                          IN THE COURT OF APPEALS OF TENNESSEE
                                        AT JACKSON
                       ______________________________________________

KATHERINE JEWELL SMITH and
                                                                                               FILED
JIMMIE LEWIS SMITH,

         Plaintiffs,

Vs.                                                              C.A. No. 02A01-9712-CV-00302
                                                                                         January 7, 1999
                                                                 Shelby Circuit No. 64779 T.D.
METHODIST HOSPITALS OF
MEMPHIS, KEITH G. ANDERSON,
M.D., and THE SUTHERLAND
                                                                                               Cecil Crowson, Jr.
CLINIC, INC., f/k/a CARDIOLOGY
CONSULTANTS OF MEMPHIS,                                                                        Appellate C ourt Clerk

      Defendants.
____________________________________________________________________________

                         FROM THE SHELBY COUNTY CIRCUIT COURT
                        THE HONORABLE ROBERT L. CHILDERS, JUDGE




                           David M. Cook, W. Timothy Hayes, Jr.
                              Karen L. Schlesinger of Memphis
             For Defendants-Appellees, Anderson, The Sutherland Clinic, Inc., f/k/a
                             Cardiology Consultants of Memphis

                               Gary K. Smith, William D. Domico,
                                   Bryan C. Witt of Memphis
                     For Defendant-Appellant, Methodist Hosiptals of Memphis




                                                  AFFIRMED

                                                 Opinion filed:




                                                                          W. FRANK CRAWFORD,
                                                                          PRESIDING JUDGE, W.S.


CONCUR:

DAVID R. FARMER, JUDGE

HOLLY KIRBY LILLARD, JUDGE
    This interlocutory appeal involves an action by a settling tortfeasor for contribution from an alleged joint

tortfeasor. Defendant/cross-plaintiff, Methodist Hospital of Memphis (Methodist), appeals from the order of the trial

court dismissing its cross-complaint for contribution against defendant/cross-defendant,Keith G. Anderson, M.D.
(Anderson) and the Sutherland Clinic, Inc. (Sutherland).

         This case arises out of the alleged injuries suffered by Katherine Smith (Smith) while receiving treatment at

Methodist. Smith first met Anderson when he examined her on September 22, 1993, regarding complaintsof chestpain.

Anderson found blockage of an artery, and recommended that Smith undergo angioplasty. She was subsequently

admitted to Methodiston September 28, 1993. The angioplastywas successful, and Smith was transferred to the cardiac

recovery area at approximately 5:45 p.m.

         That evening Smith apparently complained of severe chest and neck pain and nausea. She alleged in her

complaint that when she complained to the nurses on duty they did nothing at first, and then only administered pain

medication. Her pain and nausea continued the evening of the September 28, and into the day of September 29, and the

nursing staff attempted to alleviate her pain through medication but to no avail.

          Smith also alleges that during this time she was hooked up to heart monitoring equipment,and that the nurses

on duty failed to examine readoutsfrom the monitor to determine whether Smith’s condition was worsening. Smith

alleges that during the evening of September 28 and into the day of September 29 the monitor picked up changes that

signaled acute damage to the heart muscle.

         During the afternoon of September 29, Anderson visited Smith to check her recovery. Finding her in pain,

Anderson immediately examined Smith and found that she had suffered a major heart attack. Anderson performed

another angioplasty, and Smith was subsequentlyreleased on October 5. On the day of her release, Smith suffered a

stroke believed to be caused by a clot resulting from the tissue damage from the heart attack on September 28 and 29.

         Smith filed suit against Methodist on September 21, 1994 alleging that through its employees Methodistwas

negligent in its failure to properlymonitor, diagnose, treat, recognize, and respond to Smith’s medical problems while

in the cardiac recovery area on September 28 and 29, 1993. Methodist responded and in an amended answer averred

that any injuries suffered by Smith were the result of the medical malpractice of Anderson and his employer Sutherland.

Smith amended her complaint to include Anderson and Sutherland as defendants to the action.1

         On May 9, 1997, Methodist filed another amended answer and added a crossclaimfor contribution against

Anderson. Then Methodistfiled, and the court granted, a motion to mediatethe matter, and on May 20, 1997, the parties

met to discuss the case. Smith and Methodist eventuallyagreed to a settlement and releaseof all claims in exchange

for payment by Methodist of $1.7 million.




