Kelly on Malpractice

Suppose during discovery your expert contends that a nonparty breached the standard of care. After hearing this, the defendant physician or hospital refuses to amend its answer and allege comparative fault against the nonparty. Instead, the defendant hints throughout discovery and before trial that someone else is responsible for your client’s injuries. The defendant also contends that your expert is hypercritical, prone to blame every healthcare provider in the case. Your concern is that the defendant will chase this rabbit down every hole. You worry that the jurors will go down the rabbit hole too. You should be concerned. It can a fatal argument. What can you do? I suggest that move in limine to preclude the defendant from arguing that the nonparty is responsible for the plaintiff’s injury. To do this, you need to be aware of two important supreme court cases: George v. Alexander, 931 S.W.2d 517 (Tenn.1996) and Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 84 (Tenn.1996). Stop the rabbit chase at the courthouse steps.

In George, the plaintiff was admitted to a hospital for surgery to be performed by her gynecologist, Dr. Daniell. Under the direction of Dr. Daniell, surgical nurses placed the plaintiff on her back in a modified lithotomy position. She remained in this position throughout the surgery. The plaintiff experienced pain extending down her right leg and foot after the surgery. She was permanently impaired. The plaintiff’s condition was caused by severe damage to two nerve roots in her spine. The plaintiff sued her anesthesiologists, Dr. Jones and Dr. Alexander, for medical malpractice. The plaintiff did not sue her gynecologist, Dr. Daniell. The defendants answered the complaint and denied any negligence. The defendants never amended their answer to include additional defenses of comparative fault. The plaintiff deposed Dr. Allen, a neurosurgeon, who had treated her injuries. Dr. Allen left the impression that the plaintiff’s injury was caused by Dr. Daniell through improper positioning during surgery. The plaintiff moved in limine to exclude Dr. Allen’s testimony about Dr. Daniell being a cause of the plaintiff’s injuries because the defendants never identified Dr. Daniell as a nonparty at fault. The trial court denied plaintiff’s motion. There was a defense verdict. On appeal, the plaintiff argued that the deposition of Dr. Allen was offered for the sole purpose of shifting the blame away from the defendants and onto Dr. Daniell in violation of Rule 8.03. The defendants countered that they used Dr. Allen’s testimony to show that Dr. Daniell’s actions were the cause of the plaintiff’s harm. The defendants argued that they did not attempt to prove that Dr. Daniell was negligent in a legal sense. Thus, the defendants concluded Rule 8.03 did not come into play. The Supreme Court rejected the defendants’ argument, calling it “unfounded.” A defendant cannot attempt to shift the “fault,” “blame,” or “liability” to another person without identifying that other person in the answer. In order for a defendant to shift fault, he must affirmatively plead the negligence of another. Otherwise, a defendant would still be justified in totally surprising the plaintiff and foisting the blame on other persons, a result that violates the purpose of Rule 8.03.

Comparative fault is among the enumerated affirmative defenses in Rule 8.03. The rule provides that the defense of comparative fault must include “the identity or description of any other alleged tortfeasors.” TENN. R. EVID. 8.03. In Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 84 (Tenn.1996), the Supreme Court held that the failure of the defendant to identify other potential tortfeasors precludes the attribution of fault against such persons and results in the defendant being liable for all damages except those attributable to the fault of the plaintiff. Identification of other tortfeasors in an affirmative defense is the prerequisite to fault attribution at trial. Ridings and George mean that the defendant cannot use subterfuge like arguing causation or a general denial to deflect blame to a nonparty who was never identified in the answer. This stops the rabbit chase in its tracks.

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