                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                    MAY 21, 2003 Session

       GWENDOLYN JACKSON, ET AL. v. ZODIE HAMILTON, ET AL.

                   Direct Appeal from the Circuit Court for Shelby County
                           No. 44531 T.D.    Rita L. Stotts, Judge



                   No. W2000-01992-COA-R3-CV - Filed November 4, 2003


This action arises out of an automobile accident, and Plaintiffs’ claimed damages of lost wages, loss
of consortium, medical expenses, and pain and suffering. The case was tried before a jury, who
found in favor of the Plaintiffs and awarded one of the Plaintiffs $600. Plaintiffs appeal the verdict,
and this Court reverses and remands the case for a new trial.


   Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Reversed and
                                       Remanded

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S,
and HOLLY M. KIRBY, J., joined.

Stanley H. Less, Memphis, TN, for Appellants

John D. Richardson, Teresa A. Boyd, Memphis, TN, for Appellees

                                             OPINION

                                  Facts and Procedural History

        On the morning of March 4, 1991, in Shelby County, Tennessee, Gwendolyn Jackson
(“Jackson”) stopped at a stop sign, when Zodie Hamilton (“Hamilton”), who was behind Jackson,
became distracted by her children in her car resulting in a minor impact of Hamilton’s car with
Jackson’s car. Officer Goforth of the Shelby County Sheriff’s Department investigated the accident
at the scene and testified that Jackson told him she was not hurt even though she was wincing in
pain. After the accident, Jackson did not go to work and obtained a name of a chiropractor, Dr. Rush
Robinson (“Robinson”), from a co-worker.

      Jackson saw Robinson the day of the accident in the early afternoon and, initially, she had
no complaints, though she appeared to be in pain. Robinson performed no spinal adjustments at that
appointment, but, instead, provided Jackson with cold packs, a neck collar, and ordered x-rays. After
Jackson had the x-rays, she returned home and began to experience pain in her shoulders and back
with a tingling feeling in her fingers. On March 5, 1991, Robinson again saw Jackson, who
complained of neck pain and stiffness, but he still did not perform a spinal adjustment. Robinson
saw Jackson again on March 6, 1991, and it was at this appointment that Robinson performed a
spinal adjustment on Jackson’s neck. Though Jackson testified that she experienced an immediate
decrease in pain overall, she noticed a numbness in her left hand a couple of weeks after the car
accident. Because Robinson was concerned about Jackson’s left arm pain, he referred her to a
neurosurgeon, Dr. Thomas Miller (“Miller”), on March 22, 1991. Miller, after seeing Jackson on
March 25, 1991, ordered an MRI and, upon review, determined that she had a soft disc rupture,
which required surgery. Jackson underwent cervical laminectomy with diskectomy with a
foraminotomy by Miller on May 10, 1991. Though Jackson remained under Miller’s care for the
next year, she continued to experience pain in her left shoulder and arm. Because her condition was
not improving, Jackson decided to begin seeing Dr. Moacir Schnapp (“Schnapp”), a pain doctor.
Jackson experienced an adverse reaction to one of the medications, Tegretol, prescribed by Schnapp
resulting in emergency room treatment for severe headaches.

        Plaintiff incurred medical expenses for her treatment in excess of $18,000. In addition,
Plaintiff was absent from work from March 4, 1991, through March 25, 1991, and from May 10,
1991, through September 3, 1991. Plaintiff’s monthly rate of pay at that time was $3,061.67.

        Gwendolyn Jackson and Charles Jackson (collectively the “Plaintiffs”) filed their complaint
against Zodie Hamilton and James Hamilton (collectively the “Defendants”) in the Circuit Court for
Shelby County, Tennessee, on March 2, 1992, alleging damages in the form of pain and suffering,
loss of consortium, lost wages, and medical expenses. Defendants filed their answer on April 9,
1992, admitting that the car accident occurred but denying their negligence or that their negligence
proximately caused the damages Plaintiff suffered. Defendants moved to amend their answer to add
the affirmative defense of Robinson’s comparative fault but the trial court denied this amendment.
A trial on this cause of action was held in September 1995 where the trial judge directed a verdict
in favor of Plaintiffs and sent the issue of damages to the jury, which was unable to agree on a
verdict, causing a mistrial. In the second trial of December 1996, the jury entered a verdict in favor
of the Plaintiffs awarding Gwendolyn Jackson $8,877.14 and Charles Jackson one dollar. Upon
Plaintiffs’ motion for a new trial, the December 1996 verdict was set aside by the trial judge, acting
as the thirteenth juror, and a new trial was ordered. After a third trial in June 2000, the jury entered
a verdict for Plaintiffs awarding Gwendolyn Jackson $600 and Charles Jackson nothing. Plaintiffs
filed a motion for a new trial, which was denied by the Honorable Rita Stotts, and timely appealed
to this Court presenting the following issues for our review:

