Lafeyette ROMINE, Sr., & Debra P. Romine v. Julia FERNANDEZ, Crna & Johnathan Isom, M.D.
Court of Appeals of Tennessee, Western Section, at Jackson
July 15, 2003
Application for Permission to Appeal Denied by Supreme Court Dec. 22, 2003
147 S.W.3d 242
Oct. 15, 2002 Session
Dixie White Ishee, Memphis, TN, for Appellees.
OPINION
ALAN E. HIGHERS, J., delivered the opinion of the court, in which HOLLY KIRBY LILLARD, J., joined and DAVID R. FARMER, J., dissented.
In this medical malpractice action, Defendants appeal the trial court‘s decision allowing Plaintiffs to use
Facts and Procedural History
On November 3, 1999, Mr. Lafeyette Romine, Sr. and Ms. Debra P. Romine (the Romines) filed their original complaint against John T. Morris, M.D. (Dr. Morris), The Office of Bone & Joint Surgery, P.C. and Methodist South (collectively Original Defendants). The complaint alleged that on September 25, 1998, Mr. Romine went to Dr. Morris seeking medical treatment for left knee pain. Mr. Romine was diagnosed with severe degenerative arthritis in both knees and surgery was recommended. On November 9, 1998, under the direction of Dr. Morris, Mr. Romine was admitted to Methodist Hospital where he underwent a total joint replacement of his left knee. Following this
The Romines alleged that Dr. Morris, Methodist Hospital South, a Division of Methodist Hospitals of Memphis, individually and by or through their agents, servants and employees were guilty of negligence in the care of Mr. Romine and in the administration of Toradol. The Romines then prayed for a jury trial, but did not ask for a specific amount of damages.
In their answer, Dr. Morris and the Office of Bone & Joint Surgery acknowledged that the Plaintiff was administered Toradol by the Methodist Hospital staff, but not at Dr. Morris’ order. Dr. Morris also denied that he was guilty of any negligent act or omission that resulted in injury to Mr. Romine. He further asserted that
Dr. Morris has no knowledge of any act of medical negligence committed by any other defendant or third party in the care and treatment of the plaintiff. However, in the event that the plaintiff‘s allegations of negligence on the part of co-defendants are true, and if the plaintiffs are successful in presenting a factual basis for those allegations, then in that instance Dr. Morris invokes the doctrine of comparative fault and says that under no circumstance would he be liable for more than a proportionate share of the total fault.
On December 16, 1999, based on the statements in Dr. Morris’ answer, the Romines filed a Motion to Amend Complaint. The Romines claimed that Dr. Morris’ answer triggered
Dr. Morris responded to the Romines’ Motion to Amend and stated that he did not invoke the doctrine of comparative fault against unnamed third parties. Dr. Morris asked that the Romines’ motion to amend be denied because his answer did not allege fault on the part of nurse Fernandez, Dr. Isom or any other non-party. Thereafter, the Romines filed a supplemental answer to support their motion to amend. The Romines claimed that they were not aware that Dr. Isom was not a member of Dr. Morris’ staff and that the only record which could be Dr. Isom‘s order is the physician order sheet dated 11/9/98 and that signature was not discernable by the plaintiffs. Finally, the Romines alleged that they could not have been aware of who ordered the Toradol until Dr. Morris indicated in his answer that it was not he who did so.
On March 14, 2000, Dr. Isom and Ms. Fernandez filed a Motion to Dismiss, alleging that the Romines’ claim, as to them, was barred by the statute of limitations found in
Thereafter, Dr. Isom and Ms. Fernandez filed their answer to the amended complaint. On November 16, 2000, the Romines filed a Notice of Voluntary Dismissal Without Prejudice as to Dr. Morris and the Office of Bone & Joint Surgery. The trial court entered its order on November 30, 2000, dismissing those defendants. Thereafter, Methodist Hospital South (Methodist Hospital) submitted a Motion for Summary Judgment, which motion was granted in part. The trial court granted summary judgment in favor of Methodist Hospital as to direct liability for any claims based upon the negligence of its employees, but the court preserved any claims against Methodist Hospital by reason of the acts or omissions of Dr. Isom or Ms. Fernandez. On January 25, 2002, the trial court ordered that the action be dismissed with prejudice as to Methodist Heathcare-Memphis Hospitals.
