James Carroll v. Carolyn Whitney ( 1998 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
______________________________________________
JAMES CARROLL and FORESTINE
CARROLL, for the use and benefit of
the Estate of JESSIECA RENEE
CARROLL, a minor, deceased, and
FILED
JAMES CARROLL and FORESTINE September 22, 1998
CARROLL, Individually,
Cecil Crowson, Jr.
Plaintiffs-Appellants, Appellate C ourt Clerk
Shelby Law No. 68714-2
Vs. C.A. No. 02A01-9707-CV-00162
CAROLYN WHITNEY, M.D.,
GROVER W. BARNES, M.D., P.C.,
and LEBONHEUR CHILDREN’S
MEDICAL CENTER, INC., acting
by and through its Agents, Servants,
Employees and Others,
Defendants-Appellees.
____________________________________________________________________________
FROM THE CIRCUIT COURT OF SHELBY COUNTY
THE HONORABLE JANICE M. HOLDER, JUDGE
Carl I. Jacobson of
McKnight, Hudson, Lewis, Ford & Harrison of Memphis
Ross Higman of
Wyatt, Tarrant & Combs of Memphis
For Appellants
Thomas R. Prewitt, Jr. and Donna L. Boyce of Memphis
For Defendant Lebonheur Children’s Medical Center
Robert L. J. Spence, Jr. and Chapman Sellers Morrow of
The Hardison Law Firm of Memphis
For Defendants Carolyn Whitney, M.D.
and Grover W. Barnes, M.D., P.C.
REVERSED AND REMANDED
Opinion filed:
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
DAVID R. FARMER, JUDGE
HOLLY KIRBY LILLARD, JUDGE
The appeal of this medical malpractice case presents issues concerning comparative fault
principles. Plaintiffs, James Carroll and Forestine Carroll, for the use and benefit of the Estate
of Jesse Renee Carroll, a minor, deceased, and James Carroll and Forestine Carroll, individually,
appeal the trial court’s judgment on a jury verdict for defendants, Carolyn Whitney, M.D.,
Grover W. Barnes, M.D., P.C.,1 and Lebonheur Children’s Medical Center, Inc.
Plaintiffs’ suit is for the wrongful death of their fourteenth month old daughter allegedly
resulting from medical negligence or malpractice. Plaintiffs originally filed suit against the
above-named defendants and Dr. Azra Sehic and Dr. Reggie Lyell, University of Tennessee
resident physicians working at Lebonheur. Sehic and Lyell filed a motion to dismiss asserting
their immunity from liability as state employees pursuant to T.C.A. § 9-8-307 (h). The trial
court granted the motion, and the suit against the resident physicians, Sehic and Lyell, was
dismissed. Subsequently, plaintiffs voluntarily dismissed that suit, and the present suit was filed.
The answers of both Whitney and Lebonheur rely on the doctrine of comparative fault and allege
that the direct and proximate cause of plaintiffs’ loss was the negligence of the nonparties, the
resident physicians, Sehic and Lyell.
Plaintiffs’ motion in limine to strike the comparative fault defense and to prevent
assessment of fault to the resident physicians was denied. While the instant case was pending,
plaintiffs proceeded against the State of Tennessee in the Tennessee Claims Commission
pursuant to T.C.A. § 9-8-307 (Supp. 1997).2 Defendants were permitted to refer to plaintiffs’
claim against the state and argued that the plaintiffs’ loss was caused by the state employees,
Sehic and Lyell. The trial court instructed the jury in this regard:
As to their claims concerning Doctors Sehic and Lyell,
Doctor Whitney, Doctor Barnes and Lebonheur Medical Center
1
The suit against Grover W. Barnes, M.D., P.C., asserts only vicarious liability for the
actions of Whitney.
2
The commission has exclusive jurisdiction to determine all monetary claims against
the state arising out of, among other things, professional malpractice. T.C.A. § 9-8-307
(a)(1)(D). Filing of the claim against the State operates as “a waiver of any cause of action,
based on the same act or omission, which the claimant has against any state officer or
employee.” T.C.A. § 9-8-307 (b).
The act specifically states:
(h) State officers and employees are absolutely immune from
liability for acts or omissions within the scope of the officer’s
or employee’s office or employment, except for willful,
malicious, or criminal acts or omissions or for acts or
omissions done for personal gain. For purposes of this chapter,
“state officer” or “employee” has the meaning set forth in § 8-
42-101(3).
