                   IN THE SUPREME COURT OF TENNESSEE

                                 AT NASHVILLE




ETHEL FAYE GEORGE,                       )            FOR PUBLICATION
                                         )
       Plaintiff-Appellant,              )            Filed: October 7, 1996
                                         )
v.                                       )            DAVIDSON CIRCUIT
                                         )
CLYDE WAYNE ALEXANDER,                   )         Hon. Marietta Shipley, Judge
and PHILLIP R. JONES, M.D.,              )
                                         )
       Defendants-Appellees.             )
                                         )
                                         )
                                         )
                                         )         No. 01-S01-9505-CV-00084


For Plaintiff-Appellant:                       For Defendants-Appellees:

R. Stephen Doughty                             Rose P. Cantrell
Weed, Hubbard, Berry & Doughty                 George A. Dean
Nashville, Tennessee                           Parker, Lawrence, Cantrell & Dean
                                               Nashville, Tennessee



                                                              FILED
                               OPINION                         October 7, 1996

                                                             Cecil W. Crowson
                                                            Appellate Court Clerk




COURT OF APPEALS REVERSED.                                           DROWOTA, J.
    In this medical malpractice case, the plaintiff, Ethel Faye George, appeals from
the Court of Appeals’ affirmance of a judgment based on a jury verdict in favor of the

defendants, Clyde Wayne Alexander, M.D. and Phillip R. Jones, M.D. This case

presents the following issue for our determination: whether a defendant in a

negligence case must, pursuant to Rule 8.03 of the Tennessee Rules of Civil

Procedure, plead comparative fault as an affirmative defense if the defendant wishes

to introduce evidence that a person other than itself caused the plaintiff’s injury. We

conclude that the defendant is required to affirmatively plead comparative fault in

such a situation; and because that was not done in this case, we reverse the

judgment of the Court of Appeals.



                      FACTS AND PROCEDURAL HISTORY



       In October 1989 the plaintiff was admitted to West Side Hospital in Nashville

for gynecological surgery. In order to prepare the plaintiff for the surgery, Dr. Jones,

an anesthesiologist, began to administer spinal anesthesia. As he tried to insert a

needle into her lower back for this purpose, however, Ms. George allegedly

experienced pain in her right leg and told Dr. Jones of this pain. Dr. Jones then

withdrew the needle and attempted twice more to administer the anesthesia; but Ms.

George allegedly experienced pain in her right leg each time. Thereafter, Dr. Jones

called Dr. Alexander, another anesthesiologist, into the room to assist him. When Dr.

Alexander attempted to insert the needle, Ms. George allegedly again experienced

pain. The defendants eventually were successful in anesthetizing the plaintiff; and

she was placed in the “lithotomy position” for surgery by nurses under the direction

of James Daniell, Jr., M.D., the surgeon. Dr. Daniell then carried out the surgery.



                                           2
       Immediately after the operation, Ms. George experienced pain extending down

her right leg into her foot; she was unable to flex her right foot and felt pain when

pressure was applied to her right leg. It has since become clear, and it is undisputed

here, that Ms. George suffered damage to two different nerve roots during the

operation. As a result of this injury, she is unable to flex her right foot, has no right

ankle reflex, and continues to have pain and loss of sensation in her foot and portions

of her right leg. Because of this condition, she must wear a brace and sometimes

uses crutches or a wheelchair; moreover, her condition is permanent.



       In October 1990 Ms. George brought an action against Doctors Jones and

Alexander, alleging that their negligence in administering the spinal anesthesia

proximately caused her injuries. The defendants answered the complaint, denying

any negligence and reserving the right to assert additional defenses as they became

known through the discovery process. The defendants never amended their answer

to include additional defenses. Furthermore, the plaintiff propounded interrogatories

to the defendants asking if it was their position that the injuries had been caused by

another person. The defendants responded that they had no definitive opinion as to

the cause of plaintiff’s injuries. This response was also never amended.



