Banks v. Elks Club Pride of Tennessee 1102

• Citation: 301 S.W.3d 214
• Decision Date: 13 January 2010
• Docket Number: No. M2008-01894-SC-S09-CV.,M2008-01894-SC-S09-CV.
• Parties: Alice J. BANKS v. ELKS CLUB PRIDE OF TENNESSEE 1102 et al.
• Court: Tennessee Supreme Court

301 S.W.3d 214

Alice J. BANKS v. ELKS CLUB PRIDE OF TENNESSEE 1102 et al.

No. M2008-01894-SC-S09-CV.

Supreme Court of Tennessee, at Nashville.

June 3, 2009 Session.

January 13, 2010.

Garrett E. Asher, Matthew A. Moushon, and Jennifer G. Rowlett, Nashville, Tennessee, for the appellant, The Elks Club Pride of Tennessee 1102, Pride of Tennessee Lodge of Elks No. 1102, Improved Benevolent, and Elks Lodge 1102 Pride of Tennessee.

Dixie W. Cooper, Carol Davis Crow, and Brian P. Mannokian, Nashville, Tennessee, for the appellant, Robert H. Boyce, M.D., and Premier Orthopaedics & Sports Medicine, P.C.

David E. High, Nashville, Tennessee, for the appellee, Alice J. Banks.

Daniel L. Clayton, Nashville, Tennessee, for the Amicus Curiae, Tennessee Association of Justice.

Matthew S. Russell and Melanie M. Stewart, Germantown, Tennessee, for the Amicus Curiae, Tennessee Defense Lawyers Association.

OPINION

WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which JANICE M. HOLDER, C.J., CORNELIA A. CLARK, GARY R. WADE, and SHARON G. LEE, JJ., joined.

This appeal involves the continuing viability in Tennessee of the common-law principle that imputes liability to an original tortfeasor for enhanced physical harm caused by the normal efforts of third persons to render aid which an injured party reasonably requires. A guest at a private club was injured on the club's premises. The injuries to the guest's back were compounded first by the conduct of her surgeon and second by the actions or inactions of a nursing home where the guest was a patient following her surgery. The guest filed separate lawsuits against the private club and her surgeon in the Circuit Court for Davidson County. After the cases were consolidated, the club and the surgeon moved to amend their answers to assert comparative fault claims against the nursing home. The trial court denied their motions but granted them permission to pursue an interlocutory appeal. After the Court of Appeals declined to consider the interlocutory appeal, the club and the surgeon sought this Court's permission for an interlocutory appeal. We granted their application. We now hold that an original tortfeasor is not jointly and severally liable for the further aggravation of an original injury caused by a subsequent tortfeasor's medically negligent treatment of the injury caused by the original tortfeasor's negligence. Therefore, we have determined that the trial court erred by denying the motions of the club and the surgeon to amend their complaints to assert comparative fault claims against the nursing home.

I.

Alice J. Banks attended a social event at an Elks Lodge in Nashville on March 24, 2006. While she was there, the chair on which she was seated collapsed, causing serious injuries to Ms. Banks's back.¹ Ms. Banks consulted with Dr. Robert H. Boyce, a physician affiliated with Premier Orthopaedics and Sports Medicine, P.C. ("Premier Orthopaedics"), who recommended lumbar surgery at the L3-L4 and L4-L5 levels. The procedure consisted of a decompression laminectomy and fusion. Ms. Banks agreed to have the procedure performed.

On May 16, 2006, Ms. Banks underwent surgery at Centennial Medical Center. While Dr. Boyce's operative report indicates that he performed a lumbar laminectomy and fusion at the L3-L4 and L4-L5 vertebrae as intended, he actually performed the surgery upon the L2-L3 and L3-L4 vertebrae. It was only after the surgery was completed that Dr. Boyce realized he mistakenly performed the surgery at the L2-L3, rather than the L4-L5 vertebrae. As a result, Ms. Banks was required to undergo a second surgery on May 17, 2006.

Following Ms. Banks's surgeries, she was transferred to Cumberland Manor Nursing Home ("Cumberland Manor") for further recuperation and rehabilitation. While a patient at Cumberland Manor, Ms. Banks developed a serious staphylococcus infection that required additional surgeries and extensive care and treatment.

On March 23, 2007, Ms. Banks filed suit in the Circuit Court for Davidson County against the Elks Club Pride of Tennessee 1102, Pride of Tennessee Lodge of Elks No. 1102 Improved Benevolent, and Elks Lodge 1102 Pride of Tennessee² ("Elks Lodge defendants"). She alleged that the negligence of the Elks Lodge defendants had caused her back injuries. The case was assigned to the Sixth Circuit Court.

On May 10, 2007, Ms. Banks filed a separate lawsuit against Dr. Boyce and Premier Orthopaedics ("Dr.Boyce") in the Circuit Court for Davidson County. She asserted claims of medical negligence and medical battery based on Dr. Boyce's performance of an unauthorized procedure. This case was assigned to the Fifth Circuit Court.

