# FILED January 12, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT NASHVILLE

_______________________________________________________ ) RHONDA S. BRYANT, and husband , ) Davidson County Circuit Court NATHAN G. BRYANT , ) No. 96C-1013 ) Plaintiffs/Appella

nts. )

) VS. ) C.A. No. 01A01-9801-CV-00046 ) DAVID H. MCCORD,

M.D., DAVID H. ) MCCORD, d/b/a TENNESSEE SPINE ) CENTER, INC., ACRO MED ) CORPORATION, ACROMED, INC., ) and COLUMBIA/HCA HEALTHCARE ) CORPORATION, ) ) Defendants, ) ) And ) ) HCA HEALTH SERVICES OF ) TENNESSEE, INC., ) d/b/a CENTENNIAL MEDIC AL ) CENTER , ) ) Defendant/Appellee, )

______________________________________________________________________________ From the Circuit Co

urt of Davidson Cou

nty at Nashv

ille Honorable Walter C. Kurtz, Judge

Charles J. Williams , John B. Carlson , WILLIA MS & ASSOCIATES, P.C., Nashville, Tennessee G. Thomas Nebel , LAW OFFICES OF TOM NEBEL , P.C., Nashville, Tennessee Attorneys f

or Plaintiffs/Appe

llants. C. J. Gideon, Jr. , William S. Walton , GIDEON & WISEMAN, Nashville, Tennessee Attorneys f

or Defendants/A

ppellees.

OPINION FIL

ED: AFFIRMED IN P

ART, REVERSED IN PA RT AND REMANDED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) TOMLIN, Sp. J. : (Concurs)Pla inti ff Rhonda Bryant appeals an order of the trial court granting summary judgmentin favor of

Defendant Centennial Medical Center (CMC). We find, contrary to the ruling of the trial court, th

at there is a genuine issue of material fact regarding whether CMC violated a duty of care owed to Bryant. Thus, we reverse the portion of the t rial court’s order granting summary judgmentto CMC with respect to Bryant’s hospital malpractice claim. F or reasons s omewhat different thanthose cited by the trial court, we agree that the trial court properly granted summary judgment to CMC with re spect to Bryant’s r

emaining claims.

Factual and Procedura

l History
Bryant sustained back inju

ries as a result of

her involvement of

two separate automobile

accidents occurring in 1979 and 1992. Following the second accident, Bryant was examinedby Dr. Steven McLa ughlin. Dr. McLau

ghlin diagnosed Bry

ant’s condition as

kyphosis,
a condition commonly known as c urvature of the s

pine, and refer

red Bryant to Dr. D

avid McCord, an orthopaedic surgeon.

Dr. McCordrecommended that Bryant undergo surgery to correct her curvature of the spine. According to Bryant, Dr. McCord did notguarantee the results of the proposed surgery butdid state that t here was a high likelihood that the surgery would be a success and that Bryant could be as goo d as new and back to work within six months after the procedure. He further explained, however, that if the surgery was not a success, Bryant would have to undergo a second andmore extensive surgical proc edur e. On May 3, 1993, Dr. McCord performed a surgical procedureon Bryant which inv olved the implanta

tion of pedicle

screws in Bryant’s spine. Af

ter this first surgery, Bryant’s back pain worsened. Six months after the surgery, Bryant w

as still unable to return to work. Nine months after the surge

ry, Bryant continu

ed to take pain medication prescribed by Dr. McCord. O n Febru ary 21, 1994, Bryant underwent a second surgery during which Dr. McCord replaced

the pedicle screws implanted during the first surgery and inserted a “bone cage” in Bryant’s spine.

B ryant continued to experience severe pain and take prescription pain medication following this second surgery. Bryant consulted Dr. John Campa regarding further treatment for her1 Bryant’s complaint alleged a number of theories for recovery, including negligenc e, strict liability, failure to warn, negligent misrepresentation, fraudulent misrepr esentation, breach of implied warranty, breach of express warranty , intentional infliction of emotional distress, fear of future illness and/or product failure, negligent infliction of emotional distress, violation of the Tennessee Consumer Protection Act, supply of a product dangerous for its intended use, doctor’s medical malprac

tice, hospital’s me

dical malpractic

e, battery, lack of informe d consent, conspiracy

, joint enterprise

, negligence

per se, and actio

n in concert. On a

ppeal we conside

r only Bryant’s claims based on lack of informed consent, hospital malpractice , joint enterprise, and acting in concert. continuing pain. While in the waiting room of Dr . C ampa’s office, Bryant met a woman who informedher that

several lawsuits had been filed against Dr. McCord in connection with his use of pedicle screws. Bryant made arrangements to meet with the attorneys who represented the plaintiffs in the other lawsuits against Dr. McCord. Bryant also sought a second opinion from Dr. John Ditmer regarding her injuries. In June of 1997, Brya nt underwent a thi

rd surgery to cor

rect her back in

juries. T his proce dure, which was performed by Dr. Michael McNamara, involved the removal of the hardwareimplanted in Bryant ’s spine by Dr . McCord and its replacement with other corrective hardware.