        I.      Whether the trial court failed to properly discharge its duty as thirteenth juror by
                deferring to the jury verdict rather than independently weighing the evidence;
        II.     Whether the trial court erred in allowing the admission of hypothetical questions
                unsupported by the evidence and which mischaracterize the evidence propounded to
                Dr. Schnapp;


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       III.    Whether the trial court erred in refusing to charge the jury on the law of medical
               complications from treatment of injuries inflicted by the original tortfeasors;
       IV.     Whether the trial court erred in denying Plaintiffs’ motion for directed verdict; and
       V.      Whether the trial court erred in allowing Defendants to argue the Plaintiff Gwendolyn
               Jackson suffered from thoracic outlet syndrome.

Defendants/Appellees also raise for our review:

       VI.     Whether material and sufficient evidence exists to support the jury’s verdict; and
       VII.    If this Court should reverse and remand the case for a new trial, Defendants should
               be allowed to amend their answer to allege the treatment by the chiropractor caused
               the Plaintiff Gwendolyn Jackson’s ruptured disc.

For the following reasons, this Court reverses and remands this case for a new trial.

                                        Standard of Review

        “Findings of fact by a jury in civil actions shall be set aside only if there is no material
evidence to support the verdict.” Tenn. R. App. Proc. 13(d). In addition, our review is generally
limited only to those issues presented by the parties. Tenn. R. App. Proc. 13(b). Finally, a judgment
shall not be set aside by this Court unless, after considering the whole record, error involving a
substantial right more probably than not affected the judgment or would result in prejudice to the
judicial process. Tenn. R. App. Proc. 36(b).

                                      Hypothetical Questions

        Plaintiffs argue that the trial court erred by allowing certain portions of Dr. Schnapp’s
deposition to be read into evidence. To resolve this issue, this Court need not search the entire
record to determine whether every possible fact was listed in the hypothetical question nor should
this Court test the hypothetical question solely against the evidence presented by the opposing party.
Pentecost v. Anchor Wire Corp., 662 S.W.2d 327, 328-29 (Tenn. 1983). “Rather, the issue should
be resolved by determining whether the question contained enough facts, supported by the evidence,
to permit an expert to give a reasonable opinion which is not based on mere speculation or conjecture
and which is not misleading to a trier of fact.” Id. at 329. When the evidence assumed in a
hypothetical is conflicting, as it is in this case, counsel asking the question is permitted to include
as an assumed fact his version of the evidence. Tolliver v. Tripp, 1990 Tenn. LEXIS 336, at *8
(Tenn. 1990).

      Plaintiff first asserts the trial court erred when it admitted the following portion of the
Schnapp deposition:

       Q.      Well, she is under oath with us, and she told us that she did not hurt her neck
               in this accident. Is that significant to you?


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               Mr. Less: I’m going to object to that question. I’ve never seen that in any of
               the records, and I’ll object because of that reason.
       Q.      (By Mr. Richardson) Is that significant to you?
       A.      That is significant as to the testimony I have given as to the causation of her
               pain. If she had neck pain prior to the accident, if those complaints were
               already present prior to that then I’ll have to change my testimony.

The hypothetical question assumes that Plaintiff Gwendolyn Jackson stated she did not hurt her neck
in the accident and that she had prior complaints of neck pain which is supported by the testimony
and exhibits in the record. Therefore, this portion of the deposition was properly admitted.

