IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

November 18, 2015 Session

BRENDA OSUNDE, ET AL. v. DELTA MEDICAL CENTER

Appeal from the Circuit Court for Shelby County

No. CT00039813 Robert Samual Weiss, Judge

________________________________

No. W2015-01005-COA-R9-CV – Filed February 10, 2016

_________________________________

This interlocutory appeal concerns the trial court‟s partial dismissal of a case concerning 

alleged negligence committed against Plaintiff/Appellee Brenda Osunde (“Mrs. Osunde”). 

Mrs. Osunde filed a complaint in the trial court alleging a medical malpractice claim against 

DMC-Memphis, Inc. (“DMC”), as well as a claim for common law negligence, after she 

sustained a fall while at DMC‟s hospital, Delta Medical Center. When Mrs. Osunde failed to 

disclose any experts pursuant to the trial court‟s scheduling order, DMC moved for summary 

judgment. In adjudicating DMC‟s motion, the trial court drew a distinction between Mrs. 

Osunde‟s “health care liability action,” which it dismissed for her failure to produce an 

expert, and Mrs. Osunde‟s common law negligence claim, which it ruled should proceed to 

trial. After ruling on the motion for summary judgment, the trial court stayed further 

proceedings and granted DMC leave to pursue interlocutory review in this Court. Although 

we agree with DMC that all of Mrs. Osunde‟s asserted claims give rise to a “health care 

liability action” within the meaning of the Tennessee Code, we disagree with DMC‟s 

assertion that expert testimony is required to prove Mrs. Osunde‟s allegations of negligence. 

As such, we affirm the trial court‟s decision to allow this case to proceed to trial. 

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed in 

Part, Reversed in Part, and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD 

P.J., W.S., and BRANDON O. GIBSON, J., joined.

Jonathan T. Martin, Joshua A. Hillis, and Taylor B. Davidson, Memphis, Tennessee, for the 

appellant, DMC-Memphis, Inc. d/b/a Delta Medical Center.

Les Jones and Charles Silvestri Higgins, Memphis, Tennessee, for the appellees, Brenda 

Osunde and Samuel Osunde.
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OPINION

Background and Procedural History

On October 14, 2011, Mrs. Osunde presented to Delta Medical Center complaining of 

pain in her left ankle.1 After she arrived at the hospital, Mrs. Osunde was taken to the 

radiology department for an x-ray. In connection with the x-ray, a radiology technician 

instructed Mrs. Osunde to stand up on a stool. According to Mrs. Osunde‟s deposition 

testimony, the stool presented by the technician was a wooden stool that stood approximately 

twelve to eighteen inches high. Mrs. Osunde asserted that the stool did not have any 

resistance, and she claimed that it lacked rubber tips and handrails. When Mrs. Osunde 

attempted to get off the stool after the completion of the x-ray, she fell and sustained a right 

fibular fracture. She explained in her deposition testimony that the stool had moved when 

she stepped down and asserted that the weight of the stool had shifted from under her. 

Although the radiology technician had attempted to assist Mrs. Osunde in her dismount from 

the stool, Mrs. Osunde claimed that the technician lacked a “professional” grip and had not 

been prepared for a potential fall. 

Shortly after her fall from the stool, Mrs. Osunde was taken to the operating room at 

Delta Medical Center to repair the fibular fracture she sustained. A syndesmotic screw was 

placed in her right ankle during the course of surgery, and a few weeks later, she was fitted 

for a leg cast. On March 1, 2012, Mrs. Osunde underwent a second surgery to have the 

syndesmotic screw in her right ankle removed, and on March 23, 2012, sutures were 

removed. Although she was subsequently discharged from medical treatment, Mrs. Osunde 

was instructed to follow up on an as-needed basis. According to Mrs. Osunde, the injuries 

she sustained as a result of her fall prevented her from returning to her job as a registered 

nurse, and she was eventually terminated from her employment. 

On January 30, 2013, Mrs. Osunde2filed suit against DMC3in the Shelby County 

Circuit Court seeking to recover damages related to her fall. In addition to asserting a claim 

 

1 Our factual recitation concerning the background of Mrs. Osunde‟s treatment is taken from the allegations in 

Mrs. Osunde‟s complaint and her deposition testimony.

2 We note that Mrs. Osunde‟s husband, Samuel Osunde, was also named as a Plaintiff in this case. Mr. 

Osunde has asserted a claim for loss of consortium. Although throughout this Opinion we refer primarily to 

Mrs. Osunde in our description of the actions taken before the trial court and this Court, we do not intend to 

suggest that Mr. Osunde is not a participating party, or that his consortium claim is not at stake. However, as 

Mr. Osunde‟s claim is derivative of Mrs. Osunde‟s sought-after recovery, we generally refer only to Mrs. 

