### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON MARY JOHNSON, ET AL 

### . v. LEBONHEUR CHILDREN'S MEDICAL CENTER, ET AL 

### . A Direct Appeal from the Circuit Court for Shelby County Nos. 66041-9 and 74022-9 The Honorable Robert L. Childers, Judge

No. W1999-01719-COA-RM-CV - Decided May 25, 2000

In this medic al malpractice c ase, the plaintiff

sued a hospital and

several phy

sicians, including a resident physician in the University of Tenn essee trai ning program. The complaint alleges,among other things, that the hospit al is liable to plaintiff pursuant to respondeat superior for alleged negl

igence on the pa

rt of two Universit

y of Tennessee resident physicians. The hospital sought partial summary judgment as to any liability by vi rtue of acts of the resident physician, because the resident phy

sicians are immune

from suit pursuant t

o the Tennessee Cla

ims Commission Act; thu s, t hey a ssert that since the agent or servant cannot be held liable, the principal or master cannot be held liable. From the order of the trial court denying hospital a partial summary judgment, Hospital was gra

nted an interlocu

tory appea

l.

Tenn. R. App. P. 3, Appeal as o f Right; Judgment of

the Circuit Court

is Affir m ed and Remanded C RAWFORD , P.J., W.S., delivered the opinion of the court, in which H IGHERS , J ., and F ARMER , J ., joined. Thomas R. Prewitt, Jr.; Robert son M. L eatherman; Park e S. Morris, Memphis , For Appellant, Lebonheur Children's Medical Center Randall L. Kinnard; Steven R. Walker, Memphis, For Appellees

OPINION1 Because of the narrow issue involved in this appeal, we do not find it necessary to further relate the alleg

ations of the leng

thy and deta

iled complaint. -2- This is a medical malpractice case. Plaintiff, Mary Johnson, individually

and on behalf

of her daughter, Amman Johnson, sued Le Bonheur Childre

n’s Medical Cente

r (hereinafer

referred to

as LeBonheur

), Donald C. Watson,

M.D., Michael Cita

k, M.D., Michael B arron, M.D., Pedi atric Anesthesiologis

ts, P.A., and U. T. Medical Group, Inc., seeking damages for injuri es incurre d by Ammon Johnson when she suffered cardiac arrest that led to perm anent b rain damage wh

ile undergoingsurgery for a heart condition known as Tetralogy of

Fallot. The complaint alleges, inter alia , that Dr. Citak a nd Dr. Martindale, both resident physicians in the University of Te nnessee training program, were acting as agents and servants of

defendant, LeBonheur, when they committed negligent acts resulting in injuries to plaintiff, and that LeBonheur is liabl e for their alleged negligence

by virtue of respondeat superior

. 1 Because defendant, Dr. Citak, was a medical resident in the Univers it y of Tennessee training program and tec hnically an employee of the State of Tennessee, claims against him personally were transferred to the Tennessee Claims Commission by consent order. Since Dr. Martinda le was not named as a defendant, there was no order entered concerning the

allegations abo

ut him. On December 8, 1 999, the tr ial court en tered an ord er denying LeBonh eur’s motion for partial summary judgment “on the issue of LeBonhe ur’s liability based

upon the asserted negligence of two physicians, Michael Citak, M.D., and Michael Martindale, M.D., who were medica

l residents working at Lebonheur Children’s Medical Center on rotations, while in the residency program of the University of Tennessee.” LeBonheur

was granted a Rule 9, Tenn.R.App.P., interlocutory appeal, and the only issue for-3-

review is whe ther Le Bonhe ur can be held vicariously liable for the acts of the resident phy sicians while they were acting as Le

bonheur’s agents when

the residents areimmune from suit as a matter of law. LeBonheur

asserts that Tennessee law is clear that a master cannot be held liable pursuant to respondeat superior

for the actions of a servant when the servant is immune from suit. Lebonheur cites several authorities for this proposition of the gener al law. We have no q uarrel with these authorities. However, we have found no authority dealing with the factual situation presented in the instantcase, i.e., when a servant’s immunity is granted by statute for the servant’s acts while acting for the state, and

where the state’s immunity is waived and the ser van t is act ing f or an oth er en tit y. Art. I, Sec. 17, Constitution of the State of Tennessee providesin part: “Suits may be brought against the state in such a manner and in such courts as the legislature may by law direct.” T.C.A. § 20-13-102 (a) ( 1994) provides: 20-13-102. Actions against sta te prohibited.

