FILED

October 7, 1996

Cecil W. Crowson

Appellate Court Clerk

October 7, 1996

FOR PUBLICATION

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE 

ETHEL FAYE GEORGE, )

)

Plaintiff-Appellant, )

)

) Davidson Circuit

)

v . ) Hon. Marietta M. Shipley, Judge

)

) No. 01-S01-9505-CV-00084

)

CLYDE WAYNE ALEXANDER, M.D. )

AND PHILLIP R. JONES, M.D., )

)

Defendants-Appellees. )

CONCURRING OPINION

I agree with the result reached by the majority. 

However, resolution of the important principles of

comparative fault and rules of pleading and evidence

presented in this case requires, in my view, a more precise

articulation and analysis of the pleadings, the facts, and

the legal issues. As an example, the statement of the issue

decided in the majority's introductory paragraph - if the

defendant wishes to introduce evidence that a person other

than itself caused the plaintiff's injury - encompasses

various situations controlled by different rules and cannot
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be decided as stated. Since the rules of substantive law,

pleading and evidence are correlated, I can best state my

views in an integrated opinion rather than in a commentary on

the majority's opinion. 

INTRODUCTION

This medical malpractice case presents for review

the decision of the Court of Appeals that evidence that the

negligence of a non-party proximately caused the plaintiff's

injuries was admissible under a plea of general denial. This

Court finds that such evidence is admissible only when the

affirmative defense of comparative fault has been pled.

THE CASE

The plaintiff, Ethel Faye George, was admitted to

a hospital in Nashville in October 1989 for surgery to be

performed by Dr. James Daniell, a gynecologist. In

preparation for the surgery, Ms. George was positioned on her

side for the administration of a spinal anesthesia by the

defendant Dr. Phillip R. Jones, an anesthesiologist. When

Dr. Jones inserted the needle into her lower back, the

patient reported sharp pain in her right leg. After several

unsuccessful attempts to complete the procedure, each
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accompanied by reports of pain, Dr. Jones requested the

assistance of another anesthesiologist, the defendant

Dr. Clyde Wayne Alexander. Despite the patient's complaints

of pain each time the needle was inserted, the procedure was

accomplished by the defendants. 

Under the direction of Dr. Daniell, surgical

nurses placed the patient on her back with her legs supported

by stirrups, a position known as a modified lithotomy

position, where she remained during the surgery.

After the operation, the plaintiff experienced

pain extending down her right leg and foot, and since that

time, she has been significantly and permanently impaired. 

The proof shows that the plaintiff's condition was caused by

severe damage to two nerve roots.

In October 1990, the plaintiff filed this suit for

medical malpractice against the defendants, Jones and

Alexander. The plaintiff did not sue Dr. Daniell.

The complaint alleges that the defendants'

administration of spinal anesthesia was below the applicable

standard of care and was the proximate cause of the injuries

sustained. The complaint alleges specifically that "the
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injuries to the plaintiff's right leg and foot were caused by

trauma to nerve roots and structures by the defendants during

the administration of spinal anesthesia." The complaint

further charges that "the injuries and damages sustained by

the plaintiff were proximately caused by the negligence and

fault" of the defendants.

The defendants filed answers to the complaint on

December 5, 1990. They admitted that they performed the

procedure but denied that their performance was below the

applicable standard of care exercised by professionals

practicing in the specialty of anesthesiology in Nashville

and similar communities and stated that they complied with

that standard of care. The defendants specifically denied

the allegation that the plaintiff's injuries were caused by

the procedure performed, and they specifically denied the

allegation that the plaintiff's injuries were proximately

caused by the manner in which they performed the procedure. 

In their answers, the defendants "reserve[d] the right to

assert additional affirmative defenses as they may appear

through discovery and further investigation."

The plaintiff propounded to the defendants an

interrogatory eliciting their position on whether the

plaintiff's injuries had been caused by persons other than
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the defendants, to which the defendants responded that they

had "no definitive opinion of the cause or causes of the

plaintiff's complaints."

In October 1993, approximately one month before

the case went to trial, the plaintiff took the deposition of

Dr. Vaughan Allen, the neurosurgeon who had treated the

plaintiff for the injuries sustained during the operation. 

