### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs J uly 30, 2002 QUENTIN CAV NAR v. STATE O F TENNESSEE
Appeal from the Tennessee Claims Comm ission No. 20200119 William Baker, Commissioner

No. M2002-00609-COA-R3-CV - Filed F ebruary 26, 2003

This appeal involves the diagnosis and treatment of a person who was briefly

hospitalized at Middle Tennessee Mental Health Institute. Following his re lease, the patient filed a c laim with th e Tennessee Claims Commis s ion assert ing that he had been misdiagnosed and that the staf f had subjectedhim to mental abuse and torture. The Commission dismissed the patient’s complaint after he failed to

file a time

ly r esponse t o the State’s Tenn. R. Civ. P. 12.02(6) motion to dismiss, and the patient has appealed. We have determined that the Commission properly dismissed the patient’s claim, not only because of his tardy response but also because

the response fails to state a claim upon which the Commission may gra nt relief. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission Affirmed

W ILLIA M C. K OCH , J R

. , J., delivered the opinion of the court, in which W IL LI AM B. C AIN and P ATRIC IA J. C OTT RELL , JJ., joined. Quentin L. Cavnar, Madison, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and La ura T. Kidwell, Assistant Attorney Gene ral, for the appellee, State of Tennessee

. OPINION

I. Quentin Cavnar is a fifty- year- old man who live s in Madison. On November 4, 2000, he went for what he called “an enjoyable ride.” When hereturned home, hiswife ca lled the p olice to report that Mr. Cavnar was shooting at streetlig hts and otherwise acting strangely . After the local authorities arrive d with thei r mobile c

risis unit, Mr. Cavna

r sough t to justify

his action s by explaining that “the people who control the money , the power people, put cam eras on the [ street] lights, and . . . it was not right for people to be spy ing on other people.” He also explained that he hadunplugged

his home te

lephone “ because the phone

was not sa

fe” and because “people were a ble to listen to his conversation.” Mr. Cavnar attributed his conduct to Valium withdraw al and selfimpo sed fas ting.-2-

Mr. Cavnar w as there after a dmi tted to Middle Tennessee Mental Health Insti tute (“MTMHI”) in Nashville. He was diagnosed with Bipolar I disorder with manic and

psychotic fea

tures. MTMHI kept him under

observa tion for te

n day s and then

releas ed him with

a pre scription

to contro l his behavior. After his release, Mr. Cavnar beg an to complain about his treatm ent while a patient at MTM HI. He insisted that he had been both misdiagnosed and ill-used at the hands of va rious MTMHI personnel. In Jul y 2001 he wrote MTMHI a letter threatening to sue the State and demanding that his official diagnosis be chang ed to “physician- prescribed Valium addiction.”

In Oct obe r 20 01, aft er M TMH I f ailed to acce de to his de

mands, Mr . Cavnar

filed a p ro se claim with

the Tennessee Cla

ims Commission. The claim embodie d essenti ally three g rievanc es. First, Mr. Cavnar alleged that MTMHI employees exhibited willful and malicious conduct towar d him during h is hospital

ization and

that these employ ees shoul d be disciplined or dismissed. Second, he alleged that MTMH

I co mmitted med

ical m alprac tice by

misdiag nosing h

im as “pa

ranoid schizophrenic” which, he say s, has render ed him unemployable. Third, he alleged that MTMHI ’s actions inflicted emotional distress upon his wife and his children.

On December 17, 2001, the State filed a motion to dismiss Mr. Cavnar’s complaint on two grounds –lack of subject matter jurisdiction and failure to state a claim. Mr. Cavnar did not file a timely response to the motion. However, on January 23, 2002, he filed a four pa ragra ph respon se stating that he was unable to obtain legal repr esentation and that

he was under the impression that “the proper venue” for his action was the Commission. H e stated that if the Commission lacked jurisdiction he “would sincerely appreciate direction

as to what venue would be appropriate,” and he concluded by disavowing that he was suing fo r negli gent inf

liction of emotiona l distresson behalf of his wife. The Commission dismissed Mr. Cavnar’s lawsuit, and he has appealed.

