*1 not Dr. Kellum’s affidavit did We hold that and that she did not authorize full extraction plaintiffs during giving the office visit an element negate a full extraction essential litigation. Consequently, to an affirmative defense. rise this claim or establish appropriately classified as plaintiffs claim did not shift Accordingly, the burden battery. 588; medical plaintiff. McCarley, a See Byrd, 847 Sum- inquiry Our next the de whether battery is mary judgment on the issue of efforts, a in motion fendant’s as movant reversed, is remanded summary judgment, properly negated an for proceedings trial court for consistent plaintiffs essential element appeal this shall opinion. this Costs of battery or an affirmative ease established Kellum, defendant, Dr. taxed to the Arlene negation Absent of an essential defense. D.D.S., may issue nec- for which execution of an affirmative element or establishment essary. defense, not non the burden does shift to the summary judgment proceeding. movant in a ANDERSON, C.J., and DROWOTA Serv., McCarley Quality Foods See West BIRCH, JJ. (“If at 588 the movant does not suit, a for non negate claimed basis ORDER DENYING PETITION produce support movant’s either burden FOR REHEARING discovery or not affidavits materials is triggered summary judg motion PER CURIAM. fails.”). ment Kellum, D.D.S., Defendant/Appel- Arlene lee, petition to has filed a rehear merely
Dr. Kellum’s affidavit con pursuant Tenn.R.App.R. contending conclusory a tains statement that shе acted approved principle “in recognized opinion form ... and that our conflicts that such law. proposition treatment would not and did law and overlooks care_” fail to meet the standard of consideration, After we conclude that due non-responsive plaintiffs affidavit is petition rehearing be and the should allegation that Dr. Kellum to inform failed hereby at the cost of Defen- same denied plaintiff perform of her full intention to dant/Appellee. during appointment giving extraction rise Moreover, litigation. to this Dr. Kellum’s theory implied
brief on a consent: relies in, p]laintiff came
[When the sat down chair,
the dental allowed the Doctor cavity, anesthetize her entire oral will- WHITE, the Administrаtrix Barbara as ingly submitted to the extraction sixteen White, Earl (16) of the Estate of R. it is teeth —that reasonable for deceased, Plaintiff/Appellant, presume Defendant/Appellee Doctor that she has the Patient’s “consent” to extract her teeth. LAWRENCE, M.D., H. William theory implied negate A consent does Defendant/Appellee. the plaintiffs an essential element of claim.2 Tennessee, Supreme Court of proffer admissible evi- defendant must at Jackson. establishing plaintiff dence autho- trigger rized a full extraction to Aug. 1998. burden, signed form such consent autho- Rehearing Oct. Denied rizing im- full extraction. Reliance plied theory allegation a mere consent or procedure authorized
creates material issues of fact. question procedure formulate an who is under can either authorize a 2. We during pro- intelligent pro- decision of an and is in the and informed the influence anesthetic procedure undergoing itself. cess of an extensive dental cedure *2 Cannon, Cooper,
David L. John Colum- M. Mehale, Cannon, Copper, A. ba Cannon & Goodlettsville, P.C., Plaintiff-Appellant. Jr., Jerry Kizer, Rogers, D. Patrick W. Butler, Bell, Rainey, Kizer, & Reviere P.L.C., Jackson, Defendant-Appellee. that the decedent “didn’t have fendant stated OPINION live.” The informed any desire REID, Special LYLE Justice. fact or three dif- the defendant “two malpractice in which This is a medical The defendant felt ferent times.” White, plaintiff, Barbara administratrix *3 for “likely was a candidate” suicide. decedent husband, the of her Earl estate deceased repeatedly encouraged decedent to He the White, Appeals’ appeals R. from the Court of psychiatrist, without success. see but decision to reverse the trial court’s denial of the dece- determining in 1990 that After summary judgment for the de- a motion for pancreas damaged had dent’s liver and been fendant, The Dr. William H. Lawrence. is- alcohol, consumption by his the excessive to the sues be decided are whеther dece- physician to defendant referred him another a superseding, dent’s suicide was treatment, specialized but for the defendant cause, thereby precluding recovery against treat the decedent for various continued to law, wheth- the defendant matter and July on 1993. until his death ailments may the er decedent’s suicide be considered wife, the the defendant the May In or June decedent’s Balentine, McIntyre