On March 18, 1996, Bryant filed an ac tion against

a variety of defendants including Centennial Medical Center ( CMC), the facility w

here Dr. McCord

performed th

e May 19 93 and February 1994 s urgerie s. 1 During the same we ek that Bryant file

d her complaint, a

pproximately sixty identical lawsuits were filed by Bryant’s attorneys onbehalf of other i ndividual plaintiff

s. All of the cases were assigne d to a single trial judge who selected twelve of the cases (including the action brought by Bryant) to proceed with discovery.

On May 6, 1997, CMC fi led a motion for summ

ary judgment with r

espect to all

of Bryant’s claims against CMC. O n October 17, 1997 , while CMC’s motion for summary judgment
was still pending, a Pennsylvania federal court approved a settlement agreement in a multiple district lawsuit against AcroMed, the manufacturer of the de vices implanted in Bryant’s spine during the May 1993 andthe Febr uary 1994 surgeries. See Fanning v. AcroMe d Corp. (In re Orthope

dic Bone Screw Prods. Liabilit y Litigation) , 176 F.R.D. 158 (E.D. Penn. 19 97). By memorandum opinion dated October 30, 1997, the trial court grant ed CMC’s motion for summary j udgment. Bryant filed a motion to alter or amend theruling which was denied by thetrial court. Bryant has appealed the trial court’s ruling with respect to her claims based on l ack of in formed consent,hospital malpract ice, joint enterp

rise, and acting i

n concert.

Issues

T he issues on appeal as we perceive them are as follows: (1) Are any or all o f Bryant’s claims

against CMC barre

d by the AcroMed se

ttlement agreeme

nt? (2) Are any o

r allof Bryant’s claims against CMC barred by the statute of limitations? (3) Did the t rial courterr in granting summary ju

dgment in favor of

CMC with

respect to Bryant’s claims against CMC based on lack of informe

d consent, hospita

l malpractice, jo

int enterprise, a

nd/or acting in con

cert?
Standard of Review
Summary judgment is appropriate o n ly if the party seeking summary judgment demonstrates that

ther e are no genuine issues of material fact and further shows that, under the undisputed facts, the moving party is entitled to a judgmen t as a m atter of law. See White v. Lawrence , 975 S.W.2d 525, 528 (Tenn
. 1998)(citing Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993)). When ruling on a motion for summary judgment, the court must view the evidence in the lightmost favorable to the party opposing the motion, drawing all reasonable inferences in favor of the nonmoving party and discarding all countervailing evidence. See id. at 529 ( citing Byrd , 847 S.W.2d at 210-11). If the re is a dispute

as to any material fact or any doubt as to the conclusion to be drawn from the evidence, the motion must be denied. See Dooley v. Eve rett , 805 S.W.2d 380, 383 (Tenn. App. 1990)(citing Phillips v. Pittsburg Con sol. Coal Co. , 541 S.W.2d 411, 413 (Tenn. 1976)). Because this is solely a legal determination, our review of the trial court’s ruling on a motion for summary judgment is de novo with no presumption of correctness. See White , 975 S.W.2d at 528-29 (citing Robinson v. Omer , 952 S.W.2d 423, 426 (Tenn. 1997); Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997)).

AcroMed Settlement A greement

In December of 1996, a se t tlement agreement was reached in a lawsuit pending against AcroMed in a Pennsylvania federal court. The Pennsylvania district court issued an opinionapproving this agreement onOctober 17, 1997. See Fanning v. AcroMe d Corp. (In re Orthope

dic Bone Screw Prods. Lia

bility Litigation) , 176 F.R.D. 158 (E.D. Penn. 1997). In its memorandum opinion of

October 30, 1997, the trial court in the instant case did not discuss the existence of this settlement

agreemen t. On appeal, however, CMC contends that the agreement provides an additional basis for the dismis sal of Bryant’s cl aims against CMC. Thus, a lthough the trial co

urt did not rely upon the AcroMed settlement agreement when granting CMC’s motion for summary judgment, we nevertheles s address whether the agreement has any legal effect on

Bryant’s claims.

The AcroMed sett

lement agreeme

nt provides in pert

inent part as follo

ws:

This Agreement

shall be the exclusive remedy for any a nd all Settl edClaims of Settlement Class Members and for any claims of SettlementClass Members against AcroMed and the Relea sed Parties arising out of the subject matter of this Agreement and the Complaint. AcroMed and the Released Parties shall not be subject to liability or expense of any kind to any Se

ttlement Class Membe

r with respect to any Settled Claim

or for any claim arising out of thesubject matter of this Agreement , except

as provided in this Agreement. When the Final Order and Judgme nt b ecomes Final, each of the Settlement Class Me mbers shall be barred from initiating, asserting, or prosecuting any Se

ttled Claims.
In determining whe

ther this provision o

perates to bar Br

yant’s claims

against CMC, we must f

irst determine whether Bryant qualifies as a member of the settlement class. The AcroMed agreement defines the term “

Settlement Class” a

s follows:

“Set tlement

Class” shall mean all persons and entities wherever located, who hav

e or may in the futu

re have any claim (whether f

iled or unfiled, e

xisting or continge

nt, and specifica

lly including claims

for alleged injuries and damages not yet known or manifest),
. . . in any state or fe deral courts

of the United States or the courts of its territories or possessions, against any or all of AcroMed andthe Released Parties arising out of, based upon, related to, or involving Orthopedic Bone Screws that were implanted in the United States or its territories or possessions in an operation that occurred on or before December 31, 1996 . . . .
The agreement d

efines the term “

Orthopedic Bone Sc

rew” as follows:
“Orthopedic

Bone Screw” shall mean any screw, including but not limited to bone screws, cancellous bone screw s, universal cancellous bone screws, sacralscrews, i liac screws, and pedicle screws, and/or related devices used with suc h screws as adjuncts to spinal fusion surgery, including but not limited to plates, rods, hooks, wires, cables, c onnec tors, nails, clamps, washers, nuts, ramps, cages, and implants of any kind.