       Plaintiff next argues the trial court erred by admitting the following portion of the same
deposition:

               Q.        Assume that that did not start until two weeks after the wreck.
               Assume that she didn’t hurt at the accident scene. Assume that she told the
               police she wasn’t hurting. Assume that she wasn’t hurting when she left the
               scene. Assume that she wasn’t hurting when the employee referred her and
               took her over to the chiropractor. Assume that she wasn’t hurting when she
               went into the chiropractor’s office. Assume that she wasn’t hurting when she
               began the manipulations in her neck and in her back by the chiropractor.
               Assume that her neck did not even hurt when she was being treated by the
               chiropractor, but he gave her manipulations anyway and that approximately
               two weeks after she began treatment by the chiropractor she then developed
               the numbness in her left arm.
                       Now, making those assumptions to be true, doesn’t that argue that the
               wreck didn’t cause the problem?
               A.        I would think that immediately after a car accident some patients
               don’t have maximal pain, but I would expect the pain to develop within the
               first twenty-four to thirty-six hours. Sometimes they because of the stress
               cannot tell the pain. I would certainly not expect this to develop from the car
               wreck only two weeks after the accident.

The hypothetical question in this passage makes a number of assumptions, and, though the facts
assumed in this question are disputed by the parties, there is testimony and evidence to support the
facts assumed in this question. Therefore, the trial court properly admitted this portion of Dr.
Schnapp’s deposition.

        Finally, Plaintiffs object to another portion of Dr. Schnapp’s deposition. In this portion, the
question refers to assumptions made in another portion of the same deposition which was excluded
by the trial court. The portion excluded reads as follows:




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                Q.       Let me add some more things. You’ve already told us that you may
                have to change your testimony. I’m going to add some more things and see
                if it might even persuade you more, okay?
                         Assume that she did not hit anything inside the car. Assume that it
                was a minor impact with little or no damage to the cars. And I can show you
                photographs if you would like of both cars, and there is no damage to either.
                It was a bump. And that when she went to the chiropractor she was not even
                hurting, that a friend of hers suggested that she go to the chiropractor
                regardless of whether she was hurting and that when she went to the
                chiropractor she was not having any pain in her neck. She was not hurting
                in her neck. She was not hurting at all. She had only been dazed simply
                because she had been involved in a wreck and was upset and that after
                treatments by the chiropractor she developed pain in her arm. She developed
                pain in her neck and that her paraesthesia and numbness in her arm began two
                weeks after the treatment by the chiropractor, that is manipulated on her neck
                even though she wasn’t having neck problems. He manipulated on her back
                and other areas of her body and that she began experiencing all of this
                numbness, symptoms that would be attributable to a disc after she began the
                manipulations by the chiropractor.
                         Now, assuming that to be true–and that will be what the jury has to
                decide in this case–assuming that to be true, does that not cast great doubt–a
                shadow over the causation in this case?
                A.        Of course, it does.

The trial court, despite excluding this portion, permitted the following portion, which directly follows
the passage above, to be admitted:

               Q.       Were you aware of any of that information that I just gave you?
               A.       No.
               Q.       It’s not anywhere in your records?
               A.       Not at all.
               Q.      Doctor, assuming those things to be true, doesn’t that argue that more
               likely than not her problems are not due to this car wreck?
               A.         If she did not have pain at all after the car wreck, if she did not
               develop that pain for several weeks after the car wreck it is possible that this
               was not caused by the car wreck.
               Q.       Let’s be more specific so that we make sure that we’re square on the
               facts. The numbness that she developed and you saw on the records
               there–didn’t you see some complaints of numbness?
               A.       Yes.

Again, just as there was evidence to support the assumptions of the previous two hypothetical
questions, this Court has also found evidence in the form of testimony and exhibits to support the


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assumptions of the hypothetical which was excluded by the trial court. The hypothetical which recalls
those same assumptions was properly admitted by the trial court. Therefore, the trial court, as an
evidentiary matter, did not err when it admitted these portions of Dr. Schnapp’s deposition into
evidence.

