                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                    October 15, 2002 Session

         LAFEYETTE ROMINE, SR., & DEBRA P. ROMINE v. JULIA
            FERNANDEZ, CRNA & JOHNATHAN ISOM, M.D.

                    Direct Appeal from the Circuit Court for Shelby County
                        No. 305315-9 T.D.   Robert L. Childers , Judge



                      No. W2002-00703-COA-R3-CV - Filed July 15, 2003
                                ________________________


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 Tenn. Code Ann. § 29-26-117. I
respectfully dissent from the holding that the claims against Dr. Isom and Ms. Fernandez were not
barred by the one year statute of limitations due to the application of the 90 day grace period set forth
in Tenn. Code Ann. § 20-1-119. The original complaint, filed November 3, 1999, alleges that on
November 9, 1998, plaintiff Lafeyette Romine, Sr., underwent a total joint replacement of the left
knee performed by John R. Morris, M.D. In addition to Dr. Morris the plaintiff sued The Office of
Bone & Joint Surgery, P.C. and Methodist Hospital South, a division of Methodist Hospitals of
Memphis. The basis of the complaint is that the negligent administration of the drug Toradol and
the injuries suffered by Mr. Romine were a “result of the negligence and deviation from the standard
of care by the defendants.” This suit was filed within the applicable one year statute of limitations.

         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 statute, Plaintiffs relied upon the application of Tenn. Code
Ann. § 20-1-119, which states in pertinent part as follows:

        (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 a person as a defendant pursuant to Rule
       15 of the Tennessee Rules of Civil Procedure and cause process to be issued for that
       person;

Tenn. Code Ann. § 20-1-119 (Supp. 2002).

       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
Tenn. Code Ann. § 20-1-119 and, therefore, makes the addition of the [Defendants] Isom and
Fernandez timely and not barred by the Statute of Limitations.” The jury returned a verdict in favor
of the Plaintiff, Lafeyette Romine, Sr.1

        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

       1
       Fault was assessed as follows: Julia Fernandez 25%, Johnathan Isom 26% and Lafeyette
Romine, Sr., 49%.
        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, 909 (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.

Id., at 311.

        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


        2
        In Soper v. Wal-Mart Stores, Inc., 923 F.Supp. 1032 (1996), the answer of the defendant
asserted comparative fault of the plaintiff as well as the “negligence and/or intentional
misconduct of a third party over whom the defendant had no control.” Unlike the present case,
Wal-Mart alleged negligence of a third party.
        3
        On November 30, 2000, an order of voluntary non-suit without prejudice was entered as
to Dr. Morris and The Office of Bone & Joint Surgery, P.C. By order of October 31, 2001, an
sole, direct, and proximate result of the negligence and deviations from the standard of care by these
defendants . . . Lafayette Romine, Sr. has endured great physical pain and mental pain and suffering
and disability.” At the time Dr. Morris filed his answer, there were two other defendants in addition
to himself. I do not interpret this language as meeting the statutory requirements as set forth in § 20-
1-119(a) that Dr. Morris alleged in his answer that a person not a party to the suit caused or
contributed to the injury or damage for which the Plaintiffs sought recovery. His answer simply
stated that the Toradol was administered by the defendant Methodist Hospital’s staff, but not at Dr.
Morris’ order. His answer further states that he had no knowledge of any active medical negligence
committed by any other defendant or third party in the care and treatment of the Plaintiff. However,
in the event that Plaintiffs’ allegations of negligence on the part of Co-Defendants are true, and if
the Plaintiffs are successful in presenting a factual basis for these allegations, then Dr. Morris
invokes the doctrine of comparative fault and alleges that under no circumstances would he be liable
for more than a proportionate share. As I interpret this portion of his answer, he denies knowledge
of any act of medical negligence committed by any other defendant or third party, but if the
allegations of negligence on the part of Co- Defendants are true, then he relies upon the doctrine of
comparative fault. I do not interpret this as an allegation that “a person not a party to the suit caused
or contributed to the injury or damage for which the Plaintiff seeks recovery.” I do not find the
statute to be ambiguous. I agree with the majority that the statute should be liberally construed.
However I believe that in giving the words of the statute reasonable and ordinary meanings, the
result would be that § 20-1-119 would not be applicable and the claims against Dr. Isom and Ms.
Fernandez would be barred by the one year statute of limitations set forth in the medical malpractice
act.



                                                        ____________________________________
                                                        DAVID R. FARMER, JUDGE




order granting partial summary judgment was entered as to Defendant Hospital South, a division
of Methodist Healthcare - Methodist Hospitals. On January 25, 2002, an order of dismissal with
prejudice as to Methodist Healthcare/Memphis Hospitals (incorrectly identified as Methodist
Hospital South, a Division of Methodist Hospitals of Memphis) was entered.