In the course of the deposition, Dr. Allen explained that Ms.

George had suffered injuries to two separate nerve roots, and

that in his opinion there were two plausible explanations for

the injuries: that an "injection injury" had occurred in the

administration of the spinal anesthesia by the defendants; or

that the injury had occurred as the result of improper

positioning of the patient by Dr. Daniell during surgery. 

Dr. Allen also testified that it was "extremely unlikely"

that the plaintiff's injuries were caused by the defendants,

and that "the most likely diagnosis" would be that the

injuries were caused during the surgery by Dr. Daniell. 

Prior to trial, the defendants filed a notice of

intent to introduce into evidence the deposition of Dr.

Allen. The plaintiff responded by filing a motion to exclude

the testimony, contending that the defendants were required

to plead comparative fault as an affirmative defense before
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presenting evidence that another person caused the injury. 

On the first day of the trial, the plaintiff filed

a second motion i n limine , asking the court to exclude any

testimony and prohibit any questioning with regard to any

cause of the plaintiff's injuries other than the defendants'

injection of the spinal anesthesia. In the second motion

the plaintiff asserted that:

As grounds for this motion plaintiff

would show the Court that Defendants

have not raised an alternative cause as

an affirmative defense in their answers

to either the original complaint or the

amended complaint and have not set forth

any alternative cause in their Rule 26

statement of expert testimony or in

answer to interrogatory number eight of

the interrogatories propounded on each

defendant many months ago.

The trial court denied the motions to exclude Dr. Allen's

deposition. No additional pleading was filed by any of the

parties, and on November 8, 1993 the case went to trial on

the plaintiff's amended complaint and the defendants'

answers.

The jury found for the defendants, and the trial

court entered judgment accordingly. The Court of Appeals

found that the admission of Dr. Allen's testimony was not
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error, and affirmed. 

ANALYSIS

Even though the cause of action arose in October,

1989, this case had not been tried when the decision in

McIntyre v. Balentine , 833 S.W.2d 52 (Tenn. 1992), was

released on May 4, 1992. Consequently, the case became

subject to the principles of comparative fault, id. at 58,

which significantly altered the substantive and procedural

rights of the parties. At that time, the statute of

limitations had run on the plaintiff's claim against any

other person, including Dr. Daniell. However, McIntyre gave

the defendants a significant right not previously available,

the right to "allege, as an affirmative defense, that a

nonparty [had] caused or contributed to the injury," and thus

avoid liability in whole or in part. I d . An amendment to

Tenn. R. Civ. P. 8.03, also adopted prior to the trial of

this case, defined the procedure for asserting that defense. 

Rule 8.03, entitled ?Affirmative Defenses, ?

provides in pertinent part that, ?[i]n pleading to a

preceding pleading, a party shall set forth affirmatively

facts in short and plain terms relied upon to constitute

. . . comparative fault (including the identity or
1

A defendant's pleading of comparative fault as an affirmative

defense under Tenn. R. Civ. P. 8.03, triggers the plaintiff's limited

opportunity under Tenn. Code Ann. § 20-1-119(a) (1994) to make any other

alleged tortfeasor a party to the suit. In Ridings v. Ralph M. Parsons

Co. , 914 S.W.2d 79, 83-84 (Tenn. 1996), the Court explained the interplay

between Tenn. R. Civ. P. 8.03 and Tenn. Code Ann. § 20-1-119:

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description of any other alleged tortfeasors). . . . ? The

Advisory Commission explained the 1993 amendment as follows: 

"Comparative fault" is substituted for

"contributory negligence" in light of

McIntyre v. Balentine , 833 S.W.2d 52

(Tenn. 1992). Note that the defendant

must identify or describe other alleged

tortfeasors who should share fault, or

else the defendant normally would be

barred from shifting blame to others at

trial.

Tenn. R. Civ. P. 8.03 Advisory Commission Comments [1993].

Despite this change in the law, the defendants did

not plead comparative fault and thus failed to identify or

describe any "other alleged tortfeasors." The Court stated

in Ridings v. Ralph M. Parsons Co. , 914 S.W.2d 79, 84 (Tenn.

