Jonathan Fitzrandolph Zink v. Rural Metro of Tennessee, L.P.

05/02/2017

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 27, 2017 Session

JONATHAN FITZRANDOLPH ZINK v. RURAL/METRO OF
TENNESSEE, L.P. ET AL.

Appeal from the Circuit Court for Knox County
No. 2-202-15 Kristi M. Davis, Judge

No. E2016-01581-COA-R3-CV

In this action regarding injury allegedly caused by an emergency medical technician in
the course of rendering medical aid, the trial court determined that the plaintiff’s claims
were subject to the Tennessee Health Care Liability Act (“THCLA”) and dismissed the
claims with prejudice based on the plaintiff’s failure to file a certificate of good faith
pursuant to Tennessee Code Annotated § 29-26-122. The plaintiff has appealed,
conceding that his claims sounded in health care liability but asserting that they should
not have been dismissed with prejudice because a certificate of good faith was not
required. Following our review of the complaint, we conclude that the plaintiff’s claims
were subject to the common knowledge exception such that a certificate of good faith
was not required pursuant to Tennessee Code Annotated § 29-26-122. We therefore
reverse the trial court’s dismissal with prejudice and remand this matter to the trial court
for entry of an order dismissing the plaintiff’s claims without prejudice based upon his
failure to provide pre-suit notice.

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and CHARLES D. SUSANO, JR., J., joined.

Alexander J. Winston, Knoxville, Tennessee, for the appellant, Jonathan Fitzrandolph
Zink.

P. Edward Pratt and Andrew J. Droke, Knoxville, Tennessee, for the appellees,
Rural/Metro of Tennessee, L.P.; Rural/Metro Corporation of Tennessee; and Randy
Osborne.
 OPINION

I. Factual and Procedural Background

The plaintiff, Jonathan Fitzrandolph Zink, filed the instant action on April 13,
2015, alleging that he sustained injuries on April 21, 2014, when one of the defendants,
who was an emergency medical technician (“EMT”), “negligently and carelessly” struck
Mr. Zink in the face with his fist. Mr. Zink filed the present action against the EMT in
question, Randy Osborne, and his employer, Rural/Metro of Tennessee, L.P.
(collectively, “Defendants”).1 In his complaint, Mr. Zink asserted that he was strapped to
a gurney and under Mr. Osborne’s care at the time the blow occurred. Mr. Zink claimed,
inter alia, that Mr. Osborne assaulted and battered him, using excessive force. Mr. Zink
alleged that he suffered permanent injuries as a result of Mr. Osborne’s “negligent,
reckless, or intentional acts,” incurring resultant medical expenses and loss of enjoyment
of life. Mr. Zink further asserted that Mr. Osborne was acting in the scope of his
employment and that his employer should be held vicariously liable.

Defendants filed a motion to dismiss pursuant to Tennessee Rule of Civil
Procedure 12.02(6). In support, Defendants asserted that Mr. Zink’s action was, in
actuality, a health care liability action because Mr. Osborne was a health care provider
and Mr. Zink’s injuries were “related to” the provision of health care services. See Tenn.
Code Ann. § 29-26-101(a)(1). Defendants thereby argued that Mr. Zink’s claims should
be dismissed because he failed to provide the requisite pre-suit notice and failed to file a
certificate of good faith. See Tenn. Code Ann. §§ 29-26-121 and -122.

The trial court conducted a hearing on April 29, 2016, regarding the motion to
dismiss. On July 15, 2016, the court issued an order granting the motion. In its order, the
trial court reviewed the facts alleged in the complaint. Based on the definition of a health
care liability action contained in Tennessee Code Annotated § 29-26-101(a)(1), the court
determined that Mr. Zink’s complaint asserted a health care liability claim. The court
found that Mr. Osborne was a health care provider and that the incident occurred “while
the plaintiff was strapped to a gurney and ‘under Mr. Osborne’s care.’” Relying upon the
Tennessee Supreme Court’s opinion in Ellithorpe v. Weismark, 479 S.W.3d 818, 828
(Tenn. 2015), the court also determined that Mr. Zink’s claims were “subject to the
THCLA ‘regardless of any other claims, causes of action, or other theories of liability
alleged in the complaint.’” See Tenn. Code Ann. § 29-26-101(d). The court specifically

1
Mr. Zink also named Rural/Metro Corporation of Tennessee as a defendant. In their answer and motion
to dismiss, Defendants asserted that Rural/Metro Corporation of Tennessee was not a proper party
because it was not Mr. Osborne’s employer. The trial court did not rule on this assertion before it
dismissed Mr. Zink’s claims.
2
noted that “the degree of restraint necessary to contain a patient in order to provide
medical treatment certainly involves the provision of medical services.”