II. M R . C AVNAR ’ S F AILURE TO T IMELY R ESPOND TO THE M OTION TO D ISMISS
Tenn. Code Ann. § 9-8-403(a)(1) (Supp. 2002) provides that matters such a s Mr. Cavnar’s suit s h all be conducted under the Tennessee Rules of Civil Procedure where applicable, and otherwis e they shall be conducted in accordance with the Commission’s rules and regula tions. Tenn. Comp. R. & Regs. 0310-1-1-.01(5)(c) ( 2001) requires parties opposing a motion before the Commission, other than a summary judgment motion, to file

and serve a response to the motion no later than fifteen day s fromservice of the motion. Under the Commission’s rule, “[f ]ailure to file
a response shallindicate that there is no opposition to the motion.” Where an opponent to a motion fails to respond, the Commission maypermissibly gra nt the motion on its merits, if to do so appears otherwis e appropr

iate. Thi s court

reviews the Commission’s decision to dismiss a claim using the abuse of discretion standard. Tuck v. S tate , No. 03A01-9510-BC-00355,1996 WL 310012 at *3-4 (Tenn. Ct. App June 11, 1996) (No Tenn. R. App. P. 11 application filed).

The Commission dismissed Mr. Cavnar’s claim, i n part, be cause he did not file

a timely response to the State’s motion to dismiss. While pro se litigants are entitled to fair and equ a l treatment as they pursue litig ation, they are not excused from complying

with applicable substantive andprocedural law. Whitaker v. Whirlpool Corp. , 32 S.W.3d 222, 2 27 (Tenn . Ct. App. 2 000); Irvin
v. City of Clark

sville , 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988). The Commission allowedMr. Cavnar thirty day s to respond to the State’s motion – fifteen day s more than its rule required. To the-3-

extent that the Commission took Mr. Cavnar’s silence as indicating that he did not oppose the State’s motion for dismis sal, it wa s simply applying Te

nn. Comp. R. & Regs. 0310-1-1-.01(5)(c) according to its express language. We find no abuse of discreti on in the Co mmission’senforc ement of its own rule.

III.

T HE C OMMISSI ON ’ S S UBJECT M ATTER J URIS DICTI ON
The Commission did not di smiss Mr. Cavnar’s claim s olely because of his pro cedura

l defaul t. It also held that it lac ked subje ct matter

jurisdict ion with reg ard t o some of Mr . Cavn ar’sclai ms. We turn now to that determination. In the absence of a dispute regarding jurisdictional facts, issues of subject matter ju risdictio n presen

t question s of law th at appellate courts review denovo. Southwest Williamson County Cmty. Ass’n v. Saltsman , 66 S.W.3d 872, 876 (Tenn. Ct. App. 2001). Subject matter jurisdiction involves a tribunal's power to adjudicate a par ticular controve rsy brought before it. Northland I

ns. Co . v. State , 33 S.W.3d 727, 729 (Te nn. 2000) ; First Am. Tr

ust Co. v. Franklin-Murray Dev. Co. , 59 S.W.3d 135, 140 (Tenn. Ct. App. 2001). Tribunals such as the Commission derive their subject matter jurisdiction from the Constitution of T ennessee or from legislative act, Meighan v. U.S. Sprint Communications Co. , 924 S.W.2d 632, 639 (Tenn. 1996); Kane v. Kane , 547 S.W.2d 559, 56 0 (Ten n. 1977), and cannot exercise jurisdictional powers that have not been conferred directly on them expressly or by

necessary

implication. Dishmon v. Shelby State Cmty. C ollege , 15 S.W.3d 477, 480 (Tenn. Ct. App. 1999). A tribunal’s subject matter jurisdiction in a particular circumstance depends on the nature of the cause of action and the relief sought. Landers v. Jones , 872 S.W.2d 674, 675 (Ten n. 1994); SunTrust Bank v. Johnson , 46 S.W.3d 216, 221 (Tenn. Ct. App. 2000).

