### IN THE COURT OF APPEALS OF TE NNESSEE AT KNOX VILLE Se pte m be r 21, 200 4 S es sio n MEC HELLE E. ELOS IEBO v. STA TE OF TEN NES SEE
Direc t Appeal from the Tennessee Claim s Com m ission , Eastern G rand Divisi on

No. 202000293 Hon. Vance W. Cheek, Jr., C om m ission er

No. E2003-02941-COA- R3-CV - F ILED NOVEMBER 29, 2004

The Commissioner found def endant ’s phy sician bre ache d the standar d of ca re in the tre atment of plaintiff, but ref

used to awa

rd dama g es. On appe al, we a ffirm Commissioner’s finding of bre ach, bu t a wa rdda ma g e s a ndre ma ndto e nte r Jud g me nt.

Tenn. R. App. P .3 Appeal as of Right; Judgme nt of the Claim s Com m ission Aff irm ed in Par t, Re ve r se d in P ar t, Awa r d Da m ag e s a nd R e m and.

H ER SCH EL P I CKE N S F RAN KS , P.J ., delivere d the opinion of the court, in which D. M I CH A EL S WI NEY , J ., and G AR Y R. W ADE , P.J ., Sp.J ., joined.

Ric ha rdL . D un c a n a ndCary

L . B a ue r, Kn oxvil le , T e nn e sse e , f or Ap pe lla nt.
Ronald C. L eadbe tter, Knoxvil le, Tenne ssee, f or Appe llee.

OP IN ION
I n th is a c tion, plaint if

f, a stu de nt at th e Un ive rs ity of Te nn e sse e , a lle g e s sh e wa s a victim of medical malpra ctice at the University of Tenne ssee Student Hea lth Clinic. She alleg es she vis ite d th e c lin ic on Au g us t 23 , 200 0, a ft e r re turnin g fr om a tr ip t o N ig e ri a , a ndpr e se nte d s y mpt oms including he adac he, bac k pain, fe ver, and abdomi n al cr amps. Plaintiff alleg es that she wa s diag nosed with a cute viremia, presc ribed fluids, and told to return the next day for f ollow up, and that she re turned to the c linic the next morning , and was g iven an I V and fluids, but was ne ver te sted for mala ria. She a lleg ed that Dr . Robert L . Rubright a nd the clini c viol ated the standard of car e by failing to test for and r

ule out malaria . She further alleged she suffe red injuries a s a re sult of the misdiagnosis including coma, br ain injury , rena l failure, liver failure , medical e x penses, pa in and-2-

suffe ring , and loss of ea

rning capa city

. Def endant a nswere d, admitting that Dr . Rubright wa s an employ ee of the State, but denied that plaintiff’ s damag es we re c aused by defe ndant.
I n a tria l b e f

o r e th e Co mm is s io n e r , D r
. A r th u r Wi ll iams o n te s ti f

ie d a s a n e xp e rt wi tne ss, statin g that he wa s f a mil iar w ith the stand ard of c are fo r f a mil y pr a c tit ion e rs in Kno xvill e a ndsim ila

r c ommun iti e s f

or the re le va nt t ime fr a me , a ndop ine d th a t it wa s not r e a so na

ble to diag nose plaintiff wi t h a virus, and fa il to rule out malaria. He testified that he ha d never befor e te sti fi e d th a t a

ph y sic ia n h a d b reac he d th e stand ardof c are , b ut a ft e r r e vie wi ng the re c or ds he fe lt compelled to do so in this case.

Next, Dr. Wi lliam Schaffne r testified to his cre dentials, including his subspe cialty of inf e c tio us dis e a se s w ith in the sp e c ia lty of int e rn a l me dic ine

