Dennis Smith v. George Testerman, M.D.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
January 13, 2015 Session

DENNIS SMITH V. GEORGE TESTERMAN, M.D., ET. AL.
Appeal from the Law Court for Sullivan County (Kingsport)
No. C40423(C) Hon. E.G. Moody, Chancellor

No. E2014-00956-COA-R9-CV-FILED-MARCH 10, 2015

This is a case alleging negligence by the defendants which resulted in injury to a patient,
Dennis Smith. Following hernia surgery, Mr. Smith was fitted for a wound vacuum because
an infection had developed at the surgical site. A sponge was placed to absorb the infection.
The defendants removed the wound vacuum when the infection dissipated, but they failed
to remove the sponge, which later caused the wound to burst. Mr. Smith filed suit, and the
defendants asserted that dismissal was appropriate because Mr. Smith had not complied with
the filing requirements of the health care liability statute.1 Mr. Smith responded that his
complaint sounded in ordinary negligence, not health care liability. The trial court agreed
and denied the motions but also granted permission for the defendants to pursue an
interlocutory appeal. We granted the application for permission to appeal and now reverse
the decision of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Law Court
Reversed; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., C.J., and T HOMAS R. F RIERSON, II, J., joined.

1
Tennessee Code Annotated section 29-26-101 now defines most all cases occurring in a medical context
as “health care liability actions.” The statute specifies that such an 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.” See Acts 2011, ch. 510, § 8. Effective
April 23, 2012, the term “health care liability” replaced “medical malpractice” in the Code. See Acts 2012,
ch. 798.
Jeffrey M. Ward, Greeneville, Tennessee, for the appellants, George Testerman, M.D. and
Medical Education Assistance Corporation.

Andrew T. Wampler and Russel W. Adkins, Kingsport, Tennessee, for the appellants,
Wellmont Holston Valley Medical Center, Wellmont Physicians Services, and Wellmont
Medical Associates.

Richard E. Ladd, Jr. and Holly N. Mancl, Bristol, Tennessee, for the appellant, Advanced
Home Care, Inc.

Larry V. Roberts and Wesley A. Mink, Johnson City, Tennessee, for the appellee, Dennis
Smith.

OPINION

I. BACKGROUND

On April 7, 2011, George Testerman, M.D. performed surgery on Dennis Smith
(“Plaintiff”) to repair a hernia. An infection developed following surgery that required
additional surgery to place a wound vacuum to drain the infection and a sponge to absorb the
fluid as the infection drained. Plaintiff was discharged, and Advanced Home Care, Inc.
(“AHC”) provided home health care nursing services for Plaintiff’s continued treatment.
Likewise, Daniel Anderson, M.D., Tiffany Lasky, M.D., Corydon Siffring, M.D., and Dr.
Testerman periodically examined Plaintiff as he recovered. Dr. Testerman removed the
wound vacuum on August 16, 2011. Plaintiff’s wound did not heal, and in December 2012,
he was readmitted to the hospital, where the wound burst open, revealing that the sponge had
been left in the wound. The majority of the sponge was removed upon discovery, but a
portion remained inside the wound for fear that removal would injure a herniated bowel.

On December 2, 2013, Plaintiff filed suit against AHC, Dr. Testerman, and Dr.
Testerman’s employers, WellMont Physician Services, Inc., Medical Education Assistance
Corporation d/b/a University Physicians Practice Group, Wellmont Health System d/b/a
Wellmont Holston Valley Medical Center, and Wellmont Medical Associates, Inc.
(collectively “Defendants”). Plaintiff alleged that Dr. Testerman and AHC were negligent
by failing to either remove the sponge or communicate with the other physicians to ensure
that the sponge had been removed. He claimed that their negligence resulted in physical and
emotional injury, pain and suffering, and further medical treatment that otherwise would not
have occurred. He sought compensatory damages in the amount of $1,000,000.

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 Defendants responded by filing motions to dismiss, alleging that although the
allegations clearly related to an injury arising out of Plaintiff’s medical care and treatment,
he had failed to comply with the Tennessee Medical Malpractice Act (“the Act”), which sets
forth specific filing requirements for health care liability actions. When a complaint is filed pursuant
to the Act, the plaintiff is required to file pre-suit notice 60 days prior to filing suit and to attach a
certificate of good faith and a copy of the pre-suit notice with relevant documentation to the actual
complaint. Tenn. Code Ann. §§ 29-26-121, -122. Defendants alleged that Plaintiff’s failure to
comply with the Act required dismissal of the complaint with prejudice. Plaintiff conceded
that he had not provided pre-suit notice or attached a certificate of good faith to his
complaint. He asserted that he was not required to comply with the Act because he filed an
ordinary negligence action, not a health care liability action.

