## Facts

- Alice J. Banks attended a social event at an Elks Lodge in Nashville, Tennessee, where the chair she was sitting on collapsed and seriously injured her back.
- Banks sought treatment from Robert H. Boyce, M.D., of Premier Orthopaedics & Sports Medicine, P.C., who recommended lumbar surgery.
- After surgery, Boyce discovered he had fused the wrong vertebrae and performed a second operation the next day to correct the error.
- Banks was transferred to Cumberland Manor Nursing Home for rehabilitation, where she developed a staphylococcus infection requiring additional surgeries and treatment.
- Banks filed negligence actions against the Elks Club and against Boyce/Premier; the cases were consolidated.
- The Elks Club and Boyce/Premier moved to amend their answers to allege comparative fault by Cumberland as a subsequent tortfeasor.

## Issues

1. Whether, under Tennessee’s comparative fault system, an original tortfeasor remains jointly and severally liable for aggravation of an injury caused by later negligent medical treatment.
2. Whether defendants may plead and seek to prove comparative fault of a subsequent medical provider for enhanced harm occurring during treatment of the original injury.
3. Whether the trial court erred in denying amendments asserting comparative fault against a non-party subsequent tortfeasor.

## Decision

- The Tennessee Supreme Court reversed the trial court’s denial of the motions to amend and remanded.
- The court held an original tortfeasor is not jointly and severally liable for further aggravation caused by a subsequent tortfeasor’s medically negligent treatment.
- Because liability must be allocated under comparative fault, the defendants were entitled to assert comparative fault against Cumberland.

## Legal Principles

- The original-tortfeasor rule remains part of Tennessee law in defining the scope of harm that may be legally caused by the original negligence when later medical aid is reasonably required.
- Tennessee comparative fault links financial responsibility to each actor’s percentage of fault; joint and several liability does not apply among independent tortfeasors in this setting.
- Foreseeability may support proximate cause for subsequent medical aggravation, but it does not justify imposing all damages on the original tortfeasor when later negligence contributes to the injury.
- A defendant may plead comparative fault of a subsequent medical provider whose negligence allegedly contributed to the plaintiff’s ultimate damages, allowing allocation of fault among all negligent actors.

## Conclusion

The court reconciled the original-tortfeasor rule with comparative fault by preserving the rule for causation and scope of harm while requiring apportionment of damages among the original and subsequent negligent actors; thus, defendants could amend their answers to assert comparative fault against the nursing home.


Banks v. Elks Club Pride of Tenn. 1102, 301 S.W.3d 214 (Tenn. 2010)