Carroll v Whitney, 97-00246

Citation29 S.W.3d 14
Decision Date04 October 2000
Docket Number97-00246
CourtSupreme Court of Tennessee

Appeal by Permission from the Court of Appeals, Western Section Circuit Court for Shelby County No. 68714

Hon. Janice M. Holder, Judge

This is an appeal from the Circuit Court for Shelby County which allowed a jury, in an action alleging malpractice, to allocate fault to resident physicians who were immune from suit. The Court of Appeals reversed the judgment of the trial court and concluded that the trial court should not have permitted the jury to apportion fault to the residents because they were immune. We then granted this appeal to decide whether the trial court erred in allowing nonparties who were immune from suit to appear on a jury verdict form. After examining the record, considering the arguments of the parties and amicus curiae, and analyzing the applicable law, we conclude that the trial court did not err in allowing the immune nonparties to appear on the jury verdict form. Accordingly, for the reasons herein, we reverse the Court of Appeals and reinstate the judgment of the trial court.

Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the Court of Appeals Reversed

Robert L.J. Spence, Jr. and Chapman Sellers Morrow, Memphis, Tennessee, for the appellants, Carolyn Whitney, M.D., and Grover W. Barnes, M.D., P.C.; Thomas R. Prewitt, Robertson M. Leatherman, and Parke S. Morris, Memphis, Tennessee, for the appellant, LeBonheur Children's Medical Center, Inc.

Carl I. Jacobson and Ross Higman, Memphis Tennessee, for the appellees, James Carroll, Forestine Carroll, and James Carroll and Forestine Carroll for the use and benefit of the estate of Jessica Renee Carroll, a minor, deceased.

Jerry E. Mitchell and John H. Dotson, Memphis, Tennessee, for the Amicus Curiae, UT Medical Group, Inc.

WILLIAM M. BARKER, J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, and ADOLPHO A. BIRCH, JR., JJ., joined. E. RILEY ANDERSON, C.J., filed a dissenting opinion. JANICE M. HOLDER, J., not participating.


Jessica Renee Carroll, a fourteen-month-old child, died of sepsis1 and pneumonia on March 23, 1992, while she was a patient at LeBonheur Children's Medical Center (LeBonheur). The previous day, because Jessica was vomiting and running a fever between 100 and 105 degrees, her mother, Forestine Carroll, contacted Dr. Carolyn Whitney, Jessica's pediatrician. Later that day, Jessica's temperature began to fall and her vomiting ceased. Although Dr. Whitney agreed to see Jessica in her office the next day, she advised Mrs. Carroll to take Jessica to the emergency room if Jessica began having more problems with her temperature or vomiting.

When Dr. Whitney examined Jessica the next day, March 23, 1992, she found her to be nonresponsive with a low white blood cell count although she had only a slight fever. In addition, Dr. Whitney diagnosed Jessica as suffering from tonsillitis, a heart murmur, and dehydration. Jessica was admitted to LeBonheur, and Dr. Whitney ordered that she be administered antibiotics and intravenous fluids. Although Dr. Whitney did not include information concerning Jessica's low white blood cell count in her admission orders, she did direct that a complete blood count be performed.

At LeBonheur, Jessica was examined at approximately 1:00 p.m. by Dr. Reggie Lyell and Dr. Azra Sehic, University of Tennessee resident physicians. Dr. Lyell was a first-year resident physician, and Dr. Sehic was the supervising resident. Dr. Sehic was concerned that Jessica might be suffering from pneumonia with possible sepsis, and she ordered blood tests to be conducted. Dr. Lyell called and notified Dr. Whitney that Jessica's condition was stable. Both Dr. Lyell and Dr. Sehic were aware of the treatment ordered by Dr. Whitney, and Dr. Sehic later conceded that antibiotics, once recommended, should be administered within thirty minutes.

Around 3:30 p.m., Dr. Lyell was notified that the tests performed on Jessica's blood revealed the presence of bacteria in her blood. Dr. Lyell then contacted Dr. Sehic to inform her of the results. Although more than two and one-half hours had passed since the initial examination of Jessica at LeBonheur, Jessica still had not received the antibiotics and intravenous fluids ordered by Dr. Whitney. Dr. Sehic again examined Jessica and concluded that she needed to receive intravenous fluids and should be transferred to the intensive care unit. Shortly thereafter, Jessica suffered a seizure and lapsed into unconsciousness that lasted until her death around 6:30 p.m. The cause of Jessica's death was ultimately determined to be pneumonia and sepsis.