The State of

Tenn essee, a s a general mat ter, enj oysimmunity

from suit. Tenn. Con st. art. I, § 17 provides that

the State may be held li able for

monetar y da mages “ only

in such manner and in such courts as the Leg

islature may by

law dire ct.” I

n accor dance with this constitutional mandate, the Genera

l Assembly

created theCommission and has vested it with very specific subject matter jurisdiction to adjudicate certain defined contract and tort claims against the State. Tenn. Code Ann. §§ 9-8-301, -307 (199 9 & Supp. 2 002); Hembree v. State , 925 S.W.2d 513, 516 (Tenn. 1996). If Mr. Cavnar has a viable claim, it must fit squarely within the Commission’s statutory jurisdiction.

The bulk of Mr. Cav

nar’s c laim consi sts of allegations of willful and malicious conduct by MTMHI emp lo yees . Fo r ex amp le, he a ll ege s t hat MTM HI staff int entionally denied him phone privi leges and that o n more tha n one occ asion the

staff kn owingly

placed h im in proxim

it y o f dange rous, mentally

disturbe d persons–at least o nce, so he say s, for their personal amusement. He insists that MTM HI i s “guilty of willful endangerment” by continuing to insist that he take prescribed

medic ation that he be

lieves is c ausing h

im adver se effects. Mr. Ca vnar des cribes h

is treatment at the hands of MTMHI’ s staff generally as “mental abuse and torture.”

Mr. Cavnar h as not sta

ted a cla im based o n the alle ged willful or int e ntional conduct of MTMHI’s employees, no matt er how wronged he may feel. Tenn. Code Ann. § 9-8-307(d) specific ally

states that

“[t]he State

will not be

liable fo r willful, malicious , or criminal actsby s tate employ ees, or for acts on the part of state employ ees done for personal gain.” Within its gene ral1 His complain t speaks in t erms of “ the st igma of t he misdi agnosis of paranoi d schizophr enia. ”

2 Th is was not

a su bjec t ma tt er j uri sdi cti on qu est ion . Ten n. Code An n. § 9- 8-30 7(a) (1) (D) g iv es t he Cl aim s Com mission jurisdiction to hea r certain professiona l malpractice claims.
-4- preserveof sov ereign immunity, the State has not consented to be liable for its employees’ wrongful intentional acts. Shell v. S tate , 893 S.W.2d 416, 421 (Tenn. 1995); Lattimer v. Tennessee Dep’t of Corr. , No. M2000- 03126 -COA -R3- CV, 20 02 WL 598558, at

*3-4 (Tenn. Ct. App. April 17, 2002) (No Tenn. R. App. P. 11 application filed). Accordingly , the Commission correctly deter mined that it lacked subject matter jurisdiction with regar d to M r. Cavnar’s claims predicated on what he believe d were willful and maliciousacts.
IV. M R . C AVNAR ’ S P SYCHOLOGICAL D IAGN OSIS
Mr. Cavnar’s most earnestly-pre ssed complaint against MTMHI involves his diagnosis. He in sis ts that he was misdiagnosed as having “pa ranoid schizophrenia” and that this diagnosis has forced him to endure em ba rr as sm en t p ro fe ss io na ll y an d s oc ia ll y. 1 He asks “[t]hat the Commission orde r the medic al reco

rds of [his] a

t Middle Te

nnessee Mental He alth I

nstitute a nd relat e d publi c records chang ed from th

e misdiagnosi s of parano id schizophrenia or bipolar disorder which was penciledin, to reflect the diagnosis of patient withdrawing from phy sician-prescribed Valium.” He also asks for compensatory damages because the diag nosis has rendered him u nable to find employ ment. As we understand the Claims Commission’s order, it dismissed this portion of Mr. Cavnar’ s complain

t for failure to sta

te a cla im. 2

A motion to dismiss a complaint for failure to state a claim for which relief can be granted tests the legal sufficiency