Because there was no dispute that Mr. Zink had failed to comply with the pre-suit
notice provisions of Tennessee Code Annotated § 29-26-121, the trial court determined
that the appropriate remedy for that omission would be dismissal without prejudice. Due
to Mr. Zink’s failure to comply with the provisions of Tennessee Code Annotated § 29-
26-122, however, regarding the filing of a certificate of good faith, the court concluded
that Mr. Zink’s action should be dismissed with prejudice.

In ruling on the motion, the trial court considered Mr. Zink’s argument that he
should be excused from filing a certificate of good faith because the alleged act of
negligence was “within the common knowledge of a layperson,” such that expert proof
was not necessary. See Osunde v. Delta Med. Ctr., 505 S.W.3d 875, 886 (Tenn. Ct. App.
2016). See also Ellithorpe, 479 S.W.3d at 829 (“[E]xpert proof is required to establish
the recognized standard of acceptable professional practice in the profession, unless the
claim falls within the ‘common knowledge’ exception . . . .”). The trial court in the
present action determined that the “common knowledge” exception did not apply because
“as set forth previously, the degree of restraint necessary to contain an individual in order
to provide medical treatment is not something that is within the common knowledge of a
lay person.” The trial court accordingly dismissed Mr. Zink’s claims with prejudice by
reason of his failure to file a certificate of good faith. Mr. Zink timely appealed.

II. Issues Presented

Mr. Zink presents the following issues, which we have restated slightly:2

1. Whether the trial court erred by drawing the inference that Mr.
Osborne was attempting to restrain Mr. Zink at the time of the
incident when such information was not contained within the
complaint.

2. Whether the trial court erred by granting a dismissal of Mr. Zink’s
claims with prejudice due to his failure to file a certificate of good

2
We note that Defendants raised an issue in their appellate brief regarding whether Mr. Zink’s arguments
on appeal should be deemed waived due to his failure to cite to the technical record in his initial brief.
See Tenn. R. App. P. 27; Tenn. Ct. App. R. 6. Mr. Zink subsequently filed a motion for leave to
supplement his principal brief with “inadvertently omitted citations to the record,” which was granted by
this Court. Mr. Zink thereafter filed an amended brief, containing the appropriate record citations. We
therefore determine this issue to be pretermitted as moot.
3
 faith because the alleged act of negligence was within the common
knowledge of a layperson.

