Chapter 72: Subsequent Medical Negligence, Liability of Original Tortfeasor

§72.1 Generally

The Case: Banks v. Elks Club Pride of Tennessee 1102 , 301 S.W.3d 214 (Tenn. 2010).

The Basic Facts: "This appeal involves the continuing viability in Tennessee of the common-law principle that imputes liability to an original tortfeasor for enhanced physical harm caused by the normal efforts of third persons to render aid which an injured party reasonably requires." 301 S.W.3d at 215.

The Bottom Line:

  • "This Court has not addressed the continuing viability of the original tortfeasor rule since deciding McIntyre v. Balentine in 1992. Despite the Court of Appeals's belief to the contrary, we do not view McIntyre v. Balentine as being incompatible with the common-law rule permitting a tortfeasor to be found liable for subsequent negligent conduct of third parties that is a foreseeable result of the original tortfeasor's negligence. Even though our decision in McIntyre v. Balentine altered the common-law rules for determining the apportionment of the liability among multiple tortfeasors, it did not alter the common-law rules for determining when tortfeasors are liable for the harm they cause." Id. at 220-21.
  • "McIntyre v. Balentine did not require this Court to determine the role that the original tortfeasor rule would play following the advent of comparative fault. During the intervening years, the Court of Appeals has decided on three occasions that the original tortfeasor rule - embracing both the liability of the original tortfeasor for subsequent negligent acts and the concept of joint and several liability - was not affected by our decision in McIntyre v. Balentine.

    In the first case presented to the Court of Appeals, the court observed that 'to allow a tortfeasor to reduce his damages by alleging the subsequent negligence of a medical provider would for all practical purposes abolish the common law rule.' Atkinson v. Hemphill, No. 01A01-9311-CV-00509, 1994 WL 456349 at *2 (Tenn. Ct. App. Aug. 24, 1994) (No Tenn. R. App. P. 11 application filed). Believing that the abolition of the common-law original tortfeasor rule would 'penalize injured parties in several inequitable ways,' the court concluded, '[w]e do not believe that the Supreme Court intended this result.' Atkinson v. Hemphill, 1994 WL 456349, at *2.

    The Court of Appeals followed the Atkinson v. Hemphill decision four years later. Troy v. Herndon, No. 03A01-9707-CV-00271, 1998 WL 820698, at *1-2 (Tenn. Ct. App. Nov. 24, 1998) (No Tenn. R. App. P. 11 application filed). When the issue was next presented in 2003, the Court of Appeals again followed Atkinson v. Hemphill, but for the first time, the defendant requested this Court to review the decision. While we did not review the case, we designated the Court of Appeals' decision 'Not for Citation.' Jackson v. Hamilton, No. W2000-01992-COA-R3-CV, 2003 WL 22718386, at *5-6 (Tenn. Ct. App. May 21, 2003), perm. app. denied, designated not for citation (Tenn. May 10, 2004). This designation signified that the opinion could not be considered persuasive authority. Tenn. Sup. Ct. R. 4(G)(1).

    We have concluded that the Court of Appeals analyses in the three cases it considered failed to differentiate between the two principles embodied in the original tortfeasor rule - the original tortfeasor's liability for subsequent negligent acts of third parties and the original tortfeasor's joint and several liability with the subsequent negligent actors. Accordingly, we now take this occasion to disapprove the holdings in Atkinson v. Hemphill, Troy v. Herndon, and Jackson v. Hamilton with regard to the original tortfeasor rule." Id. at 221 (footnote omitted)
  • "The principles governing liability for successive injuries are settled. They recognize that there are circumstances in which an earlier tortfeasor may be held liable not only for the injury caused by its own negligent conduct but also for later injury caused by the negligent conduct of another tortfeasor. [RESTATEMENT (SECOND) OF TORTS] § 433A, cmt. c (1965); Prosser and Keeton § 52, at 352. Liability in these circumstances arises when the subsequent negligent conduct is a foreseeable or natural consequence of the original tortfeasor's negligence. 2 Jacob A. Stein, Stein on Personal Injury Damages § 11:7 (3d ed. 2009) (hereinafter 'Stein'); see also McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn. 1991) (noting that '[a]n intervening act, which is a normal response created by negligence, is not a superseding, intervening cause so as to relieve the original wrongdoer of liability, provided the intervening act could have reasonably been foreseen and the conduct was a substantial factor in bringing about the harm').

