This is a must-read case for any lawyer who handles health care liability actions controlled by Tennessee law.
Two important takeaways from reading this opinion: first, presuit notice letters must still be served in a health care liability action where the common knowledge exception applies, see Jackson, slip op. at 9; and, second, no certificate of good faith is required to be filed with the complaint under Tenn. Code Ann. sec. 29-16-122 when this exception is applicable, id. at 9–11.
For what it is worth, the "classic" example of a health care liability action where the common knowledge exception applies is when a sponge is left in a patient after surgery. I had one of those "classic" cases a few years back. Tony Duncan, Medical Malpractice: Grant of Summary Judgment for the Defense Reversed Due to the Common Knowledge Exception, Res Ipsa Loquitur, Etc., TONY DUNCAN L. BLOG (Aug. 17, 2010, 12:29 PM), http://theduncanlawfirm.blogspot.com/2010/08/medical-malpractice-grant-of-summary.html.