IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
ETHEL FAYE GEORGE, ) FOR PUBLICATION
)
Plaintiff-Appellant, ) Filed: October 7, 1996
)
v. ) DAVIDSON CIRCUIT
)
CLYDE WAYNE ALEXANDER, ) Hon. Marietta Shipley, Judge
and PHILLIP R. JONES, M.D., )
)
Defendants-Appellees. )
)
)
)
) No. 01-S01-9505-CV-00084
For Plaintiff-Appellant: For Defendants-Appellees:
R. Stephen Doughty Rose P. Cantrell
Weed, Hubbard, Berry & Doughty George A. Dean
Nashville, Tennessee Parker, Lawrence, Cantrell & Dean
Nashville, Tennessee
FILED
OPINION October 7, 1996
Cecil W. Crowson
Appellate Court Clerk
COURT OF APPEALS REVERSED. DROWOTA, J.
In this medical malpractice case, the plaintiff, Ethel Faye George, appeals from
the Court of Appeals’ affirmance of a judgment based on a jury verdict in favor of the
defendants, Clyde Wayne Alexander, M.D. and Phillip R. Jones, M.D. This case
presents the following issue for our determination: whether a defendant in a
negligence case must, pursuant to Rule 8.03 of the Tennessee Rules of Civil
Procedure, plead comparative fault as an affirmative defense if the defendant wishes
to introduce evidence that a person other than itself caused the plaintiff’s injury. We
conclude that the defendant is required to affirmatively plead comparative fault in
such a situation; and because that was not done in this case, we reverse the
judgment of the Court of Appeals.
FACTS AND PROCEDURAL HISTORY
In October 1989 the plaintiff was admitted to West Side Hospital in Nashville
for gynecological surgery. In order to prepare the plaintiff for the surgery, Dr. Jones,
an anesthesiologist, began to administer spinal anesthesia. As he tried to insert a
needle into her lower back for this purpose, however, Ms. George allegedly
experienced pain in her right leg and told Dr. Jones of this pain. Dr. Jones then
withdrew the needle and attempted twice more to administer the anesthesia; but Ms.
George allegedly experienced pain in her right leg each time. Thereafter, Dr. Jones
called Dr. Alexander, another anesthesiologist, into the room to assist him. When Dr.
Alexander attempted to insert the needle, Ms. George allegedly again experienced
pain. The defendants eventually were successful in anesthetizing the plaintiff; and
she was placed in the “lithotomy position” for surgery by nurses under the direction
of James Daniell, Jr., M.D., the surgeon. Dr. Daniell then carried out the surgery.
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Immediately after the operation, Ms. George experienced pain extending down
her right leg into her foot; she was unable to flex her right foot and felt pain when
pressure was applied to her right leg. It has since become clear, and it is undisputed
here, that Ms. George suffered damage to two different nerve roots during the
operation. As a result of this injury, she is unable to flex her right foot, has no right
ankle reflex, and continues to have pain and loss of sensation in her foot and portions
of her right leg. Because of this condition, she must wear a brace and sometimes
uses crutches or a wheelchair; moreover, her condition is permanent.
In October 1990 Ms. George brought an action against Doctors Jones and
Alexander, alleging that their negligence in administering the spinal anesthesia
proximately caused her injuries. The defendants answered the complaint, denying
any negligence and reserving the right to assert additional defenses as they became
known through the discovery process. The defendants never amended their answer
to include additional defenses. Furthermore, the plaintiff propounded interrogatories
to the defendants asking if it was their position that the injuries had been caused by
another person. The defendants responded that they had no definitive opinion as to
the cause of plaintiff’s injuries. This response was also never amended.
In October 1993 plaintiff’s counsel took the deposition of Vaughn Allen, M.D.,
the neurosurgeon who had treated Ms. George for her injuries. In the course of the
deposition, Dr. Allen explained that Ms. George had suffered injuries to two separate
nerve roots. Dr. Allen also stated that in his opinion there were two possible
explanations for the injuries: (1) that they had occurred as a result of the spinal
anesthetic; and (2) that they had occurred as a result of improper positioning during
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surgery. As to the first possible cause, Dr. Allen testified that because the needle
used during the spinal was very small, and because the likelihood of hitting two
separate nerve roots with the needle is negligible, the injury could not have been
caused by the anesthetic unless the plaintiff had a “conjoined nerve root” -- a rare
anatomic condition whereby two nerves are enclosed in a single protective sheath.
Dr. Allen discounted this possibility, however, based on his analysis of a myelogram
report and an MRI scan. Thus, Dr. Allen concluded that although it was
thereoretically possible that Ms. George’s injuries could have been caused by the
spinal anesthetic, it was highly unlikely. With regard to the other possible cause, Dr.
