Do Tennessee Medical Malpractice Rules Apply to Massage Therapists?
As we have discussed many times before, there are special procedures applicable to medical malpractice–or health care liability–claims under Tennessee law. Foremost among these special procedures is the requirement for plaintiffs to file an expert affidavit with their lawsuit. The expert must explain how the defendant healthcare provider deviated from the accepted “standard of care” in treating the plaintiff.
Appeals Court Reinstates Patient’s Lawsuit Alleging Sexual Assault During Massage
Of course, not every Tennessee personal injury claim against a healthcare provider–or someone who falls within the legal definition of a healthcare provider–necessarily involves a standard of care issue. For instance, what happens if a healthcare provider sexually assaults a patient? Does the patient really need to get an expert affidavit explaining how rape deviates from the accepted standard of care?
The Tennessee Court of Appeals recently confronted such a case. The plaintiff in this case alleged she was “sexually assaulted” by a massage therapist while receiving a treatment. The plaintiff said the assault “caused her to develop a genital infection,” which required her to undergo a surgical procedure and receive other medical care.
The plaintiff subsequently sued both the individual massage therapist and the salon that employed him. The massage therapist denied the allegations. The salon, meanwhile, moved to dismiss the complaint on the grounds that the plaintiff failed to file an expert affidavit. The plaintiff maintained the affidavit was unnecessary as “expert testimony would not be needed” in this case.
The trial judge disagreed and ultimately awarded summary judgment to both defendants over the plaintiffs’ purported failure to follow Tennessee’s medical malpractice procedures. But the Court of Appeals reversed the grant of summary judgment as to the massage therapist. The appeals court noted the plaintiff’s allegations against the therapist were based on “assault and battery, intentional or reckless infliction of emotional distress, and false imprisonment.” None of these things related to the provision of healthcare. Therefore, the plaintiff did not need to produce any expert evidence in support of her case.
With respect to the salon, however, the Court of Appeals said the plaintiff’s claims did fall within the scope of Tennessee medical malpractice rules. Massage therapy is a licensed profession. And the plaintiff’s allegations against the salon are based on its alleged negligence in hiring and supervising the massage therapist. So while allegations of “sexual battery” do not require an expert affidavit, allegations that a healthcare provider was negligent in its hiring or management practices does. Since the plaintiff failed to provide such an affidavit, her claims against the salon were properly dismissed by the trial court.
Contact a Tennessee Medical Malpractice Lawyer Today
There is never any excuse for a healthcare provider to assault a patient. If you have been traumatized by this type of attack, you should speak with a qualified Knoxville medical malpractice attorney to learn more about your legal options. Contact the offices of Fox, Farley, Willis & Burnette, Attorneys at Law, to schedule a consultation with a member of our legal team today.
Source:
tncourts.gov/sites/default/files/jacksonlataishaopn.pdf