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have the burden of proving by a preponderance of the evidence,
one, the recognized standard of acceptable professional practice
of physicians in the community in which Doctor Sehic and Lyell
practice and in which the alleged injury or wrongful action
occurred; two, that Doctor Lyell, Doctor Sehic or both acted with
less than or failed to act with ordinary and reasonable care in
accordance with that standard and, three, that Doctor Sehic and/or
Doctor Lyell’s negligence, if any, was a proximate cause of the
injuries and damages to the plaintiffs.
* * *
In a case such as this, even if you find that a person was
negligent, the party claiming that negligence must prove by a
preponderance of the evidence that the person’s negligence was
a proximate cause of the injuries and damages to the Plaintiffs.
A proximate cause of any injury is a cause which in
natural and continuous sequence produces the injury and without
which the injury would not have occurred. In other words, it is
that act or failure to act that directly or immediately and
efficiently brings about the accident and injury.
* * *
Ladies and gentlemen, you will be given a verdict form to
record your verdict. Your first obligation is to determine the
fault, if any, of each of the persons whom you have been
instructed may be charged with fault. Next you must decide a
percentage of fault, if any, to each of those persons. The
percentage figure for each person may range from zero percent to
100 percent. When the percentage of the fault of all persons
being compared are added together the total must equal 100
percent. The total percentage cannot be more or less than 100
percent.
The persons to whom you may assign fault are Carolyn
Whitney, M.D. and Grover Barnes, M.D., P.C.; Lebonheur
Children’s Medical Center; Azra Sehic, M.D.; Reggie Lyell,
M.D. and Forestine Carroll.
The jury found the plaintiffs’ damages to be $600,000.00 and apportioned zero percent
fault to Forestine Carroll, defendants Whitney and Lebonheur, and assessed thirty percent fault
to Dr. Sehic and seventy percent fault to Dr. Lyell. Judgment was entered on the jury verdict,
and plaintiffs’ appeal presents a single issue as set out in their brief:
Did the Circuit Court err in allowing the defendants to plead the
comparative fault of, and in allowing the jury to apportion fault
to, non-parties who were immune from suit in tort?
Plaintiffs contended in the trial court and argue in this Court that pursuant to the Supreme
Court’s opinion in Ridings v. Ralph M. Parson’s Co., 914 S.W.2d 79 (Tenn. 1996), defendants
cannot assert the fault of Sehic and Lyell because of their immunity granted by T.C.A. § 9-8-307
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(h). In Ridings, plaintiff was injured in the course and scope of his employment which was
covered by the workers compensation law of Tennessee. He subsequently filed a third-party tort
action against the manufacturer and distributor of the ladder which he alleged caused his injury.
The defendant sought to present proof that plaintiff’s employer caused or contributed to his
injury, and the issue before the Supreme Court was whether the defendants in a third-party suit
for personal injuries sustained in the course and scope of plaintiff’s employment and covered
under the workers’ compensation law can assert as an affirmative defense that the plaintiff’s
employer caused or contributed to the plaintiff’s injuries. 914 S.W.2d at 80.
In holding that there could be no apportionment of fault to the employer, the Court said:
The rationale of McIntyre postulates that fault may be
attributed only to those persons against whom the plaintiff has a
cause of action in tort. The designation “nonparty,” used in
McIntyre, is not a term of art; it means “not a party.” However,
it is given a particular meaning by the decision in McIntyre,
wherein the Court found that, upon defendant’s allegation that a
person not a party to the suit, a “nonparty,” caused or contributed
to the plaintiff’s injuries, the plaintiff, by amendment to the
complaint and service of process, may make the “nonparty” a
“party” that is answerable to the plaintiff in actions for damages
according to the Rules of Civil Procedure. Consequently, only a
nonparty against whom the plaintiff has a cause of action can be
made a party. Since the plaintiff’s employer cannot be made a
party to the plaintiff’s tort action for personal injuries sustained
in the course and scope of his employment, the rationale of
McIntyre, both as to principle and procedure, will not permit fault
to be attributed to the plaintiff’s employer.
914 S.W.2d at 81-82.
Our first line of inquiry is whether Sehic and Lyell, resident physicians acting in the
course and scope of their employment with the University of Tennessee, are immune from suit
as provided for in Ridings. Art. I, § 17, Constitution of the State of Tennessee, provides in part:
“Suits may be brought against the state in such a manner and in such courts as the legislature
may by law direct.”