       In October 1993 plaintiff’s counsel took the deposition of Vaughn Allen, M.D.,

the neurosurgeon who had treated Ms. George for her injuries. In the course of the

deposition, Dr. Allen explained that Ms. George had suffered injuries to two separate

nerve roots. Dr. Allen also stated that in his opinion there were two possible

explanations for the injuries: (1) that they had occurred as a result of the spinal

anesthetic; and (2) that they had occurred as a result of improper positioning during

                                           3
surgery. As to the first possible cause, Dr. Allen testified that because the needle

used during the spinal was very small, and because the likelihood of hitting two

separate nerve roots with the needle is negligible, the injury could not have been

caused by the anesthetic unless the plaintiff had a “conjoined nerve root” -- a rare

anatomic condition whereby two nerves are enclosed in a single protective sheath.

Dr. Allen discounted this possibility, however, based on his analysis of a myelogram

report and an MRI scan.          Thus, Dr. Allen concluded that although it was

thereoretically possible that Ms. George’s injuries could have been caused by the

spinal anesthetic, it was highly unlikely. With regard to the other possible cause, Dr.

Allen first stated that proper positioning of a patient’s body during surgery is crucial,

and that ensuring that the patient is properly positioned is the primary responsibility

of the surgeon performing the operation. Dr. Allen testified that improper positioning

of the body could cause a “stretch injury” to the nerves, but that a stretch injury is

highly unlikely if the patient is actually positioned correctly. With regard to the latter

point, Dr. Allen testified as follows when questioned by the plaintiff’s attorney:



       Q: Doctor, do you have an opinion within a reasonable degree of
       medical certainty that improper positioning of Ms. George for this
       surgery she had was the cause of her nerve damage to her leg?

       A: In my opinion that would be the plausible cause, yes sir.

       Q: So that would be your opinion within a reasonable degree of medical
       certainty?

       A: Yes, it would.

       Q: And it is your -- do you have an opinion within a reasonable degree
       of medical certainty, doctor, that improper positioning of the patient
       would not occur, normally not occur if the patient was positioned within
       the standard of care for the physicians involved?

       A: Yes. As I have testified before, unless there was some underlying

                                            4
       anatomic reason which I don’t believe Ms. George has, that would be
       an accurate statement as well.
       ...



Later in the deposition Dr. Allen testified as follows when asked about the “lithotomy

position”:



       Q: Doctor, assuming someone is properly positioned in the lithotomy
       position ..., do you have an opinion within a reasonable degree of
       medical certainty that that person, if they were properly positioned in a
       lithotomy position, would have an injury such as Ms. George has?

       A: It would be profoundly unlikely that with proper positioning that one
       would end up with a nerve injury.

       Q: So would you have an opinion within a reasonable degree of
       medical certainty that -- if, as you opine, this was caused by a stretch
       injury, would you have an opinion within a reasonable degree of
       medical certainty that there was improper positioning?

       A: Either improper positioning initially or as the case went on stretch
       injury involving improper positioning such as pushing against her legs
       or something of that nature, but my answer would be yes.

       ...

(Emphasis added).



       The defendants subsequently filed a notice of intent to offer the deposition of

Dr. Allen at trial. The plaintiff responded by filing a motion to exclude the testimony,

contending that, pursuant to Rule 8.03, Tenn. R. Civ. P., the defendants had a duty

to plead comparative fault as an affirmative defense if they wished to offer evidence

that another person had caused the injury, and that the defendants had failed to so

plead. The trial court denied the plaintiff’s motion, and the videotape of Dr. Allen’s

deposition was played to the jury. Moreover, the defendants’ counsel used the


                                           5
deposition to cap off his closing argument, contending that: “[l]adies and gentlemen,

the proof looked at demonstrates conclusively through Dr. Allen that the lithotomy

position may very well have been the way that the injury was caused here, the

surgery position. Thank you very much. “ The jury returned a verdict in favor of the

defendants; and the trial court entered judgment upon that verdict.