         1
          Apparently, Smith reluctantlyincluded Anderson as a defendant and chose not to prosecuteher claim against
him. In a Motion in Limine filed April 18, 1997, Smith stated that she would not seek to produce expert testimony in
her case against Anderson, and he agreed not to seek a directed verdict because of absence of expert proo

                                                          2
         After the settlement and Smith’s releaseof all claims,Methodistcontinued to prosecuteits contribution claim

againstAnderson. On July 18, 1997, Anderson filed a motion to dismiss/for summary judgment claiming that an action

for contribution was not viable in this case after McIntyre v. Ballentine. The trial court heard arguments on the

matter, and by order entered October 3, 1997, granted Anderson’s motion to dismiss and Methodist’s motion for

permission to seek interlocutory appeal. This Court subsequently granted Methodist’s T.R.A.P. 9 applica

         The issues for review, as stated in Methodist’s brief, are:

                  1. Does the case law of this state, when read together with the historical purpose
                  of the contribution remedy and the Legislature’s adoption of the Uniform
                  Contribution Among Tortfeasor’s Act, demonstratethat contribution not only
                  survived the adoption of comparative fault in Tennessee, but, in many cases is
                  necessary to ensure the fair allocation of fault among all parties?

                  2. Did the trial court err in granting Defendant/Cross-Defendants Keith G.
                  Anderson, M.D. and The Sutherland Clinic, Inc., f/k/a Cardiology Consultants of
                  Memphis’ Motion to Dismiss the cross-claim for contribution filed against them
                  by Defendant/Cross-Plaintiff Methodist Hospitals of Memphis?

We will consider these issues together.

         The transcript of the argument on the motion to dismiss indicates that the trial court

considered extrinsic evidence. When considering a motion to dismiss, the trial court retains

discretion to consider extrinsic evidence outside the pleadings. Hixson v. Stickley, 493 S.W.2d

471, 473 (Tenn. 1973). In the event that the trial court does consider extrinsic evidence, the

motion “shall be treated as one for summary judgment and disposed of as provided in Rule 56.”

Tenn. R. Civ. P. 12.02; Hixson, 493 S.W.2d at 473; Hunt v. Shaw, 946 S.W.2d 306, 307 (Tenn.

App. 1996). Accordingly, we will consider the trial court’s order as a ruling on a summary

judgment motion.

         A motion for summary judgment should be granted when the movant demonstrates that

there are no genuine issues of material fact and that the moving party is entitled to a judgment

as a matter of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the

burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d

618, 622 (Tenn. 1997). On a motion for summary judgment, the court must take the strongest

legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences

in favor of that party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d

208 (Tenn. 1993), our Supreme Court stated:

         Once it is shown by the moving party that there is no genuine issue of material
         fact, the nonmoving party must then demonstrate, by affidavits or discovery


                                                         3
         materials, that there is a genuine, material fact dispute to warrant a trial. In this
         regard, Rule 56.05 provides that the nonmoving party cannot simply rely upon
         his pleadings but must set forth specific facts showing that there is a genuine
         issue of material fact for trial.

Id. at 211 (citations omitted) (emphasis in original).

         Summary judgment is only appropriate when the facts and the legal conclusions drawn

from the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26

(Tenn. 1995). Since only questions of law are involved, there is no presumption of correctness

regarding a trial court's grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our

review of the trial court’s grant of summary judgment is de novo on the record before this Court.

Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

         Methodist argues that the Legislative adoption of the Uniform Contribution Among Tortfeasor’s Act (UCATA)

along with the case law of this state support the contention that contribution is still necessary to fairly allocate fault

among the parties.

         The remedy of contribution was severely limited by the adoption of comparative fault in McIntyre v.

Ballentine, 833 S.W.2d 52 (Tenn. 1992). The Tennessee Supreme Court discussed the effectsof the adoption of the

new system on legal principles surrounding tort litigation including contribution.

                   [B]ecausea particular defendant will henceforthbe liable only for the percentage
                   of a plaintiff’s damages occasioned by that defendant’s negligence, situations
                   where a defendant has paid more than his “share” of a judgment will no longer
                   arise, and therefore the Uniform Contribution Among Tort-feasors Act, T.C.A.
                   Secs. 29-11-101 to 106 (1980), will no longer determine the apportionment of
                   liability between codefendants.

Id. at 58.