The trial court denied the motions to dismiss based upon the belief that Plaintiff was
not required to comply with the Act because he had filed a claim for ordinary negligence, not
health care liability. The court granted permission to seek an interlocutory appeal pursuant
to Rule 9 of the Tennessee Rules of Appellate Procedure. Thereafter, Defendants filed
applications for permission to appeal to this court. Plaintiff did not object or otherwise
respond. We subsequently granted the Rule 9 applications.

II. ISSUE

Unlike an appeal as of right pursuant to Rule 3 of the Tennessee Rules of Appellate
Procedure, “in which both the appellant and the appellee have broad latitude with regard to
the issues that may be raised,” the questions we may address are limited to “those matters
clearly embraced within” the issues certified by the trial court. Sneed v. The City of Red
Bank, Tennessee, –––S.W.3d ––––, E2012-02112-SC-R11-CV (Tenn. Dec. 2, 2014) (internal
citations omitted). We have restated the issue identified by the trial court in its order as
follows:

Whether an action seeking compensatory damages for injuries sustained as a
result of a foreign object having been left in the patient’s body following
surgery is a “health care liability action,” as defined in Tennessee Code
Annotated section 29-26-101, such that the mandatory presuit provisions set
forth in Tennessee Code Annotated sections 29-26-121 and 29-26-122 apply.

III. STANDARD OF REVIEW

This action was initiated in December 2013; therefore, the dispositive summary
judgment motion is governed by Tennessee Code Annotated section 20-16-101, which
provides,

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 In motions for summary judgment in any civil action in Tennessee, the moving
party who does not bear the burden of proof at trial shall prevail on its motion
for summary judgment if it:

(1) Submits affirmative evidence that negates an essential
element of the nonmoving party’s claim; or

(2) Demonstrates to the court that the nonmoving party’s
evidence is insufficient to establish an essential element of the
nonmoving party’s claim.

Tenn. Code Ann. § 20-16-101.

A trial court’s decision to grant a motion for summary judgment presents a question
of law, which we review de novo with no presumption of correctness. See City of Tullahoma
v. Bedford Cnty., 938 S.W.2d 408, 417 (Tenn. 1997). We must view all of the evidence in
the light most favorable to the nonmoving party and resolve all factual inferences in the
nonmoving party’s favor. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008);
Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox Cnty. Bd of Educ.,
2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed facts support only one conclusion, then
the court’s summary judgment will be upheld because the moving party was entitled to
judgment as a matter of law. See White v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998);
McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

This action also presents a matter of statutory interpretation, which is reviewable as
a matter of law pursuant to the de novo standard without any presumption of correctness. In
re Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009) (citing Gleaves v. Checker Cab
Transit Corp., 15 S.W.3d 799, 802 (Tenn. 2000); Myint v. Allstate Ins. Co., 970 S.W.2d 920,
924 (Tenn. 1998)). The primary objective of statutory interpretation is to carry out the
legislative intent without broadening or restricting a statute beyond its intended scope.
Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In construing
legislative enactments, we presume that every word in a statute has meaning and purpose and
should be given full effect if the obvious intention of the General Assembly is not violated
by so doing. In Re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a statute is clear, we
apply the plain meaning without complicating the task. Eastman Chem. Co. v. Johnson, 151
S.W.3d 503, 507 (Tenn. 2004). We also presume that the General Assembly was aware of
the state of the law when the statutes were enacted and that it did not intend to enact a useless
statute. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 527 (Tenn. 2010).

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 IV. DISCUSSION

Defendants argue that the mandatory provisions of Tennessee Code Annotated
sections 29-26-121 and 29-26-122 apply because the clear and unambiguous language of the
Act reflects that the claim is a health care liability action pursuant to section 29-26-101.
They note that the case arises out of the alleged negligence of various health care providers
relating to the health care services received by Plaintiff. Plaintiff responds that he filed an
ordinary negligence action as evidenced by the fact that the alleged malpractice lies within
the common knowledge of laypersons. He notes that expert testimony is not required to
establish that Defendants were negligent by failing to remove the sponge.

