FILED

January 29,

1996

Cecil Crowson, Jr.

Appellate Court Clerk

January 29, 1996

FOR PUBLICATION

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

JOSIE GRAY, ADMINISTRATRIX OF (

THE ESTATE OF PEGGY M. BUSH, ( No. 0lS01-9505-FD-00066

DECEASED, ( 

( On Certified Question from 

Plaintiff-Appellant, ( Sixth Circuit Court of Appeals 

( 

( No. 94-5ll5 

v . ( 

(

( 

(

FORD MOTOR COMPANY, (

(

Defendant, (

(

(

SPRINGFIELD SURGERY, P.C. AND (

SARBJEET S. KUMAR, (

(

Defendants-Appellees. (

For Plaintiff-Appellant : For Defendants-Appellees :

Stephen L. Swann Ward DeWitt, Jr.

Arlington, VA Mary Ellen Morris

Trabue, Sturdivant & DeWitt

Nashville

AMICUS CURIAE :

E. Blake Moore

John B. Bennett

Spears, Moore, Rebman &

 Williams

Chattanooga
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O P I N I O N

REID, J.
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Pursuant to Rule 23, Rules of the Tennessee

Supreme Court, the Court has accepted for decision the

following question of law certified by the Sixth Circuit

Court of Appeals:

Whether principles of comparative fault

should apply in Tennessee medical

malpractice actions so as to result in

the apportionment of damages between the

estate of a decedent who acted

negligently in causing an initial injury

and a physician who negligently treated

the decedent for that injury.

The decision in this case is controlled by Volz v.

Ledes , 895 S.W.2d 677 (Tenn. 1995). In accordance with that

opinion, the certified question is answered affirmatively.

I

Josie Gray, administratrix of the estate of her

mother, Peggy M. Bush, sued Ford Motor Company, Springfield

Surgery, P.C., and Dr. Sarbjeet S. Kumar in an action for the

decedent's wrongful death. The complaint, which was filed on

February 20, 1992, alleges an action for strict liability

against Ford and an action in negligence against Springfield

Surgery and Kumar under the Tennessee Medical Malpractice

Act, Tenn. Code Ann. § 29-26-115 (1980). The case was tried

before a jury beginning on August 30, 1993. 
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For purposes of this opinion, the essential facts

are as presented in the Sixth Circuit's order certifying the

question to this Court. In the morning of February 6, 1991,

Bush crashed her Ford Tempo into a utility pole in

Springfield, Tennessee, while driving approximately 30 miles

per hour. Bush was wearing her seatbelt but apparently did

not apply her brakes before hitting the pole. She was taken

by ambulance to a hospital located only a few blocks from the

accident scene. At the hospital, Bush claimed that the crash

was caused by a coughing and sneezing fit; however, an

emergency room physician treating Bush detected the odor of

alcohol on her breath.

Bush complained of difficulty in breathing and her

vital signs indicated severe distress. At the request of the

physician in charge of the emergency room, Kumar, who had

treated Bush in December of 1990 for an enlarged spleen,

examined Bush and evaluated her condition. During that

evaluation, her condition appeared to improve, and, Kumar,

determining that his services were no longer required, left

the emergency room to attend to other duties. However,

immediately after Kumar's departure, Bush's blood pressure

dropped to a dangerously low level and her condition became

critical. Nevertheless, approximately one hour elapsed

before Kumar performed surgery to remove the patient's
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enlarged spleen, which had ruptured during the accident. 

Kumar's treatment was not successful, and Bush died,

"officially" from a "ruptured spleen" due to an "auto

accident."

The complaint alleges that the decedent's death

was proximately caused by a defective and unreasonably

dangerous passenger restraint system in the vehicle

manufactured by Ford and by the negligence of Kumar in the

treatment of the decedent for the injury sustained in the

accident. Over the plaintiff's objections, the district

court judge instructed the jury that it should apportion

liability based on the principles of comparative fault.

Following its deliberations, the jury reported

that Ford was without fault. The jury specifically found,

however, that "Dr. Kumar acted with less than, or failed to

act with, ordinary and reasonable care in accordance with the

standard of acceptable professional practice for a general

surgeon practicing in Springfield, Tennessee, or a similar

community in February, 1991," and that "Dr. Kumar's negligent

act or omission proximately cause[d] Mrs. Bush to suffer

injuries that would not otherwise have occurred." The jury

also found that "Mrs. Bush was negligent in her operation of

her 1986 Ford Tempo" and that "this negligence [was] a
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proximate cause of Mrs. Bush's injuries."