White, under with the defendant Barbara discussed (Tenn.1992). The conclusions are that the consumption of alco- the decedent’s excessive supersed- decedent’s act suicide was not a his having hol effect it was on hеalth. and the ing, intervening matter prescrip- cause of death as a gave The the law, to question Disulfiram, commonly but a of fact be resolved at tion known as “An- trial, tabuse,” and decedent’s intentional discourage to decedent committing may White, not suicide be considered in According Mrs. the de- drinking.1 to assessing fault grind defendant. to fendant instructed her medi- place surreptitiously it in the de- cation and followed the defendant’s cedent’s food. She decedent, White, secretly The administered the Earl R. was 55- instructions and thereafter, years-old time of his death. He was medication to decedent. Soon 13, 1993, July complained alcohol the decedent addicted to and suffered from severe cold. depression. began feeling In his a headache and She decedent wife of defendant, appear seeing Dr. H. that he not William Law- testified did However, rence, following day, osteopathic an physician family drinking. with a ailments, 14,1993, practice, variety July went alone including bronchitis, Valley Hospital high pressure, emergency Regional room blood and back and problems. Camden, complaining elbow of hot flashes and The defendant was aware throughout pain. emergency his room indicate treatment the decedent records that he consumed alcohol to breath smelled of alcohol. excess. The the decedent’s report, the dece- According testified that the decedent was assessment distress,” “pretty but was much” intoxicated whenever he saw dent was under “moderate him, “perception, fully cooperative conscious. Since the decedent’s and conception, had taken understanding everything decedent did know he Antabuse, emergency he did not advise the was altered” alcohol. defendant was diag- was personnel from room of that fact. He also aware that the decedent suffered suffering nosed from heat exhaustion and depression. severe When asked about the as walking his depression, discharged. He left under own nature of the decedent’s de- tachycardia, hy- hyperventilation, prescription dyspnea, tion is a medication which Antabuse uneasiness, alcohol, syncope, potension, marked weak- produces sensitivity such that a ness, vision, vertigo, blurred and confusion. In person consuming quantities of alco- even small may respiratory de- there severe reactions highly unpleasant hol receives a reaction. An- arrhythmias, collapse, pression, amounts, cardiovascular alcohol, plus tabuse even in small infarction, myocardial congestive acute heart produces following flushing, reactions: unconsciousness, convulsions, failure, neck, throbbing throbbing headache, head death. nausea, difficulty, copious respiratory 998). thirst, (52d Physician’s sweating, pain, palpita- ed.1 vomiting, Desk chest Reference later, power. Four hours the decedent com- rence owed a of care to the decedent by shooting mitted himself pa- not to administer Antabuse without the pistol. head with a full knowledge, tient’s to warn the decedent reaction, him Antabuse-alcohol caution response allegations against drinking taking drug, while that the decedent’s death was fully possible him make aware of сonse- negligence, the defendant assert- quences, including the fact that reactions ed in his answer “com- decedent’s up occur days with alcohol to 14 after parative negligence any recovery.” would bar ingesting Antabuse. defendant did The defendant also filed a for sum- motion any experts in response file affidavits of mary judgment, asserting that the decedent’s the affidavits of Drs. Pate and Smith submit- act of suicide the superseding, interven- *4 by plaintiff. ted ing recovery barring cause of death as a matter of law. The trial court denied defendant’s mo- motion,
In response plaintiff summary judgment. for tion The court Pate, filed the of Dr. Kirby disputed affidavit J. found thеre were issues of material psychiatrist, in opined regarding which Dr. Pate that fact whether decedent’s act “covert superseding, defendant’s administration of suicide constituted a interven- person, actively drinking to an cause of [Antabuse] death. The defendant then filed otherwise, inappropri- alcoholic or entirely interlocutory appeal, is a motion for an which ate, care, granted following violates the standard of and is the trial court dangerous point explanation: Dr. recklessness.” Pate also stated the use of Antabuse The court is exercise its led to discretion required patient, the informed