    Negligence in subsequent medical treatment of a tortiously caused injury is the most common invocation of this rule. Lee & Lindahl, at § 6:3; Prosser and Keeton § 52, at 352; 2 Stein, at § 11:7. The first two [Restatements of Torts] recognized this principle. [Restatement (Second) of Torts] § 457, at 496; [RESTATEMENT OF TORTS] § 457, at 1214 (1934). It has also been carried forward in the Proposed Final Draft of the [Restatement (Third) of Torts]: Liability for Personal Injury in the following form:
    An actor whose tortious conduct is a factual cause of physical harm to another is subject to liability for any enhanced harm the other suffers due to the efforts of third persons to render aid reasonably required by the other's injury, so long as the harm arises from a risk that inheres in the effort to render aid.

    [Restatement (Third) of Torts]: Liability for Physical Harm § 35, at 693 (Proposed Final Draft No. 1 2005) [('Restatement (Third) of Torts]: Liability for Physical Harm').
    Tennessee's courts have recognized and applied this principle for over one hundred years. This Court first alluded to it in Arkansas River Packet Co. v. Hobbs, 105 Tenn. 29, 44-46, 58 S.W. 278, 282 (1900). In 1931, we invoked it as an alternate basis for preventing an injured employee from filing a medical malpractice suit against an employer-provided physician after the employee obtained a judgment against the employer. Revell v. McCaughan, 162 Tenn. 532, 538, 39 S.W.2d 269, 271 (1931). In 1967, characterizing the principle as a 'well settled principle of law,' we employed it for the first time to decide a dispute that did not arise out of a workplace injury. Transports, Inc. v. Perry, 220 Tenn. at 64-65, 414 S.W.2d at 4-5. Ten years later in another case involving a workplace injury, we noted that this now well settled principle 'applies to the general field of tort law.' McAlister v. Methodist Hosp., 550 S.W.2d 240, 242 (Tenn. 1977)." Id. at 221-22.
  • "To understand the effect of McIntyre v. Balentine on the original tortfeasor rule, the two principles in that rule - the original tortfeasor's liability for subsequent negligent acts of third parties and the original tortfeasor's joint and several liability with the subsequent negligent actors - must be unraveled and considered separately." Id. at 222-23.
  • "Today, we state unequivocally that our decision regarding joint and several liability in McIntyre v. Balentine did not alter Tennessee's common-law rules with regard to liability of tortfeasors for injuries caused by subsequent medical treatment for the injuries they cause. That rule is a rule that determines 'when defendants are liable for the harm they caused.' [Restatement (Third) of Torts]: Liability for Physical Injury § 35, cmt. d, at 696-97. Thus, the rule in Tennessee is now, as it was before McIntyre v. Balentine was decided, 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. See [Restatement (Third) of Torts]: Liability for Physical Injury § 35, at 693." Id. at 223.
  • "However, at the same time, we again reaffirm our earlier decisions holding that following McIntyre v. Balentine, 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. Sherer v. Linginfelter, 29 S.W.3d at 455; Samuelson v. McMurtry, 962 S.W.2d at 476; Owens v. Truckstops of Am., Inc., 915 S.W.2d at 430. This decision is not inconsistent with our decision to retain the rule imposing liability on tortfeasors for subsequent negligent medical care for the injuries caused by the original tortfeasor. As the drafters of the proposed [Restatement (Third) of Torts]: Liability for Physical Injury have explained:
