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Tennessee Supreme Court Holds Salon Can Stand Trial for Sexual Assault of Customer

PainSuff

In Tennessee, the normal rule is that a person cannot sue a “health care provider” for professional negligence (i.e., malpractice) unless their complaint includes a certificate from a qualified expert asserting the case is brought in “good faith.” Basically, if the case requires a jury to determine whether or not a health care provider deviated from the accepted “standard of care” within their profession, an expert witness must be available to explain certain technical issues. Put another way, a jury cannot rely on its own knowledge or experience to decide if a surgeon performed an operation correctly.

There is an exception to the general rule for misconduct allegations that involve matters “within the understanding of lay members of the public.” That is, if the plaintiff alleges a type of negligence that does not require specialized knowledge or training, and a jury is capable of applying its “common knowledge” to the facts of the case, then the plaintiff does not need to file a certificate of good faith from an expert witness before her case may proceed.

Court: Jury Can Sort Out Negligence Allegations Without Assistance of Expert Witnesses

The Tennessee Supreme Court recently addressed the application of this common knowledge exception to a case where a plaintiff brought a personal injury lawsuit alleging sexual assault. The health care provider in this case was not a doctor, but a salon. According to the plaintiff’s lawsuit, a massage therapist working at the defendant’s salon sexually assaulted her during a massage. The plaintiff accused the defendant of negligence in connection with the “training, supervision, and retention” of the massage therapist, as well as vicarious liability for the assault itself.

The defendant moved for summary judgment, arguing the plaintiff never presented an expert’s certificate of good faith, as required by Tennessee medical malpractice law. The plaintiff insisted no certificate was necessary, as her claims for negligent training, supervision, and retention did not involve malpractice. The trial judge disagreed and granted the defense a dismissal.

The Supreme Court, however, reversed the trial court’s decision and returned the plaintiff’s lawsuit for trial. The Supreme Court agreed with the plaintiff that the common knowledge exception applied to her complaint. The justices explained that an expert certificate of good faith was only necessary when the “alleged negligent conduct involved technical or specialized knowledge of a medical procedure or a patient’s medical condition.” But the issue here was not whether the defendant performed an improper massage or used an incorrect technique. It was whether or not she was sexually assaulted by the massage therapist–and whether the defendant failed to fire that therapist even after receiving prior customer complaints about his behavior. The Supreme Court said a jury does not require expert guidance to answer these particular questions.

Speak with a Tennessee Personal Injury Attorney Today

If you are injured by any type of health care provider, it is critical that you seek out timely legal advice, especially given potential hurdles like the certificate of good faith rule. The experienced Knoxville personal injury lawyers at Fox Willis Burnette, PLLC, are ready to assist you. Contact us today to schedule a free consultation.

Source:

tncourts.gov/sites/default/files/jackson.majopn.pdf

https://www.foxandfarleylaw.com/tn-supreme-court-accident-victims-can-proceed-with-consumer-protection-lawsuit-against-hospitals/

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