# FILED

February 17, 1998 Cecil W. Crowson Appellate Court Clerk February 17, 1998 1 FOR PUBLICATION 2 3 IN THE SUPREME COURT OF TENNESSEE 4 5 AT NASHVILLE 6 (HEARD AT COLUMBIA) 7 8 9 DOUGLAS E. SAMUELSON, AS THE ( 10 NATURAL FATHER AND PERSONAL ( 11 REPRESENTATIVE OF KEVIN L. ( 12 SAMUELSON, ( 13 ( 14 Plaintiff-Appellant, ( 15 ( 16 ( Davidson Circuit 17 ( 18 v . ( Hon. Thomas W. Brothers, 19 ( Judge 20 ( 21 CECIL E. McMURTRY, M.D., WILLIAM ( No. 0lS01-9702-CV-00025 22 A. HOLLAND, JR., M.D., H.C.A. ( 23 HEALTH SERVICES OF TENNESSEE, INC.,( 24 d/b/a DONELSON HOSPITAL EMERGICARE,( 25 INC., ( 26 ( 27 Defendants, ( 28 ( 29 and ( 30 ( 31 MARK S. TOTTY, INDIVIDUALLY AND ( 32 d/b/a MARK S. TOTTY, D.C., P.C., ( 33 ( 34 Defendant-Appellee. ( 35 36 37 38 For Plaintiff-Appellant: For Defendant-Appellee: 39 40 Joe Bednarz Alfred H. Knight 41 Law Offices of Joe Bednarz Roger T. May 42 Nashville W. Reese Willis, III 43 Willis & Knight 44 Nashville 45 46 O P I N I O N 47 48 49 JUDGMENT OF COURT OF APPEALS 50 DISMISSING SUIT AFFIRMED; CASE 51 REMANDED TO TRIAL COURT. REID, J. 52 This is a medical malpractice case, which began as a suit 53-2-

against several defendants, only one of whom, Mark S. Totty, is 1 before the Court on appeal. In a divided opinion, the Court of 2 Appeals sustained the defendant’s pleas of res adjudicataand 3 collateral estoppel and pretermitted all other issues. The 4 dissenting judge would have found that the trial court erred in 5 severing and dismissing the plaintiff’s claim against the defendant 6 Totty and would have remanded the case for retrial. This Court 7 finds that the trial court erred but the determinative issues were 8 not preserved on appeal. Consequently, the judgment dismissing the 9 suit is affirmed. 10 11

I 12 13 The plaintiff, Douglas E. Samuelson, in a representative 14 capacity, sued the defendants, Dr. Cecil E. McMurtry, Dr. William 15 A. Holland, Jr., Dr. Mark S. Totty and Hospital Corporation of 16 America (HCA) for the wrongful death of Kevin L. Samuelson, who, on 17 August 2, 1988, died from pneumonia. 18 19 For the purposes of this appeal, the facts are not 20 disputed. On July 21, 1988, the deceased, who was 28 years of age, 21 was treated by Dr. Holland, a physician, at the HCA hospital at 22 Donelson, Tennessee for a boil under his right arm. The next day, 23 Samuelson returned to the hospital with a fever and inflammation 24 around the boil and was treated by Dr. McMurtry, a physician. 25 Eight days later, on July 30, Samuelson went to the hospital 26 emergency room with complaints of back pain, for which he was 27-3-

treated by Dr. McMurtry. The following day, July 31, he twice 1 returned to the emergency room with the same symptoms. On his 2 first visit, he was seen by Dr. Holland, but on his second visit 3 he was discouraged by the hospital personnel from seeing a 4 physician. On August 1, he went to the office of Dr. Totty, a 5 chiropractor, with complaints of intense back and chest pain and 6 was treated twice that day by Dr. Totty. The next day, Samuelson 7 died from pneumonia, which had not been diagnosed by any of the 8 health care providers. Expert medical evidence showed that the 9 chest and back pain were caused by pneumonia and that the 10 deceased’s condition could have been treated successfully within 6 11 to 12 hours prior to his death. 12 13 The complaint charged that the physicians, Drs. Holland 14 and McMurtry, failed to diagnose properly the deceased’s condition; 15 that HCA wrongfully refused him treatment; and that Dr. Totty, the 16 chiropractor, failed to refer the deceased to a physician for 17