consent of the permitting interlocutory ap- in favor of an further, reasonably and “[i]t fore- peal distinguished because the has court seeable for Dr. Lawrence to realize that se- long case from the line of Tennessee cretly prescribing Antabuse to an alcoholic by ... holding person cases that suicide depressed and care patient under his and who nature of her understands the his or physical symp- control would cause severe independent, intervening, proxi- act is an toms, major for is a risk factor sui- as setting mate cause a non-custodial cide.” Dr. Pate concluded that covert “[t]he matter of law. prescriрtion inappropriate and instructions opinion It is the of this court that this for the use of Dr. Lawrence in [Antabuse] represents impression case of first probably the treatment Mr. of White caused in Tennessee this case involves because death, [his] suicide since Mr. White was suf- allegations sur- that the defendant doctor fering depres- from chronic alcoholism reptitiously prescribed drug for the ...” sion. which, plaintiffs of its plaintiffs also submitted the affidavit him, him sui- effects commit Smith, Murray of Dr. W. who was the medi- cide. Baptist Hospital Drug director cal of the grant- The Court of reversed and Alcohol Recovery Center in Nashville. Dr. summary judgment ed defendant. Smith, Pate, like Dr. stated that the defen- reasonably dant should have foreseen that II secretly prescribing administering Anta- depressed patient Summary judgment appropriate buse to alcoholic and physical problems only moving party judg would cause if the severe entitled to patient. lead to the Smith P. Dr. ment matter of law. Tenn. R. Civ. 56.03; Hall, opined Byrd 208, inappropriate prescription that “the 847 210 S.W.2d (Tenn.1993). summary moving party and instructions for use of Antabuse demonstrating judgment Dr. of White Lawrence the treatment Mr. the burden exists, depression, genuine death from no material fact caused the suicide issue of occurring effect Antabuse.” must as a side id. at and this Court review presumption Dr. Dr. Smith further testified that Law- record without a of correctness
529 elements of supporting judgment. the trial court’s Rob (Tenn. Omer, they very different con- prove, must are inson v. 952 S.W.2d Wells, 1997); cepts. refers to the cause Cause fact Bain v. S.W.2d (Tenn.1997). relationship between the defen- The Court must view evi and effect conduct and the light most favorable dant’s tortious dence Thus, nonmoving party, injury all cause fact deals draw reasonable infer or loss. favor, consequences in her all for” of an act. ences discard counter with the “but Byrd, vailing at 210- conduct is cause of evidence. Only the facts and event if the event would not occurred conсlusions to contrast, permit proxi- drawn from the facts a reasonable but for the conduct. cause, cause, legal one mate concerns a de- person to reach conclusion should Robinson, summary granted. legal judgment be termination Bain, 426; 622; imposed fact has 936 S.W.2d should be where McClung Square Partnership, legal v. Delta Ltd. Proximate or been established. made policy cause is a decision deny liability
legislature or the courts to Ill conduct based on otherwise actionable sense, poli- logic, common considerations The first issue be considered whether *5 cy, precedent ‘our more or and less inade- the act of suicide the decedent forecloses quately expressed justice of what ideas recovery against the defendant matter of administratively or of what is demands precluded law. The defendant not (Citations possible and convenient.’ omit- raising the of decedent’s intentional act sui- ted). cide to one or more defeat of the elements of plaintiff’s negligence of action. cause See GmbH, Snyder 955 v. LTG Lufttechnische Jordan, 815, Turner v. 957 S.W.2d 823 (Tenn.1997). 252, n. 6 also S.W.2d 256 See (Tenn.1997) (“[A] negligent may, 594, Bryant, Kilpatrick v. S.W.2d 598 868 course, party’s of raise a third intentional act (Tenn.1993). to refute of claim elements defendant, an pointed As out causation_”). duty such as and Thus is indеpendent intervening cause breaks presented the first issue in this which is thereby proximate chain causation and suicide the decedent’s act of consti- clear, recovery. equally precludes The law is cause, intervening breaking tutes an act, however, intervening that “[a]n proximate, legal, chain of or causation. response by negligence, is a normal created proof A requires claim of superseding, intervening not a cause so as following of each elements: a liability, original wrongdoer reheve the plaintiff; care owed the