                                  The Jury Charge of the Trial Court

         Plaintiffs argue that the trial court judge erred in refusing to include within the jury instruction
a statement of the common law rule that “[if] one is injured by the negligence of another, and these
injuries are aggravated by medical treatment (either prudent or negligent), the negligence of the
wrongdoer causing the original injury is regarded as the proximate cause of the damage subsequently
flowing from the medical treatment.”1 Atkinson, 1994 Tenn. App. LEXIS 480, at *4 (quoting
Transports, Inc. v. Perry, 414 S.W.2d 1 (Tenn. 1967)). “The rationale for this rule is that the
tortfeasor whose negligence caused the injured party to require medical attention should bear all the
foreseeable risks resulting from the injury, including risks derived from the medical provider’s human
fallibility.” Id. at *5. Defendants argue that, given the holding of the Tennessee Supreme Court in
McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), the common law rule holding the original
tortfeasor liable for the subsequent negligence of the treating physician is no longer the rule in
Tennessee. However, the common law rule, since the McIntyre decision, has been upheld in the
Middle and Eastern Sections of this Court. Atkinson v. Hemphill, 1994 Tenn. App. LEXIS 480 (Tenn.
Ct. App. 1994); Troy v. Herndon, 1998 Tenn. App. LEXIS 793 (Tenn. Ct. App. 1998). We are in
accord with the other Sections and find the reasoning of the Atkinson court persuasive:

               The problem for this court is to harmonize this useful common law rule with
        the Supreme Court’s directive, relied upon by the defendant in his Motion to Amend
        his Answer:

                “. . . fairness 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 the
                nonparty the percentage of the total negligence for which he is
                responsible.” McIntyre v. Balentine, 833 S.W.2d 52 at 58.

                The Supreme Court established this procedure to encourage the resolution of
        all claims in a single proceeding, where liability may be apportioned in accordance

         1
                 Specifically, Plaintiffs requested the following instruction:

                 If you find that the Plaintiff, Gwendolyn Jackson, suffered an injury as a proximate
                 result of the car accident, and her injury was aggravated by medical treatment, the
                 negligence of Zodie H amilton causing the original injury is regarded as the
                 proximate cause of the damage sub sequently flowing from the medical treatment.

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       with fault. However, to allow a tortfeasor to reduce his damages by alleging the
       subsequent negligence of a medical provider would for all practical purposes abolish
       the common law rule discussed above. We do not believe that the Supreme Court
       intended this result.

               The Court acted in McIntyre v. Balentine to eliminate the harsh rule that a
       plaintiff’s contributory negligence completely bars his recovery, and to establish a
       system of comparative fault that more equitably allocates liability between negligent
       actors. The effect of eliminating the rule now at issue would be to penalize injured
       parties in several inequitable ways.

               Abolition of the common law rule would effectively shift the burden of
       proving medical negligence (or its absence) from the defendant to the plaintiff. To
       protect themselves, plaintiffs in future cases would feel compelled to timely name
       medical providers as defendants in any suit where the negligence of the original
       tortfeasor led to the necessity for medical care, whether or not medical negligence was
       actually suspected. In cases like the present one, where this was not done, and the one
       year statute of limitations for filing medical malpractice claims passed, allowing the
       defendant to allege medical negligence as an affirmative defense would unfairly
       prejudice the plaintiff’s right to a full recovery for her injuries.

Atkinson, 1994 Tenn. App. LEXIS 480, at *6-7. Because we uphold the common law rule of the
original tortfeasor’s liability for subsequent medical complications, we find that the trial court
committed prejudicial error when it refused to instruct the jury on this rule of law. In light of the
disposition of this issue, the only other issue this Court needs to address is issue seven above.

                                 Amending Defendant’s Answer

        Defendants assert that, if this Court should remand this appeal for a new trial, Defendants
should be permitted to amend their answer to include the affirmative defense of the comparative fault
of Dr. Robinson, the Plaintiff’s chiropractor. We find, as the Atkinson and Troy courts did, that such
an amendment would be inconsistent with the common law rule of holding the original tortfeasor
liable for subsequent medical treatment. Though, at first glance, this may seem a harsh result for a
defendant, as the Court in Atkinson noted, such defendant could have the alternatives of impleading
a third party to the original suit or suing the medical provider under a theory of subrogation. Id. at
*5. Therefore, we deny Defendants relief to amend their answer.




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                                             Conclusion

         For the foregoing reasons, we reverse the decision below and remand this case for a new trial.
Costs are judged against Appellees, Zodie Hamilton and James Hamilton, for which execution may
issue, if necessary.



                                                       ___________________________________
                                                       ALAN E. HIGHERS, JUDGE




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