Osunde for ease of convenience.
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for medical malpractice, Mrs. Osunde‟s complaint asserted a claim for common law 

negligence. The complaint contended, inter alia, that DMC had failed to comply with the 

duty of care owed to Mrs. Osunde, that DMC had failed to take appropriate measures to 

protect patients who are prone to falling, and that DMC had failed to provide a safe and 

secure environment for Mrs. Osunde. 

DMC filed an answer to Mrs. Osunde‟s complaint on February 22, 2013. In its 

answer, DMC denied any negligence on its part and moved for a dismissal of all claims filed 

against it. Nearly a year later, on February 14, 2014, the trial court entered a scheduling 

order pursuant to Rule 16 of the Tennessee Rules of Civil Procedure. In relevant part, the 

scheduling order required that Mrs. Osunde reveal her expert witnesses to defense counsel by 

April 28, 2014. No witnesses were ultimately disclosed in accordance with this deadline. 

On October 31, 2014, DMC moved for summary judgment based on Mrs. Osunde‟s 

failure to disclose any expert witnesses. A statement of undisputed material facts and a 

supporting memorandum of law were filed contemporaneous to the motion. In its supporting 

memorandum of law, DMC argued that the adjudication of Mrs. Osunde‟s lawsuit would 

involve “complicated and technical information which is beyond the general knowledge of a 

jury,” and as a result, contended that the case could not go forward without expert proof.

On December 1, 2014, Mrs. Osunde filed a response opposing DMC‟s motion for 

summary judgment. Mrs. Osunde‟s response argued that DMC‟s motion had completely 

ignored her assertion of a common law negligence claim. Moreover, Mrs. Osunde noted that 

it had become apparent through discovery that her case against DMC sounded only in 

ordinary negligence and not medical malpractice. She stated that she was willing to amend 

her complaint to strike the medical malpractice claim, while preserving her asserted claim for

common law negligence. With respect to the latter claim, Mrs. Osunde contended that no 

expert proof was required to support it. She argued that an ordinary trier of fact would be 

able to determine, based on everyday experiences, that providing a faulty stool to her 

constituted negligence on the part of DMC. Inasmuch as expert proof was not required to 

establish her claim, Mrs. Osunde contended that DMC‟s motion for summary judgment 

should be denied.

On March 16, 2015, the trial court entered an order granting in part and denying in 

part DMC‟s summary judgment motion. Specifically, the trial court‟s order stated as follows:

 

3

The complaint filed by Mrs. Osunde originally identified two Defendants, Delta Medical Center and DMCMemphis, Inc. In February 2013, the trial court entered a consent order that corrected the style of the case 

and dismissed the improperly named non-legal entity, Delta Medical Center. 
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[T]he Court finds that Plaintiff‟s health care liability action against Defendant 

should be dismissed as a matter of law. The Court finds, however, that 

Plaintiffs have pled a claim for common law negligence against Defendant, 

and that material issues of disputed fact exist regarding Plaintiff‟s common 

law negligence claim. Accordingly, summary judgment as to Plaintiff‟s 

common law negligence claim against Defendant should be denied. 

Subsequent to the entry of this order, DMC filed a motion for leave to file an interlocutory 

appeal. In a memorandum filed in support of its motion for leave, DMC argued that all of 

Mrs. Osunde‟s theories of liability, including the denominated ordinary negligence claim, 

should have been considered as being contained within a single “health care liability action.” 

DMC contended that the trial court‟s order would likely be reversed on appeal, and it 

suggested that an interlocutory appeal would prevent needless litigation within the trial court. 

The trial court granted DMC‟s motion for leave to file an interlocutory appeal pursuant to 

Rule 9 of the Tennessee Rules of Appellate Procedure on May 27, 2015. Incident to its 

decision to grant DMC leave to file a Rule 9 appeal, the trial court also entered a stay as to 

further trial proceedings. 

After the trial court granted DMC leave to file an interlocutory appeal, an application 

for a Rule 9 appeal was filed in this Court. In its Rule 9 application, DMC proposed that the 

following question should be presented for our review:

Whether the trial court erred in denying Defendant‟s motion for summary 

judgment regarding Plaintiffs‟ ordinary negligence claim due to an incorrect 

application of the clear and unambiguous definition of a “health care liability 

action” and how such actions are handled pursuant to the Tennessee Health 

Care Liability Act, codified at Tennessee Code Annotated section 29-26-101, 

et seq.? 

 

Mrs. Osunde filed a response to DMC‟s Rule 9 application on June 12, 2015, and on July 2, 

2015, we granted the application for appeal.