    Nor does modification of joint and several liability require or imply any change in the rule contained in . . . Section [35]. Modern adoption of pure several liability limits the liability of each defendant liable for the same harm to that defendant's comparative share of the harm. See [Restatement Third, Torts]: Apportionment of Liability § 11.FN12 Several liability, however, does not provide rules about when defendants are liable for harm that they caused. When two or more defendants are liable for the enhanced harm suffered by a plaintiff, as may occur under this Section, and the governing law imposes several liability, each of the defendants is held liable for the amount of damages reflecting the enhanced harm discounted by the comparative share responsibility assigned by the factfinder to that defendant.
    [Restatement (Third) of Torts]: Liability for Physical Harm § 35, cmt. d., at 697.
    FN12. Restatement (Third) of Torts: Apportionment of Liability § 11 (2000) provides: "When, under applicable law, a person is severally liable to an injured person for an indivisible injury, the injured person may recover only the severally liable person's comparative-responsibility share of the injured person's damages."
    Id.
  • "Finally, Ms. Banks and the Tennessee Association for Justice assert that public policy dictates retaining joint and several liability in circumstances where an injured person suffers enhanced physical harm due to the efforts of third persons to render aid to the injured person for injuries caused by the defendant's negligence. They assert that joint and severable liability is appropriate because (1) the original defendant is the proximate cause of the entire injury and (2) doing away with joint and several liability will require injured persons to make difficult choices with regard to filing suit against their treating physicians." Id. at 224.
  • "The proximate cause argument overlooks the fact that in cases of this sort, the original tortfeasor's conduct is not the sole proximate cause of the plaintiff's indivisible injury. To the contrary, the independent tortious conduct of the original tortfeasor and one or more other parties are both proximate causes of the injury. The tortfeasors are not acting in concert, have not breached common duty, and do not have a relationship triggering the application of vicarious liability. Cf. Resolution Trust Corp. v. Block, 924 S.W.2d at 354-55, 357; Gen. Elec. Co. v. Process Control Co., 969 S.W.2d at 916; Camper v. Minor, 915 S.W.2d at 4474-8. Therefore, this circumstance is governed by our consistent holding that joint and several liability is no longer applicable in circumstances 'where the separate, independent negligent acts of more than one tortfeasor combine to cause a single, indivisible injury.' Sherer v. Linginfelter, 29 S.W.3d at 455; Owens v. Truckstops of Am., 915 S.W.2d at 430; see also Samuelson v. McMurtry, 962 S.W.2d at 475-76. As we noted more than one century ago, where 'there is no intent that the combined acts of all shall culminate in the injury resulting therefrom, . . . it is just that each should only be held liable so far as his acts contribute to the injury.' Swain v. Tenn. Copper Co., 111 Tenn. 430, 439, 78 S.W. 93, 94 (1903)." Id.
  • Ms. Banks and the Tennessee Association for Justice also insist that not applying joint and several liability in circumstances like the one involved in this case will place plaintiffs in the difficult position of being forced to sue their treating physicians and, thereby, adding the complexity of a medical negligence claim to an otherwise straightforward ordinary negligence case." Id. at 224-25.
  • "When a defendant tortfeasor files an answer asserting the affirmative defense that a nonparty healthcare provider is at fault for the plaintiff's injuries, the plaintiff has two options. First, it can decide not to name the healthcare provider as a defendant under Tenn. Code Ann. § 20-1-119(a) (2009) and run the risk of a diminished recovery if the defendant succeeds in convincing the trier of fact that the nonparty healthcare provider is partially or completely at fault. Second, the plaintiff can amend its complaint in accordance with Tenn. Code Ann. § 20-1-119(a) and thereby preserve its opportunity for an undiminished recovery.