treatment. 18 19 The trial court granted Dr. Totty’s motion for summary 20 judgment upon the finding that “there exists a genuine issue of 21 material fact with respect to the issue of negligence, but not as 22 to the issue of proximate causation.” On appeal, the Court of 23 Appeals reversed the summary judgment, finding disputed evidence 24 concerning the proximate causes of Samuelson’s death and remanded 25 the case for trial. 26 27-4- Prior to trial on remand, the trial court granted three 1 motions filed by Dr. Totty: a motion to exclude the testimony of 2 the plaintiff’s expert witness regarding the standard of care for 3 chiropractors, a motion for summary judgment because the plaintiff 4 was not prepared to offer expert testimony regarding the standard 5 of care for chiropractors, and a motion to dismiss the plaintiff’s 6 suit against Dr. Totty for failure to state a claim upon which 7 relief can be granted. The court sua spontesevered the action 8 against Dr. Totty from the suit against the other defendants. 9 10 The case went to trial against Dr. Holland, Dr. McMurtry, 11 and HCA. The jury found damages in the amount of $500,000 and 12 allocated 51 percent of the fault to Dr. Holland and 49 percent to 13 the deceased, resulting in a verdict for the plaintiff in the 14 amount of $255,000. The jury found in favor of Dr. McMurtry and 15 HCA. The trial court suggested a remittitur reducing the judgment 16 against Dr. Holland to $204,000, which the plaintiff accepted under 17 protest. There was no appeal from any action of the trial court 18 regarding the defendants Holland, McMurtry and HCA. The plaintiff 19 accepted payment of the judgment in the amount of $204,000 and 20 filed with the clerk of the trial court a certification that the 21 judgment was fully satisfied. 22 23

I I 24 25 The plaintiff assigned as error the trial court’s action 26 in dismissing and severing the plaintiff’s suit against Dr. Totty. 27-5- As stated, the Court of Appeals found on the first appeal 1 that affidavits filed on behalf of the plaintiff created material 2 issues of fact regarding Dr. Totty’s negligence and proximate 3 causation and remanded the case for trial against all defendants. 4 No useful purpose would be served by discussing in this opinion the 5 plaintiff’s expert’s qualifications or the standard of care owed 6 the plaintiff by the defendant Totty under the circumstances of the 7 case. For the purposes of this appeal, this Court finds that the 8 trial court erred in dismissing the plaintiff’s suit against Dr. 9 Totty rather than allowing the case to proceed to trial as ordered 10 by the Court of Appeals. 11 12 The issue, then, is whether the trial court erred in 13 severing for trial the claim against Dr. Totty. Rule 19.01, Tenn. 14 R. Civ. P., provides, “[a] person who is subject to the 15 jurisdiction of the court shall be joined as a party if (1) in the 16 person’s absence complete relief cannot be accorded among those 17 already parties. . . .” This portion of the rule would compel the 18 joinder of Dr. Totty, because complete relief in this action, which 19 is governed by comparative fault, could not be accorded all parties 20 unless Dr. Totty was a party. However, the rule contains the 21 further provision: “This rule shall be construed to allow joint 22 tort-feasors and obligors on obligations that are joint and several 23 to be sued either jointly or severally.” The application of this 24 portion of the rule obviously has been affected by the adoption of 25 comparative fault. 26 27-6- Judge Koch, dissenting in the Court of Appeals, 1 succinctly summarized the rules regarding the apportionment of 2 fault under comparative fault: 3 4 [T]he Court has articulated four principles 5 with regard to the apportionment of fault or 6 awarding damages against non-parties. First, 7 fault may be apportioned only to persons 8 against whom the plaintiff has a cause of 9 action. Owens v. Truckstops of Am., 915 S.W.2d 10 at 428;Ridings v. Ralph M. Parsons Co., 914 11 S.W.2d at 83. Second, fault may be apportioned 12 to both parties and non-parties.Volz v. 13 Ledes, 895 S.W.2d at 680. Third, the plaintiff 14 bears the risk of not joining a potentially 15 liable tortfeasor against whom it has a cause 16 of action.Ridings v. Ralph M. Parsons Co., 17 914 S.W.2d at 83;Volz v. Ledes, 895 S.W.2d at 18 680. Fourth, failure to identify potentially 19 liable tortfeasors who are not already parties 20 as required by Tenn. Code Ann. § 20-1-119(a) 21 will prevent defendants from attributing fault 22 to these non-parties.Ridings v. Ralph M. 23 Parsons Co., 914 S.W.2d at 84. 24 25 26 27 The effect of comparative fault principles on joint and 28 several liability was considered in Owens v. Truckstops of Am., 915 29 S.W.2d 420 (Tenn. 1996). There the Court concluded that “where the 30 separate, independent negligent acts of more than one tortfeasor 31 combine to cause a single, indivisible injury, each tortfeasor will 32 be liable only for that proportion of the damages attributable to 33 its fault.” Id.at 430. And, further, “when liability is based on 34 negligence, each of the defendants is severally liable only for the 35 percentage of damages caused by its negligence.” Id.at 433. Rule 36 8.03, Tenn. R. Civ. P., requires that comparative fault, including 37 the identity or description of any other alleged tortfeasors, be 38 pled by a defendant as an affirmative defense. Also, Tenn. Code 391See Turner v. Jordan, _____ S.W.2d _____ (Tenn. 1998) (joinder of

negligent and intentional tortfeasors would be improper since their “fault” could not be compared).

