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IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
JANUARY 18, 2007 Session DOUGLAS McPHERSON v. SHEA EAR CLINIC, ET AL.
Direct Appeal from the Circuit Court for Shelby County No. CT-003839-03 Jon Kerry Blackwood, Judge, by designation

No. W2006-01936-COA-R3-CV - Filed April 27, 2007

This case involves an ear clinic, a patient, and his physician. The patient did not have health insurance, but he was enrolled in a type of discount plan that contracts with healthcare providers to secure reduced rates on medical services for the plan's members. The patient scheduled a treatment with the ear clinic, and he believed that the clinic and his physician participated in the discount plan. The patient underwent pre-surgery testing before learning that neither the clinic nor the physician accepted the discount plan. The patient refused to pay full price for the treatment, and it was never performed. However, the patient was billed for the pre-surgery testing. The patient filed suit against the clinic and his physician for breach of contract, but the trial court dismissed his complaint for failure to state a claim. The patient appealed to this Court, and we reversed. We also instructed the trial court to address the patient's concerns that the court had not accommodated his hearing disability as required by the Americans with Disabilities Act. On remand, the Tennessee Supreme Court assigned a senior judge to preside over the case, and it appears that no oral proceedings took place thereafter. However, the patient attempted to join Shelby County, various county officials, and officers of the court as defendants, claiming that he had been damaged by the county and court's failure to accommodate his disability. The patient also amended his complaint to add claims for medical malpractice and fraud against the clinic and his physician. The trial court denied the patient's petition for joinder of the claims against the additional defendants. The court granted summary judgment to the clinic and physician on the breach of contract and medical malpractice claims, and the claim for fraud was dismissed for failure to state a cause of action. For the following reasons, we affirm.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Affirmed ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY M. KIRBY , J., joined. Douglas McPherson, Columbia, TN, pro se Jeffrey A. Land, Kristin N. Marks, Nashville, TN, for Appellees

OPINION I. FACTS & PROCEDURAL HISTORY Douglas McPherson suffers from a hearing disability. In 2002, Dr. John J. Shea, Jr. of the Shea Ear Clinic in Memphis, Tennessee, recommended that Mr. McPherson schedule an office visit and treatment known as xylocaine perfusion. On or about December 9, 2002, Mr. McPherson contacted the clinic and requested the earliest appointment available. He was scheduled to receive the xylocaine perfusion on January 13, 2003. Mr. McPherson was a member of a Private Healthcare Systems (PHCS) plan known as "Care Entree." Care Entree is not an insurance plan, but it enrolls members for a monthly fee and provides them with discounts on medical services through a contracted network of healthcare "Providers." Mr. McPherson believed that Dr. Shea and Shea Ear Clinic were participating Providers in the Care Entree plan. He claims that Care Entree's website listed Dr. Shea and the clinic as participating Providers, and that he spoke with Care Entree's Member Services by phone to confirm that Dr. Shea and the clinic were current Providers. When Mr. McPherson arrived at the clinic on January 13, he signed the necessary paperwork and presented his Care Entree card to clinic personnel. Mr. McPherson did not question the staff's reference to"insurance" forms, and he later explained that he had assumed the staff would be knowledgeable about the proper paperwork and procedures to be used by a Care Entree Provider. Mr. McPherson then underwent several hours of pre-surgery testing that was administered by Dr. Shea and other members of the clinic's staff. Mr. McPherson subsequently learned that neither Dr. Shea nor the clinic were participating Providers in Care Entree. Because Care Entree was not an insurance plan, the clinic staff informed Mr. McPherson that he would have to pay cash prior to receiving the xylocaine perfusion treatment. In addition, the cost would be $3,031 beyond the contracted charge fee listed by Care Entree's plan, which Mr. McPherson had expected to pay. Mr. McPherson refused to pay the additional charge, and the xylocaine perfusion treatment was never rendered. Mr. McPherson was charged $860 for the pre-surgery testing and a 30% "collection fee" for contested billing, totaling $1,118. In May of 2003, Mr. McPherson, proceeding pro se, filed a civil warrant in Shelby County General Sessions Court naming Dr. Shea and Shea Ear Clinic as defendants.1 Mr. McPherson alleged that the defendants were contractually obligated under the Care Entree medical plan to provide xylocaine perfusion treatment to him for the contracted charge fee. Judgment was entered for the defendants, and Mr. McPherson appealed to Shelby County Circuit Court. The circuit court then dismissed Mr. McPherson's complaint for failure to state a claim upon which relief can be granted. Mr. McPherson then appealed to this Court. See McPherson v. Shea Ear Clinic, P.A., No.

It appears that Mr. McPherson had previously filed suit in Maury County General Sessions Court, and the case was dismissed for improper venue.