In the instant case, Bryant filed a claim in state cour

t against AcroMed

and other defen

dants. This claim is directly related to the implantation of ped icle screws and a bon

e cage in her spin

e prior to December

31, 1996. Thus, we conclude that Bry ant is a member of t

he settlement cla

ss affected by the AcroMed agr

eement.

We next consider whe

ther CMC is among the defend ants affected by the AcroMed settlement

agreement. The agreement states that its purpose i s to “set tle and resolve . . . all Orthopedic

Bone Screw Related claims against AcroMed and the Released Parties.” The terms and conditions of the agreemen t specifically re

quire the dismissal

of claims against

A croMed, the released parties, and the p

rofessional soci

eties. The t erms “released parties” and “professional societies” are

defined as follow

s:

“Released Party/Parties” shall mean and shall be limited to those persons and

entities listed on Ex

hibit E to this Agree

ment. “Professional Societies” shall mean the American Academy of Neurological Surgeons (“AANS”), American Academy o f Orthopedic

Surgeons (“A AOS”), North Ame rican Spine Socie

ty (“NASS”), and Scoliosis Research Society (“SRS”).

CMC is notincluded among the parties listed in Ex

hibit E of the settle

ment agreement.

It is also not
one of the organization s nam ed in the definition of the term “Professional Societies.” Thus, the expresslanguage of the purpose statement contained in the AcroMed settlement agreement suppo

rts the conclusion that the agreement was not intended to settle claims brought against CMC.

CMC contends that, in

addition to claims against AcroMed, the released parties, and the professional societies, the settlement agreement also operates to bar claims against non-settling defendants. The

term “Non-Settlin

g Defendant” is d

efined as follows :
“Non-Settling

Defendant” shall mean any p erso n or entity that is not AcroMed or a

Released Party a

s defined herein

but that is named asa defendant in any pending or future action or litigat ion alleging injury or damage as a result of th e implantation of a ny Orthopedic Bone Screw.
We agree that CMC qualifies as a non-settling defendant within the meaning of this definition.

We conclude, however, that the AcroMed settlement agreement does not provide for the dismissal of claims against non-settling defendants. Rather, the agreement serves to enjoin nonsettling defendants from

maintaining an ac

tion for contributi

on, indemnity, or sub

rogation against AcroMed or the re leased parti

es. The agreement requires class members to deposit into the settlement

fund any money received from non-settling defe

ndants and provides that such proceeds shallnot be disburseduntil the claims against the non-settling defendant are either dismissed w

ith prejudice or until the non-settling defendant releases any third party claims that it may have against AcroMed and/or the released parties. Additionally, it authorizes the administrator of the settlement fund to consider the extent to which non-AcroMed bone screw recipients have been compensated by non-settling defendants when deciding whether to make funds available t

o this class

of plaintiffs. Finally, th e agr eement states that judgments obtained against non-settling defendants shall be reduced by any amount that the non-settling party is entitled to recove r from AcroMed or the
re leasedparties. Thus, the language of the AcroMed settlement agreement contemplates tha t members of the settlement class might obtain judgments ag

ainst defendants

such as CMC that did not participate in

the settlement.
Accordingly, we find that the AcroMed settlement agreeme nt releases any settled claims that Bryant may have against AcroMed, the released parties, and the professional societies butdoes not require t

he dismissal of Brya

nt’s claims

against any non-s

ettling defendan

t, including CMC.
Statute of Limitations

At trial, CMC argued th

at a ll of Bryant’s claims against CMC were barred by the statute of limitations. The trial court found that, with the exceptionof Bryant’s claim that CMC did notinform her that she might experience pa

in, discomfort, an

d abnormal sensat

ions and that her pa

inlevel might worsen after the 1993 surgery, Bryant’s claims are not barred by the ap

plicable statute of limitations. CMC does n ot challenge this

ruling on appeal. Bryant, however, contends that the trial court erred in finding that her pain related lack of informed consent claims are untimely.

C auses of action based o

n lack of informe

d consent are sub

ject to the same limi

ta tion s periodas medical malpractice claims. See Shadrick v. Coker , 963 S.W.2d 726, 733 (Tenn. 1998). The statute of limitations applicable to medical malpractice claims states in pertinent part as follows:
(1) The statute of limitations in malpractice actions shall be one (1) year as set forth in § 28-3-104. (2) In the event the alleged injury is not discovered within the said one (1) year period, the period of limitation shall be one (1) year from the date of such discovery.

