Pleadings filed by the Defendant state the correct name is “Shea Ear Clinic, P.A.” 1

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned On Brief February 28, 2005 

DOUGLAS McPHERSON v. SHEA EAR CLINIC, P.A.

Direct Appeal from the Circuit Court for Shelby County

No. CT-003839-03 Rita L. Stotts, Judge

No. W2004-00690-COA-R3-CV - Filed May 18, 2005

The trial court granted Defendant’s motion to dismiss for failure to state a claim upon which relief

can be granted. Having reviewed the complaint, we disagree and reverse.

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

Remanded

DAVID R.FARMER,J., delivered the opinion of the court, in which W.FRANK CRAWFORD,P.J.,W.S.,

and HOLLY M. KIRBY, J., joined.

Douglas McPherson, Pro Se.

Jeffrey A. Land, Memphis, Tennessee, for the appellee, Shea Ear Clinic, P.A.

OPINION

This appeal results from an order of the trial court granting the Defendant’s motion to dismiss

filed pursuant to Rule 12.02 of the Tennessee Rules of Civil Procedure for failure to state a claim

upon which relief can be granted. This matter began in general sessions court when the Plaintiff,

Douglas McPherson (Mr. McPherson or Plaintiff), filed a civil warrant designating the Defendant

as “Shea Ear Clinic, c/o: John J. Shea, Jr., M.D” (Shea Clinic or Defendant). Judgment was entered

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for the Defendant and Mr. McPherson appealed to circuit court. Mr. McPherson appeared pro se

throughout these proceedings.

A civil action in the general sessions courts is commenced by a civil warrant. Tenn. Code

Ann. § 16-15-722. This statute sets forth the form to be used. The civil warrant in the instant case

states in the area provided for a statement of the cause of action the following: “See attached

complaint dated 5-5-03.” Attached to the civil warrant is a document styled complaint which states,

in pertinent part, as follows:
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CAUSE OF ACTION & BASIS OF THIS COMPLAINT

1. Plaintiff suffers hearing loss, tinnitus and related symptoms. On January

13, 2003, Plaintiff was scheduled and expected to receive corrective laser injected

treatment known as “xylocaine perfusion” at Shea Ear Clinic. Plaintiff is not aware

of any other facility where this highly specialized “otolaryngology” treatment is

available. This treatment is professionally classified as “CPT code 69801” services

for billing purposes. 

2. Defendant Shea Ear Clinic, c/o: John J. Shea, Jr., M.D., is or was,

obligated under a Private Healthcare Systems (PHCS) understanding with Care

Entree, The Capella Group, Inc., P. O. Box 200368, Arlington, TX 76006. The

Capella Group, Inc. is a corporation parent company of “Care Entree” medical plan

that enrolls members on a monthly fee, providing access to savings for medical

services through a contracted network of medical “Providers.” The Care Entree

medical plan engaged in a multi-state business including doing business in Tennessee

with the Defendant. Pursuant to the Care Entree medical plan contract, Defendant

was obligated to provide “CPT code 69801” services to individuals enrolled in the

medical plan for a “contracted charge” fee, while Care Entree marketed “Provider”

services in a manner that included using internet exposure. Plaintiff was enrolled in

the Care Entree medical plan for PHCS coverage (including “CPT code 69801”

services) pursuant to his Member ID: 900226171, which was in effect at all relevant

times (Exhibit A).

3. Defendant’s “CPT code 69801" Provider services at a “contracted charge”

fee were marketed as being available to Plaintiff on December 09, 2002, when he

made arrangement with Defendant to schedule him the “earliest surgery opening

available.” Plaintiff was advised the earliest date available was January 13, 2003.

Plaintiff’s understanding with Defendant (Exhibit B) was that “CPT code 69801"

services were to be paid for by Plaintiff on January 13, 2003 at the “contracted

charge” fee pursuant to the Care Entree PHCS medical plan, in which Defendant

participated as a “Provider” under a specialty heading of “Otolaryngology” (Exhibit

C). Before December 09, 2002, there had been previous correspondence,

communication and contact between Defendant and Plaintiff since early that year.