III. Standard of Review

Our Supreme Court has elucidated the following regarding the standard of review
applicable to a motion to dismiss a health care liability action based upon the plaintiff’s
noncompliance with Tennessee Code Annotated §§ 29-26-121 and -122:
The proper way for a defendant to challenge a complaint’s
compliance with Tennessee Code Annotated section 29-26-121 and
Tennessee Code Annotated section 29-26-122 is to file a Tennessee Rule of
Procedure 12.02 motion to dismiss. In the motion, the defendant should
state how the plaintiff has failed to comply with the statutory requirements
by referencing specific omissions in the complaint and/or by submitting
affidavits or other proof. Once the defendant makes a properly supported
motion under this rule, the burden shifts to the plaintiff to show either that
it complied with the statutes or that it had extraordinary cause for failing to
do so. Based on the complaint and any other relevant evidence submitted
by the parties, the trial court must determine whether the plaintiff has
complied with the statutes. If the trial court determines that the plaintiff has
not complied with the statutes, then the trial court may consider whether the
plaintiff has demonstrated extraordinary cause for its noncompliance. If the
defendant prevails and the complaint is dismissed, the plaintiff is entitled to
an appeal of right under Tennessee Rule of Appellate Procedure 3 using the
standards of review in Tennessee Rule of Appellate Procedure 13. If the
plaintiff prevails, the defendant may pursue an interlocutory appeal under
either Tennessee Rule of Appellate Procedure 9 or 10 using the same
standards.
Because the trial court’s denial of the Defendants’ motion involves a
question of law, our review is de novo with no presumption of correctness.
Graham v. Caples, 325 S.W.3d 578, 581 (Tenn. 2010). The question of
whether [the plaintiff] has demonstrated extraordinary cause that would
excuse compliance with the statutes is a mixed question of law and fact,
and our review of that determination is de novo with a presumption of
correctness applying only to the trial court’s findings of fact and not to the
legal effect of those findings. Starr v. Hill, 353 S.W.3d 478, 481-82 (Tenn.
2011). We review the trial court’s decision to excuse compliance under an
abuse of discretion standard. “A court abuses its discretion when it applies
an incorrect legal standard or its decision is illogical or unreasonable, is
based on a clearly erroneous assessment of the evidence, or utilizes
4
 reasoning that results in an injustice to the complaining party.” Wilson v.
State, 367 S.W.3d 229, 235 (Tenn. 2012) (citing Wright ex rel. Wright v.
Wright, 337 S.W.3d 166, 176 (Tenn. 2011)). We examine the legal
sufficiency of the complaint and do not consider the strength of the
plaintiff’s evidence; thus, all factual allegations in the complaint are
accepted as true and construed in flavor of the plaintiff. Lind v. Beaman
Dodge, Inc., 356 S.W.3d 889, 894 (Tenn. 2011).
***
The leading rule governing our construction of any statute is to ascertain
and give effect to the legislature’s intent. Walker v. Sunrise Pontiac-GMC
Truck, Inc., 249 S.W.3d 301, 309 (Tenn. 2008). To that end, we start with
an examination of the statute’s language, Curtis v. G.E. Capital Modular
Space, 155 S.W.3d 877, 881 (Tenn. 2005), presuming that the legislature
intended that each word be given full effect. Lanier v. Rains, 229 S.W.3d
656, 661 (Tenn. 2007). When the import of a statute is unambiguous, we
discern legislative intent “from the natural and ordinary meaning of the
statutory language within the context of the entire statute without any
forced or subtle construction that would extend or limit the statute’s
meaning.” State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000); see also
In re Adoption of A.M.H., 215 S.W.3d 793, 808 (Tenn. 2007) (“Where the
statutory language is not ambiguous . . . the plain and ordinary meaning of
the statute must be given effect.”) (citing Calaway ex rel. Calaway v.
Schucker, 193 S.W.3d 509, 516 (Tenn. 2005)). The construction of a
statute is also a question of law which we review de novo without any
presumption of correctness. Lind, 356 S.W.3d at 895.
Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307-08 (Tenn. 2012).

IV. Improper Inference

As his initial issue, Mr. Zink argues that the trial court drew an improper inference
regarding the reason for Mr. Osborne’s alleged assault upon Mr. Zink. In its order
granting Defendants’ motion to dismiss, the trial court stated that “the degree of restraint
necessary to contain a patient in order to provide medical treatment certainly involves the
provision of medical services.” However, in ruling on a motion to dismiss filed pursuant
to Tennessee Rule of Civil Procedure 12, the trial court is required to review only the
factual allegations contained in the complaint. As our Supreme Court has explained:

Such a motion challenges the legal sufficiency of the complaint, not the
strength of the plaintiff’s proof, and, therefore, matters outside the
5
 pleadings should not be considered in deciding whether to grant the motion.
In reviewing a motion to dismiss, the appellate court must construe the
complaint liberally, presuming all factual allegations to be true and giving
the plaintiff the benefit of all reasonable inferences. It is well-settled that a
complaint should not be dismissed for failure to state a claim unless it
appears that the plaintiff can prove no set of facts in support of his or her
claim that would warrant relief. Great specificity in the pleadings is
ordinarily not required to survive a motion to dismiss; it is enough that the
complaint set forth “a short and plain statement of the claim showing that
the pleader is entitled to relief.”

Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002) (internal
citations omitted).

In reviewing the trial court’s order while concomitantly giving proper deference to
the appropriate standard of review, we agree with Mr. Zink’s argument. Mr. Zink’s
complaint contained no allegations regarding “restraint necessary to contain an individual
in order to provide medical treatment.” In fact, the complaint stated that Mr. Zink was
struck by Mr. Osborne, who “swung his closed fist” and hit Mr. Zink’s face at a time
when “Mr. Zink was strapped to a stretcher or gurney.” The trial court drew an inference
that Mr. Osborne was restraining Mr. Zink in order to provide medical treatment at the
time of the physical contact, such that the force used by Mr. Osborne might have been
justified. This is an inference in favor of Mr. Osborne. An equally reasonable and
plausible inference could be drawn in Mr. Zink’s favor that Mr. Zink was already fully
restrained at the time of the physical contact, based upon his allegation that he was
“strapped to a gurney.” Drawing this inference would suggest that the force used by Mr.
Osborne may have been excessive. Because the court was required, upon analyzing a
motion to dismiss, to draw all reasonable inferences in Mr. Zink’s favor, the court
improperly drew the inference that Mr. Osborne hit Mr. Zink in the face in order to
restrain him.