- (a) No court in the state shall have any power, jurisdiction, or au thority to entertain any suit against the state, or against any officer of the state ac tin g by authority of the state, with a view to re ac h the state, its treasury, funds, or property, and

all such suits shall be dismissed as to the st ate or such officers, on motion, plea, or demurrer of the law officer of the state, or counsel employed for the state. Although th e state has not pro vided for tort ac

tions to be brough

t against the sta

te and its officers in state courts, c

laims are allowe

d against the state pursuant to T.C.A. § 9-8-307 (1999), which provides in p

ertinent part: 9-8-307. Jurisdiction - Claims - Waiver of actions - Standard for tort liability - Damage

s - Immunities -

Definitions - Tr

ansfe r of claims. - (a)(1 ) The commission or each commissioner sitting individually

has exclusive jurisdiction to determine all monetary claims against the s tat e based on the ac ts or omissions of “st

ate-4- employees,”as defined in § 8-42-101(3), fa lli ng wi thin one (1) or more of the follow

ing categori

es:

* * * (D) Legal or medical

malpracticeby a state employee; provi ded, that t he state employ ee has a professional/cli

ent relationship w

ith the claimant;

* * * (b) Claims against the

state filed pursua

nt to subsec tion (a) shall operate as a waiver of any

cause of action, based on the same act or omission, wh ich the claimant has against any state officer or employee. The waiver is void if the commission determines that the act or omissio n was not within the scope of the officer’s or employee’ s office or emplo yment.

* * * (h) Stateofficers and em

ployees ar e absolutely

immune from liabilit

y for acts or omissions within the scope of the officer’s or employee’s office or employme

nt, except for willf

ul, malicious,

or criminal acts or omissions or for acts or omissions done for personal gain. For p ur poses of this chapter, “state officer” or “employee” has the meaning set forth in § 8-42-101(3). The statutory immunity granted state employ ees is basically a quid pro quo situation; that is, the state, as the master or employer, becomes subject to liability

while at the same

time the servants or employees are

relieved of liability. Although the state and the state employee s remain immune from suit in the state

courts, provision f

or relief is provi

ded by the a

lternative forum

. In Ridings v. Ralph M. Parson’s Co., 914 S.W.2d 79 (Tenn. 1996), our Supreme Court held that an employer who was immune by virtue of the workers compensation law could notbe attributed fault in the employee’s third party a ction. In Snyder v. LTG and Lufttechnische GmbH , 955 S.W.2d 252 (Tenn. 1997), our Supreme-5-

Court, pursuant to Rule 23, Rules of the Supreme Court, considered a certified question of law from the federal cou

rt. The primary

question presente

d was: 1. Whether products l

iability def

endants in a suit for personal injuries basedon a llegations of ne gligence and

strict liability

in tort may introduce evidence at

trial that the plaintiff’s employer’s alteration, change, improper maintenance, or abn ormal use of the de

fendants’ product proximately caused or contributed to the plaintiff’s injuri

es. (Emphasis added). 955 S.W.2d at 253. As the Courtnoted, an employer cannot be found to be the proximate or legal

cause of the plaintiff’ s injuries, because the emp loyer is immune from tort liability under T.C.A. § 50-6-108 (a). Id. at