The trial of this matter was conducted on January 28 through February 8 of 2002. The jury, finding Mr. Romine to be forty-nine percent (49%) at fault, Dr. Isom to be twenty-six percent (26%) at fault and Ms. Fernandez to be twenty-five percent (25%) at fault, returned a verdict in favor of Appellees. The jury also found the total damages to be One Hundred Thousand Dollars ($100,000).
On March 4, 2002, the Romines filed a Motion to Assess Costs to Dr. Isom and Ms. Fenandez. Dr. Isom and Ms. Fernandez filed a Motion to Conform Judgment to Complaint, asserting that the Romines should not obtain the judgment because their complaint did not specify the amount of money damages sought, if any. Thereafter, on March 11, 2002, the Romines filed their response to Dr. Isom and Ms. Fernandez‘s Motion to Conform Judgment to Complaint. In this response, the Romines asked the court to amend the pleadings so as to conform to the evidence at trial allowing the jury verdict of $51,000.00 to stand. On March 14, 2002, the Romines filed an Amended Motion to Assess Costs as well as an Amended Affidavit of their attorney. Dr. Isom and Ms. Fernandez filed a Brief in Opposition to Appellees’ Motion to Assess Costs on March 15, 2002, alleging that the Romines were seeking damages beyond the scope of Rule 51 of the Tennessee Rules of Civil Procedure. Dr. Isom and Ms. Fernandez‘s Motion to Conform Judgment to
Issues
The parties raise the following issues for our review:
- Whether the Appellees’ claims against Dr. Isom and Ms. Fernandez were time barred when Appellees did not file a Complaint against said Defendants within the one year statute of limitations as required by
Tennessee Code Annotated § 29-26-116 . - Whether Appellees were entitled to use the ninety (90) day grace period in
Tennessee Code Annotated § 20-1-119 to add new defendants after the one year statute of limitations found inTennessee Code Annotated § 29-26-116 had expired. - Whether Plaintiffs may recover damages, including costs, when they did not include a prayer for relief or an ad damnum clause in either complaint.
Standard of Review
The findings of fact made by a trial court are given a presumption of correctness that will not be overturned unless the evidence preponderates against those findings. See TENN. R.APP. P. 13(d); see also Bank/First Citizens v. Citizens & Assoc., 82 S.W.3d 259, 262 (Tenn.2002). A trial court‘s ruling on a matter of law, however, will be reviewed under a pure de novo standard ... according no deference to the conclusions of law made by the lower court[]. Bank/First Citizens, 82 S.W.3d at 262 (quoting Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.2001)).
Law and Analysis
On appeal, Dr. Isom and Ms. Fernandez contend that the judgment of the trial court should be reversed because the Romines’ claims against them are barred by the one-year statute of limitations enumerated in
In Tennessee, the statute of limitations for medical malpractice actions is one year.
(a) In civil actions where comparative fault is or becomes an issue, if a defendant named in an original complaint initiating a suit filed within the applicable statute of limitations, or named in an amended complaint filed within the applicable statute of limitations, alleges in an answer or amended answer to the original or amended complaint that a person not a party to the suit caused or contributed to the injury or damage for
which the plaintiff seeks recovery, and if the plaintiff‘s cause or causes of action against such person would be barred by any applicable statute of limitations but for the operation of this section, the plaintiff may, within ninety (90) days of the filing of the first answer or first amended answer alleging such person‘s fault, either: (1) Amend the complaint to add such person as a defendant pursuant to Rule 15 of the Tennessee Rules of Civil Procedure and cause process to be issued for that person; or
...
(b) A cause of action brought within ninety (90) days pursuant to subsection (a) shall not be barred by any statute of limitations.