. He te sti fi e d that he wa s famil iar w ith the standar d of car e applicable to f amily prac titioners in Ea st Tennessee , that he wa s involved at the stu de nt h e a lth c lin ic a t V a nd e rb ilt , a nd ha d tr e a te d c a se s o f m a lari a . A ft e r v ie wi ng plaint if f’ s c lin ic rec ords for A ug ust 23, he testified that plaintiff’s sy mptoms couple d with the fac t note d that she had just returned f

rom Nig eria

would sug g est that malaria should be consider ed and r uled out.
Dr. Rubright testified that he pra cticed at the U.T. Student Hea lth Cl inic from 1970 to 1988, and was te am phy sician for the men’s athletics prog ram fr om 1988 to 1993. He testified that afte r 1993, he w orked at the clinic when they wer e short-handed, and a vera g ed wor king 30- 40 day s per y ear . He testified that he k n ew i n 2000 that malaria was the #1 killer in the w orld, e sp e c ia lly fa lc ipa ru m, andthat i t cou ld ki ll so me on e in a sh ort ti me , a ndhe a lso kn e w that We st Af ri c a wa s one of the hig he st ris k ar e a s for ma lari a
. He fu rthe r te sti fi e d tha t pl a int if f’ s sympt oms we re c on sis te nt w ithma lari a , a s w e ll a s lo ts o f o the r i lln e sse s. Hea lso kn e w i n 2 00 0 th a t ma lari a had a ve ry

non-spec ific pre sentation/sy mptoms.
He testified w hen plaintiff lef t the clinic on Thursday , she still had a fe ver, and when she re turned on Fri d ay , s h e was acutely ill, was letharg ic, and “ out of it”. He did a urinaly sis on plaintiff which indicated that she was having kidney problems, so he de cided she neede d to go to the hospital.
Plaintiff was admitted to the U n i v ersity of Tenne ssee Me dical Center , wher e a patholog ist ini tially

diag n o s ed the wr ong type of ma laria, and when she did not improve from the presc ribed tre atment, her

chart was re chec ked and she was diag nosed with f alcipar um ma laria. The evidenc e shows that she la psed into a coma and was unresponsive and moaning , with no attempt at speec h. She was in a cer ebra l ma laria coma for 10 or 11 day s, rec eived a n infusion of two units of pa c ke d bloo d ce lls se c on da ry to m a lari a , a ndkid ne y

dia ly sis . Sh e re ma ine d inthe I CU fr om A ug us t 31 to September 7, a nd develope d pneumonia while in the hospital. She suffe red acute rena l failure which re quired an invasive catheter, and s he testi fied that when she awoke from the coma, she had tubes in her leg s, tubes up her nose , tubes in her c hest, and wa s tied down so she wouldn’t re move the tubes. As a r esult, plaintiff’s muscles at rophi ed and she neede d constant ca re. A fter be ing-3-

discharg ed to home, she spe nt two to three we eks in bed, a nd dropped out of sc hool for one semester and g raduated later

than her entering c lass. The c ost of her hospitalization was $106,841.81. Following the trial, the Commissioner made finding s of fac t and conclusions of law. I n his findings a nd conclusions, he state d that he believe d Dr. Rubrig ht had “thre e hug e red flag s that scre am test for ma laria” and he failed to do so, and found that Dr. Rubrig ht violated the standar d of car e, beca use he felt any rea sonable pra ctitioner would have order ed the undisputedly simple blood sme ar te st jus t to ru le ou t ma lari a . T he Com mis sio ne r a lso fo un d th a t he ha d “ no e vid e nc e
. . . a s to what the d am age s we re fo r . . . t wo day s” bec ause D r. Rubrig ht’s failure to test caused a 48 hour delay in the diag nosis. The Commis sioner stated that the hospital’s misdiagnosis w as an inde pendent intervening circ umstance w hich was the prox imate cause of all of pl aintiff’s injuries. He found that he c ou ld no t “ fi nd a qu a nti fi e d se t of da ma g e s fo r the br e a c h of stand ardof

c are fo r that f

orty -e ig hthour period.” Plaintiff appea led, and c harg es the Commissioner err ed in awa rding no damag es af

ter finding there was a

deviation from the sta ndard of car e. Plaintiff first arg ues t hat the Commissi oner e rre d in finding that plaintiff’s m i s d i a g n o s i s a tU

. T

. H o s p i t a l w a s a n i n d e p e n d e n ti n t e r v e n i n g c i r c u m s t a n c e w h i c h p r o xi m a t e ly cause d plaintiff’s injuries.