After Jessica's death, James and Forestine Carroll (the plaintiffs), brought a medical malpractice action against the following parties: LeBonheur, Dr. Whitney, Dr. Grover W. Barnes, Dr. Whitney's employer,2 and Dr. Sehic and Dr. Lyell (the residents). The residents filed a motion to dismiss arguing that, as state employees, they were immune from suit pursuant to Tennessee Code Annotated section 9-8-307. The trial court granted the motion, and the plaintiffs voluntarily dismissed the action against the remaining defendants.

The plaintiffs then re-filed this action against the non-immune defendants. In addition, the plaintiffs filed a claim against the State of Tennessee in the Claims Commission for the actions of the residents. During the trial in the Shelby County Circuit Court, the defendants referred to the claim against the State, and they argued that the residents' negligence, rather than their own conduct, was the cause of Jessica's death. At the conclusion of the trial, the judge instructed the jury to apportion fault among the defendants, the residents, and Forestine Carroll. The jury apportioned 70% fault to Dr. Lyell, 30% fault to Dr. Sehic, and 0% fault to the defendants and Forestine Carroll, and the trial court entered judgment consistent with the jury verdict.

The Court of Appeals reversed the judgment of the trial court and concluded that the jury should not have been permitted to apportion fault to the residents because they were immune from suit. The Court of Appeals also held that permitting the jury to apportion fault to the residents was not harmless error, because it was unclear whether the jury would have assigned 0% fault to the defendants had it not been instructed that it could also allocate fault to the residents. The defendants then filed an application for permission to appeal, which we granted.


In negligence actions prior to 1992, Tennessee courts applied the common law doctrine of contributory negligence. Under this doctrine, a plaintiff whose own negligence in any way contributed to the injury was barred from recovery. See Bejach v. Colby, 214 S.W.2d 869, 870 (Tenn. 1919); Kelley v. Johnson, 796 S.W.2d 155, 158-59 (Tenn. Ct. App. 1990).3 In McIntyre v. Balentine, 833 S.W.2d 52, 56 (Tenn. 1992), this Court adopted a modified system of comparative fault by which a plaintiff could recover damages if the plaintiff's negligence was less than that of the defendant. See id. at 56-57.4 According to the Court, fairness to plaintiffs justified the rejection of contributory negligence. "Justice simply will not permit . . . continued adherence to a rule that, in the face of a judicial determination that others bear primary responsibility, nevertheless completely denies injured litigants recompense for their damages." Id. at 56.

Also, fairness to defendants led the Court to conclude that the adoption of comparative fault rendered obsolete the doctrine of joint and several liability. See id. at 58. By rejecting contributory negligence, the Court sought a tighter fit between liability and fault. According to the Court, "it would be inconsistent to simultaneously retain a rule, joint and several liability, which may fortuitously impose a degree of liability that is out of all proportion to fault." Id. at 58. We surmised that under the new system, a defendant would only be liable for the percentage of damages caused by that defendant's negligence. See id. To permit the defendant to take advantage of this new system linking more closely liability to fault, the Court adopted a nonparty defense.5 As this Court explained:

[F]airness 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. In cases where such a defense is raised, the trial court shall instruct the jury to assign this nonparty the percentage of the total negligence for which he is responsible.Id.

Significantly, the Court did not require that a cause of action be available before a jury could apportion fault to nonparties. The Court stated in McIntyre that in order for a plaintiff to recover a judgment against such additional person, the plaintiff must have made a timely amendment to his complaint and caused process to be served on such additional person. Thereafter, the additional party will be required to answer the amended complaint.

Id. A plaintiff's ability to bring a cause of action was only important-to the extent that it mattered at all in the Court's analysis-in determining whether the plaintiff could recover damages, not whether a jury could apportion fault to a nonparty.

While we attempted to provide guidance on how to implement comparative fault, we explicitly left the treatment of nonparty tortfeasors to another day and an "appropriate controversy." See id. at 60. It was not until Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996), that the Court addressed this issue. In Ridings, the plaintiff brought a negligence action after he fell from a ladder during the course and scope of his employment. Relying upon McIntyre, the...

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