The jury attributed 55 percent of the total fault

to Kumar and his surgical group and the other 45 percent to

the decedent. The jury found that the total amount of

damages was $75,000, and, in accordance with the jury's

allocation of fault, the district court rendered judgment

against Kumar and Springfield Surgery in the amount of

$41,250. 

The plaintiff appealed to the Sixth Circuit Court

of Appeals, contending that principles of comparative fault

should not have been applied in this case. The plaintiff,

appellant, specifically contends that her negligence in

causing the accident should not have been considered in

determining the award of damages. The discharge of Ford from

liability is not an issue in this review. 

I I

On May 4, l992, prior to the trial of this case,

this Court released the opinion in McIntyre v. Balentine , 833

S.W.2d 52 (Tenn. 1992), thereby adopting the doctrine of

comparative fault. The Court held that "so long as a

plaintiff's negligence remains less than the defendant's
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negligence the plaintiff may recover; in such a case,

plaintiff's damages are to be reduced in proportion to the

percentage of the total negligence attributable to the

plaintiff." Id. at 57. The Court also held that the

principles of comparative fault would be applied in all cases

tried after the release of McIntyre . Id. at 58. 

In Volz v. Ledes , 895 S.W.2d 677 (Tenn. 1995),

this Court approved the application of comparative fault

principles to a medical malpractice case. In Volz v. Ledes ,

the patient died of testicular cancer. The jury attributed

10 percent of the fault to Volz himself; 45 percent to the

out-of-state, non-party physician who first treated Volz; and

45 percent to Ledes, who failed to treat Volz until the

cancer had become inoperable. I d . 

The Court disagreed with the conclusion of the

intermediate appellate court that the plaintiffs' cause of

action was for "loss of chance." The Court held:

In Kilpatrick v. Bryant , 868 S.W.2d 594

(Tenn. 1993), this Court declined "to

relax traditional cause in fact

requirements and recognize a new cause

of action for loss of chance." The

Court of Appeals was in error to remand

for a retrial upon a "loss of chance"

cause of action. Further, upon careful

review of the record, we find that the

plaintiffs' wrongful death action was
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the proper legal vehicle under which

their cause should have been initiated,

tried, and decided.

Id. at 679.

In reference to the jury verdict, the Court

stated:

 The jury found that the negligence

of Dr. Ledes was a contributing

proximate cause of the death of Robert

Volz, along with the negligence of the

non-party Houston physician and the

negligence of Volz himself. Under the

comparative fault system adopted by

Tennessee in McIntyre , a plaintiff may

recover from multiple tortfeasors as

long as the plaintiff's fault is less

than that of the combined tortfeasors. 

Upon the jury's findings and, upon the

trial judge's proper charge, the correct

system of apportionment was employed in

accordance with the guidelines set out

by this Court in McIntyre .

Id. at 680. Thus, applying the principles of comparative

fault to a medical malpractice action, a physician is liable

only for that portion of the plaintiff's damages that were 

proximately caused by the physician's negligence.

The Court declines the invitation to reverse the

decision in Volz v. Ledes , which, in the Court's view, was

properly decided. In the present case, the decedent's
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negligence caused the accident and, incidental thereto, the

ruptured spleen. The physician negligently failed to

diagnose the injury. Death resulted. There was one

indivisible injury proximately caused by the separate,

independent acts of the plaintiff and the physician. Had the

injury been caused by the separate, independent negligent

acts of the physician and another tortfeasor, the liability

of each would be determined by the fault attributed to each. 

Owens v. Truckstops , _____ S.W.2d _____, _____ (Tenn. 1996)

[slip opinion at 22]. The principle is the same where the

negligence of the plaintiff is a contributing proximate

cause. Whitehead v. Toyota Motor Co. , 897 S.W.2d 684 (Tenn.

1995).

This case does not present, and the Court declines

to address in this opinion, the rights and liabilities of the

parties where there are multiple, separate injuries. 

III

In response to the certified question, the

principles of comparative fault apply in Tennessee medical

malpractice actions, so as to result in the apportionment of

fault between the estate of a decedent who acted negligently

in causing the initial injury, and a physician who acted
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negligently in the treatment of the decedent for that injury.

The physician's liability will be limited to the percentage

of the total damages attributed to his negligence.

The Clerk will transmit this opinion to the Sixth

Circuit Court of Appeals and counsel for the parties in

accordance with Rule 23, Section 8 of the Rules of the

Tennessee Supreme Court. The costs in this Court will be

taxed to the plaintiff.

_______________________________

REID, J.

Concur:

Anderson, C.J., Drowota, Birch, and

 White, JJ.