As our Supreme Court has previously stated, “[c]ases involving health or medical
entities do not automatically fall within the [health care liability] statute.” Draper v.
Westerfield, 181 S.W.3d 283, 290 (Tenn. 2005). To aid in the determination of such issues,
the health care liability statute was amended as applied to actions that accrue on or after
October 1, 2011.2 The statute now provides as follows:

(a) As used in this part, unless the context otherwise requires:

(1) “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[.]

(2) “Health care provider” means:

(A) A health care practitioner licensed, authorized, certified,
registered, or regulated under any chapter of title 63 or title 68,
including, but not limited to, medical resident physicians,
interns, and fellows participating in a training program of one of
the accredited medical schools or of one of such medical

2
Whether the case sounds in health care liability or ordinary negligence, the cause of action in this case
accrued in December 2012, when the sponge was discovered. In Tennessee, the discovery rule “provides
that a cause of action accrues and the statute of limitations begins to run when the plaintiff knows or in the
exercise of reasonable care and diligence should know that an injury has been sustained as a result of
wrongful or tortious conduct by the defendant.” Fahrner v. SW Mfg., Inc., 48 S.W.3d 141, 143 (Tenn. 2001)
(citing Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998)); see also Sherrill v. Souder,
325 S.W.3d 584, 592-95 (Tenn. 2010) (discussing the applicability of the discovery rule in health care
liability actions).
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 school's affiliated teaching hospitals in Tennessee;

(B) A nongovernmental health care facility licensed under title
68, chapter 11;

(C) A nongovernmental health facility licensed under the Mental
Health, Developmental Disability, and Personal Support
Services Licensure Law, compiled in title 33, chapter 2, part 4;

(D) The employee of a health care provider involved in the
provision of health care services, including, but not limited to,
physicians, nurses, licensed practical nurses, advance practice
nurses, physician assistants, nursing technicians, pharmacy
technicians, orderlies, certified nursing assistants, technicians
and those physicians and nurses employed by a governmental
health facility; or

(E) A professional corporation or professional limited liability
company established pursuant to title 48, a registered limited
liability partnership rendering professional services under title
61 and which consists of one (1) or more health care
practitioners licensed, authorized, certified, registered, or
regulated under any chapter of title 63 or title 68, or any legal
entity that is not itself required to be licensed but which employs
one or more health care practitioners licensed, authorized,
certified, registered, or regulated under any chapter of title 63 or
title 68.

(b) Health care services to persons includes care by health care providers,
which includes care by physicians, nurses, licensed practical nurses,
pharmacists, pharmacy interns or pharmacy technicians under the supervision
of a pharmacist, orderlies, certified nursing assistants, advance practice nurses,
physician assistants, nursing technicians and other agents, employees and
representatives of the provider, and also includes staffing, custodial or basic
care, positioning, hydration and similar patient services.

(c) 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;
provided, that no provision of this part shall apply to claims against the state

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 to the extent that such provision is inconsistent with or conflicts with the
Tennessee Claims Commission Act, compiled in title 9, chapter 8, part 3.

Tenn. Code Ann. § 29-26-101(a).

Each defendant in this case meets the definition of a health care provider, namely Dr.
Testerman is a physician and his employers and AHC are health care organizations.
Likewise, the complaint asserts that Defendants were negligent in their care of Plaintiff by
failing to remove a sponge that had been placed to aid in Plaintiff’s recovery. Accordingly,
Plaintiff’s action should be classified as a health care liability action, unless the context
suggests otherwise pursuant to Tennessee Code Annotated section 29-26-101.

Plaintiff asserts that the context of the action suggests that the health care liability
statute is inapplicable because expert testimony is not required to establish his claim.
Defendants respond that the claim may still be classified as a health care liability action even
if expert testimony is not required. The elements of an ordinary negligence claim include:

(1) a duty of care owed by the defendant to plaintiff; (2) conduct by the
defendant falling below the standard of care amounting to a breach of that
duty; (3) an injury or loss; (4) causation in fact; and (5) proximate or legal
cause.

Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 355 (Tenn. 2008). In contrast, health
care liability claims are a specialized type of negligence action. Such actions require the
following proof:

(1) The recognized standard of acceptable professional practice in the
profession and the specialty thereof, if any, that the defendant practices in the
community in which the defendant practices or in a similar community at the
time the alleged injury or wrongful action occurred;

(2) That the defendant acted with less than or failed to act with ordinary and
reasonable care in accordance with such standard; and

(3) As a proximate result of the defendant’s negligent act or omission, the
plaintiff suffered injuries which would not otherwise have occurred.