of the pl ainti ff’s p leadi ng. Givens v. Mullikin , 75 S.W.3d 383, 406 (Tenn. 2002); Trau-Med of Am., Inc. v. Allstate Ins. Co. , 71 S.W.3d 691, 696 (Tenn. 2002). The motion requires the cour

t to review the complaint alone, Mitchell v. Campbe ll , 88 S.W.3d 561, 564 (Tenn. Ct. App. 2002), and to look to the complaint's substance rather than its form. Kaylor v. Bradley , 912 S.W.2d 728, 731 (Tenn. Ct. App. 1995). Dismissal under Tenn. R. Civ. P. 12.02(6) is warranted only when the alleged facts will not entitle the plaintiff to relief, Crews v. Buckman Labs. Int’l, Inc. , 78 S.W.3d 852, 857 (Tenn. 2002) or when the complaint is totally lacking in cl ar it y an d s pe ci fi ci ty. Dobbs v. Guenther , 846 S.W.2d 270, 273 (Tenn. Ct. App. 1992).

A Tenn. R. Civ. P. 12.02(6) motion admits the truth of all the relevant and material factual allegations in the compl aint but a sserts tha t no cause of action arises from these facts. Davis v. The Tennessean , 83 S.W.3d 125 , 127 (Te nn. Ct. App . 2001); Pendleto n v. Mills , 73 S.W .3d 115, 120 (Tenn. Ct. App. 2001). Accordingly , courts reviewing a complaint being teste d by a Tenn. R. Civ. P. 12.02(6) motion must construe the complaint liberally in fa vor of the plaintiff by

taking all factual allegations in the complaint as true, Stein v. Davidson Hotel , 945 S.W.2d 714, 716 (Tenn. 1997), and by giving the plaintiff the benefit of all the infer ences that can be reasonably drawn from the pleaded facts. Robert Banks, Jr. & June F. Entman, Tennessee Civil Procedure § 5- 6(g), at 254 (1999).

On appeal from an order granting a Tenn. R. Civ. P. 12.02(6) motion, we must like wis e presume that t he fact ual al legati ons i n the c ompl aint a re tru e, and we mus t revi ew the trial court 's3 It does not appear to us t hat M TM HI o fficially diagnosed M r. Cavnar as having paranoid schizophrenia. Mr. Cavnar attached to his complaint a copy of hi s disc harge su mmary fr om M TM HI. That medicalreco rd sho ws that wh ile at some point MT MH I personnel may have di agnosed Mr. Cavnar as s uff ering from “Schi zoaffe ctiv e Disorder, bipolar type,” by the time of

his di scharge that

tent ativ e diagnosi s had been dow ngrad ed to mere ly “Bip olar I D isord er.” As f or that diagn osis, M r. Cav nar’s all eges t hat he c onsulted another physici an following hi s discharge from MT MH I and atta ched a letter fro m this p hysician to hi s cl aim

. The phys ici an’ s l ett er s tat es that the sig ns an d sympt oms cont aine d on th e MTMHI discharge summary are consist ent with Mr. Cav nar’s final A xis I diag nosis o f “Bip olar I d isord er, ma nic with psyc hotic fea tures.”
-5- legal conclusions regarding the ad e quacy of the co mplaint wit

hout a pre sumption of

correctness. Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A. , 986 S.W.2d 550, 554 (T enn. 1999); Stein v. Davidson Hotel , 945 S.W.2d at 716. Pro se complaints for medical malpractice are not immune from dismissal for failure to state a claim. See , e.g. , Moss v. Va nderbilt Univ. Med. Ctr. , No. M1999-01321-COA-R3-CV, 2000 WL 1862840, at *4 (Tenn. Ct. App. Dec. 21, 2000) (No Tenn. R. App. P. 11 application filed) (dismissing the plaintiff’s complaint).

