Tort Law Blog: Is the Common Knowledge Exception Obsolete?
Last month we wrote about the common knowledge exception, and it crops up again this month. Lawyers, be warned: Even if the common knowledge exception applies in a health care liability case so that expert testimony is not required, the failure to file a certificate of good faith may still be fatal...
This health care liability action was filed following a fall by Plaintiff, Vicki J. Redick, while admitted to Saint Thomas Midtown Hospital. Ms. Redick was admitted to Saint Thomas Midtown after complaints of weakness and falling on August 8, 2014. She was placed on “fall precautions” during her hospitalization, which included bed rails and having the bedside commode within reach. On August 12, 2014, an unknown hospital employee assisted Ms. Redick in her transfer from the bed to the portable commode, which was not in reach in accordance with the fall precautions. On her transfer back to the bed, Ms. Redick fell and hit her right side on a bedside table and landed on her right side.
Ms. Redick filed suit against the hospital alleging that its employee did not take the necessary steps to assist her back to her bed. She did not provide pre-suit notice pursuant to Tenn. Code Ann. § 29-26-121 or file a certificate of good faith pursuant to Tenn. Code Ann. section 29-16-122. When the hospital moved to dismiss, Ms. Redick responded that the claims fell within the common knowledge exception such that expert proof was not required. Thus, she argued, there was no need to file a certificate of good faith.
Following a hearing, the trial court found that the decision that resulted in Ms. Redick's injuries was not a professional one, but an ordinary action that a layperson could understand. Therefore, the trial court held that the "common knowledge exception" applied and that expert testimony would not be necessary to establish the injury. However, addressing the hospital’s contention that a good faith certificate was still required for the element of causation, the trial court agreed and held that expert testimony would still be required on the element of causation to show that as a proximate result of defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred. Therefore, the court dismissed the action with prejudice for failure to comply with Tenn. Code Ann. section 29-26-122. Ms. Redick appealed.
On appeal, Ms. Redick raised one issue: “When expert proof is not required to establish the recognized standard of acceptable professional practice in the profession, due to the ‘common knowledge’ exception, is the plaintiff required to file a certificate of good faith under Tenn. Code Ann. section 29-26-122?” The hospital additionally raised the issue of whether the trial court erred in finding the common knowledge exception applied to the plaintiff’s claims.
The Court of Appeals began its analysis with a discussion of the recent opinion in Newman v. Guardian Healthcare Providers, Inc., wherein the Court held that if the plaintiff’s claims fell within the common knowledge exception, i.e. a layperson could determine that the wrongful conduct alleged was negligence, then a plaintiff need not file a certificate of good faith pursuant to Tenn. Code Ann. section 29-26-122. The Court noted that it was undisputed that the action was a healthcare liability action and that Plaintiff did not file a certificate of good faith as required in healthcare liability actions that require expert proof.
The Court then addressed whether the common knowledge exception applied. The Court held that under the liberal standard of construing the allegations in Plaintiff’s favor, the common knowledge exception applies as to the element of breach of duty. The Court held that the allegations that Plaintiff was placed under fall precautions at the hospital, that the commode was placed out of reach as required, and that Jane Doe failed to assist her in the transfer back to her bed and was within arm’s reach of Plaintiff yet failed to assist when Plaintiff reached out to her during her fall were within the common knowledge of a layperson.
The Court then addressed the hospital’s contention that expert proof would still be required as to Plaintiff’s alleged damages. The Court agreed with the hospital that the reasonableness and necessity of the medical bills and the existence of a permanent impairment were not matters within the knowledge of a layperson. Therefore, Ms. Redick was required to file a certificate of good faith under Tenn. Code Ann. section 29-26-122 and the failure to do so resulted in the dismissal of the action.
The Court found it significant that Plaintiff had other falls and therefore might have other injuries from falls other than the one in the hospital. The Court stated that expert proof would be required to show that her injuries were from this particular fall. It is unclear if this provides any hope for cases where there was less of a dispute as to how the injuries arose.
This decision seems at odds with previous determinations on the common knowledge exception. One does not have to ask for medical bills as damages, so no expert would be needed on that issue. If this case is right, then there may no longer be any circumstances in which the common knowledge exception applies. If that is so, then the common knowledge exception is yet another casualty of the health care liability reforms and now merely a trap for the unwary.