V. Propriety of Dismissal with Prejudice

In his appellate brief, Mr. Zink concedes that his claims fall within the purview of
the THCLA. See Tenn. Code Ann. § 29-26-101, et seq. Tennessee Code Annotated §
29-26-101(a)(1) provides:

“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

6
 failure to provide, health care services to a person, regardless of the theory
of liability on which the action is based . . . .

Furthermore, Tennessee Code Annotated § 29-26-101(a)(2) defines a “[h]ealth care
provider” as:

(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 school’s affiliated teaching hospitals in Tennessee . . . .

EMTs are “licensed, authorized, certified, registered, or regulated” pursuant to title 68,
specifically Tennessee Code Annotated § 68-140-301, et seq., known as the Emergency
Medical Services Act. Accordingly, Mr. Zink has raised no issue on appeal with regard
to the trial court’s determination that Mr. Zink’s complaint alleged a health care liability
claim.

Based on the concession that his action is controlled by the THCLA, Mr. Zink also
concedes that his failure to comply with the pre-suit notice requirements contained in
Tennessee Code Annotated § 29-26-121 would result in a dismissal of his claims without
prejudice. Mr. Zink takes issue, however, with the trial court’s determination that his
action should be dismissed with prejudice because of his failure to file a certificate of
good faith in accordance with Tennessee Code Annotated § 29-26-122. Mr. Zink posits
that no such filing was required in this matter because expert proof would not be
necessary to prove his claims. See Tenn. Code Ann. § 29-26-122 (“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.”) (emphasis
added); see also Estate of Bradley v. Hamilton Cnty., No. E2014-02215-COA-R3-CV,
2015 WL 9946266, at *5 (Tenn. Ct. App. Aug. 21, 2015) (“While the requirements of
Tennessee Code Annotated section 29-26-121 always apply to health care liability
claims, section 29-26-122 applies only to health care liability claims requiring expert
testimony.”)

According to Mr. Zink, his claims would fall within the “common knowledge”
exception to the requirement of expert testimony, as described in Ellithorpe and Osunde,
because the alleged act of negligence was within the common knowledge of a layperson.
See Ellithorpe, 479 S.W.3d at 829; Osunde, 505 S.W.3d at 886. With regard to the
“common knowledge” exception, this Court has recently elucidated:

7
 The question of whether a plaintiff has made claims of medical
negligence that are so obvious and understandable as to be within the
common knowledge of a layperson, thereby relieving a plaintiff of the
expert testimony requirement, has been frequently addressed by Tennessee
appellate courts. We have observed that “only the most obvious forms of
[medical] negligence may be established without expert testimony.” Ayers
v. Rutherford Hosp., Inc., 689 S.W.2d 155, 160 (Tenn. Ct. App.
1984); accord Payne v. Pelmore, No. M2004-02281-COA-R3-CV, 2006
WL 482922, at *3 (Tenn. Ct. App., filed Feb. 28, 2006); Graniger v.
Methodist Hosp. Healthcare Sys., Inc., No. 02A01-9309-CV-00201, 1994
WL 496781, at *3 (Tenn. Ct. App., filed Sept. 9, 1994) (“The common
knowledge exception applies to cases in which the medical negligence is as
blatant as a ‘fly floating in a bowl of buttermilk’ so that all mankind knows
that such things are not done absent negligence”) (citing Murphy v.
Schwartz, 739 S.W.2d 777, 778 (Tenn. Ct. App. 1986)).

Newman v. Guardian Healthcare Providers, Inc., No. M2015-01315-COA-R3-CV, 2016
WL 4069052, at *6 (Tenn. Ct. App. July 27, 2016).