Issue Presented

We granted this interlocutory appeal to determine whether the trial court erred in its 

adjudication of DMC‟s motion for summary judgment in light of the standards and 

definitions contained within the Tennessee Health Care Liability Act.
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Standard of Review

A motion for summary judgment should only be granted when “the pleadings, 

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 

any, show that there is no genuine issue as to any material fact and that the moving party is 

entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. Far from a disfavored 

procedural shortcut, summary judgment procedure remains an “important vehicle for 

concluding cases that can and should be resolved on legal issues alone.” Byrd v. Hall, 847 

S.W.2d 208, 210 (Tenn. 1993) (citations omitted). Although a grant of summary judgment 

can save both the parties and the court the time and expense of trial, a request for summary 

judgment should be denied when genuine issues or disputes of material fact are present. 

Action Chiropractic Clinic, LLC v. Hyler, 467 S.W.3d 409, 411 (Tenn. 2015) (citing Parker 

v. Holiday Hosp. Franchising, Inc., 446 S.W.3d 341, 346 (Tenn. 2014)). Because the trial 

court‟s ruling on a summary judgment motion is a question of law, we review the matter de 

novo. Revis v. McClean, 31 S.W.3d 250, 252 (Tenn. Ct. App. 2000) (citing Robinson v. 

Omer, 952 S.W.2d 423, 426 (Tenn. 1997); McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 

891, 894 (Tenn. 1996)). 

Discussion

As we have already discussed, DMC moved for summary judgment when Mrs. 

Osunde failed to identify any expert witnesses in accordance with the trial court‟s scheduling 

order. DMC argued that the absence of expert testimony was fatal to the maintenance of 

Mrs. Osunde‟s cause of action. When the trial court reviewed DMC‟s request for summary 

judgment, it dismissed Mrs. Osunde‟s “health care liability action” for her failure to produce 

an expert, but it allowed her common law negligence claim to proceed to trial. As is evident 

from its oral ruling on the motion for summary judgment,4the trial court considered that 

dismissal of the common law negligence claim would be inappropriate inasmuch as no expert 

testimony was required to support it. Our present review is devoted to determining whether 

the trial court‟s decision on this matter was in error. As we perceive it, a thorough analysis 

of the issue requires us to answer two questions. First, are the claims asserted within Mrs. 

Osunde‟s complaint cognizable outside the context of a “health care liability action” as that 

term is statutorily defined? Second, assuming that our answer to the first question is in the 

negative, can Mrs. Osunde‟s allegations nevertheless be supported in the absence of expert 

proof? Before we address these questions, a brief review of the law‟s development in this 

area is appropriate.

 

4 We note that the trial court‟s oral ruling on DMC‟s motion for summary judgment was incorporated by 

reference into its March 16, 2015 order. 
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The Evolution of Negligence Claims in the Medical Setting

Under traditional legal principles, our courts recognized that not every negligence 

action asserted against a hospital or doctor was one for medical malpractice. Estate of Doe v. 

Vanderbilt Univ., Inc., 958 S.W.2d 117, 120 (Tenn. Ct. App. 1997). Indeed, the courts 

recognized that some claims against medical providers sounded only in ordinary negligence. 

Drawing this distinction had several important consequences. For example, although medical 

malpractice claims typically required expert proof, claims asserting ordinary negligence did 

not. See, e.g., Peete v. Shelby Cnty. Health Care Corp., 938 S.W.2d 693, 696 (Tenn. Ct. 

App. 1996) (holding that expert proof was not required for an asserted claim of ordinary 

negligence). In addition, distinguishing a medical malpractice claim from an ordinary 

negligence claim was significant in determining the applicable statute of limitations that 

governed a plaintiff‟s case. See Gunter v. Lab. Corp. of Am., 121 S.W.3d 636, 639 (Tenn. 

2003) (“To determine which limitations statute controls Gunter‟s claim against the 

laboratory, we must first decide whether the claim sounds in medical malpractice or 

negligence.”). However, because “[m]edical malpractice is but one particular type of 

negligence,” Patterson v. Arif, 173 S.W.3d 8, 11 (Tenn. Ct. App. 2005) (citing Gunter, 121 

S.W.3d at 639), the distinction between a malpractice claim and an ordinary negligence claim 

was often a subtle one for the courts. In Graniger v. Methodist Hospital Healthcare Systems, 

Inc., No. 02A01-9309-CV-00201, 1994 WL 496781 (Tenn. Ct. App. Sept. 9, 1994), this 

Court opined that the distinction between a malpractice claim and an ordinary negligence 

claim lied in the nature of whether knowledge of medical science was necessary to assess the 

alleged wrongful conduct. We explained:

Medical malpractice cases typically involve a medical diagnosis, treatment or 

other scientific matters. The distinction between ordinary negligence and 

malpractice turns on whether the acts or omissions complained of involve a 

matter of medical science or art requiring specialized skills not ordinarily 

possessed by lay persons or whether the conduct complained of can instead be 

assessed on the basis of common everyday experience of the trier of fact.