256. The Court went on to say, however, that the fact that the employer cannot be found to be the pro

ximate or legal ca

use of the plaintif

f’s injurie s doe s not mean “that the employer cannot be found by the trier of fact to have been a cause in fa ct of the plaintiff’s injuries.” Id. at 256. The Court e

xplained: If the rule were otherwise, the defendants would effectively be precluded from presenting

a defense. A de

fense that the product

was notdefective or

unreasonably

dangerous whe

n it left the defenda

nts’ control woul d not be credible unless the defendants were permitted to introdu ce evi dence as to what actually happened to the product leading up to the incident tha t in jured the plaintiff. Excising the employer from that discussion would be tantamount to drawing a line which would make discussion of the case to be tri

ed difficult,

if not impossible. The end result would be that the jury would not hear e vidence of the true facts surrounding the product that caus ed th e plaintiff’s injuries but, nonetheless, be asked to determine fault and hence liability for

damages. Pr

o hibiting the introduction of such evidence could r

esult in a defenda

nt, who was not a cause in fact of the pla int iff ’s i nju rie s, b ein g req uir ed t o pa y for the harm anyw ay. Id. at 256. The Courtconcluded that the jury may consider a ll evidence relevant to the event leading up to the incident t hat injured t he plaintiff and then gave instructions as to how this evidence should be-6-

utilized: The defendants may not, however, ask the jury to assign fault to the employer. That is, the defendants may not take the legal position that the employer’ s actions were the legal cause

of the plaintiff’ s injuries. The jury should be instructed that it may consider the actions of the employer only in assessing whether the plaintiff has met his burden of establishing the

elements necess

ary to recover against the defendants.Also, the jury should be instructed t hat it may not, in making that determinatio

n, assessfault

agai nst the emp loye r. Fi nal ly, the trial j udge should give an instruction that lets the jury know that the employer’s legal

responsibility will be

determined at a la

ter time or has already

been determined

in another forum. Id. at 257. We believe the Snyderdecision is instructive on t he issue before the Court. LeBonheur argues that because the

residents are imm

une, LeBonh

eur should

be discharged as to any

liability for their actions. Ho wever, in this case, plaintiffs, as the defendants in Snyder , are not attemptin g to place legal liability on the immune parties. In Snyder , the Court determinedthat notwithstanding the immunity

of plaintiff’s employer, the defendants could introduce proof of the employer’s actions to prove cause in fact. If, in fact, the proof establishes the elements of respondeat superior between LeBo nheur

and the residents , the peculiar re lationship of the pa

rties justifies a de

parture from t

h e general rule of nonliability of the master as set out above. Should the facts justify the establishment of a master/servan

t or principal/ag

ent relationship,

the resident phy

sicians w ho ar e immune from personal liability by virtue of their status as state employees can

also be servants o

f LeBonheu

r in

a transaction for which there would normally be no immunity f or a serv antor agent. Unde r these circumstances,

plaintiffs should be allowed to introduceproof to establish responsibility on the part of LeBonheur for the residents’ actions and proof concer ning the residents’ actions. We justify our decision by analogizing wit

h the Snyderopinion: If the rule were otherwise,-7-

the plaintiffs would effectively be precluded from presenting a case of liability against LeB onheur. The case against L

ebonheur would

not be credible

unless the plaintiffs were permitted to introduce evidenceas to what the resi dents actually

did leading up to th

e injuries. Excusin

g the res idents’ actions from that discussion would be tantamount to drawing a line which would make discussion of the case to be tried difficult, if not impossible. The end result would be that the jury would not hear evidence of the true fact s surrounding the incident that led to plaintiffs’ injuries, and nonetheless,

would be asked to determine fault of LeBonheur and the other defe ndants and hence liability for damages. Pr

ohibit ing th e introduction of such evidence would enable a defendant responsible

fo r another’s action to escape liability when such action was the cause in fact and the proximate cause of

the plaintiff’s in

juries. Therefore, we hold that the immunity of the resident physicians provided by the Tennessee Claims Commission Act does n ot, as a matter of law, g

rant immunity

to the resident phy

sicians’ master or principal in an established master/servant, principal/agent relationship. Acco rdi ngly, the order

of the trial court

denying su

mmary judg

ment to LeBon

heur is affirmed. Costs of the appea l are assessed a

gainst appellan

t, Lebonheur Children’s Medical Center, and the case is r ema nde d to the tri al c our t fo r su ch fu rth er pr ocee din gs as nece ssa ry.