In the case sub judice, the Romines filed their original complaint against Dr. Morris on November 3, 1999, within the one-year statute of limitations. In his answer, filed November 24, 1999, Dr. Morris stated that the plaintiff was administered Toradol by the Methodist Hospital staff, but not at Dr. Morris’ order. Dr. Morris further stated that
Dr. Morris has no knowledge of any act of medical negligence committed by any other defendant or third party in the care and treatment of the plaintiff. However, in the event that the plaintiff‘s allegations of negligence on the part of co-defendants are true, and if the plaintiffs are successful in presenting a factual basis for those allegations, then in that instance Dr. Morris invokes the doctrine of comparative fault and says that under no circumstance would he be liable for more than a proportionate share of the total fault.
Based upon the statements in Dr. Morris’ answer and pursuant to
We agree. Our Supreme Court has previously stated that
We find that the statements contained in Dr. Morris’ answer were sufficient to put the Romines on notice that someone other than Dr. Morris administered the Toradol. Although Dr. Morris did not specifically
Dr. Isom and Ms. Fernandez also argue that there was no impediment which prevented the Romines from naming them in the original complaint. Specifically, Dr. Isom and Ms. Fernandez argue that the Romines knew or should have known of their existence and their status as potential defendants from the outset and should have asserted possible claims against them in the original complaint. Whether the Romines knew or should have known of Dr. Isom and Ms. Fernandez and their status as potential defendants is irrelevant to the application of
Finally, the Romines argue that their claims against Dr. Isom and Ms. Fernandez are timely under the discovery rule found in
In their remaining issue, Dr. Isom and Ms. Fernandez argue that the Romines are not entitled to recover the awarded damages, including costs, when they failed to include a prayer for relief or an ad damnum clause in either of their complaints. Specifically, Dr. Isom and Ms. Fernandez claim that the judgment is void because it exceeds the relief prayed for in the complaint and amended complaint. Dr. Isom and Ms. Fernandez provide the court with multiple cases which stand for the well-settled proposition that a party is limited to the relief prayed for in his complaint.
As Dr. Isom and Ms. Fernandez point out,
In response, the Romines argue that the trial court‘s award of damages should be affirmed because the express language of
When interpreting a statute, we are to assume that the legislature used each word in the statute purposely, and that the use of these words conveys some intent and has a meaning and purpose. Browder v. Morris, 975 S.W.2d 308, 311 (Tenn.1998) (citing Locust v. State, 912 S.W.2d 716, 718 (Tenn.Ct.App.1995)); see also Anderson Fish & Oyster Co., Inc. v. Olds, 197 Tenn. 604, 277 S.W.2d 344, 345 (1955). Further, it is an axiom of our law that courts are to give the language used by the legislature its natural and ordinary meaning. Browder, 975 S.W.2d at 311 (citing Austin v. Memphis Pub. Co., 655 S.W.2d 146, 148 (Tenn.1983)). In
Conclusion
Accordingly, we affirm the trial court. Costs on appeal are assessed against the Appellants, Dr. Johnathan Isom and Ms. Julia Fernandez, and their sureties, for which execution may issue if necessary.
DAVID R. FARMER, J., dissents.
DAVID R. FARMER, J., concurring and dissenting.
I concur with the majority opinion that the pleading filed by the plaintiff in a medical malpractice action is not required to demand a specific sum. See
On December 16, 1999, Plaintiffs moved to amend the complaint by adding Julia Fernandez, a certified registered nurse anesthetist, and Dr. Johnathan Isom, a medical doctor. Since the motion to amend was filed beyond the one year stat-
(a) In civil actions where comparative fault is or becomes an issue, if a defendant named in an original complaint initiating a suit filed within the applicable statute of limitations, or named in an amended complaint filed within the applicable statute of limitations, alleges in an answer or amended answer to the original or amended complaint that a person not a party to the suit caused or contributed to the injury or damage for which the plaintiff seeks recovery, and if the plaintiff‘s cause or causes of action against such person would be barred by any applicable statute of limitations but for the operation of this section, the plaintiff may, within ninety (90) days of the filing of the first answer or first amended answer alleging such person‘s fault, either:
(1) Amend the complaint to add such person as a defendant pursuant to Rule 15 of the Tennessee Rules of Civil Procedure and cause process to be issued for that person;
In order to reap the benefits of the above statute, the Plaintiffs rely upon the following portions of the answer of Defendants, Dr. Morris and The Office of Bone & Joint Surgery, P.C., which state:
The plaintiff was administered Toradol by the Methodist Hospital staff, but not at Dr. Morris’ order.