Id. at *3 (citing Pearce v. Feinstein, 754 F.Supp. 308, 310 (W.D.N.Y. 1990)). Moreover, as 

our Supreme Court once held, a claim was considered as one for medical malpractice when it 

alleged “negligent conduct which constitutes or bears a substantial relationship to the 

rendition of medical treatment by a medical professional.” Gunter, 121 S.W.3d at 641.

Although drawing the distinction between the two types of claims was originally 

important to determining whether a plaintiff needed expert proof to support his or her case or 

to determining whether a particular limitation period applied, it gained even greater relevance 

in light of new statutory provisions enacted by the General Assembly. Indeed, over the past 
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decade, Tennessee has experienced a sea-change in the legal landscape pertaining to claims 

asserted against medical providers. Because a helpful overview of the pertinent changes was 

recently provided by our Supreme Court‟s decision in Ellithorpe v. Weismark, --- S.W.3d ----

, No. M2014-00279-SC-R11-CV, 2015 WL 5853873 (Tenn. Oct. 8, 2015), we reproduce its 

historical recitation below:

In 2008, Tennessee‟s Medical Malpractice Act was amended, 

introducing new requirements into medical malpractice litigation. See Act of 

April 24, 2008, ch. 919, 2008 Tenn. Pub. Acts 434; see generally Rebecca C. 

Blair, Med–Mal Obstacles, 44 Tenn. B.J. 14 (2008). The 2008 amendment 

required a party initiating a medical malpractice claim to give sixty days‟ presuit notice to the implicated health care providers. See Tenn. Code Ann. § 29–

26–121(a)(1) (Supp. 2008). Furthermore, the amendment contained a 

certificate-of-good-faith provision requiring a plaintiff filing a medical 

malpractice action, in which expert testimony was required, to file a certificate 

of good faith within ninety days of the filing of the initial complaint. Id. § 29–

26–122. This certificate served to confirm that one or more experts had been 

consulted and provided a signed written statement of their belief that there was 

a good faith basis for filing the complaint. Id.

One year later, in 2009, the Act was again amended to clarify these new 

requirements. See Act of June 4, 2009, ch. 425, 2009 Tenn. Pub. Acts 472; see 

generally John A. Day, Med Mal Makeover: 2009 Act Improves on ’08, 45 

Tenn. B.J. 14 (2009). Tennessee Code Annotated section 29–26–121(a)(1)

was amended to require that pre-suit notice only be given to persons or entities 

named as defendants in the action, see Tenn. Code Ann. § 29–26–121(a)(1)

(Supp. 2009), and section 121(a)(2) was amended to specify what information 

was required to be included in the pre-suit notice. See id. § 29–26[–]121(a)(2). 

Additionally, Tennessee Code Annotated section 29–26–122 was amended to 

require the filing of the certificate of good faith with the complaint instead of 

within ninety days after its filing. See id. § 29–26–122.

While the 2008 and 2009 amendments to the Tennessee Medical 

Malpractice Act established new procedural requirements for plaintiffs seeking 

to file medical malpractice actions, these amendments failed to sufficiently 

define a medical malpractice claim and left Tennessee courts to distinguish 

between claims sounding in ordinary negligence and those involving medical 

malpractice. In January 2011, this Court decided Estate of French, which 

provided a comprehensive and detailed analysis of the interaction between 
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ordinary negligence principles and the Tennessee Medical Malpractice Act, as 

then enacted.

In Estate of French, the administratrix of the estate of a deceased 

nursing home resident brought a wrongful death suit against the nursing home 

alleging claims of ordinary negligence, negligence per se, and violations of the 

Tennessee Adult Protection Act. 333 S.W.3d at 549. The trial court granted 

partial summary judgment for the nursing home, holding that the Tennessee 

Medical Malpractice Act applied to the administratrix‟s ordinary negligence 

claims and precluded allegations of negligence per se or violations of the 

Tennessee Adult Protection Act. Id. at 549–50. The Court of Appeals 

affirmed, holding that “the gravamen of the case sounds in medical 

malpractice.” Id. at 553 (internal quotation marks omitted). This Court 

granted the administratrix‟s application for permission to appeal to address 

whether the administratrix‟s claims were “based upon ordinary common law 

negligence, medical malpractice, or both.” Id. at 554.

We explained that, “[b]ecause medical malpractice is a category of 

negligence, the distinction between medical malpractice and negligence claims 

is subtle; there is no rigid analytical line separating the two causes of action.” 

Id. at 555 (citations omitted). Thus, the Court resolved that “whether claims 

should be characterized as ordinary negligence or medical malpractice claims 

obviously depends heavily on the facts of each individual case.” Id. at 556. 

