FILED

February 17, 1998

Cecil W. Crowson

Appellate Court Clerk

1 February 17, 1998

2 FOR PUBLICATION

3

4 IN THE SUPREME COURT OF TENNESSEE

5

6 AT NASHVILLE

7 (HEARD AT COLUMBIA)

8

9

10 DOUGLAS E. SAMUELSON, AS THE (

11 NATURAL FATHER AND PERSONAL (

12 REPRESENTATIVE OF KEVIN L. (

13 SAMUELSON, (

14 (

15 Plaintiff-Appellant, (

16 (

17 ( Davidson Circuit

18 (

19 v . ( Hon. Thomas W. Brothers,

20 ( Judge

21 (

22 CECIL E. McMURTRY, M.D., WILLIAM ( No. 0lS01-9702-CV-00025

23 A. HOLLAND, JR., M.D., H.C.A. (

24 HEALTH SERVICES OF TENNESSEE, INC.,(

25 d/b/a DONELSON HOSPITAL EMERGICARE,(

26 INC., (

27 (

28 Defendants, (

29 (

30 and (

31 (

32 MARK S. TOTTY, INDIVIDUALLY AND ( 

33 d/b/a MARK S. TOTTY, D.C., P.C., (

34 (

35 Defendant-Appellee. (

36

37

38

For Plaintiff-Appellant 39 : For Defendant-Appellee :

40

41 Joe Bednarz Alfred H. Knight

42 Law Offices of Joe Bednarz Roger T. May

43 Nashville W. Reese Willis, III

44 Willis & Knight

45 Nashville

46

47 O P I N I O N

48

49

50 JUDGMENT OF COURT OF APPEALS

51 DISMISSING SUIT AFFIRMED; CASE

52 REMANDED TO TRIAL COURT. REID, J.

53 This is a medical malpractice case, which began as a suit
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1 against several defendants, only one of whom, Mark S. Totty, is

2 before the Court on appeal. In a divided opinion, the Court of

3 Appeals sustained the defendant’s pleas of res adjudicata and

4 collateral estoppel and pretermitted all other issues. The

5 dissenting judge would have found that the trial court erred in

6 severing and dismissing the plaintiff’s claim against the defendant

7 Totty and would have remanded the case for retrial. This Court

8 finds that the trial court erred but the determinative issues were

9 not preserved on appeal. Consequently, the judgment dismissing the

10 suit is affirmed.

11

12 I

13

14 The plaintiff, Douglas E. Samuelson, in a representative

15 capacity, sued the defendants, Dr. Cecil E. McMurtry, Dr. William

16 A. Holland, Jr., Dr. Mark S. Totty and Hospital Corporation of

17 America (HCA) for the wrongful death of Kevin L. Samuelson, who, on

18 August 2, 1988, died from pneumonia. 

19

20 For the purposes of this appeal, the facts are not

21 disputed. On July 21, 1988, the deceased, who was 28 years of age,

22 was treated by Dr. Holland, a physician, at the HCA hospital at

23 Donelson, Tennessee for a boil under his right arm. The next day,

24 Samuelson returned to the hospital with a fever and inflammation

25 around the boil and was treated by Dr. McMurtry, a physician. 

26 Eight days later, on July 30, Samuelson went to the hospital

27 emergency room with complaints of back pain, for which he was
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1 treated by Dr. McMurtry. The following day, July 31, he twice

2 returned to the emergency room with the same symptoms. On his

3 first visit, he was seen by Dr. Holland, but on his second visit 

4 he was discouraged by the hospital personnel from seeing a

5 physician. On August 1, he went to the office of Dr. Totty, a

6 chiropractor, with complaints of intense back and chest pain and

7 was treated twice that day by Dr. Totty. The next day, Samuelson

8 died from pneumonia, which had not been diagnosed by any of the

9 health care providers. Expert medical evidence showed that the

10 chest and back pain were caused by pneumonia and that the

11 deceased’s condition could have been treated successfully within 6

12 to 12 hours prior to his death. 

13

14 The complaint charged that the physicians, Drs. Holland

15 and McMurtry, failed to diagnose properly the deceased’s condition;

16 that HCA wrongfully refused him treatment; and that Dr. Totty, the

17 chiropractor, failed to refer the deceased to a physician for

18 treatment. 

19

20 The trial court granted Dr. Totty’s motion for summary

21 judgment upon the finding that “there exists a genuine issue of

22 material fact with respect to the issue of negligence, but not as

23 to the issue of proximate causation.” On appeal, the Court of

24 Appeals reversed the summary judgment, finding disputed evidence

25 concerning the proximate causes of Samuelson’s death and remanded

26 the case for trial. 