Tenn. Code Ann. § 29-26-116 (a) (1980). The two surgeries that Dr. McCord performed on Bryant at CMC took place on May 3, 1993 and February 21, 1994. Bryant did not file her co

mplaint against CMC until March 18, 1 996. T hus, CMC contends that Bryant’s claims arising out of these two surgeries are untimely.

In considering whether Bryant’s lack of informed consent cl aims relat ed to pain experienced

after the May 1993 surgery are ba rred by th

e statute o f limitations, we mus t first determine the date on whichBryant discovered her injuries. In Shadrick v. Coker , 963 S.W.2d 726 (Tenn. 1998), Shadrick un derwen t a surgical procedure on March 12, 1990 involving the implantation of pedicle screws. See id. at 728. After the surgery, Shadric

k’s pain worsene

d and in Sep temberof 1990, an X-ray revealed that one of the screws had broken. See id. at 729. In November

of 1990, the pedicle scre ws were sur gically removed from Shadrick’s back. See id. Shadrick continued to experience pain even after the screws wer e removed. See id. Dr. Coker, Shadrick’s surgeon, did not attribute Shadrick’s continued pain to theuse of pedicle screws. See id. Rather, he explained tha

t this pain might be due

to inflammation or s

carring and also

expressed his belief that Shadrick had a low tolerance for pain. See id. On December 17, 1993, Shadrick

viewed
a television program reporting that pedicle screws were experimental, had not

been approved f

or use in the spin e, and had caused a number of problems in patients in whom they had been implant ed
. See id.On December 16, 1994, Shadrick filed an action against Dr. Coker a nd CMC, the facility where his surgeries were p erformed, all eging that he had not been informed of the risks associated

with the use of ped

icle screws prio

r to the su

rgery. See id. Dr. Coker and CMC filed identical motions for summary judgment, claiming that Shadrick’s clai ms were barred by the one year statute of limitatio

ns applicable to

medical malpractice claims. See id. at 730. The trial court grantedthe motion to

dismiss. See id. On appeal, the Te nnessee Supreme

Court noted as follo

ws:
[T]he statute of limitations begins to run when the plaintiff knows or in the exercise of re

asonable care

and diligence sho

uldknow that an injury has been sustained as a result of wrongful or tortious conduct b y the defendant. . . . “It is knowledge of facts suffici ent to put a plaintiff on notice that an injury has been sustained which is crucial.” Stanbury, at 678. Such knowle dge includes not on

ly an awareness of the injury, but also the tortious origin or wrongful nature of t hat injury.

Id. at 733-34 (quoting Stanbury v. Bacardi , 953 S.W.2d 671, 677 (Tenn. 1997); Roe v. Jefferson , 875 S.W.2d 653, 657-58 ( Tenn. 1994); Hathaway v. Tennessee Anesthesiology, P.C. , 724 S.W.2d 355, 359 (Tenn. App. 1986)). The court then concluded that, because he had been told that the use of pedicle screws was a “routine treatment” and beca use S hadrick’s surgeon offered other explanations f

or Shadrick’s continued pain, there was evidence from which a jury could find that Shadrickdi d not discover his cause of action until December of 1993. See id. at 734. Thus, t h e court held that

there was a genuine issue of material fact regarding when the statute of limitations began to run. See id. at 735.

In the present case, Bryant experienced back pain prior

to her referral to Dr. McCord. Her pain worsened, however , after s he underwent sur gery in May of 1993 . Bryant stated tha t it
never occurred to her after the May 1993 surgery that she might have a cause of action because Dr. McCord had explained

that, if the May 1993 surgery was unsuccessful, Bryant may have to undergo
a second surgical procedure. Like the plaintiff in Shadrick , Bryant also viewed a television program regarding the dangers of pedicle screws. Bryant became concerned and discussed the program with Dr. McCord during her

next visit. Dr. McCo

rd reassured Br

yant that the sc rews used during her surgery were d iffere nt from and of a higher qualify than the ones discussed on the televisionprogram.
Applying the holding in Shadrick to the case at bar, we must conclude that

, because Dr. McCord allegedly

attempted to persuade Bryant that the screws implanted in her spine were not the cause of her continuing pain, there is a genuine issue of material fact regarding when Bryant should have reasonably known that the pain she experienced after the May 1993 surgery was the result of the screws used by Dr. McCord. While Bryant was certainly aware

of her pain immedia

tely following the May 1 993 sur gery, a jury could reasonably conclude that she was not aware of the tortious o rigin of her pain until sometime thereafter. Thus, we hold that the trial court erred i n finding that Bryant’s lack of informed co nsent c laims relating to pain experienced after the May 1993 surgery are

barred by the sta

tute of limitations.
Lack of Informed Co

nsent
Bryant contends that CMC failed to obtain her informed consent prior to the performance of the May 1993 and February 1994 surgeries. CMC, however, argues that it had no legal duty to obtain

Bryant’s informe

d consent.
Bry ant filed wi th the trial court a ffidavits from thr

ee physicians co

ncluding that CMC hada duty to obtain Bryant’s informed consent prior to each of

the surgical procedures performed
on Bryant. Expert testimony, howev er, shoul d not be considered when determining whether a defendant owes a legal duty to a plaintiff. See Coffey v. Knoxville , 866 S.W.2d 516, 519 (Tenn. 1993). Rather, the existence or nonexistence of a duty is entirely a question of law to be determined by the court. See, e.g., Blair v. Campbell , 924 S.W.2d 75, 78 (Tenn. 1996). Thus, in determining whether CMC had a duty to obta in Bryant’ s inf

ormed consent, we will disregard the legal conclusions conta

ined in the affida

vits of Bryant’s ex

pert witnesses.