defendant to the provided intervening act could have rea falling the аpplicable conduct below standard sonably foreseen [of and conduct duty; care to a that that amounts breach of wrongdoer] was a original substantial loss; fact; proxi injury cause or bringing factor about the harm.” McClen McClung Square mate cause. v. Delta Ltd. 767, (Tenn. Cooley, ahan v. 806 775 S.W.2d (Tenn. 891, Partnership, 937 S.W.2d 894 905; 1991); McClung, also 937 S.W.2d see Wilder, 150, 153 1996); McCall v. 913 S.W.2d Haynes County, 883 v. Hamilton S.W.2d (Tenn.1995). focus in ease is on the The 606, Accordingly, inter 612 “an proximate last causation. vening exculpate original not element — act will proxi recently Court discussed the nature it wrongdoer unless is shown that the inter by contrasting mate it with causa causation reasonably vening not have bеen act could tion in fact: McClenahan, anticipated.” 806 S.W.2d or consti cause in fact such an act event The distinction between Whether intervening jury proximate, legal, tutes an cause or cause is mere- facts unless uncontroverted ly an exercise semantics. terms are determine to be from the facts interchangeable. Although both cause and inferences drawn persons that all reasonable proximate, legal, in fact cause are make it so clear 530 agree proper (Ind.App.1991);
must v. Doering, outcome. Cowan 111 N.J. (1988). 451, McClung, 159, 166-67 937 545 S.W.2d A.2d The record this ease that shows This Court Court and the reasonable minds could conсlude that held that suicide constitute an interven decedent’s act of suicide was a foreseeable willful, calculated, it ais consequence the defendant’s power deliberate act of one who has the surreptitiously prescribing administering See, Montesi, choice. e.g., v. Lancaster record Antabuse. The shows that lead 50, 217, (1965); Tenn. 221-22 ing risk suicide physical factors for include Stewart, 176, Jones v. 183 Tenn. 191 S.W.2d depression. illness and The decedent suf 439, (1946); Pilkinton, Weathers plaintiff presented fered from both. The Eckerd’s, (Tenn.App.1988); 78-79 proof that the decedent’s suicide was McGhee, Tenn.App. Inc. v. 86 S.W.2d reasonably foreseeable from a (1935). medicаl stand However, the act of suicide point, and that the defendant’s conduct awas always is not intervening viewed as an act bringing substantial factor in about the sui relieves the actor from liabili cide. Both Dr. Pate and Dr. Smith See, testified State, ty. e.g., Cockrum reasonably should have (Tenn.App.1992)( 436-37 “In the custodi secretly prescribing foreseen that Antabuse context, al when the sui [of depressed patient to an alcoholic and would cide] is itself the harm gives physical problems cause severe and could duty, rise to the custodian’s custodian ... cause the to choose to life. end his will not simply be relieved of jury could thus find occurred.”). the aсt has neg foreseeable result ligence. expert testimony As the in this case
demonstrates, foreseeability the or likelihood IV of a necessarily depend upon suicide does not the capacity mental the deceased at the The second issue be considered time the suicide was committed. The fact whether the decedent’s intentional act of committing the deceased was not insane or be bereft of considered in de- reason necessarily does not lead to termining the con the fault the defendant. The suicide, precise clusion purport question negligence that the which is the the is whether cаuse, intervening compared ed is unforeseeable. As the defendant with the can proximate taking our dealing legal eases or intentional in conduct of indicated, assessing causation have his own in fault.2 inquiry crucial life The resolu- negligent largely whether the tion of conduct this issue has determined Jordan, reasonably led to or Turner v. made it foreseeable that the decision in so, granted deceased would commit suicide. If S.W.2d 815 The Court independent intervening suicide is not an review in to decide an issue of first Turner impression, breaking legal psychia- cause chain of causation. “whether holding Those contrary compared deсisions to the trist’s have been are should U.S., Champagne overruled. act non-party pa- See the intentional of the (“[W]hen (N.D.1994) pa N.W.2d tient in extent of the defen- consequence liability plaintiffs.” tient’s suicide is a of dant’s Id. at to the 821. care, provider’s negligent psychiatric patient the act Turner who involved severely plaintiff, superseding suicide cannot be deemed a attacked and beat cause.”); hospital see nurse also Jacoves v. who worked at where the Corp., patient patient’s Merchandising Cal.App.4th