Allen first stated that proper positioning of a patient’s body during surgery is crucial,
and that ensuring that the patient is properly positioned is the primary responsibility
of the surgeon performing the operation. Dr. Allen testified that improper positioning
of the body could cause a “stretch injury” to the nerves, but that a stretch injury is
highly unlikely if the patient is actually positioned correctly. With regard to the latter
point, Dr. Allen testified as follows when questioned by the plaintiff’s attorney:
Q: Doctor, do you have an opinion within a reasonable degree of
medical certainty that improper positioning of Ms. George for this
surgery she had was the cause of her nerve damage to her leg?
A: In my opinion that would be the plausible cause, yes sir.
Q: So that would be your opinion within a reasonable degree of medical
certainty?
A: Yes, it would.
Q: And it is your -- do you have an opinion within a reasonable degree
of medical certainty, doctor, that improper positioning of the patient
would not occur, normally not occur if the patient was positioned within
the standard of care for the physicians involved?
A: Yes. As I have testified before, unless there was some underlying
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anatomic reason which I don’t believe Ms. George has, that would be
an accurate statement as well.
...
Later in the deposition Dr. Allen testified as follows when asked about the “lithotomy
position”:
Q: Doctor, assuming someone is properly positioned in the lithotomy
position ..., do you have an opinion within a reasonable degree of
medical certainty that that person, if they were properly positioned in a
lithotomy position, would have an injury such as Ms. George has?
A: It would be profoundly unlikely that with proper positioning that one
would end up with a nerve injury.
Q: So would you have an opinion within a reasonable degree of
medical certainty that -- if, as you opine, this was caused by a stretch
injury, would you have an opinion within a reasonable degree of
medical certainty that there was improper positioning?
A: Either improper positioning initially or as the case went on stretch
injury involving improper positioning such as pushing against her legs
or something of that nature, but my answer would be yes.
...
(Emphasis added).
The defendants subsequently filed a notice of intent to offer the deposition of
Dr. Allen at trial. The plaintiff responded by filing a motion to exclude the testimony,
contending that, pursuant to Rule 8.03, Tenn. R. Civ. P., the defendants had a duty
to plead comparative fault as an affirmative defense if they wished to offer evidence
that another person had caused the injury, and that the defendants had failed to so
plead. The trial court denied the plaintiff’s motion, and the videotape of Dr. Allen’s
deposition was played to the jury. Moreover, the defendants’ counsel used the
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deposition to cap off his closing argument, contending that: “[l]adies and gentlemen,
the proof looked at demonstrates conclusively through Dr. Allen that the lithotomy
position may very well have been the way that the injury was caused here, the
surgery position. Thank you very much. “ The jury returned a verdict in favor of the
defendants; and the trial court entered judgment upon that verdict.
The plaintiff appealed to the Court of Appeals, which affirmed the trial court’s
judgment. We granted the plaintiff’s Rule 11 application to address this issue of first
impression concerning Rule 8.03, Tenn. R. Civ. P.
ANALYSIS
Rule 8.03 of the Tennessee Rules of Civil Procedure, entitled “Affirmative
Defenses,” provides in pertinent part that: “[i]n pleading to a preceding pleading, a
party shall set forth affirmatively facts in short and plain terms relied upon to
constitute ... comparative fault (including the identity or description of any other
alleged tortfeasors) ... ”. (Emphasis added.) The “comparative fault” language was
added to the rule in July 1993 by the Advisory Commission, which explained the
amendment as follows:
‘Comparative fault’ is substituted for ‘contributory negligence’ in light of
McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). Note that the
defendant must identify or describe other alleged tortfeasors who
should share fault, or else the defendant normally would be barred from
shifting blame to others at trial.
(Emphasis added.)
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The plaintiff argues that because the deposition of Dr. Allen was offered for
the sole purpose of shifting the blame for the injuries away from the defendants and
onto Dr. Daniell -- the surgeon primarily responsible for positioning the patient -- Rule
8.03 required the defendants to affirmatively plead Daniell’s fault as a defense. As
support for this argument, the plaintiff also cites the following language from McIntyre:
[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 ...
McIntyre, 833 S.W.2d at 58.
In response, the defendants argue that Rule 8.03 is triggered only when the
defendant seeks to show that another person was legally at fault for the plaintiff’s
injuries. Because negligence, the type of legal fault at issue here, requires proof of
the elements of duty, breach of duty, causation in fact, proximate causation and
injury, see McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991), the
defendants contend that Rule 8.03 does not apply unless they attempted to prove
that Dr. Daniell’s conduct satisfied all these elements. The defendants then contend
that they introduced Dr. Allen’s testimony simply to show that Dr. Daniell’s actions
were the factual cause of the plaintiff’s harm. Because, the defendants assert, the
testimony only pertains to one element of negligence, that of causation in fact, and
does not cover the additional element of proximate causation, they did not attempt
to prove that Dr. Daniell was negligent in a legal sense. Thus, they conclude, Rule
8.03 did not come into play.