1996), that "[f]ailure of the defendant to identify other

potential tortfeasors would preclude the attribution of fault

against such persons and would result in the defendant being

liable for all damages except those attributable to the fault

of the plaintiff." Consequently, in this case, the

defendants were barred from "shifting blame to others at

trial." 1

 
Rule 8.03, Tenn. R. Civ. P., insures that the rights

and liabilities of the parties subject to suit be resolved in

one action. Section 20-1-119 provides the procedure for

joining additional defendants, but it does not address the

effect of a defendant's failure to allege that a nonparty

caused or contributed to the plaintiff's damages or the

plaintiff's failure to make those persons defendants. 

However, Rule 8.03 requires that "comparative fault

(including the identity or description of any other alleged

tortfeasors)" be pled as an affirmative defense. Failure of

the defendant to identify other potential tortfeasors would

preclude the attribution of fault against such persons and

would result in the defendant being liable for all damages

except those attributable to the fault of the plaintiff. 

Failure of the plaintiff to assert its cause of action

against such persons who are alleged by the defendant

pursuant to Section 20-1-119 to have caused or contributed to

the injury or damage, would not preclude the assessment of

fault against such persons but would preclude the award of

damages against such persons.

Since the defendants in the present case did not allege that Dr. Daniell,

or another person, caused or contributed to the plaintiff's injuries, the

issue of whether the plaintiff could have joined any third party

defendants pursuant to § 20-1-119 is not presented in this case. See

Owens v. Truckstops of America , 915 S.W.2d 420, 427 (Tenn. 1996). 

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The plaintiff argues that because Dr. Allen's

deposition was offered for the sole purpose of "shifting the

blame" for the plaintiff's injuries away from the defendants

and onto Dr. Daniell, the deposition was not admissible. In

response, the defendants contend that they did not offer

Dr. Allen's deposition to show that Dr. Daniell was "legally

at fault" but to disprove an element of the plaintiff's prima

facie case, causation in fact, and that, therefore, Rule 8.03

does not apply. 

The admissibility of Dr. Allen's testimony depends

upon its relevance to the issues raised by the pleadings. 

See Tenn. R. Evid. 402. The complaint charges professional
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malpractice. The defendants do not deny two of the essential

elements of a cause of action based on negligence - duty of

care and injury. See McClenahan v. Cooley , 806 S.W.2d 767,

774 (Tenn. 1991). The denials stated in the answer put at

issue the other three essential elements - breach of duty,

causation in fact, and proximate or legal causation. In

other words, the defendants denied that they were negligent,

that their administration of the medical procedure was below

the applicable standard of care; they denied that the

procedure was an antecedent cause of the plaintiff's

injuries; and they denied that the procedure performed by

them was the proximate or legal cause of the plaintiff's

injuries. Their pleadings do not charge that the proximate

cause of the plaintiff's injuries were the acts or omissions

of other persons. 

Evidence relevant to any of the legal issues

raised by the pleadings was admissible. Rule 401, Tennessee

Rules of Evidence, defines relevant evidence as "evidence

having any tendency to make the existence of any fact that is

of consequence to the determination of the action more

probable or less probable than it would be without the

evidence." Consequently, Dr. Allen's testimony was

admissible if it tends to establish the degree of care

exercised by the defendants or the causal relationship, if
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any, between the procedure performed by the defendants and

the plaintiff's injuries. The question, then, is - what does

Dr. Allen's testimony tend to establish? 

Dr. Allen's testimony related to two alternative

(not common or joint) causes - the administration of the

spinal anesthesia by the defendants and the positioning of

the patient's body for surgery by Dr. Daniell. As to the

first, Dr. Allen testified that injury to two nerves could

not have been caused by the injection of anesthesia unless

the plaintiff had a ?conjoined nerve root ? -- a rare

anatomical condition in which two nerves are enclosed in a

single protective sheath. Dr. Allen discounted this

possibility, based on his analysis of a myelogram and an MRI

scan. He concluded that although theoretically the

plaintiff's injuries could have been caused by the spinal

anesthesia, it was highly unlikely. 

With regard to the other possible cause, Dr. Allen

testified that the proper positioning of a patient's body

during the described surgery is crucial, and that ensuring

that the patient is properly positioned is primarily the

responsibility of the surgeon performing the operation. Dr.