Reg arding intervening cause , this Court has previously explained:
The interve ning cause doctrine is a common-law liability shifting de vice. It provides that a neg lige nt actor w ill be relieve d from liability when a n ew , independe nt and unforse en ca

use interve nes to produce a re sult that could not have bee n foreseen. Th e do c tr ine on ly

app lie s w he n ( 1) the int e rv e nin g a c t w a s su ff ic ie nt b y its e lf to cause the injury , (2) the intervening act wa s not reasona bly fore seea ble by the neg lige nt actor, and (3) the intervening act wa s not a normal re sponse to the orig inal neg lige nt actor' s conduct. The customary explanation of the doctrine is that a n independe nt, intervening cause brea ks the cha in of l ega l causation between the orig inal actor ' s conduct a nd the eve ntual injury

. Th e s e p ar a ti o n o f c a u s a ti o n in f a c t f r o m le g a l c a u s a ti o n a n d th e a d o p ti o n of the compar ative fault doctrine have obscure d the role and signific ance of the interve ning c a us e do c tr ine . Inte rv e nin g c a us e a pp e ars to r e la te mor e to l e g a l c a us a tio n t han to causation in fac t beca

use i t does not come into play until afte r causation in fact ha s been e stablished. T h e doctrine also appe ars to have survived the a doption of c omp arativ e fa

ult e ve n t ho ug h o the r s imi lar l ia bil ity sh if tin g do c tr ine s su c h a s la st clea r cha nce, implied assumption of the risk, and re mote contributory neg lige nce have be en subsum ed into comparative fault. While other jurisdictions have conclude d otherwise, the Supreme Court has state d that prox i m at e ca use and intervening cause rema in jury questions in the comparat ive fault decision-making proce ss.-4-

W aste Managem ent, Inc. o

f T ennesse e v. South Central Bell Telephone Co. , 15 S.W .3d 425, 432 (T e nn . Ct . A pp . 1 99 7) (c itatio ns omi tte d) . A s th is c a se no te s, int e rv e nin g c a us e re la te s to pr oximate or leg al causation, and thu s i s a question of f act whic h this Court m ust review de novo with a presumption of cor

rec tness unless the evidence preponder ates otherwise. I nterve ning c ause r equire s a showing of the a

bove listed three elements.
Th e fi rs t e le me nt i s th a t th e int e rv e nin g a c t mu st h a ve be e n s uf fi c ie nt by its e lf to cause the injury . The e x pert proof in this case wa s that if plaintiff had be en prope rly diag nosed whe n entering U .T. Hospital and tre ated a ppropriate ly , her c ondition would probably not have wor sened, which wa s admitted by

plaintiff’s expert. Thus, the misdiag nosis which occur red at the hospit al as t o the particular ty pe of ma la r ia c o u ldh a v e b e e n s u f

f ic ie n t i ts e lf

to c a u s e in

ju r y
. T h e o th e r

e le me n ts r e q u ir e d , h o weve r, cannot be established. The hospital’s misdiagnosis as to the type of malaria was both normal a nd fo re se e able , a s th os e ite ms a re de fi ne d inthi s c on te xt.
As re g ard ing fo re se e abil ity , th e Sup re me Cou rt ha s e xpla ine d a s f

oll ow s:

" Th e fa c t that a n in te rv e nin g a c t of a thi rdpe rs on is n e g lig e nt i n it se lf or is d on e in a neg lige nt manner doe s not make it a superseding cause of harm to another whic h the a c tor ' s n e g lig e nt c on du c t is a su bs ta nti a l f

a c tor in b ri ng ing abo ut, if (a ) the a c tor a t the tim e of his ne g lig e nt co nd uc t shou ld ha ve re a lize d th a t a third person mig ht so act, or (b) a rea sonable man knowing the s ituation exis ting when t he ac t of the third person w as done would not r eg ard it as hig hly extraordinary that the third person ha d so acte d,...." Evridge v . American H

onda Motor Co. , 6 8 5 S.W .2d 632, 635 (Tenn. 1985) , quoting Restate ment (Second) of Torts §447.