However, the Court provided the following guidance in distinguishing between 

ordinary negligence and medical malpractice:

[W]hen a claim alleges negligent conduct which 

constitutes or bears a substantial relationship to the rendition of 

medical treatment by a medical professional, the medical 

malpractice statute is applicable. Conversely, when the conduct 

alleged is not substantially related to the rendition of medical 

treatment by a medical professional, the medical malpractice 

statute does not apply.

....

Medical malpractice cases typically involve a medical 

diagnosis, treatment or other scientific matters. The distinction 

between ordinary negligence and malpractice turns on whether 

the acts or omissions complained of involve a matter of medical 
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science or art requiring specialized skills not ordinarily 

possessed by lay persons or whether the conduct complained of 

can instead be assessed on the basis of common everyday 

experience of the trier of fact.

Id. at 555–56 (alteration in original) (citations omitted); see also Draper v. 

Westerfield, 181 S.W.3d 283, 290 (Tenn. 2005) (“[I]n determining whether an 

action is for medical malpractice or for common law negligence, the issue is 

whether the alleged negligent conduct „bears a substantial relationship to the 

rendition of medical treatment by a medical professional.‟ ” (citing Gunter v. 

Lab. Corp. of Am., 121 S.W.3d 636, 641 (Tenn. 2003))). The Court ultimately 

concluded that it is “the responsibility of the courts to ascertain the nature and 

substance of a claim” and that the “designation given those claims by either the 

plaintiff or the defendant is not determinative.” Estate of French, 333 S.W.3d 

at 557.

However, roughly four months after this Court‟s decision in Estate of 

French, at its next session, 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, 2015 WL 5853873, at *4-6 (internal footnote omitted).

Significance of the 2011 Amendments
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Squarely at issue in this case is the effect of the recent amendments that were 

discussed in Ellithorpe.

5

 According to our Supreme Court‟s decision in that case, the 

Tennessee Civil Justice Act of 2011 statutorily abrogated the “„nuanced‟ approach for 

distinguishing ordinary negligence and health care liability claims as outlined in Estate of 

French.” Id. at *7. The significance of this holding must be understood within its context. 

In Ellithorpe, parents Adam and Ashley Ellithorpe filed suit against licensed social worker 

Janet Weismark and alleged that she had provided counseling services to their minor child 

without their consent. Id. at *1. The Ellithorpes‟ child had allegedly been in the temporary 

custody of her great aunt and uncle pursuant to a juvenile court order, but according to the 

parents‟ complaint, the juvenile court‟s order gave them the right to remain abreast of, and 

participate in, counseling regarding the child. Id. The parents alleged that when Ms. 

Weismark completed an intake form to begin counseling with the minor child, she knew the 

child‟s great aunt was not a biological parent because “great aunt” was specifically listed on 

the intake form. Id. at *2. The complaint asserted claims for negligence, negligence per se, 

and intentional infliction of emotional distress, and it contained “numerous allegations that 

Ms. Weismark deviated from the standard of care . . . in providing counseling services” to the 

child. Id. at *1, 8. When Ms. Weismark answered the parents‟ complaint, she asserted a 

number of affirmative defenses. Among other things, Ms. Weismark claimed that the parents 

had failed to comply with the pre-suit notice and certificate of good faith requirements of the 

Tennessee Health Care Liability Act (“THCLA”). Id. at *3. Although Ms. Weismark later 

filed a motion to dismiss based on this failure, the parents responded by asserting that their 

claims were not subject to the THCLA‟s procedural requirements. Id. They contended that 

because their claims sounded in ordinary negligence, the THCLA did not apply. Id. The 

parents‟ argument did not survive the trial court‟s scrutiny, and all claims were dismissed 

with prejudice. Id. According to the trial court, the parents‟ claims fit within the broad 

parameters of the THCLA. Id.

When the parents appealed to this Court, we vacated the trial court‟s order and 

remanded for reconsideration of the complaint pursuant to the standard articulated in Estate 

of French. We held that the trial court appeared to have dismissed the complaint on the basis 

of the “gravamen” of what was asserted. Ellithorpe v. Weismark, No. M2014-00279-COAR3-CV, 2014 WL 5511773, at *10 (Tenn. Ct. App. Oct. 31, 2014). We were of the opinion 

 

5 We note that from a technical perspective, the effect of a 2012 legislative enactment is also at issue. 

Although the Code Commission was requested to delete references to “medical malpractice” and substitute 

instead the term “health care liability” as part of the Tennessee Civil Justice Act of 2011, see 2011 Tenn. Pub. 