27
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1 Prior to trial on remand, the trial court granted three

2 motions filed by Dr. Totty: a motion to exclude the testimony of

3 the plaintiff’s expert witness regarding the standard of care for

4 chiropractors, a motion for summary judgment because the plaintiff

5 was not prepared to offer expert testimony regarding the standard

6 of care for chiropractors, and a motion to dismiss the plaintiff’s

7 suit against Dr. Totty for failure to state a claim upon which

8 relief can be granted. The court sua sponte severed the action

9 against Dr. Totty from the suit against the other defendants. 

10

11 The case went to trial against Dr. Holland, Dr. McMurtry,

12 and HCA. The jury found damages in the amount of $500,000 and

13 allocated 51 percent of the fault to Dr. Holland and 49 percent to

14 the deceased, resulting in a verdict for the plaintiff in the

15 amount of $255,000. The jury found in favor of Dr. McMurtry and

16 HCA. The trial court suggested a remittitur reducing the judgment

17 against Dr. Holland to $204,000, which the plaintiff accepted under

18 protest. There was no appeal from any action of the trial court

19 regarding the defendants Holland, McMurtry and HCA. The plaintiff

20 accepted payment of the judgment in the amount of $204,000 and

21 filed with the clerk of the trial court a certification that the

22 judgment was fully satisfied. 

23

24 I I

25

26 The plaintiff assigned as error the trial court’s action

27 in dismissing and severing the plaintiff’s suit against Dr. Totty.
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1 As stated, the Court of Appeals found on the first appeal

2 that affidavits filed on behalf of the plaintiff created material

3 issues of fact regarding Dr. Totty’s negligence and proximate

4 causation and remanded the case for trial against all defendants. 

5 No useful purpose would be served by discussing in this opinion the

6 plaintiff’s expert’s qualifications or the standard of care owed

7 the plaintiff by the defendant Totty under the circumstances of the

8 case. For the purposes of this appeal, this Court finds that the

9 trial court erred in dismissing the plaintiff’s suit against Dr.

10 Totty rather than allowing the case to proceed to trial as ordered

11 by the Court of Appeals.

12

13 The issue, then, is whether the trial court erred in

14 severing for trial the claim against Dr. Totty. Rule 19.01, Tenn.

15 R. Civ. P., provides, “[a] person who is subject to the

16 jurisdiction of the court shall be joined as a party if (1) in the

17 person’s absence complete relief cannot be accorded among those

18 already parties. . . .” This portion of the rule would compel the

19 joinder of Dr. Totty, because complete relief in this action, which

20 is governed by comparative fault, could not be accorded all parties

21 unless Dr. Totty was a party. However, the rule contains the

22 further provision: “This rule shall be construed to allow joint

23 tort-feasors and obligors on obligations that are joint and several

24 to be sued either jointly or severally.” The application of this

25 portion of the rule obviously has been affected by the adoption of

26 comparative fault. 

27
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1 Judge Koch, dissenting in the Court of Appeals,

2 succinctly summarized the rules regarding the apportionment of

3 fault under comparative fault:

4

5 [T]he Court has articulated four principles

6 with regard to the apportionment of fault or

7 awarding damages against non-parties. First,

8 fault may be apportioned only to persons

9 against whom the plaintiff has a cause of

action. Owens v. Truckstops of Am. 10 , 915 S.W.2d

11 at 428; Ridings v. Ralph M. Parsons Co. , 914

12 S.W.2d at 83. Second, fault may be apportioned

13 to both parties and non-parties. Volz v.

14 Ledes , 895 S.W.2d at 680. Third, the plaintiff

15 bears the risk of not joining a potentially

16 liable tortfeasor against whom it has a cause

17 of action. Ridings v. Ralph M. Parsons Co. ,

18 914 S.W.2d at 83; Volz v. Ledes , 895 S.W.2d at

19 680. Fourth, failure to identify potentially

20 liable tortfeasors who are not already parties

21 as required by Tenn. Code Ann. § 20-1-119(a)

22 will prevent defendants from attributing fault

23 to these non-parties. Ridings v. Ralph M.

24 Parsons Co. , 914 S.W.2d at 84.

25

26

27

28 The effect of comparative fault principles on joint and

29 several liability was considered in Owens v. Truckstops of Am. , 915

30 S.W.2d 420 (Tenn. 1996). There the Court concluded that “where the

31 separate, independent negligent acts of more than one tortfeasor

32 combine to cause a single, indivisible injury, each tortfeasor will

33 be liable only for that proportion of the damages attributable to

34 its fault.” Id. at 430. And, further, “when liability is based on

35 negligence, each of the defendants is severally liable only for the

36 percentage of damages caused by its negligence.” Id. at 433. Rule

37 8.03, Tenn. R. Civ. P., requires that comparative fault, including

38 the identity or description of any other alleged tortfeasors, be

39 pled by a defendant as an affirmative defense. Also, Tenn. Code
1

See Turner v. Jordan , _____ S.W.2d _____ (Tenn. 1998) (joinder of

negligent and intentional tortfeasors would be improper since their “fault”

could not be compared).