Prior decisions from this Court are illustrative of the type of common knowledge
that would preclude the necessity of expert medical proof. For example, in one such
case, a hospital employee attempted to remove a suspension bar from the plaintiff’s
hospital bed and dropped a piece of the bar on the plaintiff’s head. See Peete v. Shelby
Cnty. Health Care Corp., 938 S.W.2d 693, 697 (Tenn. Ct. App. 1997). The plaintiff
presented no expert medical proof regarding causation; she instead testified via
deposition that she began suffering severe headaches immediately following the blow to
her head. Id. The plaintiff further testified that she did not suffer from such headaches
prior to the incident. Id. This Court accordingly determined that the plaintiff’s testimony
created a genuine issue of material fact regarding the causation of the plaintiff’s injuries,
such that summary judgment in favor of the defendant was inappropriate. Id.

Another such action involved an ambulance attendant failing to lock the stretcher
carrying a patient in place, causing injury to the plaintiff when the stretcher shifted during
transport. See Wilson v. Monroe Cnty., 411 S.W.3d 431, 440 (Tenn. Ct. App. 2013). In
Wilson, this Court concluded that “the determination of whether an ambulance attendant
falls below the standard of care by not locking the stretcher in place in the ambulance is a
matter that can be assessed on the basis of common experience without the need for
expert medical testimony.” Id. We note that in both of these cases, filed before the 2011
amendments to the THCLA, this Court determined that the claims sounded in ordinary
negligence rather than health care liability.3
3
As our Supreme Court has explained regarding changes in the Tennessee Health Care Liability Act:
8
 In an action following the enactment of the 2011 amendments to the Tennessee
Health Care Liability Act, this Court has similarly defined the type of common
knowledge that would eliminate the necessity of expert medical proof in a health care
liability action. In Osunde, a radiology technician provided a patient with a “wobbly”
stool to use while undergoing an x-ray, and the plaintiff fell when trying to step down
from the stool. Osunde, 505 S.W.3d at 877. Although the Osunde Court determined that
the plaintiff’s claims were subject to the Tennessee Health Care Liability Act because the
plaintiff was injured by the alleged negligence of a health care provider when providing a
health care service, this Court also explained:

Notwithstanding the general requirement that an action filed under
the THCLA be supported by expert proof, it is not absolute. As our
Supreme Court acknowledged in Ellithorpe, expert proof is not required in
a health care liability action where the claim “falls within the ‘common
knowledge’ exception.” Ellithorpe, 479 S.W.3d at 829. Reviewing the
case law in Tennessee reveals that the “common knowledge” language has
been referred to in two contexts regarding claims asserted against medical
providers. First, expert proof may be dispensed with when the trier of fact
can determine, based on common knowledge, that the direct allegations
against a defendant constitute negligence. See, e.g., Rural Ed. Ass’n v.
Anderson, 37 Tenn. App. 209, 261 S.W.2d 151, 155 (1953) (“It is a matter
of common knowledge and common sense of laymen that a patient in such
a condition should be watched and protected and not left unattended on an
upper story by an unguarded window through which he might, and

[In 2011,] the Legislature passed the Tennessee Civil Justice Act of 2011, further
amending the Tennessee Medical Malpractice Act. See Tennessee Civil Justice Act of
2011, ch. 510, 2011 Tenn. Pub Acts 1505 (codified at Tenn. Code Ann. 29-26-101 et seq.
(Supp. 2011)). Notably, the Tennessee Civil Justice Act of 2011 amended the existing
Tennessee Medical Malpractice Act by removing all references to “medical malpractice”
from the Tennessee Code and replacing them with “health care liability” or “health care
liability action” as applicable. See id. Furthermore, section 29-26-101 was added to the
Code which defined “health care liability action” as “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.” Tenn. Code Ann. 29-26-101(a)(1) (Supp. 2011) (emphasis added). This same
section went on to provide that “[a]ny such civil action or claim is subject to the
provisions of this part regardless of any other claims, causes of action, or theories of
liability alleged in the complaint.” Id. § 29-26-101(c).

Ellithorpe, 479 S.W.3d at 826.