    When a plaintiff elects to amend its complaint to name as a defendant a healthcare provider whom the original defendant identified as liable for the plaintiff's injury, the burden of proof regarding the healthcare provider's negligence does not shift entirely to the plaintiff. It remains with the original defendant who asserted the affirmative defense of comparative fault. Thus, the plaintiff is not required to shoulder the difficulty and expense of proving medical negligence unless, for some reason, it chooses to do so, just as Ms. Banks has already done in this case. That burden remains with the defendant who asserted the affirmative defense of comparative fault in the first place.FN14

    Leaving the burden of proof with the defendant asserting the comparative fault defense does not prejudice plaintiffs who elect to amend their complaint to name a healthcare provider as a defendant after the original defendant has asserted that the healthcare provider is comparatively at fault. If the original defendant is unable to prove that the healthcare provider is liable, the plaintiff may still obtain a complete recovery from the original defendant, just as it originally set out to do. If, however, the original defendant is successful in proving that the healthcare provider is liable, then the plaintiff may obtain a complete recovery apportioned between the original defendant and the healthcare provider based on their fault.

    Plaintiffs are not required to amend their complaints to add as defendants third parties whom a defendant identifies as a contributing tortfeasor. That decision remains entirely in their control. Amending a complaint to add as a defendant a third-party tortfeasor identified by the original defendant also does not force the plaintiff to try a case it was not prepared to try.FN15 Therefore, amending a complaint pursuant to Tenn. Code Ann. § 20-1-119(a) to name as a defendant a third party named by a defendant as a contributing tortfeasor is neither burdensome nor costly.
    FN14. Accordingly, if a plaintiff amends its complaint to add a new defendant identified by the original defendant as contributing to the plaintiff's indivisible injuries, trial courts would not act on the new defendant's motion for a directed verdict until the close of all the proof in order to permit the original defendant to present its evidence regarding the new defendant's fault. A directed verdict at the close of the plaintiff's proof would be appropriate only when the original defendant states that it lacks sufficient evidence to send the issue of the new defendant's fault to the jury. If the new defendant's motion for directed verdict is granted, the jury cannot be requested to allocate any portion of the fault to the now-dismissed defendant.

    FN15. Tenn. Code Ann. § 29-26-122(b) (Supp. 2009) requires defendants who assert a comparative fault affirmative defense against a physician or other healthcare provider that will require the introduction of expert testimony in accordance with Tenn. Code Ann. § 29-26-115 (Supp. 2009) to file a certificate of good faith within thirty days after filing their answer. There is no similar statutory obligation imposed on plaintiffs who amend their complaint pursuant to Tenn. Code Ann. § 20-1-119 after the original defendant has asserted a comparative fault defense involving a nonparty physician or other healthcare provider."
    Id. at 225-26 (footnote 13 omitted).
  • "...the Elks Lodge defendants assert that the original tortfeasor principle is inconsistent with this Court's opinion in Mercer v. Vanderbilt University, Inc, 134 S.W.3d 121 (Tenn. 2004). They argue that Mercer v. Vanderbilt University, Inc. stands for the proposition that a 'negligent actor should not be held responsible for the subsequent negligence of a healthcare provider under Tennessee's law of comparative fault.' The Elks Lodge defendants have placed more weight on the Mercer opinion than it can bear.

    The principles that dictated the result in Mercer v. Vanderbilt University, Inc. do not apply to cases like this one for two reasons. First, unlike Mercer where we declined to extend comparative fault to patients who sue their physicians for negligence because doing so would prevent any recovery for injured patients who were found to be more than fifty percent at fault, applying comparative fault in this case will not prevent an injured plaintiff from recovering. See Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d at 129-30. It will simply enable the trier of fact to apportion the fault between the defendants whose conduct caused or contributed to the plaintiff's injuries.

    Second, holding that original tortfeasors will not be liable for the enhanced injuries caused from the efforts of physicians or other healthcare providers to render aid to an injured plaintiff would be contrary to the basic tenets of Tennessee tort law, more than one century of Tennessee common-law precedents, and the general principles of liability reflected in the [RESTATEMENT OF TORTS]. Negligence is conduct that violates a person's obligation to exercise reasonable care to avoid engaging in behavior that creates an unreasonable danger to others. Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 363 (Tenn. 2008). Persons who are negligent are liable for the natural and probable consequences of their conduct, Doe v. Linder Constr. Co., 845 S.W.2d 173, 181 (Tenn. 1992), as long as their conduct was a substantial factor in bringing about the plaintiff's injury, the injury was reasonably foreseeable, and there is no statute or policy relieving them of liability. Naifeh v. Valley Forge Life Ins. Co., 204 S.W.3d 758, 771 (Tenn. 2006).

