Document Category:
State: Tennessee
Subject Matter: Banks v. Boyce and Elks - TN SC Opinion - Original Tortfeasor
Document Title:

Good evening all. Thanks to Howard for this report on this important
decision from the Tennessee Supreme Court. The Court released its
exhaustive opinion in the consolidated cases of Alice Banks v. Dr.
Robert Boyce & The Elks Lodge.  Our office represents the newly
added nursing home defendants which were not before the court on the
appeal.  The matter came before the Supreme Court on an extraordinary
appeal after the Court of Appeals declined to accept an interlocutory
appeal prompted by the trial court itself.  The case solely involves
the issue of the continued viability of the "original tortfeasor rule"
(as explained below) in Tennessee with the adoption of modified
comparative fault.   The opinion is, to be kind, convoluted and
confusing.  It nevertheless has the potential to profoundly impact the
defense of long term care providers in Tennessee both substantively and
procedurally.  I will endeavor to explain the ruling below from my own
multiple readings of the opinion and my in-depth discussions with the
lawyers who handled the appeal.
   The basic facts in Banks are
that a morbidly obese plaintiff fell off of her chair (there is a
question whether it collapsed) at the Elks Lodge and aggravated a
pre-existing back condition.  She had back surgery by Dr. Boyce who
performed the operation at the wrong lumbar level and had to do a
second surgery the very next day at the correct lumbar level.  The
plaintiff had a bout of pneumonia in the hospital and then came to
Cumberland Manor Nursing Home immediately following her hospitalization
where she developed MRSA at her surgical wound that led to additional
injuries and damages.  Plaintiff sued the Elks Club and Dr. Boyce.
 Those two defendants sought leave to amend their answers to allege the
comparative fault of Cumberland Manor for complications of the surgical
wound supposedly caused by the malpractice of Cumberland Manor staff.
The trial court ruled that the defendants could not amend their
answers.  The trial court reasoned that Cumberland Manor could not be
held liable to the plaintiff because, under the original tortfeasor
rule, the original tortfeasor is on the hook for any foreseeable harm
caused by the actions of a subsequent caregiver even if the subsequent
caregiver commits malpractice.  The trial court essentially held that
the subsequent caregiver has immunity for any act of malpractice in
providing care necessitated by the original injury.  The trial judge
was sufficiently unsure of his ruling that he invited and ordered and
interlocutory appeal at the conclusion of the hearing.  Again, the TN
Supreme Court accepted an extraordinary appeal to decide the sole issue
of the "continuing viability in Tennessee of the common-law principle
that imputes liability to an original tortfeasor (i.e. Elks Club and
Dr. Boyce) for enhanced physical harm caused by the normal efforts of
third persons (i.e. Cumberland Manor) to render aid which an injured
party reasonably requires."   I use the term "original tortfeasor" in
reference to both the Elks Club and Dr. Boyce because the Supreme Court
explicitly held that a party- in this case Dr. Boyce- can concurrently
be "both an original tortfeasor and a successor tortfeasor" under these
   The Supreme Court reversed the trial court and held that the
original tortfeasor rule is still viable in Tennessee BUT it further
held that the rule is not necessarily applicable to the facts of this
case.  Therefore, the original two defendants are allowed to amend
their respective answers to allege the comparative fault of Cumberland
Manor and the plaintiff can in turn amend her complaint to sue
Cumberland Manor.  The explicit holding is that "the doctrine of joint
and several liability no longer applies to circumstances in which
separate, independent negligent acts of more than one tortfeasor
combine to cause a single, indivisible injury."  Then, in the very next
sentence, the Court states: "We hold that an actor whose tortious
conduct causes physical harm to another is liable for any enhanced harm
the other suffers due to the efforts of third persons to render aid
reasonably required by the other’s injury, as long as the enhanced harm
arises from a risk that inheres in the effort to render aid."   In
other words, the Supreme Court ruled that the original tortfeasor
doctrine doesn’t apply to these facts but then again, as a practical
matter, it does.
   To make the summary of a 17 page opinion short, the Court held that
an original tortfeasor is not solely on the hook where damages are
enhanced by a subsequent caregiver IF the subsequent caregiver is
before the court.  The Court explained that the way that subsequent
caregiver gets before the court is by the original defendant alleging
its comparative fault.  The plaintiff then can, but doesn’t necessarily
have to, amend the complaint to sue the subsequent caregiver.  If the
plaintiff chooses not to sue the subsequent caregiver, he runs the risk
that a jury will nonetheless apportion fault to the subsequent
caregiver, in which case, the plaintiff cannot recover that portion of
the assigned fault.  Of course,  the subsequent caregiver’s fault must
be proven in that scenario via proof offered by the original defendant.
 However, if the plaintiff sees fit to amend his complaint to sue the
newly named defendant, the Court explained that the burden to prove the
new defendant’s comparative fault essentially remains with the original
defendant who pointed the finger at the new defendant.  For that
reason, as the Court explained in a footnote, a motion for a directed
verdict by the new defendant is premature if made at the close of the
plaintiff’s proof.  Instead, the original defendant must be allowed to
try to prove the comparative or sole fault of the new defendant and,
only after the old defendant rests its case, is the motion of the new
defendant for a directed verdict procedurally appropriate.  The
practical effect of the holding is that the plaintiff can sue the newly
named defendant and then sit back and force the original defendant to
prove the plaintiff’s case against the new defendant.  The Supreme
Court made somewhat clear that if subsequent caregivers are not brought
before the court, the original tortfeasor can still be found liable for
all harm to the plaintiff including that caused by subsequent
caregivers.  In other words, the original tortfeasor rule is still
viable in this fact situation but only IF the subsequent caregivers are
not before the court.
   In applying the Banks holding to the all too typical LTC case, this
opinion makes clear that a subsequent caregiver is not immune from
liability for malpractice.  Therefore, under one all too common
scenario, if a nursing home resident falls and breaks his hip, the
hospital that treats the fracture can be liable to the plaintiff for
any medical complications such as skin breakdown if the result of
malpractice. The Banks holding dictates that the nursing home in the
foregoing scenario would still be liable to the plaintiff for the
original injury and any subsequent complications BUT the subsequent
caregiver can also be found liable for the enhanced harm if: 1)  it is
sued; and/or 2) comparative fault is alleged against it.  Another all
too common scenario in LTC case involves a resident coming to the
nursing home from the hospital with existing skin breakdown.  The Banks
opinion suggests that the nursing home cannot shield itself from
liability under the original tortfeasor rule if the skin breakdown gets
   We welcome any questions or comments. Have a good night.

Document Author: Rebecca Adelman
Firm/Company: Law Office of Rebecca Adelman
Document Date: February 11, 2009
Search Tags: tn comparative fault
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