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Jackson v. Hamilton11/4/2003
upon by the defendant in his Motion to Amend his Answer:
". . . fairness and efficiency require that defendants called upon to answer allegations in negligence be permitted to allege, as an affirmative defense, that a nonparty caused or contributed to the injury or damage for which recovery is sought. In cases where such a defense is raised, the trial court shall instruct the jury to assign the nonparty the percentage of the total negligence for which he is responsible." McIntyre v. Balentine, 833 S.W.2d 52 at 58.
The Supreme Court established this procedure to encourage the resolution of all claims in a single proceeding, where liability may be apportioned in accordance with fault. However, to allow a tortfeasor to reduce his damages by alleging the subsequent negligence of a medical provider would for all practical purposes abolish the common law rule discussed above. We do not believe that the Supreme Court intended this result.
The Court acted in McIntyre v. Balentine to eliminate the harsh rule that a plaintiff's contributory negligence completely bars his recovery, and to establish a system of comparative fault that more equitably allocates liability between negligent actors. The effect of eliminating the rule now at issue would be to penalize injured parties in several inequitable ways.
Abolition of the common law rule would effectively shift the burden of proving medical negligence (or its absence) from the defendant to the plaintiff. To protect themselves, plaintiffs in future cases would feel compelled to timely name medical providers as defendants in any suit where the negligence of the original tortfeasor led to the necessity for medical care, whether or not medical negligence was actually suspected. In cases like the present one, where this was not done, and the one year statute of limitations for filing medical malpractice claims passed, allowing the defendant to allege medical negligence as an affirmative defense would unfairly prejudice the plaintiff's right to a full recovery for her injuries.
Atkinson, 1994 Tenn. App. LEXIS 480, at *6-7. Because we uphold the common law rule of the original tortfeasor's liability for subsequent medical complications, we find that the trial court committed prejudicial error when it refused to instruct the jury on this rule of law. In light of the disposition of this issue, the only other issue this Court needs to address is issue seven above.
Amending Defendant's Answer
Defendants assert that, if this Court should remand this appeal for a new trial, Defendants should be permitted to amend their answer to include the affirmative defense of the comparative fault of Dr. Robinson, the Plaintiff's chiropractor. We find, as the Atkinson and Troy courts did, that such an amendment would be inconsistent with the common law rule of holding the original tortfeasor liable for subsequent medical treatment. Though, at first glance, this may seem a harsh result for a defendant, as the Court in Atkinson noted, such defendant could have the alternatives of impleading a third party to the original suit or suing the medical provider under a theory of subrogation. Id. at *5. Therefore, we deny Defendants relief to amend their answer.
Conclusion
For the foregoing reasons, we reverse the decision below and remand this case for a new trial. Costs are judged against Appellees, Zodie Hamilton and James Hamilton, for which execution may issue, if necessary.
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