       The plaintiff appealed to the Court of Appeals, which affirmed the trial court’s

judgment. We granted the plaintiff’s Rule 11 application to address this issue of first

impression concerning Rule 8.03, Tenn. R. Civ. P.



                                      ANALYSIS



       Rule 8.03 of the Tennessee Rules of Civil Procedure, entitled “Affirmative

Defenses,” provides in pertinent part that: “[i]n pleading to a preceding pleading, a

party shall set forth affirmatively facts in short and plain terms relied upon to

constitute ... comparative fault (including the identity or description of any other

alleged tortfeasors) ... ”. (Emphasis added.) The “comparative fault” language was

added to the rule in July 1993 by the Advisory Commission, which explained the

amendment as follows:



       ‘Comparative fault’ is substituted for ‘contributory negligence’ in light of
       McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). Note that the
       defendant must identify or describe other alleged tortfeasors who
       should share fault, or else the defendant normally would be barred from
       shifting blame to others at trial.

(Emphasis added.)



                                            6
       The plaintiff argues that because the deposition of Dr. Allen was offered for

the sole purpose of shifting the blame for the injuries away from the defendants and

onto Dr. Daniell -- the surgeon primarily responsible for positioning the patient -- Rule

8.03 required the defendants to affirmatively plead Daniell’s fault as a defense. As

support for this argument, the plaintiff also cites the following language from McIntyre:



       [F]airness and efficiency require that defendants called upon to answer
       allegations in negligence be permitted to allege, as an affirmative
       defense, that a nonparty caused or contributed to the injury or damage
       for which recovery is sought. In cases where such a defense is raised,
       the trial court shall instruct the jury to assign this nonparty the
       percentage of the total negligence for which he is responsible ...

McIntyre, 833 S.W.2d at 58.



       In response, the defendants argue that Rule 8.03 is triggered only when the

defendant seeks to show that another person was legally at fault for the plaintiff’s

injuries. Because negligence, the type of legal fault at issue here, requires proof of

the elements of duty, breach of duty, causation in fact, proximate causation and

injury, see McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991), the

defendants contend that Rule 8.03 does not apply unless they attempted to prove

that Dr. Daniell’s conduct satisfied all these elements. The defendants then contend

that they introduced Dr. Allen’s testimony simply to show that Dr. Daniell’s actions

were the factual cause of the plaintiff’s harm. Because, the defendants assert, the

testimony only pertains to one element of negligence, that of causation in fact, and

does not cover the additional element of proximate causation, they did not attempt

to prove that Dr. Daniell was negligent in a legal sense. Thus, they conclude, Rule

8.03 did not come into play.


                                           7
           While the defendants’ position seems plausible at first blush, its assumption

    that proof of proximate cause is necessary to “shift the blame” to another is

    unfounded. Since proximate cause is actually just a policy decision of the judiciary

    to “deny liability for otherwise actionable causes of harm,”1 see Kilpatrick v. Bryant,

    868 S.W.2d 594, 598 (Tenn. 1993); Joseph H. King, Jr., Causation, Valuation and

    Chance in Personal Injury Torts Involving Preexisting Conditions and Future

    Consequences, 90 Yale L.J. 1353, 1355, n.7 (1981), the defendants’ position ignores

    the fact that “blame-shifting” in a negligence context actually has to do with the

    element of causation in fact. Once the defendant introduces evidence that another

    person’s conduct fits this element, it has effectively shifted the blame to that person.

    Therefore, if the defendants’ position were to be accepted, any defendant wishing to

    transfer blame to another person at trial could always maintain that it is not trying to

    show that the other’s conduct satisfies the legal definition of negligence, but that it is

    merely trying to establish that the other person’s conduct actually caused the injury.