It is well established in Tennessee that a physician has a duty to obtain the informed consent of his or her

patient beforeadministering a treatment or performing a surgical procedure on the patient. See, e.g., Shadrick , 963 S.W.2d at 732 (citing Cardwell v. Bechtol , 724 S.W.2d 739, 750 (Tenn. 1987)). The law in Tennessee is silent, however, regarding whether the hospital wherethe treatment is admi nis tered or the surgical procedure is performed also has a duty to obtain the patient’s informed consent. Other jurisdictions that have conside red this question ha

ve repeatedly held that hospitals generally do not have a duty to obtain the patient’s informed consent. Krane v. Saint Anthony Hosp. Sys , 738 P.2d 75, 77 (Colo . Ct. App. 1987); Petriello v. Kalman , 576 A.2d 474, 478 (Conn. 1990); Valcin v. Public Heal th Trust of Dade County , 473 So. 2d 1297, 1307 (Fla. Dist. Ct. App. 1984), approved in part and quashed in part on other grounds , 507 So. 2d 596 (Fla. 1987); Parr v. Palmyra Park Hosp. , 228 S.E.2d 596, 597-98 (Ga. Ct. App. 1976) ; Pickle v. Curns , 435 N.E.2d 877, 880-81 (Ill. App. Ct. 1982) ; Auler v. Van Natta , 686 N.E.2d 172, 175 (Ind. Ct. App. 1997); Pauscher v. Iowa Methodist Medica l Ctr. , 408 N.W.2d 355, 362 (Iowa 1987); Lincoln
v. Gupta , 370 N.W.2d 312, 318 (Mich. Ct. App. 1985 ); Baltzell v. Baptist Me dical Ctr. , 718 S.W.2d 140, 142 (Mo. Ct. App. 1986); Giese v. Stice , 567 N.W.2d 156, 16 4 (Neb. 1997); Johnson v. Sears, Roebuck & Co. , 832 P.2d 797, 800 (N.M. Ct. App. 1992); Fiorentino v. Wenger , 227 N.E.2d 296, 301 (N.Y. 1967); Cox v. Haworth , 283 S.E.2d 392, 395- 96 (N.C. Ct. App. 198 1); Kershaw v. Reichert , 445 N.W.2d 16, 17 (N.D. 1989); Goss v. Oklahoma Blood Inst. , 856 P.2d 998, 1007 (Okla. Ct. App. 1990); Kelly v. Methodist Hosp. , 664 A.2d 148, 150 ( Pa. Super. Ct. 1995) ; Ritter
v. Delaney , 790 S.W.2d 29, 32 (T ex. Ct. App. 1990); Howell v. Spokane & Inland Empire Blood Bank , 785 P.2d 815, 822-23 (Wash. 1990); Cross v . Trapp , 294 S.E.2d 446, 459 (W. Va. 1982). The underlying ra

tionale of these d

ecisions has been

stated as follows:

It is the surgeon, an

d not the hospit

al, who has the technical knowledge and training necessary to advise each patient of the risks of the surgery prior

t o the patient giving his consent. Further, the hospital does notknow the patient’s medi cal history, nor th

e details of the particular surgery to be performed.

Krane , 738 P.2d at 77. Add iti onally, one court commented that “[t]o impose upon a hospital the duty to inform would be to require a hospita

l to intervene into

the physician/patient relationship” and concluded

that this result would be “more disruptive than beneficial to [the] patient.” Goss , 856 P.2d at 1007 (quoting Howell , 785 P.2d at 822).

We agree that the du

ty to obtain apatient’s informed consent prior to the performance of a surgical pro

cedure lies exc

lusively with

the patient’s physician. Thus, there is no duty on the part of the hospital to give the patient information, to en sure thatthe patient understands anyinformation received from other sources, such as the patient’s physician, or to obtain the patient’s consent prior to the scheduled

procedure. Simila

rly, we do not think t

hat the hospital ha

s a duty to
ensure that the patient’s physician has carried out his or her duty to obtain the patient’s informed consent. We agree with the court in Goss that such a rule w ould require hosp

itals to unnecessa

rily interfere with the physician/patient relationship. See id
.

At least one jurisdiction has recognized a limited exception to the general rule that the law does not impose on a hospital a duty to obtain informed consent from its patients. In Friter
v. Io lab Corp. , 6 07 A.2d 1111 (Pa. Super. Ct. 1992), the plaintiff underwent cataract surgery involving the implantation of a type of lens that had not been approved by the United States Food andDrug Administration ( FDA) and that was the subjec t of a clinical stud

y designed to test its safety. See id. at 1111. FDA regulations requ ired hospitals participating in th e study to obtain informedconsent from any patient und ergoing this experimental treatment. See id. The plaintiff brought an action against the hospital, alleging that he was not informed prior to the surgery that he
was a participant in the study or that the experimental lens would be implanted in his eye during the surgery. See id. at 1111-1112. Whil e noting the general rule that hospitals do not have an independent

duty to obtain informed consent, the court found that, by participating in an experiment that was subject to

the FDA regulations, the hospital assumed a duty to obtain the patient’s informed consent. See id. at 1115.