I n discussing w hat is fore seea ble i n terms of proximate causation, our Supreme Court has said:
The for esee ability require ment is not so strict as to require the tortfea sor to fore see the exact manner

in which the injury

takes plac e, provide d it is dete rmined that the tortfea sor could fore see, or throug h the exercise of rea sonable dilig ence should have fore seen, the g ener al manner in which the injury

or loss occur

red. " The fa ct that an a c c ide nt m a y be fr e akis h do e s no t pe r se make it u np re dic ta ble or un fo re se e n. " I t is sufficie nt that harm in the abstra ct could re asonably be for esee n. McClenahan v . Cooley , 806 S.W .2d 767, 775 (Tenn. 1991) (citations omitted). The Court we nt on-5-

to expl ain:
Wit h respe ct t o s uperse ding intervening cause s that might bre ak the c hain of

proxi mate ca

usation, the rule is established that it is not nece ssary that tortfea sors or concur rent for ces a ct in conce rt, or that there be a joint operation or a union of ac t or intent, in order f

or the ne g lige nce of

eac h to be reg arde d as the proximate cause of the inj urie s, the re by re nd e ri ng a ll tortf e a so rs lia ble

. Th e re is no r e qu ir e me nt that a c a us e , to be re g ard e d a s th e pr oximate c a us e of a n in jury , b e the so le c a us e , th e la st act, or the one ne are st to the injury , provided it is a substantial f actor in producing the e ndre su lt. An int e rv e nin g a c t, wh ic h is a no rm a l re sp on se c re a te d b y ne g lig e nc e , is not a superse ding, intervening cause so as to r elieve the orig inal wrong d o er of liability , provided the inter vening act could have rea sonably been f orese en and the c on du c t w a s a

su bs ta nti a l f

a c tor in b ri ng ing abo ut the ha

rm . " An int e rv e nin g a c t w ill not exculpate the orig inal wrong doer unle ss it appear s that the neg lige nt intervening actcou ld no t h ave b een r easo nab lyant ici pat ed. "
Id. (citations omitted).

What is considered a

fore seea ble or norma l conseque nce ha s been f urther e x plained in Re state me nt (S e c on d) of To rt s §4 47 , wh e re in it is state d th a t a ne g lig e nt i nte rv e nin g a c t is no t a su pe rs e din g c a us e of ha

rm to an oth e r wh e re the a c tor ’s ne g lig e nt c on du c t is a su bs ta nti a l f

a c tor in bring ing it about, if “ the interve ning a ct is a normal c onsequenc e of a si tuation cre ated by the ac tor’s conduct a nd the manner in w hich it is done is not extraordinarily neg lige nt.” Comment b ex pounds on wh a t is me a nt b y

“ no rm a l c on se qu e nc e ” , a ndstate s:
I t, theref ore, de notes that the court or jury looking at the matter after the event a nd knowing the situation which exist ed whe n the ac t was done, inc luding the c hara cter of the pe rson subjecte d to the stimul us o f t h e situation, would not reg ard it as extraordinary

that such ac t, though ne g lige nt, should have bee n done.
Comment b also refe rs to the def inition provided for “normal” in §443, Comment b.
This rule has been followed in medical neg lige nce c ases a s well. For example, the Supreme Court has state d:

This Court, like most others, re cog nizes that if one is injured by the neg lige nce of another , and these injuries are ag g ravated by medical tre atment (e ither prud ent or neg lige nt), the neg lige nce of the wrongdoe r causing the orig inal injury is reg arde d as the proximat e ca u s e of the da mag e subseque ntly flowing from the medic al treatment.
Tra ns po rts , I nc . v . P e rry , 414 S.W .2d 1, 4 (Tenn. 1967) , se e als o Troy v. He rndon , 1998 WL 820698 (T e nn . Ct . A pp . N ov . 2 4, 19 98 ); At k ins on v . H

e mp hil l , 1994 WL 456349 (Tenn. Ct. App. Aug . 24,-6-

1994).
This rule has survive d in the compar ative fa ult scheme. Troy and Atkinson . Wh ile it h a s n orma lly

be e n a pp lie d in situatio ns wh e re the plaint if f wa s inju re d in an ac c ide nt an d the n h is inj urie s w e re a g g ra vate d b y me dic a l tr e a tme nt, it e qu a lly app lie s w he re there ar e tw o s e pa rate instances of

medical ne g lige nce.
F or the se re a so ns , th e Com mis sio ne r’ s f ind ing that th e ho sp ita l’ s negli gence in mis dia g no si ng the ty

pe of ma lari a wa s a n in te rv e nin g c a us e wh ic h c ut o ff de fe nd a nt’ s li abil ity

is in error , beca

use the hospital’s misdiag nosis was a norma l and fore seea ble conse quence
. Whil e the State ur g es us to hold that the misdiagnosi s b ythe hospital was an intervening and proximate cause of plai n t i ff ’s injuries, the State’s attorne y stated in his closing arg ume nt “ we do n’ t su g g e st that a ny ph y sic ia n w ho wa s tr e a tin g he r at the Me dic a l Ce nte r d id anything wr ong .” He went on to state:

To assess c omparative fault would mean that the State would have to point a f inge r at one of the phy sicians and say

y ou acte d neg lige ntly

or y ou acte d outside the app ro pria te sta nd ardof

c are . O ur

wh ole po int

is that ma lari a

is a dif fi c ult dis e a se to diag nose, that’s pa

rt of our de fense

. Es se nti a lly , th e Sta te c on c e de d th a t the ho sp ita l’ s mi sd ia g no sis of the ty pe of ma lari a was not extraordinary

or unfor esee able. Dr. Rubrig ht and the medica l experts also conce ded that the type of m al ar i a could sometim es be misdiag nosed. The e vidence preponde rate s ag ainst the Commi ssioner’s finding of an inter vening cause
.

Mo re ov e r, the Sta te di d n ot p le a d c omp arativ e fa ult or int e rv e nin g c a us e in i ts Answer with reg ard to the neglig ence of t he hospi tal. Acc ording ly , the Commiss ioner should not have r aised the issue sua sponte and dete rmined it to be dispositi ve, whe n the hospital actors w ere not be fore him a s defe ndants and the plaintiff ha d no notice that this issue would be ra ised. Pursuant to Tenn. R. Civ. P

. 8, these issues are require d to be pled as a def ense, and as the Comments to the rule point out, “the de fenda nt must i dentify or desc ribe other

alleg ed tortfea sors who should share fault, or e lse the defendant would normally be bar red f rom shifting bla me to others at tria l.” See also, George v . Alexande r , 931 S.W .2d 517 (Tenn. 1996) , wher e the Supre me Court said:

We r eadily acknow ledg e that the fac tfinder may not f ormally attribute fault to other persons at t ri al i f t h e defe ndant does not identify them under Rule 8.03; thus, the defe ndant does have some incentive to plea d under the rule. This, howe ver, doe s not chang e the f

act that if the pos ition advocated bydefe ndants and the c oncurr ence wer e t o p re v ai l , t h en t h e d ef

en d an t , b y

ca re fu l l y l i m i t i n g i t s ev i d en ce o f a n o t h erp er s o n 's role in causing the injuries to the element c ausation in fa ct , co u l d completely and eff ectively shift t h e b l am e to t hat per son without affording the plaintiff any notice whatsoeve r of its intent. A defe ndant would still be justified in totally surprising the-7- plaintiff and f

oisting the blame on other pe rsons, a re sult that viol ates the pur pose of Rule 8.03.
Id. at 521. The c ommissi oner w as in err or to attribute fault to the hospit al’s neg lige nce.

The Trial Court found that Dr. Rubrig ht violated the standar d of ca re , wh i ch he b as i ca l l y co n ce d ed i n h i s t es t i m o n y , an d t h e e v i d en ce d o es n o t p r e p o n d er at e a gai n s tt h i s fi n d i n g, Tenn. R. App. P. 13(d). The i s s u e thus becomes in our de novo revie w the extent of damag es sustained as a

result of Dr . Ru b ri gh t’s malprac tice. The evidenc e esta blished that had def

endant timely diag nosed plaintiff’s illness and a dminist ere d proper treatment, that s he would not have suffe red the sever e conse quence s which the de lay in treatment c aused. The statutory

limit s on damag es as pr ovided in Tenn. Code Ann. § 9-8-307(a )(3) (e) is $300,000.00, and the evide nce of damag es as he reinbe fore detailed, i ncluding her pain and su ff e ri ng e sta bli sh e s d a ma g e s w e ll i n e xce ss o f the statut ory lim its

. Acc ording ly , we re m and to the Commissi oner and direc t that a J udg ment of $3 00 ,0 00 .0 0 b e e nte re d o n b e ha lf of the plaint if

f a g a ins t de fe nd a nt.
The c ost of the appe al is assessed to the State of Tenne ssee.

______________________________ H ER SCH EL P I CKE N S F RAN KS , P

. J.