Tenn. Code Ann. § 29-26-115(a). “A [health care liability] claimant must establish the
statutory elements through the testimony of an expert who meets the qualifications set forth
in Tennessee Code Annotated section 29-26-115(b).” Estate of French v. Stratford House,

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333 S.W.3d 546, 555 (Tenn. 2011) (citing Barkes v. River Park Hosp., Inc., 328 S.W.3d 829,
833 (Tenn. 2010); Seavers v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86, 92 (Tenn.
1999). However, expert testimony is not required if “the negligence is obvious and readily
understandable by an average layperson.” Barkes, 328 S.W.3d at 833, n.2.

Prior to the amendment of Tennessee Code Annotated section 29-26-101, the need for
expert testimony was but one of the factors in determining whether the claim was one for
ordinary negligence or health care liability pursuant to common law. French, 333 S.W.3d
546 at 559-60. Other than requiring the filing of a certificate of good faith when expert
testimony is needed, the General Assembly made no distinction in the Act between health
care liability claims requiring expert testimony and claims that are obvious and readily
understandable by an average layperson. See Tenn. Code Ann. § 29-26-122(a) (“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.”). Tennessee
Code Annotated section 29-26-101 even designates claims involving “staffing, custodial or
basic care, positioning, hydration and similar patient services” as health care liability claims.
Tenn. Code Ann. § 29-26-101(b) (emphasis added). With these considerations in mind, we
conclude that the claim at issue here sounds in health care liability as defined by Tennessee
Code Annotated section 29-26-101 and that the pre-suit notice provisions set forth in
Tennessee Code Annotated section 29-26-121 apply. This conclusion does not end our
inquiry because we must now determine whether expert testimony is actually required,
thereby necessitating the filing of a certificate of good faith pursuant to Tennessee Code
Annotated section 29-26-122.

In French, the Court quoted with approval from a Wisconsin Supreme Court opinion
as follows:

‘If the patient requires professional nursing or professional hospital care, then
expert testimony as to the standard of that type of care is necessary.’ However,
if the patient requires nonmedical, administrative, ministerial or routine care,
the standard of care need not be established by expert testimony.

333 S.W.3d 546 at at 559 (quoting Kujawski v. Arbor View Health Care Ctr., 407 N.W.2d
249, 252 (Wis. 1987) (citations omitted)). The care at issue here goes beyond the type of
“basic” or “routine non-medical” care that the Supreme Court referred to in French as not
requiring expert testimony to establish the standard of care. French, 333 S.W.3d at 560.
Contrary to Plaintiff’s assertion, this was not the type of case where a sponge was simply left
in the body during surgery. The plaintiff in this case required additional surgery to place the
wound vacuum and the corresponding sponge to absorb the infection. The sponge remained
in the body for a specified purpose, namely to absorb the fluid as the infection drained. AHC

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was tasked with changing the sponge when needed, while Dr. Testerman was tasked with
ultimately removing the wound vacuum. Plaintiff asserts that Dr. Testerman failed to remove
the sponge or ensure that it had been removed when he removed the wound vacuum.
Likewise, he claims that AHC also failed to ensure that the sponge had been removed. With
these considerations in mind, we conclude that expert testimony is required to establish the
elements of the claim and that Plaintiff was required to file a certificate of good faith with
his complaint pursuant to Tennessee Code Annotated section 29-26-122. Accordingly, we
reverse the decision of the trial court because there is no dispute that Plaintiff failed to
comply with the filing requirements contained in the Act.3

V. CONCLUSION

The judgment of the trial court is reversed, and the plaintiff’s suit is dismissed with
prejudice. Costs on appeal are taxed against the plaintiff, Dennis Smith. This case is
remanded for the collection of costs assessed below.

______________________________________
JOHN W. McCLARTY, JUDGE

3
Failure to comply with Tennessee Code Annotated section 29-26-122 mandates dismissal with prejudice,
absent good cause. Failure to comply with Tennessee Code Annotated section 29-26-121 requires dismissal
without prejudice, absent extraordinary cause. Stevens v. Hickman Cmty. Health Care, Inc., 418 S.W.3d 547,
559-60 (Tenn. 2013).
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