1
 Prosser and Keeton define the troublesome concept of proximate causation as
follows:

         Once it is established that the defendant’s conduct has in fact
         been one of the causes of the plaintiff’s injury, there remains
         the question whether the defendant should be held legally
         responsible for the injury. Unlike the fact of causation, with
         which it is often hopelessly confused, this is primarily a
         problem of law. It is sometimes said to depend on whether the
         conduct has been so significant and important a cause that the
         defendant should be legally responsible. But both significance
         and importance turn upon conclusions in legal policy, so that
         they depend essentially on whether the policy of the law will
         extend the responsibility for the conduct to the consequences
         that have in fact occurred ... The legal limitation on the scope
         of liability is [thus] associated with policy -- with our more or
         less inadequately expressed ideas of what justice demands, or
         of what is administratively possible and convenient.

Prosser and Keeton on Torts, § 42, 36 (5th ed. 1984) (Emphasis added.)

                                                8
In the latter situation, however, the defendant has fully accomplished what Rule 8.03

was intended to prevent: it has effectively shifted the blame to another person without

giving the plaintiff notice of its intent to do so. Therefore, the purpose of Rule 8.03

would be undermined to a substantial degree if the defendants’ overly technical

argument were to prevail.



       The concurring opinion -- which accepts the contention that proximate

causation is required to establish “blame-shifting” -- disputes this conclusion. In so

doing, it first cites the following language from Ridings v. Ralph M. Parsons Co., 914

S.W.2d 79, 84 (Tenn. 1996): “[f]ailure of the defendant to identify other potential

tortfeasors would preclude the attribution of fault against such persons and would

result in the defendant being liable for all damages except those attributable to the

fault of the plaintiff.” The concurrence then reasons that because the defendant is

liable for all damages not caused by the plaintiff if it does not plead under Rule 8.03,

it will have sufficient incentive to identify other potential tortfeasors even if we accept

the defendants’ argument.



       We readily acknowledge that the factfinder may not formally attribute fault to

other persons at trial if the defendant does not identify them under Rule 8.03; thus,

the defendant does have some incentive to plead under the rule. This, however,

does not change the fact that if the position advocated by defendants and the

concurrence were to prevail, then the defendant, by carefully limiting its evidence of

another person’s role in causing the injuries to the element causation in fact, could

completely and effectively shift the blame to that person without affording the plaintiff

any notice whatsoever of its intent. A defendant would still be justified in totally

                                            9
surprising the plaintiff and foisting the blame on other persons, a result that violates

the purpose of Rule 8.03.



       One final argument advanced by the defendants remains to be addressed.

They argue that the purpose of Rule 8.03 was not violated in this case because the

plaintiff was clearly aware of the possibility that Dr. Daniell had caused the injury.

The defendants point out that the plaintiff’s counsel actually elicited the quoted

testimony from Dr. Allen; they also contend that the plaintiff’s counsel met with Dr.

Daniell well before trial to discuss whether he should be included in the suit. The

defendants conclude that, because the plaintiff knew all the facts regarding Dr.

Daniell’s involvement, and had the opportunity to include him in the suit but simply

chose not to do so, their failure to raise comparative fault as an affirmative defense

did not prejudice the plaintiff.



       We decline to accept this “harmless error” argument.           Rule 8.03 is a

prophylactic rule of procedure that must be strictly adhered to if it is to achieve its

purposes. It is designed to obviate the need for appellate courts to look into the

record for actual prejudice each time a defendant introduces proof at trial of an

unpleaded defense. To accept the defendants’ argument on this point would invite

evasion of a clearly-stated rule of procedure that is crucial to the equitable and

efficient administration of a comparative fault system.



       Because the defendants contravened Rule 8.03 by attempting to shift the

blame to another person at trial without affirmatively pleading comparative fault, the

judgment of the lower courts is hereby reversed, and the cause remanded for further

                                          10
proceedings consistent with this opinion.



                                   ______________________________________
                                  FRANK F. DROWOTA III
                                  JUSTICE


CONCUR:

Birch, C.J.,
Anderson, White, J.

Reid, J. - Separate Concurring Opinion.




                                          11
