concurring.
T.C.A. § 41-21-204(b) provides in pertinent part: “Any inmate who is ill shall *256receive proper medical treatment.” The question is whether a prisoner on furlough is an “inmate” for purposes of this right. The State avers that this Section authorizes medical care for persons within a penal institution. The State further avers that the statutes appear to contemplate the furnishing of medical care to persons under the control of and in the custody of state officials at a penal facility; that is, persons confined in an institution and becoming ill or being injured in connection with that confinement.
The majority opinion states that “as a general rule furloughed inmates are inmates for purposes of the duty to provide medical treatment.” The majority holds, and I agree, that “a prisoner on a short furlough from a state institution remains in the custody of the State and is an inmate for the purpose of medical treatment. This is in keeping with the holding of this Court that an inmate on furlough is still in the custody of the State of Tennessee so that he is subject to prosecution as an escapee when he fails to return promptly from the furlough.”
Judge Koch states in his dissenting opinion in the Court of Appeals that: “The furlough was not intended to be a release or discharge from the department’s custody but rather was intended merely to extend the limits of Mr. Bryson’s confinement. Smith v. State, 361 A.2d 237, 238 (Del.1976); State v. Strollo, 370 A.2d 675, 678 (Me.1977); see also Lacey v. State, 506 S.W.2d 809, 810 (Tenn.Crim.App.1974). A person on furlough is still a prisoner and is still in custody even though he or she has been given the privilege of being temporarily outside of the institution. People v. Mercurio, 169 Cal.App.3d 1108, 1112, 216 Cal.Rptr. 1, 3-4 (1985); State v. Williams, 490 So.2d 255, 260 (La.1986); State v. Strollo, 370 A.2d at 678."
I would also point out that the accident occurred at 5:35 a.m. on July 1, 1987, near Mount Juliet. Mr. Bryson’s furlough expired by its own terms at 10:30 a.m. that same day. Thus, five hours after the accident, Mr. Bryson was no longer on furlough. Clearly, by 10:30 a.m. on July 1, 1987, after the State learned of Mr. Bry-son’s hospitalization at Vanderbilt University Hospital and left him to be treated in that institution rather than transferring him to one of its own facilities, the State became obligated to pay for his reasonable medical treatment.
Upon the expiration of Bryson’s furlough, he was subject to the control, direction and supervision of the Tennessee Department of Corrections, whether or not the Department of Corrections exercised its supervision. His status was no different than that of any inmate whose medical condition requires treatment at a free-world hospital.
The medical bills have not been itemized. However, the length of the hospital stay after the furlough expired, seven to eight days, is proof that some, if not most of the medical bills, were incurred during that time. The dismissal of the case on the ground that Mr. Bryson was on furlough when injured was not warranted as a factual matter. I, therefore, concur with the majority opinion and would remand this matter to the Claims Commission to determine what were the reasonable costs of treatment not paid by a collateral source. The State is entitled to equitable subrogation for the sums collected by Plaintiff, less attorney’s fees.
FONES, J., joins in this concurring opinion.