9
ultimately did, fall or jump to his death.”). When courts use the “common
knowledge” language in this sense, they are directly referencing the
“common knowledge” exception. We note, however, that the “common
knowledge” language has also been referred to in cases involving the
application of res ipsa loquitur, which “allows an inference of negligence
where the jury has a common knowledge or understanding that events
which resulted in the plaintiff’s injury do not ordinarily occur unless
someone was negligent.” Seavers v. Methodist Med. Ctr. of Oak Ridge, 9
S.W.3d 86, 91 (Tenn. 1999) (citations omitted). A res ipsa loquitur
instruction is often necessary in cases where “direct evidence of a
defendant’s negligence is either inaccessible to or unknown by the
plaintiff.” Id. (citations omitted). Under the traditional articulation of the
doctrine of res ipsa loquitur, which is now codified at Tennessee Code
Annotated section 29-26-115(c), “there was considerable overlap with the
common knowledge exception, inasmuch as the res ipsa loquitur
requirement that the injury be one which ordinarily does not occur in the
absence of negligence was often phrased in terms of ‘common experience’
or ‘ordinary experience.’” Deuel v. Surgical Clinic, PLLC, No. M2009-
01551-COA-R3-CV, 2010 WL 3237297, at *11 (Tenn. Ct. App. Aug. 16,
2010) (citations omitted). Once, this Court went so far as to liken res ipsa
loquitur and the common knowledge exception as “Siamese twins.”
Murphy v. Schwartz, 739 S.W.2d 777, 778 (Tenn. Ct. App. 1986).
Notwithstanding the differences in context in which the common
knowledge language has been discussed, one salient point emerges as it
concerns expert proof and the application of the “common knowledge”
exception itself: expert testimony is not required where the act of alleged
wrongful conduct lies within the common knowledge of a layperson. See
Baldwin v. Knight, 569 S.W.2d 450, 456 (Tenn. 1978); Bowman v. Henard,
547 S.W.2d 527, 530-31 (Tenn. 1977); Tucker v. Metro. Gov’t of Nashville
& Davidson Cnty., 686 S.W.2d 87, 92 (Tenn. Ct. App. 1984).

Given this understanding, a determination that a claim falls within
the THCLA does not automatically trigger all of the statute’s requirements.
The need for expert proof will not lie if the matter is within the common
knowledge of a layperson, and if there is no need for expert proof, a
plaintiff’s complaint will not fail for failure to attach a certificate of good
faith under section 29-26-122. See Tenn. Code Ann. 29-26-122(a) (2012)
(“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.”) (emphasis added). Thus, although
determining that a claim constitutes a health care liability action will
10
 subject it to the pre-suit notice requirement in section 29-26-121, additional
analysis is needed to determine whether expert proof is necessary. See
Smith v. Testerman, No. E2014-00956-COA-R9-CV, 2015 WL 1118009, at
*5 (Tenn. Ct. App. Mar. 10, 2015), perm. app. denied (Tenn. June 15,
2015).

Id. at 886-87.

In determining whether expert proof was necessary in Osunde, this Court stated:

Mrs. Osunde is asserting that negligence was committed through the
radiology technician’s provision of a faulty, uneven stool. She testified in
her deposition that when she attempted to step off the stool provided to her,
the weight of the stool shifted from under her. As Mrs. Osunde’s counsel
has submitted, this is simply a case of a “wobbly stool.” It is within the
common knowledge of a layperson to determine whether the provision of
an unstable stool is negligent. An expert is not needed to aid in the
understanding of this issue, and as such, the trial court did not err in
allowing Mrs. Osunde’s case to go to trial.

Id. at 888-89.

Similarly, in this case, we determine that it would be within the common
knowledge of a layperson whether an EMT’s alleged negligent, reckless, or intentional
striking of a patient’s face while the patient is strapped to a gurney would fall below the
standard of care. Because this alleged act would not require expert proof to “aid in the
understanding of this issue,” the trial court erred by failing to determine that this case fell
within the common knowledge exception. Because no expert proof was necessary to
establish negligence, no certificate of good faith would be required pursuant to Tennessee
Code Annotated § 29-26-122. Therefore, the trial court should not have dismissed Mr.
Zink’s action with prejudice for failing to file a certificate of good faith.

Defendants argue that expert testimony would be required to establish whether Mr.
Osborne’s actions actually caused Mr. Zink’s claimed injuries and whether damages
resulted therefrom. Specifically, Defendants insist that Mr. Zink’s underlying medical
issues might have been the cause of his injuries. In support of this contention,
Defendants rely on this Court’s opinion in Redick v. Saint Thomas Midtown Hospital, No.
M2016-00428-COA-R3-CV, 2016 WL 6299465 (Tenn. Ct. App. Oct. 26, 2016), perm.
app. denied (Tenn. Feb. 24, 2017). The plaintiff in Redick, who was admitted to the
hospital for weakness after suffering falls for two days, was allegedly injured after

11
suffering another fall in the hospital, despite fall precautions implemented by the hospital
staff. Id. at *1. With regard to expert proof regarding breach of duty, this Court stated:

It is undisputed that Plaintiff failed to file a certificate of good faith
with her complaint. The Hospital filed a motion seeking to have Plaintiff’s
complaint dismissed with prejudice for failure to file a certificate of good
faith. Plaintiff argues that expert testimony is not required in this case due
to the common knowledge exception, and, therefore, a certificate of good
faith was not required.

