# FILED September 22, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

______________________________________________ JAMES CARROLL and FORESTINE CARROLL, for the use and benefit of the Estate of JESSIEC

A RENEE CARROLL, a minor, de ceased, and JAMES CARROLL and FORESTINE CARROLL, Individually, Plaintiffs-Appel

lants, Shelby Law No. 68714-2 Vs. C.A. No. 02A01-9707-CV-00162 CAROLYN WHITNEY, M.D., GROVER W. BARNES, M.D., P.C., and LEBONHEUR CHILDREN’S MEDICAL CENTER, INC ., acting by and through its Agent s, Servants, Employees and Others

, Defendants-Ap

pellees.

_____ ______________________________________________________________________ _ FROM THE CIRCUIT COURT OF SHELBY COUNTY THE HONORABLE JANICE M. HOLDER, JUDGE

Carl I. Jacobson of McKnight, Hudson, L

ewis, Ford & Harri

son of Memphis Ross Higman of Wyatt, Tarrant &

Combs of Memphis For Appellants Thomas R. Prewitt, Jr

. and Donna L. Boyc

e of Memphis For Defendant Lebonheur Children’s Medical Center Robert L. J. Spence, Jr. and Chapman Sellers Morrow of The Hardison Law

Firm of Memphis For Defendants Carolyn Whitney, M.D. and Grover W. Ba

rnes, M.D., P.C. REVERSED AND REMANDED Opinion filed: W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCUR: DAVID R. FARMER,

JUDGE HOLLY KIRBY LILLARD, JU DGE The appeal of this

medical malpractice case presents issues concerning comparative fa

ult principles. Plaintiffs, James Carroll and Forestine Carroll, for the use and benef

it of the Estate1 The suit against Grover W. Barnes, M.D., P.C., asserts only vicarious liability for the

actions of Whitney.

2 The commission has e

xclusive jurisdict

ion to determine a

ll monetary claims

against the state arising out of, among other things, professional malpractice. T.C.A. § 9-8-307 (a)(1)(D). Filing of the claim against the State operates as “a waiver of any cause of a ction, based on the same act or omission, which the claimant has against any state officer or employee.” T.C.A. § 9-8-307 (b). The act specific

ally states: (h) State officers and employees are absolutely immune from liability for acts or omissions within the scope of the officer’s or employee’s of

fice or employme

nt, except for wi

llful, malicious, or criminal acts or omissions or for acts or omissions done for personal gain. For purposes of this chapter, “state officer” or “employee” has the meaning set forth in § 8- 42-101(3). 2 of Jesse Renee Carroll, a minor, deceased, and James Carroll and Forestine Carroll, individually, appeal the trial court’s judg me nt on a jury verdict for defendants, Carolyn Whitney, M.D., Grover W. Barnes, M.D., P.C., 1 and Lebonheur Children’s Medical Center, Inc. Plaintiffs’ suit is for the wron gful death of thei

r fourteenth

month old daughter a

llegedly resulting from medical negligence or malpractice. Plaintiffs originally filed suit against the above-named

defendants and D

r. Azra Sehic an

d Dr. Reggie Lyell

, Univ ersity of Tennessee resident physicians working at

Lebonheur. Sehic and Lyell filed a motion to dismiss asserting their immunity from liability as state employees pursuant to T.C.A. § 9 -8-307 ( h). The trial court granted the motion, and the suit against the resident phy sic ians, Sehic and Lyell, was dismissed. Subsequently, plai ntiffs voluntarily

dismissed that s

uit, an d the present suit was filed. The answers of both Whitney and Lebonheur rely on the doctrine of comparative fault and allege that the direct and

proximate cause

of plaintiffs’ los s was the negligen ce of the nonpar

ties, the resident physicia

ns, Sehic and Lyell

. P laintiffs’ motion in limine to strike the comparative fault defense and to preven t assessment

of fault to the resident physicians was denied. While theinstant case was pending, plaintiffs proceeded aga

inst th e State o f Tennessee in the Tennessee Claims Commission pursuant to T.C.A. § 9-8-307 (Supp. 1997). 2 Defendants were permitted to r efer to plaintiffs’ claim against the state a

nd argued that the

plaintiffs’ loss wa

s caused by the sta

te employees, Sehic and Lyell. The trial court instructed the jury in this regard:

As to their claims con

cerning Doctors

Sehic and Lyell, Doctor Whitney, Doctor

Barnes and Lebonheur Medical Center3 have the burden of proving bya preponderance of the evidence, one, the recognized

standard of acc

eptable professional practice of physicians in the community in which Doctor Sehic and Lyell practice and in which the alleged injury or wrongful action occurred; two, that Doctor Lyell, Doctor

Sehic or both acte

d with less tha n or faile d to act with ordina ry and reasonab

le care in accordance

with that standardand, three, that D octor Sehic

and/or Doctor Lyell’s negligence, if any, was a proximate ca use of the injuries and dama

ges to the plaintiff

s.

