Individual Immunity of Government Employees

Medical Malpractice

Brief - Jury may Allocate Liability to Immune Non-Parties - Carroll v. Whitney, No. W1997-00246-SC-R11-CV (Tenn. 10/04/2000)

This case deals with the allocation of fault to non-party defendants.  It arises as part of a series of cases in which Georgia is realigning its tort laws in the wake of adopting comparative fault in 1992.  This case deals with the special problem of allocating fault to defendants that are immune to direct claims.  Plaintiff was cared for by several physicians, including two medical residents employed by the state.  Plaintiff initially filed a medical malpractice lawsuit against all the defendants.  The residents moved to be dismissed because of statutory immunity.  They were dismissed from the lawsuit and the plaintiff filed a claim under the Tennessee Tort Claims Act for their actions.  (Thus while they were personally immune, the plaintiff was not denied a possible recovery for their actions.)  At the trial, the remaining defendants referred to the pending statutory tort claim and put on evidence that their care was satisfactory and that if there was any negligence, it was that of the residents.  There is no evidence that any of the defendants had supervisory responsibility for the residents and thus no vicarious liability for their actions.  The defendants asked for instructions allowing the jurors to allocate fault to the residents, which the judge allowed.  In their verdict, the jurors assigned all the fault to the residents and none to the defendants.  Plaintiff appealed.  The Tennessee Supreme Court held that it was not error to allow jurors to allocate fault to non-parties.  The opinion has a useful review of the precedent in other states on the general problem of allocation of fault in a comparative fault jurisdiction, and a lengthy dissent that argues that comparative fault should not be used to deny plaintiff all recovery.