In Corrigan v. Methodist Hosp. , 158 F.R.D. 70 ( E.D. Pa. 19 94), the plaintiff under we ntback surgery involving the implantation of devices similar to those implanted in the instantcase. See id. at 71-72. The plai ntiff asserted a

claim against the hospital where theprocedure
was performed, alleging that the hospitalknew that his surgery was performed as part of an informal clinical study, that the FDA had restricted the sale of these devices to approved institutions, and that the hospital was not one of those institutions. See id. at 73. The plaintiff argued that, under such facts, Fritter imposed on the hospital an independent duty to obtain his informed consent. See id. The court found that th

e plaintiff had a

lleged facts suf

ficient to maintain a cause

of action against the hospital for lack of i nf ormed consent and thus held that the trial court should have denied the hospital’s motion for judgment on the pleadings. See id.In the instant case, Bryant alleges that CMC failed to inform her (1) that pedicle
screws wer e not approved by the FDA for use in spine surgery, (2) that pedicle screws wer e classifiedby the FDA as experimental or investigational, and (3) that there were medicalproblems andother risks associated with the u se of pedicl e screws. She does not allege, however, that the devices used by Dr. McCord were implanted in her spine as part of a

clinical study. We think that the duty imposed by Friter and Corrigan is limited to situations in which the hospital, by virtue of its participation in a

clinical study, is su

bject to FDA regulations andapplies only when the patient is actually a

subject in the study . In the case at ba r, it is undisputed that Bry ant was not involve

d in any FDA regulated study. Thus, we concludeas a matter of law that CMC had no duty to obtain her informedconsent. Accordingly, we hold that the trial court did not err in granting CMC’s motion for summary judgme

nt with respect to Br

yant’s informed c

onsent claim.

Hospital Malpractice

The trial court also gr

anted summary ju dgment in favor of CMC with respect to Bryant’s hospital malpract ice claim. On appeal, Bryant contends that CMC (1) failed to verify that Bryant had given her informed consent and permitted the use of a misleading and inaccurate consent form, (2) failed

to monitor and control the use of investigational devices used in surgeries performed at CMC, and (3) failed to enforce policies governing the obtaining of informed consent. Bryant’s first and third allegations are related to her claim against CMC based on lack of informed consent. In addressing this claim, we held that the duty to obtain a patient’s informed consent lies with the patient’s physician, not with the hospital where the procedure is performed. Similarly, we held that there is no duty on the part of the hospital to ensure that the physician has obtained the pat ient’s informedconsent prior to th e performance

of the scheduled

procedure. Thu

s, we consider onl

y whether the trial court erred

in finding that there are no genuine issues of material fact and that CMC is entitled to a judgment as a matter of law regarding Bryant’s claim that CMC violated a duty owed to her in failing to monitor the use of investigational devices used in surgeries performed at CMC.
Bryant asserts th

e positi on that her hospital malpractice claim is predicated on the doctrine of corporate negligence. The doct rine o f corporate negligence imposes liability on ahospital for the breach of a duty of care owed by the hospital directly to the patient. See, e.g., Clark
v. Perry , 442 S.E.2d 57, 65 (N.C. Ct. App. 1994). Under this legal theory, hospitals owe to patients four types of dutie

s. These duties inc

lude as follows:
(1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select an d retain only competent

physicians; (3) a

duty to oversee all persons who practice medicine within its walls as to patient ca re; and (4) a duty to fo rmulate, adopt and enforce adequate rules and policies to ensur e quality care for

the patients.
Thompson v. Nason Hosp. , 591 A.2d 703, 707 ( Penn. 1991)(inter

nal citations omitt

ed). The doctrine of corporate negligence has been recognized by at least seventeen jurisdictions outside of Tennessee. See Tucson Medical C tr., Inc. v. Mi

sevch , 545 P.2d 958, 960 (A riz. 1976); Elam v. College ParkHosp. , 183 Cal. Rptr. 156, 1 57 (Cal. Ct. App. 1982); Kitto v. Gilbert , 570 P.2d 544, 550 (Colo. Ct. App. 1977); Insinga v. LaBella , 543 So. 2d 209, 214 ( Fla. 1989); Mitchell County Hosp. Auth. v. Joiner , 189 S.E.2d 412, 414 ( Ga. 1972); Darling v. Ch arleston Community Memorial

