Mullin et al v. Rolling Hills Hospital

Filing 67

MEMORANDUM AND ORDER: The Report and Recommendation of the Magistrate Judge (Docket No. 57 ) is adopted and approved. Defendant's Motion to Dismiss (Docket No. 13 ) is GRANTED, and this action is DISMISSED without prejudice.. Signed by District Judge Aleta A. Trauger on 7/11/17. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JAMES MULLIN, et al.
Plaintiffs
v.
ROLLING HILLS HOSPITAL,
Defendant

)
)
)
)
)
)
)
)
)

NO. 3:16-cv-2609
JUDGE TRAUGER

MEMORANDUM AND ORDER
Pending before the court are a Report and Recommendation of the Magistrate Judge (Docket
No. 57), Objections filed by Plaintiffs (Docket Nos. 62 and 66), and a Response to the Objections
filed by Defendant (Docket No. 63). Pursuant to 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b)(3) and
Local Rule 72.03(b)(3), the court has reviewed de novo the parts of the Report and Recommendation
that have been properly objected to. The Objections of the Plaintiffs will be overruled.
INTRODUCTION
Plaintiffs brought this action against Rolling Hills Hospital for alleged actions and inactions
surrounding Plaintiff Amanda Mullin’s self-admitted stay at Rolling Hills in August of 2015.
Plaintiffs assert that, soon after she arrived at Rolling Hills, Amanda requested to be taken home.
Thereafter, Plaintiffs claim, Amanda was involuntarily detained for two days at Rolling Hills. In their
Amended Complaint (Docket No. 37), Plaintiffs allege the following causes of action: abuse of
process, false imprisonment, intentional infliction of emotional distress, negligent infliction of
emotional distress, conversion, assault, and violation of a duty of care. Defendant moved to dismiss

this action, arguing, among other things,1 that Plaintiffs failed to provide the required, pre-suit,
written notice for this “health care liability action” under Tennessee law.
The Magistrate Judge, in a Report and Recommendation (Docket No. 57), recommended that
Defendant’s Motion to Dismiss be granted, finding that Plaintiffs’ causes of action fall within the
definition of “health care liability action” and that Plaintiffs failed to provide the required, pre-suit,
written notice before filing this action. Plaintiffs have filed Objections to the Report and
Recommendation, arguing that Defendant’s commitment of Amanda was fraudulent and that their
claims do not constitute a health care liability action.
HEALTH CARE LIABILITY ACTIONS
Tennessee law defines “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).
“Health care services” are defined to include
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.

1

Defendant also argued that Plaintiffs failed to meet the requirement of filing a
certificate of good faith, pursuant to Tennessee law, with regard to expert proof of their claims.
The Magistrate Judge found that expert proof was not required to establish Plaintiffs’ claims.
Defendant has not objected to that portion of the Report and Recommendation.
2

Tenn. Code Ann. § 29-26-101(b). The statute states that any health care liability action is subject to
this part regardless of any other claims, causes of action, or theories of liability alleged in the
complaint. Tenn. Code Ann. § 29-26-101(c).
Tennessee law also provides that any person asserting a potential claim for health care
liability shall give written notice of the potential claim to each health care provider that will be a
named defendant at least sixty days before the filing of a complaint based upon health care liability
in any court of this state. Tenn. Code Ann. § 29-26-121(a)(1). The court has discretion to excuse
compliance with this section only for extraordinary cause shown. Tenn. Code Ann. § 29-26-121(b).
Here, it is undisputed that Plaintiffs did not provide the required written pre-suit notice to Defendant
before filing this action.
A motion to dismiss for failure to state a claim is the proper method for challenging whether
a plaintiff has complied with the Health Care Liability Act pre-suit notice requirement. Ellithorpe
v. Weismark, 479 S.W.3d 818, 823 (Tenn. 2015). The Tennessee Supreme Court has interpreted this
notice requirement as mandatory, not directory. Runions v. Jackson-Madison County General
Hospital Dist., 2017 WL 514583 at * 5 (Tenn. Ct. App. Feb. 7, 2017) (citing Myers v. AMISUB
(SFH), Inc., 382 S.W.3d 300 (Tenn. 2012)). The proper sanction for noncompliance with this statute
is dismissal without prejudice. Foster v. Chiles, 467 S.W.3d 911, 916 (Tenn. 2015).
DISCUSSION
Defendant argues that the Plaintiffs’ Objections should be overruled because Plaintiffs fail
to file specific objections to the Report and Recommendation. Even pro se parties’ objections to a
Report and Recommendation must be specific and clearly aimed at particular findings in the
magistrate’s recommendations, such that no party be allowed a second bite at the apple by simply
3