Just a couple of days prior to the January 13, 2003 scheduled surgery, Plaintiff reconfirmed by phone, his upcoming appointment with a Shea Ear Clinic appointment

Secretary (910/761-9720) who did not advise of any change in the charges or any

problem in pre-certification and registration process. Plaintiff was also assured by

Care Entree”Member Services” (888/411-3888) and Internet marketing

(CareEntree.com), that Defendant is a participating “Provider” in the Care Entree

medical plan network under the specialty heading of “Otolaryngology.”
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4. Defendant harmfully failed to notify Plaintiff prior to the afternoon of

January 13, 2003, and only after pre-surgery testing had been done, that “CPT code

69801" services were no longer available at the agreed upon “contracted charge” fee

because of a change in Defendant’s arrangement as a participating Provider in the

Care Entree PHCS medical plan. This change caused Plaintiff to be denied the much

needed medical attention, which he could not afford due to the unscheduled

increase[] in cost. After Plaintiff had undergone pre-surgery testing, Defendant

refused to perform the scheduled afternoon surgery for the pre-arranged fee that since

December 09, 2002, had been quoted and budgeted for, and Plaintiff was prepared

to pay after the anticipated services had been completed. Before Defendant would

commence the scheduled afternoon surgery, an additional $3,031 was [] added to the

costs, in addition to the pre-arranged fee Plaintiff was expecting to pay. Plaintiff

could not afford this unscheduled additional cost of $3,031, and was thus unable to

receive the highly anticipated surgery. 

Our standard of review is set forth in Dobbs v. Guenther, 846 S.W.2d 270 (Tenn. Ct. App.

1992), as follows:

The sole purpose of a Tenn. R. Civ. P. 12.02(6) motion to dismiss is to test

the legal sufficiency of the complaint. Sanders v. Vinson, 558 S.W.2d 838, 840

(Tenn. 1977); Holloway v. Putnum County, 534 S.W.2d 292, 296 (Tenn. 1976).

These motions are not favored, see Moore v. Bell, 187 Tenn. 366, 369, 215 S.W.2d

787, 789 (1`948), and are now rarely granted in light of the liberal pleading standards

in the Tennessee Rules of Civil Procedure. See Barish v. Metropolitan Gov’t, 627

S.W.2d 953, 954 (Tenn. Ct. App. 1981); 5A Charles A. Wright & Arthur R. Miller,

Federal Practice & Procedure §§ 1356 & 1357 (2d ed. 1990) (“Wright & Miller”).

Tenn. R. Civ. P. 12.02(6) motions are not designed to correct inartfully

worded pleadings. Wright & Miller § 1356, at 296. And so a complaint should not

be dismissed, no matter how poorly drafted, if it states a cause of action. Paschall’s,

Inc. v. Dozier, 219 Tenn. 45, 50-51, 407 S.W.2d 150, 152 (1966); Collier v. Slayden

Bros. Ltd. Partnership, 712 S.W.2d 106, 108 (Tenn. Ct. App 1985). Dismissal under

Tenn. R. Civ. P. 12.02(6) is warranted only when no set of facts will entitle the

plaintiff to relief, Pemberton v. American Distilled Spirits Co., 664 S.W.2d 690, 691

(Tenn. 1984), or when the complaint if totally lacking in clarity and specificity.

Smith v. Lincoln Brass Works, Inc., 712 S.W.2d 470, 471 (Tenn. 1986). 

While it is not our role to create claims where none exist, Donaldson v.

Donaldson, 557 S.W.2d 60, 62 (Tenn. 1977), we must always look to the substance

of a pleading rather than to its form. Usrey v. Lewis, 553 S.W.2d 612, 614 (Tenn. Ct.