Hosp. , 211 N.E. 2d 253, 258 (Ill. 1965) ; Ferguson v. Gonyaw , 236 N.W.2d 543, 550 (Mich. Ct. App. 1975); Gridley v. Johnson , 476 S.W.2d 475, 484-85 (Mo. 19 72); Foley v. Bishop Clarkson Memorial Hosp. , 173 N.W.2d 881, 884 (Neb. 1970); Corleto v. Shore Memorial Hosp. , 350 A.2d 534, 537-38 (N .J. Super. Ct. Law D

iv. 1975); Raschel v. Rish , 488 N.Y.S.2d 923, 925 (N.Y. App. Div. 1985); Blanton v. Moses H. Cone Memorial Hosp., Inc. , 354 S.E.2d 455, 457-58 (N.C. 1987); Benedict

v. St. Luke’s Hosps. , 365 N.W.2d 499, 50 4 (N.D. 1985); Park N. Gen. Hosp.
v. Hickman , 703 S.W.2d 262, 266 (Tex. Ct. App. 1985 ); Pedroza v. Bryant , 677 P.2d 166, 170 (W ash. 1984); Utter v. United Hosp. Ctr., Inc. , 236 S.E.2d 213, 215 ( W. Va. 1977); Johnson v. Misericordia Community Hosp. , 301 N.W.2d 156, 164 (Wis. 1981).

The courts of Tennessee have long recognized that hospitals have a l egal duty to exercise reasonable ca

re toward their

patients. See O’Quin v. Baptist Memorial Hosp. , 201 S.W.2d 694, 697 (Tenn. 1947); Keeton v. Maury County Hosp. , 713 S.W.2d 314, 316 (Tenn. App. 1986). In Crumley v. Memorial Hosp., Inc. , 509 F. Supp. 531 (E.D. Tenn. 1979), aff’d mem. , 647 F.2d 164 (6th Cir. 1981), a federal court considered whether, under Tennessee law, a hospital could

be held independently liable for the negl igence of on e of its anesthesiologists. The Crumley courtrecognized that a hos pital ha s a duty to use due care in the selection and retention of physicians practicing within

its facility. See id . at 535. In Prince v. Coffee County, Tennessee , No. 01A01- 950 8-CV- 00342, 1996 WL 221863 (Tenn. App. May 3, 1996), the plaintiff sustained injuries resulting from improperly administere d anesthetic during out-patient surgery. See id. at *1. The plaintiff filed a claim

ag ainst the hospital w

here the proce

dure was perfor

med, alleging that

it negligently

failed to establish and enforce adequate anest

hetic policies and procedures. See id. We reversed an order of the trial court granting summary judgment in favor of the hospital, finding that there were genuine issues of material fact precluding summary judgment. See id. at *5. In Keeton
v. Maury County Hosp. , 713 S.W.2d 314 ( Tenn. Ap p. 1986), the seventy-nine year old plaintiff repeatedly

called for a nur

se to assist him in getting to the restroom. See id. at 315. Because no one appeared to assist him, the plaintiff atte mpted to go to the re

stroom alone, lost h

is balance, and fe

ll to the floor. See id. at 316. We held in Keeton that, in failing to assist the plaintiff, the hospital did not exercise reasonable care toward the plaintiff. See id. at 318. Finally, in Spivey v. St. Thomas Hosp. , 211 S.W.2d 450 (Tenn. A pp. 1947), a delirious patient fell out of the window of his third floor hospital room. See id. at 451. We held that the hospital had a duty to prevent a patient in a delirious condition from getting out of bed and harming himself. See id. at 454.

Bryant urges us to expre

ssly adopt the doctr

ine of corporate

negligence. We find this to be unnecessary

because we beli

eve that it is alre

ady the law of this s

tatethat hospitals

have a duty to use reasonable care to maintain their facilities and equipment in a safe condition, to select and retain only competent physicians, to supervise the care given to patients by hospital personnel, and to adopt and enforce rules and policies designed to ensure that patients receive quality care. As part of its duty to supervise

the care given to

patients, we think t

hat a hospital must e

xercise at leas

t a limited amount of control over the use of devices tha t ar e considered to be investigational. In opposition to CMC’s motion for sum mary judgment, Brya

nt relies in

part upon the affidavits of three physicians st ating that the devi ces implanted in he

r spine at CMC were

investigational. Additionally, Bryant relies upon a letter written by Dr. Robert Alford, CMC’s Medical Director, suggesting that the use of pedicle screws in spi ne fix ation surgery should be regarded as investigational.

Finally, Bryant notes that CMC’s institutional review board discussed Dr. Alford’s letter and concluded that this usage of bone screws should be employed under “invest igational protocol.” CMC, however, denies that the devices implanted in Bryant’s spine w

ere investigation

al.On the contrary, CMC alleges that these types of devices have been widely used in the medica l

community

for many years. Whether a medical device is investigational is not a question that may be resolved on a motion for summary judgment but instead must be determined by the trier

of fact after consideration of

all of the evidence. We thus find that, in the instant case, the trial court erred in granting summary judgment in favor of CMC with respect

to Bryant’s hospita

l malpractice cl

aim. On remand, the trier of fact must determine whether

the devices implanted in Bryant’s spine were investigational. If the trier of fact concludes that the devices were, in fact, investiga

tional, it must then determine whether CMC violated its duty to monitor andcontrol the use of these devices in i

ts facilities.
Joint Enterprise

Bryant also seeks to recover from CMC under the theory of joint enterprise. Bryant essentially

claims that CMC was engaged in a joint venture with Dr. McCord, the purpose of which
was to raise revenue by perform ing as many surgical procedures as possible at CMC. A joint venture is similar toa partnership an d thus is subject to the

same rules of law

that apply to partnerships. See, e.g., Federated Stores Realty, Inc. v. Huddleston , 852 S.W.2d 206, 212 (Tenn. 1992). The law of Tennessee imposes joint and several liability on members of a partnership for the tortious acts committed by any partner in furtherance of the partnership. See In re Sikes , 184 B.R. 742, 747 (M.D. Tenn. 1995).