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While the defendants’ position seems plausible at first blush, its assumption
that proof of proximate cause is necessary to “shift the blame” to another is
unfounded. Since proximate cause is actually just a policy decision of the judiciary
to “deny liability for otherwise actionable causes of harm,”1 see Kilpatrick v. Bryant,
868 S.W.2d 594, 598 (Tenn. 1993); Joseph H. King, Jr., Causation, Valuation and
Chance in Personal Injury Torts Involving Preexisting Conditions and Future
Consequences, 90 Yale L.J. 1353, 1355, n.7 (1981), the defendants’ position ignores
the fact that “blame-shifting” in a negligence context actually has to do with the
element of causation in fact. Once the defendant introduces evidence that another
person’s conduct fits this element, it has effectively shifted the blame to that person.
Therefore, if the defendants’ position were to be accepted, any defendant wishing to
transfer blame to another person at trial could always maintain that it is not trying to
show that the other’s conduct satisfies the legal definition of negligence, but that it is
merely trying to establish that the other person’s conduct actually caused the injury.
1
Prosser and Keeton define the troublesome concept of proximate causation as
follows:
Once it is established that the defendant’s conduct has in fact
been one of the causes of the plaintiff’s injury, there remains
the question whether the defendant should be held legally
responsible for the injury. Unlike the fact of causation, with
which it is often hopelessly confused, this is primarily a
problem of law. It is sometimes said to depend on whether the
conduct has been so significant and important a cause that the
defendant should be legally responsible. But both significance
and importance turn upon conclusions in legal policy, so that
they depend essentially on whether the policy of the law will
extend the responsibility for the conduct to the consequences
that have in fact occurred ... The legal limitation on the scope
of liability is [thus] associated with policy -- with our more or
less inadequately expressed ideas of what justice demands, or
of what is administratively possible and convenient.
Prosser and Keeton on Torts, § 42, 36 (5th ed. 1984) (Emphasis added.)
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In the latter situation, however, the defendant has fully accomplished what Rule 8.03
was intended to prevent: it has effectively shifted the blame to another person without
giving the plaintiff notice of its intent to do so. Therefore, the purpose of Rule 8.03
would be undermined to a substantial degree if the defendants’ overly technical
argument were to prevail.
The concurring opinion -- which accepts the contention that proximate
causation is required to establish “blame-shifting” -- disputes this conclusion. In so
doing, it first cites the following language from Ridings v. Ralph M. Parsons Co., 914
S.W.2d 79, 84 (Tenn. 1996): “[f]ailure of the defendant to identify other potential
tortfeasors would preclude the attribution of fault against such persons and would
result in the defendant being liable for all damages except those attributable to the
fault of the plaintiff.” The concurrence then reasons that because the defendant is
liable for all damages not caused by the plaintiff if it does not plead under Rule 8.03,
it will have sufficient incentive to identify other potential tortfeasors even if we accept
the defendants’ argument.
We readily acknowledge that the factfinder may not formally attribute fault to
other persons at trial if the defendant does not identify them under Rule 8.03; thus,
the defendant does have some incentive to plead under the rule. This, however,
does not change the fact that if the position advocated by defendants and the
concurrence were to prevail, then the defendant, by carefully limiting its evidence of
another person’s role in causing the injuries to the element causation in fact, could
completely and effectively shift the blame to that person without affording the plaintiff
any notice whatsoever of its intent. A defendant would still be justified in totally
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surprising the plaintiff and foisting the blame on other persons, a result that violates
the purpose of Rule 8.03.
One final argument advanced by the defendants remains to be addressed.
They argue that the purpose of Rule 8.03 was not violated in this case because the
plaintiff was clearly aware of the possibility that Dr. Daniell had caused the injury.
The defendants point out that the plaintiff’s counsel actually elicited the quoted
testimony from Dr. Allen; they also contend that the plaintiff’s counsel met with Dr.
Daniell well before trial to discuss whether he should be included in the suit. The
defendants conclude that, because the plaintiff knew all the facts regarding Dr.
Daniell’s involvement, and had the opportunity to include him in the suit but simply
chose not to do so, their failure to raise comparative fault as an affirmative defense
did not prejudice the plaintiff.
We decline to accept this “harmless error” argument. Rule 8.03 is a
prophylactic rule of procedure that must be strictly adhered to if it is to achieve its
purposes. It is designed to obviate the need for appellate courts to look into the
record for actual prejudice each time a defendant introduces proof at trial of an
unpleaded defense. To accept the defendants’ argument on this point would invite
evasion of a clearly-stated rule of procedure that is crucial to the equitable and
efficient administration of a comparative fault system.
Because the defendants contravened Rule 8.03 by attempting to shift the
blame to another person at trial without affirmatively pleading comparative fault, the
judgment of the lower courts is hereby reversed, and the cause remanded for further
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proceedings consistent with this opinion.
______________________________________
FRANK F. DROWOTA III
JUSTICE
CONCUR:
Birch, C.J.,
Anderson, White, J.
Reid, J. - Separate Concurring Opinion.
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