Acts Ch. 510, section 9, the General Assembly directly amended the Tennessee Medical Malpractice Act to 

replace “medical malpractice” with “health care liability” in every section in 2012. See 2012 Tenn. Pub. Acts 

Ch. 798. At that point, the Tennessee Medical Malpractice Act became known as the Tennessee Health Care 

Liability Act. Coggins v. Holston Valley Med. Ctr., No. E2014-00594-COA-R3-CV, 2015 WL 3657778, at *5 

(Tenn. Ct. App. June 15, 2015) (citations omitted), perm. app. denied (Tenn. Oct. 15, 2015). 
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that, “upon remand, the trial court should consider the factors outlined in Estate of French to 

determine which claims sound[ed] in ordinary negligence or IIED and which claims f[e]ll 

within the purview of the THCLA.” Id. Upon further appeal to the Tennessee Supreme 

Court, however, this Court‟s holding in Weismark was reversed. The Supreme Court 

concluded that the “nuanced” approach from Estate of French was abrogated in light of the 

definitions contained within Tennessee Code Annotated section 29-26-101. Ellithorpe, 2015 

WL 5853873, at *7. As it explained:

Giving every word in this section its full effect and plain meaning, we hold 

that section 29-26-101 establishes a clear legislative intent that all civil actions 

alleging that a covered health care provider or providers have caused an injury 

related to the provision of, or failure to provide health care services be subject 

to the pre-suit notice and certificate of good faith requirements, regardless of 

any other claims, causes of action, or theories of liability alleged in the 

complaint. 

Id.

What we glean from Ellithorpe is the primacy of the recent statutory amendments to 

the THCLA, formerly known as the Tennessee Medical Malpractice Act. The “nuanced” 

approach for distinguishing an ordinary negligence claim from a medical malpractice claim 

has been displaced because the statute now contains a comprehensive definition of what 

constitutes a “health care liability action.” Indeed, because this definitional meaning controls 

whether a claim falls within the aegis of the THCLA, the Estate of French analysis is, to 

quote our Supreme Court, “effectively moot.” Id. The THCLA‟s definition of a “health care 

liability” action is conclusive, see Igou v. Vanderbilt Univ., No. M2013-02837-COA-R3-CV, 

2015 WL 1517794, at *5 n.6 (Tenn. Ct. App. Mar. 27, 2015), no perm. app. filed, and courts 

do not need to conduct an Estate of French analysis to see whether the framework of the 

statute applies. A claim will be subject to the THCLA if the facts of the case show that it 

qualifies as a “health care liability action” as that term is statutorily defined. See Estate of

Thibodeau v. St. Thomas Hosp., No. M2014-02030-COA-R3-CV, 2015 WL 6561223, at *6 

(Tenn. Ct. App. Oct. 29, 2015), perm. app. filed.

As was discussed in Ellithorpe, the General Assembly has defined a “health care 

liability action” as follows:

[A]ny 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[.]
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Tenn. Code Ann. § 29-26-101(a)(1) (2012). Under the statute, a “health care provider” 

includes the employee of a health care provider, such as a physician, nurse, or technician, and 

the meaning of “health care services” includes “staffing, custodial or basic care, positioning, 

hydration and similar patient services.” Tenn. Code Ann. § 29-26-101(a)(2), (b) (2012). 

Given the breadth of the statute, it should not be surprising if most claims now arising within 

a medical setting constitute health care liability actions.6 This is a noteworthy development 

within the law inasmuch as health care liability claims are subject to the strictures outlined in 

the THCLA. See Tenn. Code Ann. § 29-26-101(c) (2012) (“Any such civil action or claim is 

subject to this part[.]”).

Indeed, the consequences of falling within the ambit of the THCLA are significant. 

Not only is a health care liability action subject to the pre-suit notice requirement contained 

in Tennessee Code Annotated section 29-26-121, but potentially, it is subject to the 

certificate of good faith requirement in section 29-26-122, as well as the expert proof 

requirement in section 29-26-115. That these latter two requirements are subject to 

qualification is an important point that should not be ignored. This remains especially true in 

light of the facts implicated in this case.

On its face, section 29-26-115 broadly imposes a requirement that health care liability 

actions be proven by expert testimony. Specifically, it provides as follows:

(a) In a health care liability action, the claimant shall have the burden of 

proving by evidence as provided by subsection (b):

(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.

(b) No person in a health care profession requiring licensure under the laws 

of this state shall be competent to testify in any court of law to establish the 

 

6 Of course, as should be clear, whether a health care liability action is implicated is entirely dependent on 

whether the factual allegations meet the definition outlined in the statute.
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facts required to be established by subsection (a), unless the person was 

licensed to practice in the state or a contiguous bordering state a profession 

or specialty which would make the person‟s expert testimony relevant to 

the issues in the case and had practiced this profession or specialty in one 

(1) of these states during the year preceding the date that the alleged injury 

or wrongful act occurred. This rule shall apply to expert witnesses 

testifying for the defendant as rebuttal witnesses. The court may waive this 

subsection (b) when it determines that the appropriate witnesses otherwise 

would not be available.