* * * In a case such as this, even if you find tha t a person was negligent, the party claiming that negligence must prove by a preponderance

of the evidence that the person’s negligence was a proximate caus

e of the injuries a

nd damages to the Pla

intiffs. A proximate ca

us e of any injury is a

cause which in natural and continuous sequenceproduces the injury and without wh ic h the injury would not have occurred

. In other words, i

t is that act or failure to

act that directly

or immedia

tely and efficiently brings about the accident and injury.

* * * Ladies and gentlemen, you will be givena verdict form to record y ourverdict. Your first obligation is to determine the fault, if any, of each of the persons whom you have been instructedmay be charged with fault. Next you must decide a percentage

of fault, if any, t

o each of th

ose perso ns. The percentage

figure for each person may range from

zero percent to 100 percent. When the perc entage o f the fault of all persons being compared are adde d together the total must equal 100 percent. The total percentage cannot be m ore or less than 100 percent. The persons to whom you may assign fau lt are Carolyn Whitney, M.D. and Grover Barnes, M.D., P.C.; L ebonheur Children’s Medical Center; Az r a Sehic, M.D.; Regg ie Lyell, M.D. and Forestine

Carroll. The jury found the plaintiffs’ damages to be $600,000.00 and apportioned zero percent fault to Forestine Carroll, defendants Whitney and Lebonheur, and assessed thirty percent fa

ult to Dr. Sehic and se

venty percent fa

ult to Dr. Lyell.Judgment was entered on the jury verdic

t, and plaintiffs’ appeal presents a single issue as set out in their brief:

Did the Circuit Court err in allowing the defendants to plead the comparative fault of, and in allowing the jury to apporti on fault to, non-parties w

ho were immune fr

om suit in tort? Plaintiffs contended in the tr ial court and arg

ue in this Court thatpursuant to the Supr eme Court’s opinion in Ridings v. Ralph M. Parson’s Co., 914 S.W.2d 79 (Tenn. 1996), de fendants cannot assert the fault o

f Sehic and Lyell b

ecause of their immunity granted by T.C.A. § 9-8-3074

(h). In Ridings , plaintiff was injured in the c ourse and sco pe of his employment which was covered by the workers compensation law of Tennessee. He subsequently filed a third-party tort action against the manufacturer and distributor of the ladder

which he alleged caused his injury. The defend ant sought to present proof that plaintiff’s employer caused or contributed to hi s injury, and the issue beforethe Supreme Court w as whether the de

fendants in a third-party su

it for personal injuries sustained in the course and scope of plaintiff ’s emp loyment and covered under the workers’ co

mp ens ation law can assert as an affirmative defense that the plaintiff’s employer caused or contributed to the plaintiff’s injuries. 914 S.W.2d at 80. In holding that there

could be no apport

ionment of fault

to the employer, the Court said: The rationale of McIntyre pos t ulates that fault may be attributedonly to those persons against whom the plaintiff has a cause of action in to

rt. The designation “

nonparty,” used i

n McIntyre , is not a term of art ; it means “not a

party.” However, it is given a p articular meaning by the decision in McIntyre , wherein the Court found that, upon defendant’s allegation that a person not a

party to the suit, a “nonparty,” caused or contributed to the plaintiff’s injuries, the plaintiff, by amendment to the complaint and service of p

rocess, may make

th e “no nparty” a “party” that is a

nswerable to

the plaintiff in actions for damages according to the Rules of Civil Procedure. Consequently, only a nonparty against whom the plaintiff has a cause of action can be m ade a party. Since the plaintiff’s employer cannot be made a partyto the plaintiff’s tort action for p ersonal injuries sustained in the course and scope of his employment, the rationale of McIntyre , both as to

principle and procedure, will not permit faul t to be attributed to the plaintiff’s employer. 914 S.W.2d at 81-82. Our first line of inquiry is whether S ehic a nd Lyell, resident physicians acting in the

course and scope of their employment with the University

of Tennessee, a

re immune from suit

as provided for in Ridings . Art. I, § 17, Constitution of the State of Tennessee, provides in 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) prov

ides: 20-13-102. Actions against state prohibited. - (a) No court in the state shall have any power, jurisdiction, or a uthori ty to entertain any suit against the state, or against any officer of the state acting by authori ty of the state, with a view to reach the state, its tre asury, funds, or property, and all such suits shall be dism issed as to the state or such officers, on motion, plea, or demurrer of the law officer of the state, or counsel employed for the state.5 The legislature has not provided for the state to be sued for an action in tort in the courts of this state but has

provided for cla

ims to be filed agai

nst the state before the board of claims

or the claims commissio

n. T.C.A. § 9-8-307 (1992 & Supp. 1997). Notwithstanding the provision for making a claim against the state, the legislature di d n ot see fit to relinquish the stat e’s sovereign immunity a nd allow tort actio

ns to be brought aga

inst the state in th

e stat e courts. The statutory immunity g ranted t o the resident physicians is basically a quid pro quo situation, i.e., the State, as the ma ster or employer

