Kilpatrick v. Bryant, 02S01-9107-CV-00027

CourtSupreme Court of Tennessee
Citation868 S.W.2d 594
PartiesSandra K. KILPATRICK and William Kilpatrick, Plaintiffs-Appellants, v. James W. BRYANT, M.D., Defendant-Appellee.
Docket NumberNo. 02S01-9107-CV-00027,02S01-9107-CV-00027
Decision Date22 December 1993

Page 594

868 S.W.2d 594
Sandra K. KILPATRICK and William Kilpatrick, Plaintiffs-Appellants,
James W. BRYANT, M.D., Defendant-Appellee.
No. 02S01-9107-CV-00027.
Supreme Court of Tennessee,
at Jackson.
Dec. 22, 1993.

Al H. Thomas, Thomas & Thomas, P.C., Memphis, for plaintiffs-appellants.

Gary K. Smith, Archie Sanders, III, William D. Domico, Shuttleworth, Smith, McNabb & Williams, Memphis, for defendant-appellee.


DROWOTA, Justice.

In this medical malpractice case, the Plaintiffs, Sandra and William Kilpatrick, have appealed from a decision of the Court of Appeals affirming the grant of summary judgment in favor of Dr. James W. Bryant, Defendant-Appellee. We granted the Plaintiffs' Rule 11 application to decide whether a cause of action for "loss of chance" is cognizable in Tennessee. For the reasons discussed below, we decline to recognize such a cause of action and hold that there can be no liability in a medical malpractice case for negligent diagnosis or treatment that decreases a patient's chances of avoiding death or other adverse medical condition where the death or adverse medical condition would probably have occurred anyway.


The Plaintiffs alleged in their complaint that on May 18, 1987, Dr. Bryant examined Sandra Kilpatrick at which time a lump was detected in her right breast. Dr. Bryant ordered a mammogram which was performed on May 21, 1987, by Dr. Thipavan Boone. Dr. Boone interpreted the xeromammography films and stated that no definite outline of a mass or indication of malignancy was seen. Mrs. Kilpatrick avers that Dr. Bryant informed her that the mammogram results were negative. Approximately four months later, in September, Mrs. Kilpatrick was examined by another physician who did a biopsy. Cancer was detected and Mrs. Kilpatrick underwent a right radical mastectomy a month later for removal of the cancer of the right breast.

The Plaintiffs sued Dr. Bryant and the radiologists who performed the mammogram, although the radiologists were later voluntarily dismissed from the case. The Plaintiffs claim that Dr. Bryant was negligent in the treatment of Mrs. Kilpatrick in relying

Page 597

upon the findings of the radiologists and in failing to inform her of the need to seek follow-up care. Specifically, their complaint alleges that

[t]he Defendant, James W. Bryant, was negligent and careless in the treatment of the Plaintiff, Sandra K. Kilpatrick, inasmuch as he should not have relied totally upon the findings of the radiologists, and that further he failed to even suggest the need for follow-up examination or further consultation; that likewise, as a direct and proximate result of his negligence, Plaintiff, Sandra K. Kilpatrick, suffered more serious complications and a general worsening of her cancerous condition as a result of her cancer going undetected for approximately four months.

It is further claimed by the Plaintiffs that Dr. Bryant's negligence required Mrs. Kilpatrick to seek additional medical treatment, suffer loss of earning capacity and enjoyment of life, experience pain and disablement, and has made her medical condition worse than it would otherwise be. Mr. Kilpatrick seeks recovery for loss of consortium.

In his answer, Dr. Bryant denied that his conduct fell below the required standard of care. He also denied that the physical condition of Mrs. Kilpatrick resulted from any violation of the standard of care by him. Dr. Bryant filed a motion for summary judgment on the basis that the Plaintiffs failed to present evidence establishing the elements of a medical malpractice action as set forth in T.C.A. § 29-26-115. In opposition to Dr. Bryant's motion for summary judgment, the Plaintiffs filed the affidavit of Dr. James A. Schell, which stated that he was familiar with the recognized standard of care for physicians in Memphis and the care and treatment of patients with suspected breast cancer. He further stated that Dr. Bryant failed to meet the accepted standard of medical care. Dr. Schell's affidavit addressed only the issues of the standard of care and its alleged violation by Dr. Bryant. The Plaintiffs also filed the affidavit of Dr. Lee R. Morisy, Mrs. Kilpatrick's subsequent treating physician. Dr. Morisy stated that he operated on Mrs. Kilpatrick and performed the right radical mastectomy. The only proof concerning causation in this case is found in the affidavit of Dr. Morisy. He states that

I am of the medical opinion, based on a reasonable degree of medical certainty, that the delay of four (4) months in the operation performed increased the likelihood of Mrs. Kilpatrick suffering irreparable damage.