***

Construing the complaint liberally in favor of Plaintiff, as we must at
this stage of the proceedings, we find, as did the Trial Court, that the
common knowledge exception applies in this case with regard to the
element of breach of duty. Plaintiff alleged that she was placed under “fall
precautions” and that “Jane Doe was within arm’s reach of Plaintiff and
despite Plaintiff reaching out Jane Doe failed to assist Plaintiff resulting in
Plaintiff’s fall.” Thus, Plaintiff has alleged that although the Hospital was
aware that Plaintiff needed extra help and that fall precautions were in place
for Plaintiff’s protection, the Hospital’s employee failed to comply with the
fall precautions by placing the commode out of reach of the bed and then
failing to assist Plaintiff to transfer from the commode back to the bed. We
agree with the Trial Court that these allegations as to a breach of duty are
within the common knowledge of laypersons, and, thus, would not require
expert proof. Therefore, as no expert proof is required on the issue of
breach of duty, Tenn. Code Ann. § 29-26-122 does not require the
dismissal with prejudice of Plaintiff’s complaint.

Id. at *4. With regard to causation and damages, however, this Court further explained:

Plaintiff would have to prove that the particular fall at issue in this
case, and not any other fall or event Plaintiff may have suffered prior to the
fall at issue, was the proximate cause of the injuries she allegedly received.
Plaintiff’s complaint alleges that she was admitted to the Hospital “with
complaints of diffuse weakness and falling for two days.” The fall at issue
in this case occurred less than one week after Plaintiff was admitted to the
Hospital. Given this, it is not unreasonable to suppose that Plaintiff may
have suffered injuries from falls other than the fall at issue in this case.
Expert proof would be required to show that Plaintiff’s alleged injuries
were proximately caused by the particular fall at issue in this case. The
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 cause of Plaintiff’s injuries simply is not within the common knowledge of
a layperson, and, therefore, would require expert proof.

Id. at *5. This Court accordingly affirmed the trial court’s dismissal of the plaintiff’s
claims with prejudice.

The factual distinction between the case at bar and Redick is that in Redick, the
injuries suffered by the plaintiff due to the defendant’s alleged negligence could not be
distinguished from her recent injuries suffered before the alleged negligent act occurred
in the absence of medical proof. Id. By contrast, in this case, there is nothing in the
record to suggest that Mr. Zink’s underlying injuries or medical condition that
precipitated his contact with Mr. Osborne were in any way related or similar to the
injuries he allegedly suffered from being struck in the face. In fact, the complaint
provides a dearth of information regarding Mr. Zink’s underlying medical condition. It is
unknown whether Mr. Osborne was responding to a call for assistance regarding a fall or
car accident that might have caused similar injury to Mr. Zink’s face, or whether Mr.
Zink had suffered a medical event, such as a heart attack, that would not have resulted in
an injury to his face.

“[A] complaint should not be dismissed for failure to state a claim unless it
appears that the plaintiff can prove no set of facts in support of his or her claim that
would warrant relief.” Trau-Med of Am., Inc., 71 S.W.3d at 696. In the case at bar, the
fact that Mr. Zink has no expert proof is not necessarily fatal to his claims. Drawing all
reasonable inferences in Mr. Zink’s favor, as we must, does not unavoidably lead to the
conclusion that Mr. Zink could not prove causation or damages without expert medical
proof. Following our thorough review of the complaint in accordance with the applicable
standard of review, we conclude that the trial court erred by dismissing Mr. Zink’s action
with prejudice based on his failure to file a certificate of good faith.

VI. Conclusion

For the foregoing reasons, we reverse the trial court’s order dismissing Mr. Zink’s
claims with prejudice. We remand this matter to the trial court for entry of an order
dismissing Mr. Zink’s claims without prejudice based upon his failure to provide pre-suit
notice. Costs on appeal are taxed to the defendants, Rural/Metro of Tennessee, L.P.;
Rural/Metro Corporation of Tennessee; and Randy Osborne.

_________________________________
THOMAS R. FRIERSON, II, JUDGE
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