, becomes subjec

t to liability, while at t

he same time the servants, or employees, are relieved o f liabil ity. Generally, when the master or employer’s liability is b ased on the doctrine of respondeat superior , the master or employer cannot be held liable if the employee is not liable. Loveman Co. v. Bayless , 128 Tenn. 307, 315, 160 S.W. 841 (1913); Sadler v. Draper , 46 Tenn. App. 1, 326 S.W.2d 148 (195 9). This rul e does not apply where the nonliability of the servant is basedupon personal immun ity, 30 C.J.S. Employer-Employee Relationship , § 299 (1992); 27 Am.Jur.2d Employment Relationship , § 469 (1996), and this result is re ached in the Tenn

essee Claims Commissi

on Act. The State,

in effect, is the alter-ego of the resident physicians. Although the State can be held responsible to plaintiff under the Claims Comm

ission Act, the State

remains immune fr

om suit in the state c

ourts. Ridings specifically states: “Since the plaintiff’s employer cannot be made a party to the plaintiff’s tort action for personal injuries sustained in the course and scope of his employment, the rationa le of McInty re , both as to principle and procedure, will not permit fault to be attributedto the plaintiff’s emplo yer .” Ridings, 914 S.W.2d at 82. Since the Sta te and its employees cannot be made parties to plaintiff’s tort action, they are immune from suit under the Ridings rationale. The Court in McIntyre v. Ballenti ne , 833 S.W.2d 52 (Tenn. 1992) noted that “fair ness

an d eff iciency require that defendants called upon to answer allegations in negligence be permittedto allege, as an affirmative defense, that a nonparty caused or contributed to the injury

or damage for which

recovery is sought.” 833 S.W.2d at 58. A corollar

y to this a statement

is that fairness and efficiency

require that a plaintiff be allowed to make the so-called nonparty a party to the tort action so that all claims can be resolved at one time. Subsequent

to Ridings , and after this case was concluded in the trial court, ou

r Supreme6

Courtdecided the case of Snyder v. Ltg Lufttechnische GmbH , 955 S.W.2d 252 (Tenn. 1997). This case came to the Supreme Court pursuant to Rule 23 of the Rules of

the Supreme Court of Tenn essee concerning certified questions of law from federal courts. The primary q uestio n presented was: 1

. Whether products liability defendants in a suit for

personal injuries based on a llegati ons o f negligence and strict liability in tort may introduce evidenceat trial that the plaintiff’s employer’s alteration , change, improper maintenance, or abnormal use of defendants’ product proximately caused or contributed to the

plaintiff’s injuri

es. 955 S.W.2d at

253. The Court dete

rmined that an emp

loyer cannot be f

ound to be the proxi

mate

or legal cause of th

e plaintiff’s inju

ries, because

the employer is immu

ne from tort liabili

ty under T.C.A. § 50-6-108 (a). Id. at 256. T he Court did note, however, that the defendants in a productsliability suit “for personal injuries based on allegations of negligence and strict liability in tort may introduce relevant evidence at trial that theplaintiff’s employer’s alteration, change, improper maintenance, or abnormal use of the defendants’ product was a cause in fact of the plaintiff’s injuries. Put another way, the jury m ay consider all evidence relevant to the event leading up to the incident that injured the plaintiff.” Id. at 257. The Court then gave instructions as to how this evide

nce should be cons

idered by the jury . The Court said: [T]he defendants may n ot take the legal p

osition 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 elementsnecessary to recover against the defendants. Also, the jury should be instructed that it may not, in making that dete rminatio n , assess fault against the employer. Finally, the trial judge should give an instruction that lets the jury know that the employer’s legal responsibility will be determinedat a later time or has a lready been det

ermined in another forum. Id. While

we arenot dealing with a products liability suit involving an employer-employee relationship

and the employer’ s action, we do hav e a question of sov

ereign immunity. In

both instances, provis

ion is made for pro

ceeding against a

n immune party in an

other forum. Thus, we believe therationale of Snydershould apply to the instant case. The trial court didnot have the benefit of the Supreme Court’s opinion in Snyderat the time this case was tried, andthe jury instructions concerning the activities of the nonparties dealt with proximate or legal3 Cause in fact and proximate or legal cause are different concepts. Kilpatrick v.