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1 Ann. § 20-1-119(a)(1994) has been amended to allow additional time

2 for other persons to be made defendants in cases of comparative

3 fault. This Court has stated that, “Rule 8.03, Tenn. R. Civ. P.,

4 insures that the rights and liabilities of the parties subject to

5 suit be resolved in one action. Section 20-1-119 provides the

6 procedure for joining additional defendants . . . .” Ridings v.

7 Ralph M. Parsons Co. , 914 S.W.2d 79, 83 (Tenn. 1996). The

8 conclusion to be drawn from these decisions is, where the separate,

9 independent negligent acts of more than one tortfeasor combine to

10 cause a single, indivisible injury, all tortfeasors must be joined

11 in the same action, unless joinder is specifically prohibited by

law. 112 Here, the complaint alleged that the separate and

13 independent acts of Dr. Totty combined with the separate and

14 independent acts of the other defendants to cause a single,

15 indivisible injury. Consequently, since Dr. Totty and the other

16 defendants would not be jointly liable for the decedent’s death,

17 that provision in Rule l9 which allows joint tortfeasors to be sued

18 either jointly or severally is not applicable. 

19

20 The procedure required under Tennessee’s comparative

21 fault formulation retains the efficiency of joint liability and the

22 fairness of comparative fault. It also conserves judicial

23 resources and eliminates inconsistent judgments. It resolves

24 fairly the competing interests of full recovery for the plaintiff

25 and the equitable allocation of liability for the defendants. 
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1 Allowing a plaintiff to sue defendants in separate, consecutive

2 actions would defeat the efficiency and fairness that are the

3 objectives of the principles of comparative fault. See John Scott

4 Hickman, One-Action Rule , 48 Vand. L. Rev. 739, 762 (1995).

5

6 In Cogdell v. Hospital Center at Orange , 560 A.2d 1169

7 (N.J. 1989), which was a medical malpractice suit against several

8 defendants who were charged with consecutive acts of negligence,

9 the Supreme Court of New Jersey set forth the policy considerations

10 upon which that court based its “entire controversy doctrine.” 

11 Those considerations support the decision reached in this case. 

12

13 [T]here can be little doubt that the

14 participation of all potentially responsible

15 persons as parties in the original action would

16 have resulted in a fuller and fairer

17 presentation of the relevant evidence and would

18 have enabled the jury to make a more informed

19 and complete determination of liability. It

20 would have assured an ultimate determination

21 that would be comprehensive, just and

22 conclusive as to all persons implicated in the

23 controversy.

24

25 . . . The failure to have joined these

26 defendants in the earlier action seems

27 prejudicial and unfair . . . . [W]hile

28 technically their interests were not determined

29 in the earlier action, they do not now have the

30 same opportunity to persuade a jury that will

31 be determining their liability that the former

32 defendants are to be blamed.

33

34

35

Id. 36 at 1178. 

37

38

39

40 The conclusion is that the trial court erred in

41 dismissing and severing the claim against Dr. Totty. The trial
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1 court’s errors deprived the plaintiff of the right to proceed

2 against the defendant Totty in the same trial with the other

3 defendants and also of the right to have the decedent’s fault

4 compared with the fault of all the defendants. The defendants

5 other than Dr. Totty were deprived of an opportunity to have fault

6 apportioned against Dr. Totty. This result could have been

7 accomplished on remand had the plaintiff appealed the entire case. 

8

9 Despite the plaintiff’s insistence that relief can be

10 granted on the record before the Court, the Court finds that the

11 plaintiff’s failure to appeal the judgments against the defendants

12 other than Dr. Totty was fatal to his right to a new trial. 

13 Perhaps the plaintiff could not have anticipated the precise

14 decision that would be rendered by the Court on the issues

15 presented, but the plaintiff chose to accept payment in

16 satisfaction of the judgment against the defendant Holland, thereby

17 precluding an appeal that would have allowed the Court to do

18 justice for all the parties. 

19

20 The Court has been referred to no authority that would

21 allow it to set aside a final judgment against a defendant who is

22 not a party to the appeal and who has paid the judgment and

23 received from the plaintiff an acknowledgment of full satisfaction. 

24

25 Accordingly, the judgment of the Court of Appeals

26 dismissing the suit is affirmed, and the case is remanded to the

27 trial court.
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1 Costs of appeal are taxed to the plaintiff. 

2

3 _____________________________

4 Reid, J.

5

6

7 Concur:

8

9 Anderson, C.J., Drowota, Birch,

10 and Holder, JJ.