Document Category:
State: Tennessee
Subject Matter: Vicarious Liability
Document Title:

Good day all and below is
Peter’s report on the new Tennessee Supreme Court Opinion regarding
vicarious liability that relates also to the Barkes opinion I reported on Wednesday.
We’ll keep you posted regarding legal and legislative developments in our
region and enjoy a wonderful Fall weekend. Rebecca


is the recent Tennessee Supreme Court opinion, Abshure v. Methodist, in
which the Court determined that the lower courts erred by dismissing the
Plaintiff’s vicarious liability claims against the hospital.

Abshure had a family history of colon and pancreatic cancer.  She
underwent a colonoscopy and began experiencing significant abdominal
discomfort, including a popping sensation in her side while attempting to have
a bowel movement 4 days later.  She presented to the Methodist Hospital ER
in Memphis where emergency exploratory surgery revealed a perforated colon. 
She filed suit in the general sessions court against two physicians and
Methodist Hospital.  She voluntarily dismissed the action against all
three defendants and re-filed her suit in the circuit court less than a year

litigation wore on in Circuit Court, the Plaintiff voluntarily dismissed the
two physicians for the second time, leaving only the hospital as a defendant
under a theory of vicarious liability.  Defendant argued (and the trial
court and Court of Appeals agreed) that Methodist was entitled to Summary
Judgment because they could not be held vicariously liable where the second
dismissal of the physicians precluded an assessment of liability against
them.  The Court of Appeals determined, therefore, that Methodist Hospital
could not, as a matter of law, be held vicariously liable for the
physician’s actions who had been dismissed from the suit. 

central issue in this appeal was whether the Plaintiff’s claim for vicarious
liability against Methodist must be dismissed because the Plaintiff’s
claims of direct liability against the physician were procedurally
barred by operation of law.  In reversing the lower courts and finding
that the vicarious liability claim should proceed against the Hospital, the TSC
discussed prior TN case law and found that there were only 4 exceptions to the
general rule that a Plaintiff ordinarily may proceed against the principal, the
agent, or both.  The Court found that none of the 4 exceptions (where it
would be improper to permit a plaintiff to proceed solely against a
principal based on its vicarious liability for the conduct of its agent) were
satisfied in the present case:

the agent has been exonerated by a finding of non-liability (on the merits);

the Plaintiff has settled the claim against the agent;

the agent is immune from suit via statute or common law;

the Plaintiff’s claim against the agent is procedurally barred by
operation of law BEFORE the plaintiff asserts a vicarious claim against the

facts of this case most closely fit within exception number 4 above.  The
Supreme Court clarified that the exception does not apply, however, where the
plaintiff has initially filed a vicarious liability claim against the
principal (and the agent’s are later extinguished by operation of
law).  The exception only applies where Plaintiff asserts direct
liability against the principal but fails to assert a vicarious liability claim
in the initial complaint.  In that scenario, the Plaintiff’s efforts
to amend the complaint to add a vicarious liability claim would be improper
after the agents were already dismissed. 

suit was released the same day as the TSC’s opinion in Barkes v. River
Park Hospital which we reported on earlier.  Both cases dealt with
vicarious liability and both cases solidify the TSC’s position that the
presence of the agent as a defendant in the suit is not necessary for a
plaintiff to proceed against the principal on a theory of vicarious liability
based on that agent’s conduct.  This case clarifies that this rule
is applicable as long as the Plaintiff alleges the vicarious liability of the
principal before the Plaintiff becomes procedurally barred from suing the
agent.  As always, we appreciate your comments and insights on this and
other precedent impacting the healthcare industry.    



S. Main St., Suite 111

Tennessee 38103




Document Author: TN Supreme Ct
Firm/Company: Adelman Law Firm
Document Date: February 18, 2020
Search Tags: TN agent employee employer corporate
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