re-litigating a prior argument. Batey v. Amerigroup Tennessee, Inc., 2011 WL 1100082 at * 3 (M.D.
Tenn. Mar. 22, 2011). Plaintiffs’ Objections do fail to present, with particularity, specific objections
to specific portions of the Report and Recommendation. Given its holding herein, however, the court
will not base its findings on this deficiency in Plaintiffs’ Objections.
In their Objections, Plaintiffs contend that the certificates of need filed by Defendant for the
involuntary commitment of Amanda Mullin were fraudulent. These certificates of need are
extraneous documents, filed by Defendant but not considered by the Magistrate Judge on this Motion
to Dismiss. Even if the court considers them, however, they are relevant to the merits of Plaintiffs’
claims, not to whether this is a health care liability action. Even if the certificates were improper, that
does not change the fact that Plaintiffs’ claims relate to the provision or lack of provision of mental
health care services.
Plaintiffs also object to being subject to the pre-suit written notice requirement. The court
believes that the Magistrate Judge correctly found that Plaintiffs’ claims constitute a “health care
liability action” under Tennessee law. The allegations of the Amended Complaint all arise from
Defendant’s mental health care services rendered to Amanda Mullin. As found by the Magistrate
Judge, the actions alleged to be wrongful, such as those taken to hold Amanda at Rolling Hills, were
part of the provision of mental health services. Plaintiffs’ claims of abuse of process, false
imprisonment, intentional and negligent infliction of emotional distress, breach of the duty of care,
conversion and assault are all related to the provision of health care services and are governed by
Tennessee’s Health Care Liability Act.
In their Objections, Plaintiffs argue, for the first time, that Defendant is liable for medical
battery. Plaintiffs’ Amended Complaint does not set forth a claim for medical battery. The court
4

finds, however, that, even if Plaintiffs’ Amended Complaint is read to include a medical battery
claim, that claim also qualifies as a “health care liability action.” The statute includes any civil action
related to the provision of health care services, regardless of the theory of liability on which the
action is based. Tenn. Code Ann. § 29-26-101(a)(1). If Plaintiffs are arguing that involuntary
commitment constituted medical battery, then for the same reason that their abuse of process and
false imprisonment claims involve health care services, medical battery would as well. If Plaintiffs
are arguing that the alleged assault by an orderly constituted medical battery, then, for the same
reason that their assault claim involved health care services, medical battery would as well.
Plaintiffs’ Objections are not persuasive. Plaintiffs continue to argue against the Motion to
Dismiss rather than filing specific objections to the Report and Recommendation. Plaintiffs also
attempt to introduce a claim not pled in the Amended Complaint. Even if the court accepts that claim
(medical battery), it does not change the result.
CONCLUSION
For these reasons, the Report and Recommendation of the Magistrate Judge (Docket No. 57)
is adopted and approved. Defendant’s Motion to Dismiss (Docket No. 13) is GRANTED, and this
action is DISMISSED without prejudice.
IT IS SO ORDERED.
ENTER this 11th day of July 2017.

___________________________________
ALETA A. TRAUGER
UNITED STATES DISTRICT JUDGE

5