(c) In a health care liability action as described in subsection (a), there shall 

be no presumption of negligence on the part of the defendant; provided, 

that there shall be a rebuttable presumption that the defendant was 

negligent where it is shown by the proof that the instrumentality causing 

injury was in the defendant‟s (or defendants‟) exclusive control and that the 

accident or injury was one which ordinarily doesn‟t occur in the absence of 

negligence.

(d) In a health care liability action as described in subsection (a), the jury 

shall be instructed that the claimant has the burden of proving, by a 

preponderance of the evidence, the negligence of the defendant. The jury 

shall be further instructed that injury alone does not raise a presumption of 

the defendant‟s negligence. 

Tenn. Code Ann. § 29-26-115 (2012).

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, 2015 WL 5853873, at *8. 

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, 261 S.W.2d 151, 155 (Tenn. Ct. App. 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 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 
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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).7

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 

 

7 Although courts previously discussed the common knowledge exception as applying only in “„exceptional 

cases,‟” Tucker, 686 S.W.2d at 92 (quoting German v. Nichopoulos, 577 S.W.2d 197 (Tenn. Ct. App. 1978)), 

we note that section 29-26-115 now applies to health care liability actions, which seemingly encompass a larger

class of claims than those that simply assert medical malpractice. Additionally, we note that although the 

common knowledge exception has primarily been referenced to supplant the need for an expert in negligence

cases, it does not appear to be so strictly limited. We note that the essence of the concept has previously been 

referred to in a case involving the assertion of a claim for medical battery. See Bates v. Metcalf, No. E2001-

00358-COA-R3-CV, 2001 WL 1538535, at *10 (Tenn. Ct. App. Dec. 3, 2001) (“We agree that expert 

testimony . . . is unnecessary to sustain a cause of action for medical battery because whether the patient was 

aware that the doctor was going to perform the procedure in question and whether the patient consented to such 

procedure are within the common knowledge of a lay witness.”). 
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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).

Review of the Trial Court’s Ruling on Summary Judgment

Previously, we noted that an analysis of the trial court‟s actions could be guided by 

two questions: (1) whether the claims asserted within Mrs. Osunde‟s complaint are 

cognizable outside the context of a “health care liability action,” and (2) assuming that our 

answer to the first question is in the negative, whether Mrs. Osunde‟s allegations can 

nevertheless be supported in the absence of expert proof.

Applicability of the THCLA

The first question requires us to examine whether Mrs. Osunde‟s asserted claims 

constitute a health care liability action as that term is statutorily defined in Tennessee Code 

Annotated section 29-26-101. As we previously indicated, such an action includes “any civil 

action . . . 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) 

(2012). In this case, although Mrs. Osunde originally asserted a claim for medical 

malpractice in addition to a claim for common law negligence, she later clarified that she 

only sought to recover on her common law negligence claim. According to her, it had 

become apparent through discovery that her claim sounded only in ordinary negligence, and 

during oral argument on appeal, her counsel stressed that the only negligence she was 

alleging was on account of the radiology technician‟s providing a faulty stool. Although 

Mrs. Osunde‟s counsel has argued that the facts surrounding this asserted negligence claim 

do not give rise to a health care liability action, we must respectfully disagree. The asserted 

conduct on which Mrs. Osunde bases her recovery fits within the definition of a health care 

liability action stated in section 29-26-101. Again, such an action alleges that a health care 

provider “caused an injury related to the provision of, or failure to provide, health care 

services.” Id. Here, Mrs. Osunde has alleged that the radiology technician caused an injury 

to her when he provided her with a faulty stool in connection with an x-ray taken at DMC‟s 

hospital. Under the statute, the radiology technician qualifies as a “health care provider” 

because that term includes the employees of health care providers such as “physicians, 

nurses, licensed practical nurses, advance practice nurses, physician assistants, nursing 

technicians, pharmacy technicians, orderlies, certified nursing assistants, [and] technicians[.]”

Id. § 29-26-101(a)(2)(D). Moreover, the provision of the stool in connection with the x-ray 

qualifies as a “health care service” because such services include “staffing, custodial or basic 
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care, positioning, hydration and similar patient services.” Id. § 29-26-101 (b). Measuring the 

facts asserted by Mrs. Osunde against the backdrop of the definitions contained within the 

statute, it is inescapable that she has alleged that a “health care provider” has injured her in 

relation to its provision of “health care services.” As such, her action is subject to the 

THCLA.

Given our conclusion on this issue, we agree with DMC that the trial court erred, from 

a definitional perspective, in how it treated the asserted common law negligence claim as 

somehow separate from the THCLA. As previously noted, the trial court allowed Mrs. 