T.C.A. § 20-13-102 (a) (1994) provides:
20-13-102. Actions against state prohibited. - (a) No court in
the state shall have any power, jurisdiction, or authority to
entertain any suit against the state, or against any officer of the
state acting by authority of the state, with a view to reach the
state, its treasury, funds, or property, and all such suits shall be
dismissed as to the state or such officers, on motion, plea, or
demurrer of the law officer of the state, or counsel employed for
the state.
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The legislature has not provided for the state to be sued for an action in tort in the courts
of this state but has provided for claims to be filed against the state before the board of claims
or the claims commission. T.C.A. § 9-8-307 (1992 & Supp. 1997). Notwithstanding the
provision for making a claim against the state, the legislature did not see fit to relinquish the
state’s sovereign immunity and allow tort actions to be brought against the state in the state
courts.
The statutory immunity granted to the resident physicians is basically a quid pro quo
situation, i.e., the State, as the master or employer, becomes subject to liability, while at the same
time the servants, or employees, are relieved of liability. Generally, when the master or
employer’s liability is based on the doctrine of respondeat superior, the master or employer
cannot be held liable if the employee is not liable. Loveman Co. v. Bayless, 128 Tenn. 307, 315,
160 S.W. 841 (1913); Sadler v. Draper, 46 Tenn. App. 1, 326 S.W.2d 148 (1959). This rule
does not apply where the nonliability of the servant is based upon personal immunity, 30 C.J.S.
Employer-Employee Relationship, § 299 (1992); 27 Am.Jur.2d Employment Relationship, § 469
(1996), and this result is reached in the Tennessee Claims Commission Act. The State, in effect,
is the alter-ego of the resident physicians. Although the State can be held responsible to plaintiff
under the Claims Commission Act, the State remains immune from suit in the state courts.
Ridings specifically states: “Since the plaintiff’s employer cannot be made a party to the
plaintiff’s tort action for personal injuries sustained in the course and scope of his employment,
the rationale of McIntyre, both as to principle and procedure, will not permit fault to be
attributed to the plaintiff’s employer.” Ridings, 914 S.W.2d at 82. Since the State and its
employees cannot be made parties to plaintiff’s tort action, they are immune from suit under the
Ridings rationale.
The Court in McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992) noted that “fairness
and efficiency require that defendants called upon to answer allegations in negligence be
permitted to allege, as an affirmative defense, that a nonparty caused or contributed to the injury
or damage for which recovery is sought.” 833 S.W.2d at 58. A corollary to this a statement is
that fairness and efficiency require that a plaintiff be allowed to make the so-called nonparty a
party to the tort action so that all claims can be resolved at one time.
Subsequent to Ridings, and after this case was concluded in the trial court, our Supreme
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Court decided the case of Snyder v. Ltg Lufttechnische GmbH, 955 S.W.2d 252 (Tenn. 1997).
This case came to the Supreme Court pursuant to Rule 23 of the Rules of the Supreme Court of
Tennessee concerning certified questions of law from federal courts. The primary question
presented was:
1. Whether products liability defendants in a suit for
personal injuries based on allegations of negligence and strict
liability in tort may introduce evidence at trial that the plaintiff’s
employer’s alteration, change, improper maintenance, or
abnormal use of defendants’ product proximately caused or
contributed to the plaintiff’s injuries.
955 S.W.2d at 253. The Court determined that an employer cannot be found to be the proximate
or legal cause of the plaintiff’s injuries, because the employer is immune from tort liability under
T.C.A. § 50-6-108 (a). Id. at 256. The Court did note, however, that the defendants in a
products liability suit “for personal injuries based on allegations of negligence and strict liability
in tort may introduce relevant evidence at trial that the plaintiff’s employer’s alteration, change,
improper maintenance, or abnormal use of the defendants’ product was a cause in fact of the
plaintiff’s injuries. Put another way, the jury may consider all evidence relevant to the event
leading up to the incident that injured the plaintiff.” Id. at 257. The Court then gave instructions
as to how this evidence should be considered by the jury. The Court said:
[T]he defendants may not take the legal position that the
employer’s actions were the legal cause of the plaintiff’s injuries.
The jury should be instructed that it may consider the actions of
the employer only in assessing whether the plaintiff has met his
burden of establishing the elements necessary to recover against
the defendants. Also, the jury should be instructed that it may
not, in making that determination, assess fault against the
employer. Finally, the trial judge should give an instruction that
lets the jury know that the employer’s legal responsibility will be
determined at a later time or has already been determined in
another forum.
Id.
While we are not dealing with a products liability suit involving an employer-employee
relationship and the employer’s action, we do have a question of sovereign immunity. In both
instances, provision is made for proceeding against an immune party in another forum.