Tenn. R. Civ. P. 8.01 requires plaintiffs to set forth a short and plain factua l stateme nt of their claim showing that they are ent itled torelief. In addition, Tenn. Code Ann. § 29- 26-115(a) (Supp. 2002) requires plaintiffs asserting a medical malpra ctice claim to allege that

the phy sician fa

iled to act with ordinary and r

easonable care in accorda nc e with the applicable standard of professional practiceand that a s a proximat e result, th

e plaintif f suffe red injur ies that w ould

not otherwise have occurred. A patient’s subjective belief that he or she was misdia

gnosed is not a sufficient basis for a malpra ctice c laim. As the Lou

isiana Cou

rt of Appe als has po inted out: Diagno stic error by

a physician is not malpractice per se. D iagnosi s is an act of p rofessi onal judgment and, in case o f misdiagnosis, malpractice exists only if it results from the phy sici an’s fa ilure to exercise the standard or degree of c are in diagnosing which wou l d have be en exerc ised by

members o f his profession in good standing in his loca

lity under sim

ilar cir cumstanc es.
Frasier v. Depar tment of M

ental Hea lth and Hum

an Res. , 500 So. 2d 858, 862 (La. Ct. App. 1986).

Even with the most liberal construction, Mr. Cavnar’s complaint in the Claims Commission does not articulate an action for medical malpractice . While he alleges that a psychiatris tdiagnosed him with paranoid schizophrenia, he does not allege that the psy chiatri st breache d the appl icable standardof professional practice. I ndeed, Mr. Cavnar’s claim makes no mention of any standard of professional practice. The essence of Mr. Cavna r’s claim is that he disagrees wi th the dia gnosis. A patient’ s disagr

eement with a phy sician’sdiagno sis is not enou gh stand ing alon e to state a claim for medical malpractice. 3

As for Mr. Cavnar’s request that the Commission order MTMHI to change his medical record s, we agr

ee with th e State th at the Comm

ission’s ju risdictio n is statutorily limited to resolving monetary cla

ims. The reli ef Mr. Ca

vnar see ks is, in practical effect, a mandatory injunction. The Commission lacks authority to issue mandatory injunctions against the State. Burchfie ld v. State , 774 S.W.2d 178, 184 (Tenn. Ct. App. 1988). For that reason, the Commission properly dismissed the medic al malpra

ctice po rtion of Mr . Cavnar ’s claim.-6- V. T HE I NFLICTION OF E MOTIONAL D ISTRESS C LAIM
The remaining allegations in Mr. Cavnar’s claim are that the MTMHI employees inflicted emotional distress upon his wife and children. To the extent that this portion of the claim is based
on intenti onal conduct by MTMHI employees, the state

has not, as we have already pointed o ut , c on sentedto be liab le for the ir wrongful intent

ional ac ts. Tenn. Code Ann. § 9-8-307 (d); Shell v. State , 893 S.W.2d a

t 421. Acc ordingl

y, a claim filed with t he Commission seeking damages for intentional infliction of emotional distress fails to state a claim upon which relief can be g ranted. Negligent infliction of emotional distress is, however, a separate and distinct tort over which the Commissi on has sub

ject matt er jurisd iction. Ho wever, Mr. Cavna r’s claim still fail s to state a claim upon which relief can be gra nted because he lacks standing to assert it. Actions for damages caused by t ortious c onduct or

dinarily mu st be filed by the injured per son. Except for a few exceptional instances, one person ordinarily cannot sue individually for another’ s injuries. Millsaps
v. C rofts , 159 Tenn . 582, 585, 21 S.W.2d 389 , 390 (192 9); accord Loucks v. Albuquerque Nat’l Bank , 418 P.2d 191, 19 9 (N.M. 1966 ). Mr. Cav nar, in hi s individua

l capac ity, lacks sta

nding to assert an indepe

ndent tor t cla im b elonging to his wife and children. For that reason, the Commissioner’s dismissal o f his claim based on the alleged inflic tio n of emotional distress was proper.
VI.

We affirm the order dismissing Mr. Cavnar’s claim and re mand the m a tter to the Commission for whatever further proceedings may be required. We tax the costs of th is appea l to Quentin Cavnar for which execution, if necessary , may issue.

_____________________________ WILL IAM C. KOCH, JR., JUDGE