Allen testified that having the patient's body in an improper

position during surgery could cause a ?stretch injury ? to the
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nerves and, conversely, that a stretch injury is highly

unlikely if the patient is positioned correctly. With regard

to this point, Dr. Allen testified as follows:

Q: Doctor, do you have an opinion within

a reasonable degree of medical certainty

that improper positioning of Ms. George

for this surgery she had was the cause

of her nerve damage to her leg?

A: In my opinion that would be the most

plausible cause , yes, sir.

Q: So that would be your opinion within

a reasonable degree of medical

certainty?

A: Yes, it would.

Q: And it is your -- do you have an

opinion within a reasonable degree of

medical certainty, doctor, that improper

positioning of the patient would not

occur, normally not occur if the patient

was positioned within the standard of

care for the physicians involved?

A: Yes. As I have testified before,

unless there was some underlying

anatomic reason which I don’t believe

Ms. George has, that would be an

accurate statement as well. 

(Emphasis added). 

Later in the deposition, Dr. Allen responded to a

question about the lithotomy position:

Q: Doctor, assuming someone is properly
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positioned in the lithotomy position

. . ., do you have an opinion within a

reasonable degree of medical certainty

that that person, if they were properly

positioned in a lithotomy position,

would have an injury such as Ms. George

has?

A: It would be profoundly unlikely that

with proper positioning that one would

end up with a nerve injury .

Q: So would you have an opinion within a

reasonable degree of medical certainty

that -- if, as you opine, this was

caused by a stretch injury, would you

have an opinion within a reasonable

degree of medical certainty that there

was improper positioning?

A: Either improper positioning initially

or as the case went on stretch injury

from involving improper positioning such

as pushing against her legs or something

of that nature, but my answer would be

yes.

(Emphasis added).

This testimony tends to establish two conclusions

- that the administration of the spinal anesthesia was not

the cause in fact of the plaintiff's injuries, and that the

positioning of the plaintiff's body by Dr. Daniell for

surgery was the cause in fact of the plaintiff's injuries. 

Consequently, Dr. Allen's testimony regarding the defendants'

administration of the procedure was relevant, and, therefore,

admissible. However, his testimony regarding the positioning

of the plaintiff's body for surgery was not relevant to any
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issue made by the pleadings, and, therefore, was not

admissible. His testimony with regard to positioning would

have been relevant, and, therefore, admissible, if the

defendants had pled the affirmative defense of comparative

fault.

Rule 8.03 requires that the defendant identify or

describe other alleged tortfeasors . It is applicable where a

defendant undertakes to shift the "blame" to other

"tortfeasors" who "should share fault." Tenn. R. Civ. P.

8.03 Advisory Commission Comments [1993]. Such allegations

raise the issue of proximate cause. In Kilpatrick v. Bryant ,

868 S.W.2d 594 (Tenn. 1993), the Court explained the

difference between proximate cause and cause in fact:

"Causation (or cause in fact) is a very

different concept from that of proximate

cause. Causation refers to the cause

and effect relationship between the

tortious conduct and the injury. The

doctrine of proximate cause encompasses

the whole panoply of rules that may deny

liability for otherwise actionable

causes of harm." Thus, proximate cause,

or legal cause, concerns a determination

of whether legal liability should be

imposed where cause in fact has been

established. 

Id. at 598 (quoting Joseph H. King, Jr., Causation, Valuation

and Chance in Personal Injury Torts Involving Preexisting
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Conditions and Future Consequences , 90 Yale L.J. l353, l355

NSF. 7 (1981)). Therefore, Rule 8.03 is applicable where the

defendant contends that the act or omission of another was

the proximate cause of the plaintiff's injury. 

This reading of Rule 8.03 is consistent with Tenn.

Code Ann. § 20-1-119(e), which provides:

This section shall not limit the right

of any defendant to allege in an answer

or amended answer that a person not a

party to the suit caused or contributed

to the injury for which the plaintiff

seeks recovery.