Bryant , 868 S.W.2d 594, 598 (Tenn. 1993). Cause in fact deals with the “but for” consequences of act, and proximate or legal cause concerns a determination whethe r the legal liability should be imposed because cause in fact has been established. Id., at 598. 7 cause as opposed to cause in fact. The defendants, while denying any error in the trial co ur t proceedings,

assert that if the trial court erred in its jury ins truction s, it was harmless error, because the jury

assessed no fault

to Whitney and Leb

onheur. T.R.A.P. 36

(b) provides: (b) Effect of Error. - A final judgment fro m which relief is available and otherwise ap

propriate shall

not be set aside unless, considering the whole record, error in involving a substantial rig ht mor e probably than no t affected the ju

dgment or would result in prejudic

e to the judicial pr

ocess. In the instant case, the jury was instructed to determine the p

roximate cause o

f plaintiffs’ loss as opposed to a det

ermination of ca

use in fact. 3 In Snyder , the S upre me Court expressly providedthat there could be no finding of proximate or legal cause for plaintiffs’ injuri

es because of the employer’s complete immunity for tort liability. Snyder, 955 S.W.2d at 256. The Snyder Courtnoted that “the legislature has already determine d th at for policy reasons the employer may notbe the legal caus

e of the plaintiff’s injuries.” Id. In the instant case, by the same token, the legislature has determined th at the Stat e and its employee s are immune from s

uit in the state courts, and the legislature provided another forum to settle claims filed against the State. The jury in the instant case was instructed to assign a perce

ntage of fault

to the resident physicians,and this instruction is contra to the Supreme Court’s holding in Snyder . Moreover, the jury was instructed to determine proximate or legal cau se for the plaintiff’s injuries. The fault assessed to the re

sid en t physicians was determined to be the proximate or legal cause of plaintiff’s injuries. If these resident physicia ns are immune fro

m suit, as the employe

r in Snyde r , they cannot be fo und to be the proxima

te or legal cause

of plaintiff’s inju

ries i f w e follow the mandate

of the Supreme Cour

t. On the issue of harmless erro r, we believe the

re is a distinction b

etween this

case and the recent Supreme Court cas

e of Turner v. Jordan , 957 S.W.2d 815 (Tenn. 1997). In Turner , the plaintiff’s nurse was attacked and se verely beaten by a psychiatric patient at the hospital. The defendant was the attending psychiatrist, and the nurse sued the defendan t for medi cal negligence alle

ging “he violated h

is dutyto use reasonable

care in the trea

tment of his patient

, which proximately caused her injuries and d amages.” I d. at 817. The jury wa

s instructed to8

allocate fault betwe en the alleged negligence of the physician-defendant and the alleged intentional conduct of the m ental patient. The jury allocated one hundred percent fault to the defendant-psyc

hiatrist. The Supreme Court held that the conduct of t he negligent physician should not have been compared to the conduct of the mental patien t, stati ng “[t]he conduct of

a neglig ent defen dant should not be c ompared with the in

tentional conduct

of another in determining comparative fault where the intentional conduct is the foreseeable risk created by the negligent tortfeasor.” Id. at 823. The Court noted that while a negligent defendant may raise intentional acts

of others to refu

te elements of duty

and causation on t

he part of the def

endant, “fairness dictates that it sho

uld not be permitted

to rely upon the for

eseeable harm it had a

duty to prevent so as to reduce it’s liability.” Id. at 823. Notwithstanding the error occurring in the jury’s comparison of fault, the Supreme Court determined that it was harmless error, because the jury assessed one hundred per cent of the fault to the defendant-physician. Thus, in Turner , notwithstanding a n ins truction allowing the comparing of the fault mentioned, the jury determined that the physicianbore the entire responsibility because of his failure to atte

mpt to negate the foreseeable dam ages that he had a duty to prevent. So, in Turner , plaintiff did not suffer from the error that the

Supreme Court found. However, in the instant case, it is uncer

tain

as to whether the jury would have assessed zero fault to Whitney and Lebonheur if they had not been ins tructed that they could assess fault to Sehic and Lyell. Moreover, in view of th e Supreme Court’s specific instructions in Snyder , the erroneous c harge in the case

at bar could result in prejudic

e to the judicial pr

ocess. Accordingly, the judgment of the trial court is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion. Costs of appeal are assessed against the appel

lees.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ DAVID R. FARMER,

JUDGE

____________________________________ HOLLY KIRBY LILLARD, JU DGE