App. 1977). Thus, when a complaint is tested by a Tenn. R. Civ. P. 12.02(6) motion

to dismiss, we must take all the well-pleaded, material factual allegations as true, and

we must construe the complaint liberally in the plaintiff’s favor. Lewis v. Allen, 698
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S.W.2d 58, 59 (Tenn. 1985); Holloway v. Putnam County, 534 S.W.2d at 296, Lilly

v. Smith, 790 S.W.2d 539, 540 (Tenn. Ct. App. 1990).

Id. at 273-274. 

Circuit courts should not dismiss cases appealed from general sessions court because of “any

informality whatever, but shall be tried on its merits; . . .” Tenn. Code Ann. § 16-15-729 (Supp.

2004). While the Tennessee Rules of Civil Procedure apply to cases appealed from general sessions

court to circuit court, the parties are not required to file formal pleadings. They may, however, file

pleadings, engage in discovery and take advantage of the procedural tools provided in said rules.

See Ware v. Meharry Med. College, 898 S.W.2d 181, 185 (Tenn. 1995).

As this Court stated in Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn Ct. App.

1988), “[p]ro se litigants are entitled to the same liberality of construction with regard to their

pleadings that Tenn. R. Civ. P. 1, 8.05 & 8.06 afford any other litigant.” 

As we construe the complaint, it alleges that Mr. McPherson was enrolled in the Care Entree

medical plan for Private Healthcare Systems (PHCS) coverage. Members are enrolled on a monthly

fee, providing access to savings for medical services through a contracted network of medical

“providers.” It is further alleged the Defendant participated as a provider. The Defendant was

obligated under this plan to provide “CPT Code 69801” services to individuals enrolled in the plan

for a contracted fee. It is alleged that the Plaintiff suffers hearing loss, tinnitus and related symptoms

and was scheduled to receive corrective laser injected treatment known as “xylocaine perfusion” at

Shea Clinic. The Plaintiff contacted the clinic and his surgery was scheduled. He was assured by

Care Entree that Defendant was a participating provider. After undergoing pre-surgery testing, it is

alleged that the Defendant refused to perform the scheduled surgery for the pre-arranged fee that

Plaintiff had been quoted. Plaintiff alleges that he could not afford to pay the increased fee, an

additional $3,031. 

The brief filed in behalf of the Appellee states general principles concerning a motion to

dismiss but does not articulate why the complaint in this cause fails to state a cause of action.

Appellee’s brief does refer to an affidavit of Dr. John J. Shea, Jr. However, the brief makes no

reference to the record and we do not find such affidavit in the record before us. 

Construing this complaint liberally in the Plaintiff’s favor, as we are compelled to do, we are

unable to say that the pleading filed in this cause fails to state a complaint upon which relief may be

granted.

The Appellant further contends that the trial court failed to grant him accommodations

required by the Americans with Disabilities Act. The record reflects that Mr. McPherson, on more

than one occasion, notified the trial court, by pleadings and correspondence to the trial court clerk,

that he suffered from hearing loss and required reasonable accommodations and facilities. We are
By order of March 21, 2005, the Tennessee Supreme Court approved for implementation the “Tennessee

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Judicial Branch Americans with Disabilities Act Policy Regarding Access to Judicial Programs” established by the

Administrative Director of the Courts. This policy is set out in Appendix A to that order. Included in the policy is a form

titled “Request for Modification.” 

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unable to determine from the record before us whether this was addressed by the trial court.

However, upon remand, the trial court shall address this issue.2

The Appellant further contends that the trial judge should have recused herself. We find no

motion for recusal in this record and thus find this issue to be without merit. 

In view of our opinion reversing the order of the trial court dismissing this cause, the

remaining issues presented by the Appellant are pretermitted. It results that the order of the trial

court granting the Defendant’s motion to dismiss is reversed and this cause is remanded to the trial

court for further proceedings consistent with this opinion. Costs of this appeal are taxed to the

appellee, Shea Ear Clinic, P.A.

___________________________________ 

DAVID R. FARMER, JUDGE