Background Facts
On January 3, 2016, Dr. Mark Flora performed surgery on Robert Crotty to treat a kidney stone. The procedure proved more challenging than expected because part of the kidney stone was reportedly impacted, or embedded into the wall of Mr. Crotty’s ureter. During the surgery, Dr. Flora placed a stent in Mr. Crotty’s ureter to allow fluid to drain properly.
Five days later, Mr. Crotty came to the hospital reporting worsening pain. The next day, January 9, 2016, Mitchell Wiatrak, M.D., a urologist in the same practice group as Dr. Flora, performed a second surgery on Mr. Crotty. In the course of that procedure, Dr. Wiatrak noted that Mr. Crotty’s ureter was perforated and that fluid was leaking outside of Mr. Crotty’s collecting system. Dr. Wiatrak removed the stent Dr. Flora had placed, but he could not establish proper drainage. Consequently, the next day, January 10, 2016, Mr. Crotty received a nephrostomy tube, to facilitate needed drainage. Ultimately, another physician had to remove Mr. Crotty’s kidney.
On March 10, 2017, Mr. Crotty and his wife Jennifer Crotty sued Dr. Flora in the Circuit Court of Davidson County. The complaint alleged, inter alia, that Dr. Flora (1) negligently perforated Mr. Crotty’s ureter during the initial procedure, (2) negligently either failed to recognize that Mr. Crotty’s ureter had been perforated or failed to acknowledge the perforation, and (3) negligently discharged Mr. Crotty without telling him that his ureter had been perforated. The damages sought included past and future medical expenses.
The Crottys filed a motion in limine asking the trial court to prohibit Dr. Flora from commenting, arguing, or submitting any evidence that any person other than Dr. Flora was at fault for Mr. Crotty’s injuries. The motion pointed out that Dr. Flora’s answer had never been amended to plead the doctrine of comparative fault. As a result, the Plaintiffs argued, Dr. Flora was precluded from asserting responsibility for the injury by anyone else, under Tennessee Rule of Civil Procedure 8.03 as applied in George v. Alexander, 931 S.W.2d 517 (Tenn. 1996). The Crottys also filed a related motion in limine asking the trial court to specifically exclude any comment, argument, or evidence asserting or suggesting fault by Dr. Wiatrak, who was never made a party to the case. The motion sought to exclude any suggestion that Dr. Wiatrak caused any of Mr. Crotty’s injuries.
The Crottys also filed a pretrial motion regarding the assertion in Dr. Flora’s answer that Tennessee Code Annotated section 29-26-119 precludes the Plaintiffs from recovering damages paid by a collateral source. The motion asked the trial court to rule that the statute does not abrogate the collateral source rule in this case, permit them to seek the full undiscounted amount of Mr. Crotty’s medical expenses, and prohibit Dr. Flora from using evidence of insurance or related discounts.
The Supreme Court of Tennessee stated in its September 29, 2023 Opinion: “A defendant is not required to allege the fault of the nonparty explicitly or use the words “comparative fault.” Consistent with the liberal pleading standards of the Tennessee Rules of Civil Procedure, the determination of whether comparative fault is an issue cannot turn on the presence or absence of such precise language … Dr. Flora can hardly claim surprise that his decision not to even mention Dr. Wiatrak in his answer resulted in the trial court’s decision under Rule 8.03 and George to exclude evidence suggesting Dr. Wiatrak was the cause in fact of Mr. Crotty’s injuries. As in Austin, even though Dr. Flora does not explicitly allege that Dr. Wiatrak was at fault, “the clear implication of the allegation” that Mr. Crotty’s injuries occurred during Dr. Wiatrak’s surgery “is that any negligence ․ should be attributed to” Dr. Wiatrak, not Dr. Flora … we respectfully decline to modify our holding in George. We hold that the trial court did not err in applying Rule 8.03 and George to exclude evidence at trial that the injury to Mr. Crotty’s ureter occurred during the procedure performed by Dr. Wiatrak.”
Tennessee’s Collateral Source Rule
The collateral source rule as applied in Tennessee is succinctly articulated in the widely-cited Section 920A of the Restatement (Second) of Torts:
(1) A payment made by a tortfeasor or by a person acting for him to a person whom he has injured is credited against his tort liability, as are payments made by another who is, or believes he is, subject to the same tort liability.
(2) Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is liable.
Tenn. Code Ann. § 29-26-119
Tenn. Code Ann. § 29-26-119 provides: “In a health care liability action in which liability is admitted or established, the damages awarded may include (in addition to other elements of damages authorized by law) actual economic losses suffered by the claimant by reason of the personal injury, including, but not limited to, cost of reasonable and necessary medical care, rehabilitation services, and custodial care, loss of services and loss of earned income, but only to the extent that such costs are not paid or payable and such losses are not replaced, or indemnified in whole or in part, by insurance provided by an employer either governmental or private, by social security benefits, service benefit programs, unemployment benefits, or any other source except the assets of the claimant or of the members of the claimant’s immediate family and insurance purchased in whole or in part, privately and individually.”
The Supreme Court of Tennessee stated in its Opinion: “The second issue in this case requires us to consider the effect of the Health Care Liability Act on the common law collateral source rule … the best reading of the phrase “cost of reasonable and necessary medical care” in section 29-26-119 is the full, undiscounted medical fees. It is consistent with how the phrase was likely understood when the statute was enacted, and it comports with Hunter’s directive to construe section 29-26-119 strictly because it “is in derogation of the common law rule that allowed plaintiffs to recover medical expenses, whether paid by insurance or not” … In health care liability cases where the common law collateral source rule remains in effect, plaintiffs “may use their full, undiscounted medical bills to satisfy the burden of proving the reasonable value of medical expenses.” Dedmon, 535 S.W.3d at 466. Assuming for purposes of this appeal that Mr. Crotty’s medical expenses were paid “in whole or in part by insurance” that was “purchased in whole or in part privately and individually,” the trial court did not err in holding that “the collateral source rule is in full force and effect” as the premise for its ruling on the parties’ cross-motions in limine.”
Source Crotty v. Flora, No. M2021-01193-SC-R11-CV.
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