The trial court granted Dr. Bryant's motion for summary judgment and dismissed the case. The Court of Appeals affirmed on the basis that the physicians' affidavits supplied by the Plaintiffs in opposition to the motion for summary judgment did not establish that Mrs. Kilpatrick had suffered injuries that would not otherwise have occurred but for Dr. Bryant's negligence. The intermediate court explained that

[i]n the case at bar, Plaintiffs' proof is from the affidavit of Dr. Morisy which states that the 'delay of four (4) months ... increased the likelihood of Mrs. Kilpatrick suffering irreparable damage.' This proof deals with future effect resulting from the action of the physician. The affidavit does not state the delay of four months caused Mrs. Kilpatrick to suffer irreparable damage. It merely states that there is a likelihood or probability that the delay would cause irreparable damage.

Accordingly, the Court of Appeals affirmed the dismissal of the case.


A proper resolution of the present controversy requires that it be viewed in the context of certain well-established principles of tort law. Because this case centers on medical malpractice, the starting point is T.C.A. § 29-26-115(a). According to this statute, the plaintiff in a medical malpractice case has the burden of proving the following:

(1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which he practices or in a similar community at the time the alleged injury or wrongful action occurred;

(2) That the defendant acted with less than or failed to act with ordinary and

Page 598

reasonable care in accordance with such standard; and

(3) As a proximate result of the defendant's negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.

This statute codifies the common law elements of negligence--duty, breach of duty, causation, proximate cause, and damages. Cardwell v. Bechtol, 724 S.W.2d 739, 753 (Tenn.1987); Dolan v. Cunningham, 648 S.W.2d 652, 654 (Tenn.App.1982). No claim for negligence can succeed in the absence of any one of these elements. Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.1993).

Cases involving the "loss of chance" theory of recovery necessarily focus on the elements of causation and proximate cause. See, e.g., Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397 (Tex.1993). Causation, or cause in fact, means that the injury or harm would not have occurred "but for" the defendant's negligent conduct. See Caldwell v. Ford Motor Co., 619 S.W.2d 534, 543 (Tenn.App.1981); Wyatt v. Winnebago Industries, Inc., 566 S.W.2d 276, 280 (Tenn.App.1977). Once it is established that the defendant's negligent conduct was, in point of fact, the actual cause of the plaintiff's injury or harm, the focus then becomes whether the policy of the law will extend responsibility for that negligent conduct to the consequences that have occurred. As this Court stated in Doe v. Linder Const. Co., Inc., 845 S.W.2d 173 (Tenn.1992), "legal responsibility must be limited to those causes which are so closely connected with the result and are of such significance that the law is justified in imposing liability. Some boundary must be set...." Doe, 845 S.W.2d at 181 (quoting Prosser and Keeton, The Law of Torts 264 (5th ed. 1984)). Fixing this boundary of liability is the purpose underlying the element of proximate cause. Proximate cause

is merely the limitation which the courts have placed upon the actor's responsibility for the consequences of the actor's conduct.... [T]he consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond. Any attempt to impose responsibility upon such a basis would result in infinite liability.... 1


Causation and proximate cause are distinct elements of negligence, and both must be proven by the plaintiff by a preponderance of the evidence. Bradshaw, 854 S.W.2d at 869; McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn.1991); Smith v. Gore, 728 S.W.2d 738, 749 (Tenn.1987). "Causation (or cause in fact) is a very different concept from that of proximate cause. Causation refers to the cause and effect relationship between the tortious conduct and the injury. The doctrine of proximate cause encompasses the whole panoply of rules that may deny liability for otherwise actionable causes of harm." King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Injuries and Future Consequences, 90 Yale L.J. 1353, 1355 n. 7 (1981). Thus, proximate cause, or legal cause, concerns a determination of whether legal liability should be imposed where cause in fact has been established. McKellips v. Saint Francis Hosp., 741 P.2d 467 (Okl.1987). "Cause in fact, on the other hand, deals with the 'but for' consequences of an act. 'The defendant's conduct is a cause of the event if the event would not have occurred but for that conduct.' " Id. at 470 (quoting Prosser and Keeton, The Law of Torts 266 (5th ed. 1984)).

The critical issue in this appeal, as in all loss of chance cases, is whether the Plaintiffs have failed, as a matter of law, to establish the existence of causation, i.e., that the purported medical malpractice actually...

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