Thus, we believe the rationale of Snyder should apply to the instant case. The trial court
did not have the benefit of the Supreme Court’s opinion in Snyder at the time this case was tried,
and the jury instructions concerning the activities of the nonparties dealt with proximate or legal
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cause as opposed to cause in fact. The defendants, while denying any error in the trial court
proceedings, assert that if the trial court erred in its jury instructions, it was harmless error,
because the jury assessed no fault to Whitney and Lebonheur. T.R.A.P. 36(b) provides:
(b) Effect of Error. - A final judgment from which relief is
available and otherwise appropriate shall not be set aside unless,
considering the whole record, error in involving a substantial
right more probably than not affected the judgment or would
result in prejudice to the judicial process.
In the instant case, the jury was instructed to determine the proximate cause of plaintiffs’
loss as opposed to a determination of cause in fact.3 In Snyder, the Supreme Court expressly
provided that there could be no finding of proximate or legal cause for plaintiffs’ injuries because
of the employer’s complete immunity for tort liability. Snyder, 955 S.W.2d at 256. The Snyder
Court noted that “the legislature has already determined that for policy reasons the employer may
not be the legal cause of the plaintiff’s injuries.” Id. In the instant case, by the same token, the
legislature has determined that the State and its employees are immune from suit in the state
courts, and the legislature provided another forum to settle claims filed against the State.
The jury in the instant case was instructed to assign a percentage of fault to the resident
physicians, and this instruction is contra to the Supreme Court’s holding in Snyder. Moreover,
the jury was instructed to determine proximate or legal cause for the plaintiff’s injuries. The
fault assessed to the resident physicians was determined to be the proximate or legal cause of
plaintiff’s injuries. If these resident physicians are immune from suit, as the employer in
Snyder, they cannot be found to be the proximate or legal cause of plaintiff’s injuries if we
follow the mandate of the Supreme Court.
On the issue of harmless error, we believe there is a distinction between this case and the
recent Supreme Court case of Turner v. Jordan, 957 S.W.2d 815 (Tenn. 1997). In Turner, the
plaintiff’s nurse was attacked and severely beaten by a psychiatric patient at the hospital. The
defendant was the attending psychiatrist, and the nurse sued the defendant for medical
negligence alleging “he violated his duty to use reasonable care in the treatment of his patient,
which proximately caused her injuries and damages.” Id. at 817. The jury was instructed to
3
Cause in fact and proximate or legal cause are different concepts. Kilpatrick v.
Bryant, 868 S.W.2d 594, 598 (Tenn. 1993). Cause in fact deals with the “but for”
consequences of act, and proximate or legal cause concerns a determination whether the legal
liability should be imposed because cause in fact has been established. Id., at 598.
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allocate fault between the alleged negligence of the physician-defendant and the alleged
intentional conduct of the mental patient. The jury allocated one hundred percent fault to the
defendant-psychiatrist. The Supreme Court held that the conduct of the negligent physician
should not have been compared to the conduct of the mental patient, stating “[t]he conduct of
a negligent defendant should not be compared with the intentional conduct of another in
determining comparative fault where the intentional conduct is the foreseeable risk created by
the negligent tortfeasor.” Id. at 823. The Court noted that while a negligent defendant may raise
intentional acts of others to refute elements of duty and causation on the part of the defendant,
“fairness dictates that it should not be permitted to rely upon the foreseeable harm it had a duty
to prevent so as to reduce it’s liability.” Id. at 823. Notwithstanding the error occurring in the
jury’s comparison of fault, the Supreme Court determined that it was harmless error, because the
jury assessed one hundred percent of the fault to the defendant-physician. Thus, in Turner,
notwithstanding an instruction allowing the comparing of the fault mentioned, the jury
determined that the physician bore the entire responsibility because of his failure to attempt to
negate the foreseeable damages that he had a duty to prevent. So, in Turner, plaintiff did not
suffer from the error that the Supreme Court found. However, in the instant case, it is uncertain
as to whether the jury would have assessed zero fault to Whitney and Lebonheur if they had not
been instructed that they could assess fault to Sehic and Lyell. Moreover, in view of the
Supreme Court’s specific instructions in Snyder, the erroneous charge in the case at bar could
result in prejudice to the judicial process.
Accordingly, the judgment of the trial court is reversed, and the case is remanded to the
trial court for further proceedings consistent with this opinion. Costs of appeal are assessed
against the appellees.
_________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
____________________________________
DAVID R. FARMER, JUDGE
____________________________________
HOLLY KIRBY LILLARD, JUDGE
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