being United treated. The (1992); psychiatrist 11 Cal.Rptr.2d “aggressive, 482-83 that he was Sum knew Panos, combative, grandiose, intimidating, mit Bank v. 570 N.E.2d 968-69 аnd dan- secretly prescribing 2. The [the] Court of found that "there over- in Antabuse to dece- whelming evidence in the record from which the dent.” jury negligent could find defendant was that the in of courts Id. We join a number nurse. prior to the attack on the gerous” comparative no there can be Nonetheless, psychiatrist did duty in- of care the defendant’s where posing a keep patient nothing to or self- the self-abusive preventing cludes facility, as medi- in the such threat others plaintiff’s that caused destructive acts restraining, secluding him. cating, omitted.) (Citation Clearly, the injury. psychiatrist negligence, nurse sued the owed to duty that the defendants of care duty tо use alleging that he had violated his patient [the such as an institutionalized pa- of his care in the treatment reasonable steps taking reasonable plaintiff] included which, turn, tient, in a foreseeable created it was a known her suicide when prevent of harm to her. and unreasonable risk risk. To allow the defense or foreseeable comparison was psychiatrist argued that negligence in these circum- or link his proper it would limit duty meaningless the would render stances fault, of the percentage to his one reasonably protect- hospital to act McIntyre, comparative fault. See goals of against self-hаrm. patient contrast, In Foundation, Mayo liability ought psychiatrist’s And in argued that the Tomfohr 121, 125 (Minn.1990), patient where a a fore- the occurrence of N.W.2d not be reduced psychiat in his room at a prevent. committed suicide act that he had a seeable stated, hospital, ric the court held: Court asked, as it was jury has been When the view, negligent of a our the conduct here, at- the suicide to determine whether compared should not be foreseeable, reasonably given tempt was intentional conduct of another determin- pa- surrounding the the circumstances ing comparative fault where the intentional state, it is and his mental tient’s admission conduct is the foreseeable risk created unnecessary duplicative but also courts negligent tortfeasor. As other patient’s again review the conduct presents recognized, comparison patient’s volitional determine whether the practical allocating fault be- difficulties application requires acts, negligent tween and intentional be- specific type In this fault. negligent and intentional torts are prior exists mental condition kind, degree, society’s different act, it is hospital’s culpability of the relative of each act. view hos- gives rise to the that condition *7 comparison Such alsо reduces the duty and which defines the pital’s of care gent person’s comply incentive to with the scope duty. of that Moreover, applicable duty of care. while a principles that were found The same course, may, negligent defendant of raise comparison of fault in Turner preclude to party’s third intentional act to refute ele- case. apply equal force to the instant with plaintiff’s claim ments of the liability may not be reduced The defendant’s causation, duty fairness dic- such as by comparing negligent his conduct with permitted to tates that it should not be committing act of sui decedent’s intentional rely upon thе harm it had a a foresee since the intentional act was cide liability. duty prevent to so as to reduce its neglig by the defendant’s able risk created Turner, 957 S.W.2d ence.3 jurisdictions same have reached the Other V In McNa- conclusion under similar facts. 43, summary, before the Honeyman, 546 In on record
mara 406 Mass. stated, Court, (1989), minds can differ on wheth- the court reasonable N.E.2d 146-47 permitted be defendant] should not Judge would hold that where Drowota’s dissent wrongdoing patient rely upon of a is the it the intentional the foreseeable harm had sound, by negligent physi- foreseeable risk created liability” prevent its so as reduce cian, comparison aрpropriate of fault if the applicable of Turner is patient party rationale for is a to the suit. The party. is or is not decision, that [a the Turner that "fairness dictates 532
er the
liability
decedent’s act of suicide was an inde-
and fault.” Id. at 58.
felt that
We
pendent intervening cause of
linking liability
the decedent’s
fault
with
best achieved the
death,
concepts
efficiency,
and the
decedent’s intentional act of
fairness and
the basis
committing
may
suicide
considered in
fault. See Owens v. Truck
America,
(Tenn.
assessing
stops
915
424
defendant’s fault.
