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

Good evening and attached is the Tennessee Supreme Court’s opinion
released today in Barkes v. River Park Hospital. In this medical
negligence case, the TSC reviewed a jury verdict against a hospital
based on the hospital’s failure to enforce its policies and procedures
in patient care. Reversing the Court of Appeals, The TSC held that
Tennessee law has long recognized that a hospital may be found directly
liable to patients and has a duty to its patients to exercise that
degree of care, skill, and diligence used by hospitals generally in its

The relevant facts are that Mr. Barkes, after experiencing left arm
pain, presented to the defendant hospital. Mr. Barkes was triaged by a
hospital employed paramedic and then seen by a nurse practitioner and
there was evidence that a complete clinical history was not obtained
orally or documented. His clinical presentation was discussed between
the NP and the ER physician and he was discharged with instructions for
pain reliever and ice to his arm and rest. He was not evaluated by the
physician. Two hours after discharge, Mr. Barkes collapsed at home and
was admitted back to the hospital and efforts at resuscitation were
unsuccessful and he died.

At trial, only the River Park Hospital remained a defendant and the
other defendants (paramedic, NP and physician) and other entities had
been dismissed. In her claim against River Park, Mrs. Barkes asserted
that the care and treatment provided to her husband in the hospital’s
emergency room fell below the standard of reasonable care under the
circumstances. Specifically, Mrs. Barkes alleged that had Mr. Barkes
been triaged by a registered nurse instead of a paramedic, and had he
been seen and examined by a physician instead of a nurse practitioner,
the appropriate inquiries would have been made and the potential warning
signs of a heart attack would have been observed. Mrs. Barkes also
argued that had a physician examined her husband, the physician would
have observed that Mr. Barkes had many potential risk factors for a
heart attack, including being a heavy smoker, being obese with high
cholesterol levels and having a family
history of heart disease.

The Plaintiff’s experts testified that the hospital fell below the
standard of care agreed that the failure of River Park to follow its own
written policy requiring that a physician see and examine every patient
who presented at the emergency room was evidence of River Park’s breach
its duty to provide reasonable care.

The only claim surviving a directed verdict was direct liability
against the hospital and whether River Park was liable for not enforcing
the written policies and procedures existing at the time of Mr.
Barkes’s treatment. The jury returned a verdict finding River Park 100%
at fault for the death of Mr. Barkes. The jury found no fault on the
part of the individual health care providers who remained in the case
due to River Park’s comparative fault claims.

River Park appealed. As we reported in 2008, The Court of Appeals
reversed the trial court’s judgment on the jury verdict, holding that
Tennessee law does not recognize a theory of corporate liability under
which the hospital could be found responsible to a patient absent a
finding of vicarious liability for negligence by a treating health care
Because the jury verdict found River Park 100% at fault and assigned
zero fault to the individual treating health care providers, the Court
of Appeals held the verdict to be inconsistent and irreconcilable and
remanded the case for a new trial.

The issue presented on appeal is whether Mrs. Barkes may recover against
River Park under a direct theory of negligence. The jury found the
hospital 100% at fault for failing to enforce its written policies and
procedures in the course of Mr. Barkes’s  treatment. The TSC then
analyzed  whether Tennessee law permits a cause of action against a
hospital for failing to enforce its policies and procedures in patient

The TSC had not previously addressed the doctrine of corporate
negligence as to hospitals, and neither adopted nor rejected it to
resolve the Barkes’s appeal. Instead, the TSC relied on prior Tennessee
decisions permitting direct negligence actions against hospitals that
have failed
to exercise. Tennessee law clearly recognizes that hospitals owe a duty
of reasonable care to their patients and may be directly liable to
patients independent of any liability based on the hospital’s employees
or agents. As such, Mrs. Barkes’s cause of action against River Park is
cognizable in Tennessee and the TSC reversed the Court of Appeals.

The experts presented evidence that River Park’s policy in effect at the time of Mr. Barkes’s treatment stated, "Any patient
arriving at the Emergency Department will be seen by the emergency
department nurse; triaged; and then seen by the appropriate physician."
It also stated, "All patients presenting for treatment in the emergency
room are assessed by an emergency physician." The experts further
testified that based upon the testimony of the caregivers in the
hospital, had the policies been followed, Mr. Barkes would have been
clinically evaluated and his life may have been saved as a physician
would have identified the risk of possible heart attack. Based on the
material evidence presented at trial, the jury was entitled to draw the
reasonable conclusion that the hospital’s failure to inform the
emergency room health care providers of its policies and its failure to
effectively implement a system of oversight and enforcement of its
policies was negligence that caused Mr. Barkes’s death.

This opinion may have far reaching impact on the extended care and
assisted living and other industry providers as claims that there have
been violations of policies and procedures by the corporate managers and
owners are standard in lawsuits. To date, we have moved to dismiss
claims of direct corporate liability based upon violations of P&Ps
based upon Barkes and other appeal late decisions. This ruling by the
TCT will most probable be relied upon by PA’s in the LTC and ALF claims
and will serve a basis for the compelling production of P&Ps which
we have routinely objected to absent a showing of relevance to the claim
again individuals. As we’ve been witnesses across the country, claims
of direct negligence for corporate liability are withstanding dismissal
motions and creating higher exposure for the industry. We will continue
to keep you advised of developments and let us know if you have any
questions and we welcome comments.

Take care. Rebecca

Rebecca Adelman

545 S. Main St., Suite 111
Memphis, Tennessee 38103
p] 901.529.9313
f] 901.529.8772

Document Author: TN Supreme Ct
Firm/Company: Adelman Law Firm
Document Date: February 27, 2020
Search Tags: TN agent employee employer corporate
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