    Ever since the advent of comparative fault in 1992, we have emphasized 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. Sherer v. Linginfelter, 29 S.W.3d at 455; Samuelson v. McMurtry, 962 S.W.2d at 476; Owens v. Truckstops of Am., Inc., 915 S.W.2d at 430. Today, we have explicitly held that the doctrine of joint and several liability does not apply in cases where the injuries caused by the negligence of the original tortfeasor are enhanced by the subsequent negligence of physicians and other healthcare providers. Nothing in Mercer v. Vanderbilt University, Inc. dictates a contrary result. Accordingly, we decline the Elks Lodge defendants' invitation to extend our ruling in Mercer v. Vanderbilt University, Inc. to entirely eliminate the original tortfeasor rule." Id. at 226.
  • "Dr. Boyce has raised four other issues, only one of which merits discussion. He argues that the original tortfeasor principle cannot be applied to him because he 'cannot be simultaneously branded the original tortfeasor and a successive tortfeasor.' We respectfully disagree. Dr. Boyce can, in fact, be both an original tortfeasor and a successive tortfeasor.

    In cases involving successive acts of malpractice, many courts have recognized that the original treating physician may be liable for the injuries caused by the negligence of subsequent physicians for medical treatment undertaken to mitigate the harm caused by the original physician's malpractice. Lee & Lindahl, at § 6:3; see also, e.g., Daly v. United States, 946 F.2d 1467, 1471-72 (9th Cir. 1991); Carter v. Shirley, 488 N.E.2d 16, 20 (Mass. App. Ct. 1986); Lindquist v. Dengel, 595 P.2d 934, 937 (Wash. 1979); Rine ex rel. Rine v. Irisari, 420 S.E.2d 541, 545 (W. Va. 1992).

    The specific circumstance in which a physician qualifies both as an 'original tortfeasor' and a 'successive tortfeasor' was well addressed in State ex rel. Blond v. Stubbs, 485 S.W.2d 152 (Mo. Ct. App. 1972). The plaintiff was injured as a result of a dangerous condition at a building operated by the Tenth and Main Corporation and was treated by three different physicians. He alleged that each of the physicians had treated him negligently and that their treatment enhanced the injuries for which the Tenth and Main Corporation and the earlier treating physicians were responsible. Applying the original tortfeasor rule, the Missouri Court of Appeals concluded:
    By reason of the operation of the foregoing rule, defendant Tenth and Main Corporation is liable not only for its own alleged negligence, but also for the alleged negligence of all [three] doctors; likewise, [the first in time physician] is liable, not only for his own alleged negligence, but also for that of the two succeeding doctors; likewise, [the second in time physician] is liable for his own alleged negligence and also that of [the third in time physician]. The net result of all this is that the alleged negligence of [the third in time physician] is a common occurrence for which all four defendants have potential liability.
    State ex rel. Blond v. Stubbs, 485 S.W.2d at 154.

    The continuing liability under the original tortfeasor rule is not tied to anything magical about being the 'original' tortfeasor. It stems instead from being a proximate cause of an aggravated injury resulting from subsequent medical treatment of the negligent injury that one has caused or aggravated. See Transports, Inc. v. Perry, 220 Tenn. at 64-65, 414 S.W.2d at 4; [Restatement (Third) of Torts]: Liability for Physical Harm § 35, at 693. We agree with the approach employed by the Missouri Court of Appeals in State ex rel. Blond v. Stubbs. Accordingly, we find that Dr. Boyce can, in fact, simultaneously be an original tortfeasor, for purposes of the aggravation that he allegedly caused and a subsequent aggravation resulting from the alleged medical negligence of Cumberland Manor, and a successive tortfeasor, for purposes of the injury allegedly negligently caused by the Elks Lodge and allegedly negligently aggravated by Dr. Boyce." Id. at 227 (footnote omitted).

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