-7- Ann. § 20-1-119(a)(1994) has been amended to allow additional time 1 for other persons to be made defendants in cases of comparative 2 fault. This Court has stated that, “Rule 8.03, Tenn. R. Civ. P., 3 insures that the rights and liabilities of the parties subject to 4 suit be resolved in one action. Section 20-1-119 provides the 5 procedure for joining additional defendants . . . .”Ridings v. 6 Ralph M. Parsons Co., 914 S.W.2d 79, 83 (Tenn. 1996). The 7 conclusion to be drawn from these decisions is, where the separate, 8 independent negligent acts of more than one tortfeasor combine to 9 cause a single, indivisible injury, all tortfeasors must be joined 10 in the same action, unless joinder is specifically prohibited by 11 law.1Here, the complaint alleged that the separate and 12 independent acts of Dr. Totty combined with the separate and 13 independent acts of the other defendants to cause a single, 14 indivisible injury. Consequently, since Dr. Totty and the other 15 defendants would not be jointly liable for the decedent’s death, 16 that provision in Rule l9 which allows joint tortfeasors to be sued 17 either jointly or severally is not applicable. 18 19 The procedure required under Tennessee’s comparative 20 fault formulation retains the efficiency of joint liability and the 21 fairness of comparative fault. It also conserves judicial 22 resources and eliminates inconsistent judgments. It resolves 23 fairly the competing interests of full recovery for the plaintiff 24 and the equitable allocation of liability for the defendants. 25-8-

Allowing a plaintiff to sue defendants in separate, consecutive 1 actions would defeat the efficiency and fairness that are the 2 objectives of the principles of comparative fault. SeeJohn Scott 3 Hickman, One-Action Rule, 48 Vand. L. Rev. 739, 762 (1995). 4 5

In Cogdell v. Hospital Center at Orange, 560 A.2d 1169 6 (N.J. 1989), which was a medical malpractice suit against several 7 defendants who were charged with consecutive acts of negligence, 8 the Supreme Court of New Jersey set forth the policy considerations 9 upon which that court based its “entire controversy doctrine.” 10 Those considerations support the decision reached in this case. 11 12 [T]here can be little doubt that the 13 participation of all potentially responsible 14 persons as parties in the original action would 15 have resulted in a fuller and fairer 16 presentation of the relevant evidence and would 17 have enabled the jury to make a more informed 18 and complete determination of liability. It 19 would have assured an ultimate determination 20 that would be comprehensive, just and 21 conclusive as to all persons implicated in the 22 controversy. 23 24 . . . The failure to have joined these 25 defendants in the earlier action seems 26 prejudicial and unfair . . . . [W]hile 27 technically their interests were not determined 28 in the earlier action, they do not now have the 29 same opportunity to persuade a jury that will 30 be determining their liability that the former 31 defendants are to be blamed. 32 33 34 35 Id.at 1178. 36 37 38 39 The conclusion is that the trial court erred in 40 dismissing and severing the claim against Dr. Totty. The trial 41-9-

court’s errors deprived the plaintiff of the right to proceed 1 against the defendant Totty in the same trial with the other 2 defendants and also of the right to have the decedent’s fault 3 compared with the fault of all the defendants. The defendants 4 other than Dr. Totty were deprived of an opportunity to have fault 5 apportioned against Dr. Totty. This result could have been 6 accomplished on remand had the plaintiff appealed the entire case. 7 8 Despite the plaintiff’s insistence that relief can be 9 granted on the record before the Court, the Court finds that the 10 plaintiff’s failure to appeal the judgments against the defendants 11 other than Dr. Totty was fatal to his right to a new trial. 12 Perhaps the plaintiff could not have anticipated the precise 13 decision that would be rendered by the Court on the issues 14 presented, but the plaintiff chose to accept payment in 15 satisfaction of the judgment against the defendant Holland, thereby 16 precluding an appeal that would have allowed the Court to do 17 justice for all the parties. 18 19 The Court has been referred to no authority that would 20 allow it to set aside a final judgment against a defendant who is 21 not a party to the appeal and who has paid the judgment and 22 received from the plaintiff an acknowledgment of full satisfaction. 23 24 Accordingly, the judgment of the Court of Appeals 25 dismissing the suit is affirmed, and the case is remanded to the 26 trial court. 27-10- Costs of appeal are taxed to the plaintiff. 1 2

_____________________________ 3 Reid, J. 4 5 6 Concur: 7 8 Anderson, C.J., Drowota, Birch, 9 and Holder, JJ. 10