Dr. Boyce later requested the Fifth Circuit Court to transfer Ms. Banks's lawsuit against him to the Sixth Circuit Court where her lawsuit against the Elks Lodge defendants was pending. Ms. Banks agreed to the transfer, and on January 8, 2008, the Fifth Circuit Court filed an order transferring Ms. Banks's case against Dr Boyce to the Sixth Circuit Court. On January 16, 2008, the Sixth Circuit Court entered an order consolidating the two cases for management and discovery purposes.

On May 30, 2008, the Elks Lodge defendants filed a Tenn. R. Civ. P. 15.01 motion to amend their answer to assert a comparative fault defense against Cumberland Manor. They alleged that they had learned during the discovery process that Cumberland Manor's improper care and treatment had contributed to Ms. Banks's staphylococcus infection. They also asserted that this infection had aggravated Ms. Banks's injuries and damages and that Ms. Banks was seeking to hold them responsible for these additional injuries and damages. The Elks Lodge defendants also reserved the right "to amend their comparative fault defense to allege fault of others throughout the course of discovery and trial." On June 2, 2008, Dr. Boyce also sought to amend his answer to assert a comparative fault defense against Cumberland Manor, adopting the same language set forth in the Elks Lodge defendants' motion.

Ms. Banks opposed the defendants' motions to amend their answers to assert a comparative fault defense against Cumberland Manor. She argued that the defendants' efforts to assert a comparative fault defense "against a subsequent healthcare provider for alleged negligent medical treatment that was brought on by the injuries negligently caused by the named defendants is inappropriate." In their trial court briefs, the parties argued vigorously over whether what they referred to as the "original tortfeasor rule" or the "original tortfeasor doctrine"³ survived this Court's decision in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992) and its progeny.

On August 15, 2008, the trial court entered an order denying the Elks Lodge defendants' and Dr. Boyce's motion to amend their complaints to assert comparative fault claims against Cumberland Manor. The court reasoned that "the holdings in the cases of Transports, Inc. v. Perry, 220 Tenn. 57, 414 S.W.2d 1 (1967) and Atkinson v. Hemphill, 1994 WL 456349 (Tenn.Ct.App.1994), [are] still good law and the proposed amendments would be futile and therefore must be denied under Rule 15, Tennessee Rules of Civil Procedure." On its own motion, the court also suggested that pursuing a Tenn. R.App. P. 9 interlocutory appeal from its decision would be appropriate. The Elks Lodge defendants and Dr. Boyce pursued an interlocutory appeal; however, on September 10, 2008, the Court of Appeals denied their application for an interlocutory appeal without comment.

On October 9, 2008, the Elks Lodge defendants and Dr. Boyce filed a Tenn. R.App. P. 9 application for permission to appeal. We granted the application on December 15, 2008. Following our decision to grant permission to appeal, Ms. Banks, seeking to avoid potentially adverse statute of limitations impact should this Court determine that the trial court erred in not permitting the Elks Lodge defendants or Dr. Boyce to amend their answers to assert an affirmative defense against Cumberland Manor, amended her complaint to name Cumberland Manor as a tortfeasor.

II.

Eighteen years ago, this Court produced a sea-change in Tennessee's tort law by replacing the common-law concept of contributory negligence with the concept of contributory fault. McIntyre v. Balentine, 833 S.W.2d at 56. We expressly recognized at that time that many of the issues arising from the transition to a comparative fault regime would be addressed in later cases. McIntyre v. Balentine, 833 S.W.2d at 57. Accordingly, it has come to pass that this Court has been presented with many opportunities since 1992 to revisit, refine, and clarify many of the central tenets of McIntyre v. Balentine and to address their impact on Tennessee tort law.

One of the central tenets of McIntyre v. Balentine is that the doctrine of joint and several liability was "obsolete" because it was inconsistent with the doctrine of comparative fault. McIntyre v. Balentine, 833 S.W.2d at 58.⁴ We explained that the doctrine of comparative fault, which would more closely link liability and fault, could not be reconciled with joint and several liability which could "fortuitously impose a degree of liability that is out of all proportion to fault." McIntyre v. Balentine, 833 S.W.2d at 58.

The announcement that the doctrine of joint and several liability was obsolete, while later characterized as dictum,⁵ was not met with universal acceptance. Mr. McIntyre and one of the parties who filed an amicus curiae brief requested a rehearing to address "the advisability of retaining joint and several liability in certain limited circumstances." This Court declined to grant the petition for rehearing, stating that "such further guidance should await an appropriate controversy." McIntyre v. Balentine, 833 S.W.2d at 60.

Thus, the McIntyre v. Balentine decision left behind some ambiguity regarding the continuing viability of any application of...