Section 20-1-119 provides for the practical implementation of

the benefits of comparative fault, which requires special

pleading, and it also protects the defendants' right to

dispute all the essentials of liability under a plea of

general denial. Under a plea of general denial, and without

affirmatively pleading comparative fault, the defendants are

entitled to show at trial that the act or omission of another

was the cause in fact (as distinguished from proximate cause)

of the plaintiff's injury. However, without pleading

affirmatively, the defendants cannot attempt to shift the

"fault," "blame," or "liability" to the other person. In

order for the defendants to shift all or part of the fault,

the defendants must affirmatively plead the negligence of
2

Tenn. R. Civ. P. 8; Hammett v. Vogue, Inc. , 179 Tenn. 284, 165

S.W.2d 577, 579 (1942).

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another, or in other words, identify or describe other

tortfeasors who might be found to have proximately caused the

plaintiff's injuries. See Ridings v. Ralph M. Parsons Co. ,

914 S.W.2d at 83-84.

The defendants' argument on this point (and the

majority opinion) ignores the relationship between pleading

and evidence. They acknowledge in their brief that Dr. Allen

testified "that the surgical position of the patient was

negligent and that the surgeon himself deviated from the

standard of care." They continue: "But this was not the

theory of the defendants; the defendants never, at any time,

contended that the surgeon was negligent." This argument

defeats the defendants' case. The "theory" or "contention"

of the parties is found in the pleadings. 2

 Under modern

pleading, a party is not required to set out in detail the

facts upon which it bases its claim or defense; however, the

pleadings must afford fair notice of what the claim or

defense is and the grounds upon which it rests. See 2A James

W. Moore, et al., Moore's Federal Practice ¶8.02 (2d ed.

1995) (citing Conley v. Gibson , 78 S. Ct. 99, 355 U.S. 41,

47-48, 2 L.Ed.2d 80 (1957)). An affirmative defense pleads a

matter that is not within the plaintiff's prima facie case. 

I d . at¶8.27[1]. Thus, pleadings give notice of the issues to
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be tried. Castelli v. Lien , 910 S.W.2d 420, 429 (Tenn. Ct.

App. 1995). 

The defendants' pleadings do not allege that

Dr. Daniell was negligent or that his negligence was a

contributing cause of the plaintiff's injuries. However,

their evidence, the testimony of Dr. Allen, tends to

establish that Dr. Daniell was negligent and that his

negligence caused the plaintiff's injuries. That evidence

tends to establish Dr. Daniell as a tortfeasor, at fault and

responsible for the plaintiff's injuries. It also is an

invitation to the jury to shift the fault to persons other

than the defendants. The conclusion, of course, is that

since the defendants did not plead comparative fault and

identify other tortfeasors, that portion of Dr. Allen's

testimony which tends to shift the fault to Dr. Daniell was

not admissible. 

Relevant evidence of causation which does not tend

to establish nonparties as tortfeasors is admissible under a

general denial. However, a defendant's evidence which, as in

this case, tends to show no causation in fact by the

defendant is inadmissible if it also shows that a nonparty

was negligent and that the nonparty's negligence was the

proximate cause of the plaintiff's damages. In the present
3

Owens v. Truckstops , 915 S.W.2d 420, 428 (Tenn. 1996).

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case, the defendants relied heavily upon Dr. Allen's

testimony that the patient was improperly positioned for

surgery and that improper positioning was the cause of the

injuries. Rule 8.03 requires that if those facts are to be

relied upon, they must be set forth in the pleadings in

"short and plain terms." Otherwise, testimony regarding

those facts is not admissible. 

The argument that comparative fault never would 

be pled overlooks the above stated rule of evidence as well

as significant practical factors. In Tennessee, where the

separate, independent negligent acts of more than one

tortfeasor have combined to cause a single, indivisible

injury, liability is not joint and several. 3 Consequently,

where the defendant does not plead comparative fault, it will

be held liable for 100 percent of the plaintiff's damages

unless it is absolved of all liability. In other words,

where a sole defendant does not plead comparative fault,

there will be no apportioning of liability for damages even

though the defendant may have been only partially at fault. 

Evidence which tends to establish the plaintiff or a nonparty as a tortfeasor responsible for the damages alleged is

not admissible unless the defendant has pled comparative

fault as an affirmative defense. 
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Admission of a portion of Dr. Allen's testimony

was prejudicial error requiring the decision of the Court of 

Appeals to be reversed and the case remanded for a new trial. 

 

___________________________

Reid, J.