S.W.2d
1996). Thus,
rejected
we have
the notion
judgment
of the Court of
liability
imposed
degree
should be
to a
reversеd, and the case is
remanded
disproportionate
McIntyre,
to fault.
833
trial
proceedings.
court for further
S.W.2d at 58. This theme has been reiterat
appeal
Costs of the
are taxed to the defen-
multiple
ed
Court
occasions and
dant Lawrence.
See,
variety
e.g.,
of circumstances.
White
Toyota
Corp.,
head v.
Motor
ANDERSON, C.J.,
BIRCH, J.,
(Tenn.1995) (“In keeping
princi
with the
concur.
fault,
ple
linking liability
plaintiff’s
ability
products
liability
recover
a strict
JJ.,
HOLDER,
DROWOTA and
concur
case should not be unaffected
the extent
opinions.
and dissent with
injuries
to which his
result from his own
DROWATA, Justice, concurring and
fault.”);
Ledes,
Volz
dissenting.
(Tenn.1995) (“We
system
believe that a
I agree
majority
with the
that on the rec-
particular
wherein a
defendant is liable
ord before us reasonable minds could con-
percentage
plaintiffs damages
for the
clude that
the decedent’s intentional act of
that are caused
that defendant’s fault is
committing suicide was a foreseeable conse-
system
goal
best achieves our stated
quence
the defendant’s
sur-
McIntyre
linking liability
v. Balentine of
reptitiously prescribing
administering
fault.”).
Owens,
See also
915 S.W.2d at
Thus,
Antabuse to the decedent.
it would be
(“[Hjaving
adopted
thus
a rule more
inappropriate for this Court to find that the
fault,
closely linking liability and
it would be
committing
decedent’s intentional act of
sui-
rule,
simultaneously
inconsistent to
retain a
cide
a superseding,
joint
liability,
may
and several
fortui
preclude liability
sufficient to
as a matter of
tously impose degree
liability
that is out
was,
all,
fault.”).
law. It
after
the defendant’s
short,
proportion
of all
it is
gence
arguably
set in motion the chain
inception
clear that since the
of events that led the decedent to take his
State,
principle
guiding
own life in
view his condition.
fault,
special
to link
unless
compelled
circumstances
us to take a differ
however,
disagree,
majority’s
See,
approach.
e.g., Snyder
ent
v. LTG Luft
conclusion that the decedent’s intentional act
GmbH,
technische
may
committing
not be considered
(Tenn.1997)(holding
that fault
not be
degrees
relative
of fault. The
employer
assessed
an immune
in an
*8
majority’s holding
negligence
that the
of the
employee’s
against
party).
tort action
a third
compared
not be
with the
taking
intentional conduct of the decedent in
case,
majority
upon
In this
the
relies
Tur
his own life in assessing fault is inconsistent
Jordan,
(Tenn.1997),
ner v.
White’s estate. concur with this con- Rehearing defendant/appellee, filed majority clusion. To the extent that the majority and it is the of a of this decision holding also that the act of suicide should not petition Court that the is without merit. The be used as a back-door maneuver to bar the Rehearing Petition for is denied. claim, agree. I also would permitted allege should not be HOLDER, JJ., fifty percent adhere to
decedent was or more “at fault” DROWOTA solely expressed original because of his act of suicide. the views their opinions. majority
I am unclear if the occurring prior other facts circumstances
to the suicide cannot be used to determine
causation. majority To extent that the hold, my opinion,
does so dissent. precluded
defendant should not be from at-
tempting prove that Mr. White’s success- attempt
ful to end his life was either not