Osunde‟s common law negligence claim to proceed to trial, while simultaneously dismissing 

her “health care liability action” as a matter of law. This result is incongruous. Indeed, at the 

time of summary judgment, Mrs. Osunde was pursuing a legal theory that qualified as a 

health care liability action. Inasmuch as the trial court purported to dismiss Mrs. Osunde‟s 

“health care liability action” but allowed allegations that constituted a claim under the 

THCLA to survive, the trial court‟s order is devoid of definitional clarity. Of course, our 

determination that Mrs. Osunde‟s denominated common law negligence theory constitutes a 

health care liability action does not ipso facto mean that it should have been dismissed on 

account of her failure to identify an expert. As we have discussed, whether her allegations of 

negligence should have been dismissed for lack of an expert is a question separate and apart 

from whether they give rise to a claim under the THCLA. 

Need for Expert Proof

In order to reverse the trial court‟s disposition of this case and hold that Mrs. Osunde‟s 

allegations should not go to trial, we would be required to come to the conclusion that expert 

proof is necessary in order to support her case-in-chief. In light of the allegations of 

negligence that are involved in this case, this is something that we cannot do. As we have 

previously explained, expert proof is not required “where the alleged acts of negligence are 

so obvious that they come within the common knowledge of laymen.” Kennedy v. Holder, 1 

S.W.3d 670, 672 (Tenn. Ct. App. 1999), overruled on other grounds. In this case, as 

clarified in her response to DMC‟s summary judgment motion and in her argument on 

appeal, Mrs. Osunde is asserting that negligence was committed through the radiology 

technician‟s provision of a faulty, uneven stool.8 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 

 

8 At oral argument, Mrs. Osunde‟s counsel specifically disclaimed any other basis for establishing negligence.
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unstable stool is negligent.9 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.

Conclusion

In this case, the trial court‟s order adjudicating DMC‟s motion for summary judgment 

is devoid of clarity in light of the definitions contained within the THCLA. Although DMC 

is correct in its assertion that Mrs. Osunde‟s allegations of negligence give rise to a health 

care liability action, this determination does not compel a dismissal of Mrs. Osunde‟s case. 

The allegations of negligence pursued by Mrs. Osunde give rise to a health care liability 

action pursuant to the THCLA, but under the facts of this case, expert proof is not required to 

support them. For these reasons, the trial court‟s ultimate disposition is not in error. We only 

modify the trial court‟s summary judgment order to the extent that its analysis does not 

comport with the definitional framework contained herein. Specifically, we reverse the trial 

court‟s order to the extent that it purports to dismiss Mrs. Osunde‟s health care liability 

action. This cause is remanded to the trial court for such further proceedings as are necessary 

to adjudicate Mrs. Osunde‟s health care liability action as to her ordinary negligence claim, 

as well as her husband‟s claim for loss of consortium. The costs of this appeal are assessed 

against the Appellant, DMC-Memphis, Inc., and its surety, for which execution may issue if 

necessary.

_________________________________

ARNOLD B. GOLDIN, JUDGE

 

9

In certain cases, if not most cases, the challenge to the use of a particular piece of equipment within the 

medical setting, such as a stool or other support system, will require medical expert proof. In her deposition, 

Mrs. Osunde asserted that the stool provided to her was not the “correct stool.” She claimed that there were 

standard stools that should be used in health care facilities. Generally speaking, inquiry into this type of 

decision would require the assistance of expert proof. It is not ordinarily within common knowledge what is 

appropriate for medical treatment. With that said, although Mrs. Osunde has challenged the type of stool with 

which she was provided, the resolution of the negligence question here does not require medical judgment. 

The essence of Mrs. Osunde‟s grievance is that the specific stool with which she was provided was wobbly and 

unstable. Inasmuch as her challenge is to the technician‟s provision of a stool that was inherently faulty, the 

question is not one of medical soundness but rather, is one of common knowledge. That a stool should 

promote stability is not in question, and it is within the common knowledge of a layperson to determine 

whether providing a wobbly stool is negligent. Thus, it matters not in this case that Mrs. Osunde takes issue 

with the specific type of stool that was used. According to her allegations and deposition testimony, the stool 

is fundamentally defective and unstable. Again, whether the provision of such a stool constitutes negligence is 

within the common knowledge of a jury. With respect to the stool, we note that there appears to be a dispute of 

fact as to whether a single stool was used. Whereas Mrs. Osunde‟s allegations implicate the presence of a 

single, unstable wooden stool, the radiology technician testified in his deposition that he pushed together two 

metal stools to allow Mrs. Osunde to stand. According to the technician, each stool had a rail on one side. 

Whether Mrs. Osunde‟s factual allegations are true is certainly a matter of proof for trial.