....
Dr. Morris has no knowledge of any act of medical negligence committed by any other defendant or third party in the care and treatment of the plaintiff.
However, in the event that the plaintiff‘s allegations of negligence on the part of co-defendants are true, and if the plaintiffs are successful in presenting a factual basis for those allegations, then in that instance Dr. Morris invokes the doctrine of comparative fault and says that under no circumstance would he be liable for more than a proportionate share of the total fault. (Emphasis added.)
The trial court granted the motion to amend the complaint, whereupon defendants Isom and Fernandez moved to dismiss on the basis that the claim is barred by the one year statute of limitations. In the order denying this motion, the trial court stated that the motion should be denied because in paragraph 2 of his Answer Dr. Morris acknowledged that [Toradol] was ordered and states that he did not order the [Toradol]. The Court finds that this language is sufficient to invoke
In affirming the trial court‘s ruling that the claim against Dr. Isom and Ms. Fernandez were not barred, the majority states as follows:
We find that the statements contained in Dr. Morris’ answer were sufficient to put the Romines on notice that someone other than Dr. Morris administered the Toradol. Although Dr. Morris did not specifically state the names of Dr. Isom and Ms. Fernandez, Dr. Morris’ answer provided reasonable notice of a third party claim and, coupled with the available ... discovery tools, the plaintiff had
more than adequate opportunity and time to discover the third party‘s identity and to amend their complaint to add Dr. Isom and Ms. Fernandez within the ninety (90) days following the filing of Dr. Morris’ answer.
Citing Soper v. Wal-Mart Stores, Inc., 923 F.Supp. 1032, 1038 (1996).2
The rules of statutory construction are set forth in an opinion by our Supreme Court in Browder v. Morris, 975 S.W.2d 308 (Tenn.1998), as follows:
The construction of a statute is a question of law which appellate courts review de novo, with no presumption of correctness. Myint v. Allstate Ins. Co., 970 S.W.2d 920 (Tenn.1998). The cardinal rule of statutory construction is to effectuate legislative intent, with all rules of construction being aides to that end. Id. at 926; Locust v. State, 912 S.W.2d 716, 718 (Tenn.Ct.App.1995). We must initially look to the language of the statute itself in determining the intent of the legislature. Courts are restricted to the natural and ordinary meaning of the language used by the legislature in the statute, unless an ambiguity requires resort elsewhere to ascertain legislative intent. Austin v. Memphis Pub. Co., 655 S.W.2d 146, 148 (Tenn.1983). A statute is ambiguous if it is capable of conveying more than one meaning. In re Conservatorship of Clayton, 914 S.W.2d 84, 90 (Tenn.App.1995). We must consider the language employed in context of the entire statute without any forced or subtle construction which would extend or limit its meaning. Wilson v. Johnson County, 879 S.W.2d 807, 809 (Tenn.1994). Furthermore, we are to assume that the legislature used each word in the statute purposely, and that the use of these words conveys some intent and has a meaning and purpose. Locust, 912 S.W.2d at 718. Where words of the statute are clear and plain and fully express the legislature‘s intent, there is no room to resort to auxiliary rules of construction, Roberson v. University of Tennessee, 912 S.W.2d 746, 747 (Tenn. Ct.App.1995), and we need only enforce the statute as written, Clayton, 914 S.W.2d at 90.
As noted, the original complaint alleges the negligent administration of the drug Toradol by the Defendants. Dr. Morris’ answer states that [t]he plaintiff was administered Toradol by the Methodist Hospital staff, but not at Dr. Morris’ order. I find it significant that Dr. Morris did not allege that the drug was negligently administered. At the time Dr. Morris filed his answer, the Defendants were Dr. Morris, The Office of Bone & Joint Surgery, P.C., and Methodist Hospital South, a Division of Methodist Hospitals of Memphis.3 The original complaint alleges that [a]s a sole, direct, and proximate result of the negligence and deviations from the stan-
ALAN E. HIGHERS
JUDGE