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W2004-00690-COA-R3CV, 2005 WL 1220160 (Tenn. Ct. App. W.S. May 18, 2005). On appeal, we found that Mr. McPherson's complaint, when liberally construed, did state a cause of action. Therefore, we remanded the case for further proceedings.2 Mr. McPherson also complained that the trial court had failed to grant him accommodations regarding his hearing loss as required by the Americans with Disabilities Act. We instructed the trial court to "address this issue" upon remand. Mr. McPherson subsequently requested a "summary recusal of Shelby County," and the Tennessee Supreme Court designated Senior Judge Jon Kerry Blackwood to hear the case to its conclusion. It appears that no oral hearings or communications took place thereafter. Mr. McPherson filed an amended complaint alleging breach of contract, fraud, and "professional malpractice and negligence" against Dr. Shea and Shea Ear Clinic. He also filed a Petition for Joinder of Claims and Joinder of Persons Needed for Just Adjudication pursuant to Tennessee Rules of Civil Procedure 18 and 19. Mr. McPherson requested that Shelby County, various Shelby County officials, and officers of the court be added as defendants because of alleged wrongs he had suffered during the course of the litigation. It also appears that Mr. McPherson sought a declaratory judgment regarding the Americans with Disabilities Act and Due Process issues, although his petition is not found in the record. The defendants filed an amended motion for summary judgment, accompanied by the affidavits of Dr. Shea and Mr. John R. Gross, the business manager for Shea Ear Clinic. Mr. McPherson filed various "responses" to the motion, but he did not produce additional evidence. On July 12, 2006, Judge Blackwood entered an order with the following findings: (A) Plaintiff alleges that the Defendant is guilty of professional negligence. The affidavit of Dr. Shea establishes that he is familiar with the recognized standard of acceptable professional practice of physicians practicing his specialty and that he complied with the recognized standard of acceptable practices in his treatment of Plaintiff; There is no countervailing evidence, therefore the Motion for Summary Judgment as to the claim of professional negligence is granted; Plaintiff claims that the Defendant is guilty of breach of contract; The affidavits of John Shea and John R. Cross [sic] are uncontradicted and the Motion for Summary Judgment filed

(B)

(C) (D)

The record presently before us contains only the technical record of proceedings taking place after we remanded the case to the Shelby County Circuit Court. Some of the factual history mentioned in this opinion has been taken from our prior opinion in McPherson v. Shea Ear Clinic, P.A., No. W 2004-00690-COA-R3CV, 2005 W L 1220160 (Tenn. Ct. App. W .S. May 18, 2005).

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(E)

by the Defendant regarding the claim of breach of contract is granted; and The Complaint alleges fraud. Plaintiff's complaint fails to state a cause of action alleging fraud and is hereby dismissed.

As part of this Record, the Plaintiff has filed a "Petition for Declaratory Judgment Involving Americans with Disability Act and Due Process of Law and Affidavit of Douglas McPherson" dated June 5, 2006. The alleged Petition seeks to introduce new parties to this cause, as well as a new cause of action not applicable to the Defendant. The Court dismisses the purported Petition treating same as an attempt to amend the pleading. Mr. McPherson timely filed his notice of appeal to this Court. II. ISSUES PRESENTED Mr. McPherson presents the following issues, as we perceive them, for our review: 1. 2. 3. Whether the trial court wrongfully granted summary dismissal of his claims. Whether the trial court failed to comply with the mandates of the Tennessee Court of Appeals because it did not provide remedy for Americans with Disabilities Act violations. Whether Mr. McPherson's due process rights were violated by various procedural actions taken in the trial court.

For the following reasons, we affirm the decision of the circuit court. III. STANDARD OF REVIEW

On appeal, a trial court's factual findings are presumed to be correct, and we will not overturn those factual findings unless the evidence preponderates against them. Tenn. R. App. P. 13(d) (2006); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). We review a trial court's conclusions of law under a de novo standard upon the record with no presumption of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)).

IV. DISCUSSION

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A.

Summary Dismissal of Claims against Dr. Shea and Shea Ear Clinic 1. Breach of Contract

Mr. McPherson originally brought suit against Dr. Shea and the clinic on a breach of contract theory. His amended complaint contained the following allegations setting forth his claim:
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On January 13, 2003, Plaintiff was scheduled to undergo a remedial corrective laser injected treatment known as "xylocaine perfusion" at the Shea Ear Clinic in Memphis, that had been arranged at a contracted fee covered under a medical plan. ... Pursuant to their participation in the Care Entree medical plan, Defendant Shea was contractually obligated to provide [xylocaine perfusion] for a "contracted charge" to members enrolled in the Care Entree medical plan that marketed these "Provider" services, including using internet exposure. ... The understanding between the parties was that Defendant's [xylocaine perfusion] services would be paid by Plaintiff on January 13, 2003 at the "contracted charge" covered by the Care Entree medical plan that Defendant Shea participated in as a "Provider" medical facility and doctor under the specialty heading of "Otolaryngology."

Mr. McPherson insists that when this Court reversed the trial court's finding that his complaint failed to state a claim, we meant that his claim should not be summarily dismissed and that he was entitled to a full trial on remand. He quotes the following language from our previous opinion: "Circuit courts should not dismiss cases appealed from general sessions court because of `any informality whatever, but shall be tried on its merits; . . .'" McPherson v. Shea Ear Clinic, P.A., No. W 2004-00690-COA-R3CV, 2005 W L 1220160, at *3 (Tenn. Ct. App. W .S. May 18, 2005) (citing Tenn. Code Ann.

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