In order to establish that CMC and Dr. McCord w ere engage d in a joint venture, Bryant must show (1) that they shared a common purpose, (2) that there was an agreement between them, and (3) that they eac h had an equal r ight “to control both the venture as a whole and any relevant instrumentality.” Fain v. O’Connell , 909 S.W.2d 790, 793 (Tenn. 1995)(quoting Cecil v. Hardin , 575 S.W.2d 268, 271 (Tenn. 1978)). The imposition of liability based on the existence of
a joint venture is

reserved for “

cases in which the

parties associa

te for business,

or expense sharing, or some comparable arrangement.” Id. (quoting Cecil , 575 S.W.2d at 272).

In the instant case,

Br y ant has alleged that CMC funded the hiring of a program coordinator

who worked with CMC’ s m arke ting director to promote the services provided by Dr.McCord and that CMC guaranteed a ba se s alary to two members of Dr. McCord’s staff. Bryant

contends that, from these facts, a jury could conclude that CMC and Dr. McCord shared a common purpose and hadreached

an agreement regarding that purpose. We agree that these facts alleged by Bryant are suffic

ien t to create a jury

question with respe

ct to these first tw

o elements of a cl

aim based on the theory of joint enterprise.

With respect t

o the third elemen

t of a joint venture

, Bryant alleges th

at CMC instituted certain policies regarding the pe

rforma nce of surg eries at CMC, including a policy restricting surgeons from performing more than two back surgeries and one neck surgery per day. Bryant further alleges, however, that Dr. McCord sometimes violated this policy by scheduling three
or four back surgeries in a single day and that CMC would allow Dr. McCord to do “whatever

he wanted.” Assuming the truth of these allegations, as we must for purposes of summary judgment,
we cannot conclude that CMC and Dr. McCord shared equal control over their business relationship. On the contrary, it a

ppears that Dr. M

cCord acted inde

pendentl y o f CMC with respect to the care of his patients, ignoring the attempts of CMC to regulate the number of procedures that

he performed per day. We thus find

that Bryant has fa

iled to state a cla

imagainst CMC under the theory of joint enterprise. Accordingly, we hold that the trial court properly granted CMC’s motion for summary judgment regardi

ng this claim.
Acting in Concert
Finally, Bryant contends that CMC is subject to liability f or her i njuries under a concert of action theory. The courts of this state have recognized that “when two or more persons engage in an unlawful act and one of them commits a serious civil injury upon a person not

engaged therein, all are equally liable for damages to the injured party.” Huckeby v. Spangler , 521 S.W.2d 5 68, 573 (Tenn. 1975). The elements of a claim based on a concert of action theory include as follows:

For

harm resulting to a third person from the t o rtious conduct of another, one is subject to liability if he (a) does a tortious ac

t in concert with the other or pursuant to a common design with him, or (b) knows that the other’s conduct constitutes a breac h o fduty and gave substantial assistance or encouragement to theother so to conduct himself, or (c) gives substantial assista nce to the other in

accomplishing a tortious result and his own conduct, separately consi dered, constitutes a breach of duty to third person.

Restatement

(Second) of Torts § 876(c). Bryant contends that by failing to supervise Dr. McCord andby allowing Dr. McC ord to use its facil

ities when perfor

mi ng surg ical procedure s, CMC substantially

assisted Dr. McCord in breaching his duty of care owed to Bryant. We disagree. The acts alleged by Bryant

, even if proven to be true, would not constitute substantial assistance on the part of CMC. Thus, we conclude that Bryant has failed to state a claim under the theory of concert of action. Accordingly, we hold that the trial court properly granted

CMC’s motion for summary judgment with respe

ct to this claim.

Conclusion

For the foregoing reasons, we find (1) that the AcroMed settlement agreement does not require the dismissal of any of Bryant’s claims a

gainst CMC, (2) that n

one of Bryant’s c

laims against CMC are barred by

the statute

of limitations, (3) that the trial court properly granted CMC’s motion for summary judgment with respect to Bryant’s claims based on lack of informed

consent, (4) that the trial court erred in granting CMC’s motion for summary judgment wi th respe ct to Bryant’ s claim s based on hospital malpractice, (5) that the trial court properly granted CMC’s motion for summary judgment with respect to Bryant’s joint enterprise claim, and (6) that the trial court properly grante

d CMC’ s motion for summary judgment with respe

ct to Bryant’s act

ing in concert claim.

We thereforeaffirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion. Cost of appeal ar e charged one-

half to Bryant and

one-half to CMC, for which execution may issue if necessary.

____________________________________ FARMER, J.______________________________

CRAWFORD, P.J., W.S. ( Concurs)

______________________________ TOMLIN, Sp. J. (Conc

urs)