         Subsequent to McIntyre, our Supreme Court has considered actions for contribution

arising under diverse facts. However, the Supreme Court’s latest encounter with the question

of contribution arose in General Electric Co. v. Process Control Co., 969 S.W.2d 914 (Tenn.

1998), an opinion released June, 1998, after this case was appealed to this Court.

         The case came to the Supreme Court on a certified question of law from the U. S. District

Court, Western District of Tennessee where General Electric had filed suit against Process

Control for contribution. Process Control filed a motion to dismiss and/or for summary

judgment, and the district court requested the Tennessee Supreme Court to address the following

certified question of law: “In actions that accrue after the decision in McIntyre v. Balentine,

under what circumstances is a claim for contribution appropriate under Tennessee law?” Id. at


                                                            4
915.

       The contribution action arose as a result of the following facts as set out in the Court’s

opinion:

                         Douglas Huskey, a Wisconsin resident, was employed by
                 A. O. Smith Corporation (“A. O. Smith”) as an electrical
                 engineer. In January of 1994, Huskey was calibrating meters on
                 a switchboard at A. O. Smith’s facility in Milan, Tennessee. The
                 switchboard was manufactured by the plaintiff, G. E. An
                 electrical arcing occurred on the switchboard while Huskey was
                 calibrating meters on the switchboard. The electrical arcing
                 caused severe burns and other injuries to Huskey. The defendant,
                 Process Control, allegedly made negligent modificaitons to the
                 switchboard prior to Huskey’s accident.

                         Huskey and his wife filed a products liabilitity claim
                 against G.E. in Wisconsin. Their claims were predicated upon
                 theories of negligence and strict liability. G.E.’s counsel was of
                 the opinion that Process Control would not be subject to personal
                 jurisdiction in the Wisconsin state court action. G.E., therefore,
                 did not attempt to join Process Control as a party. G.E. argued
                 during trial, however, that Process Control made negligent
                 modifications to the switchboard which caused Huskey’s injuries.

                         The case was decided by a jury under Wisconsin law. The
                 jury rejected the strict liability claim but returned a verdict in
                 favor of Huskey on a theory of a nelgigence. Fault was
                 apportioned by the jury as follows: 25 percent to Huskey, 32
                 percent to G.E. and 43 percent to A. O. Smith. The jury was not
                 asked to assess fault against Process Control. G.E. satisfied the
                 Wisconsin judgment by paying the Huskeys approximately 2.6
                 million dollars.

Id. at 915-16.

       In answering the certified question, the Court said:

                 McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992), did not “completely
                 abolish the remedy of contribution.” Bervoets v. Harde Ralls Pontiac-
                 Olds, Inc., 891 S.W.2d 905, 907 (Tenn. 1994). Contribution may still be viable
                 in the following limited circumstances:

                          1. cases in which prior to McIntyre the cause of action
                          arose, the suit was filed and the parties had made irrevocable
                          litigation decisions based on pre-McIntyre law, see Owens
                          v. Truckstops of America, 915 S.W.2d 420 (Tenn.
                          1996); Bervoets v. Harde Ralls Pontiac-Olds, Inc.,
                          891 S.W.2d 905 (Tenn. 1994);

                          2. cases in which joint and several liability continues to apply
                          under doctrines such as the family purpose doctrine, cases in
                          which tortfeasors act in concert or collectively with one
                          another, cases in which the doctrine of respondeat superior
                          permits vicarious liability due to an agency-type relationship,
                          or in the “appropriate” products liability case, see
                          Resolution Trust Corp. v. Block, 924 S.W.2d 354
                          (Tenn. 1996); Camper v. Minor, 915 S.W.2d 437 (Tenn.


                                                        5
                            1996); Owens v. Truckstops of Amer., 915 S.W.2d
                            420 (Tenn. 1996), or

                            3. in the “appropriatecase” in which “fairnessdemands,” see
                            Owens, 915 S.W.2d at 430 (allowing contribution when
                            “fairness demands”); Bervoets, 891 S.W.2d at 907
                            (recognizing contribution in the “appropriate case”).

                  The third circumstance, however, is not a broad “catch-all”provision that defeats
                  the fundamental conceptsof our comparative fault law. The circumstances under
                  which “fairness demands” should be applicable only when failure to allow
                  contribution would impose an injustice.

Id. at 916.

         In holding that under the particular facts of this case an action for contribution may be viable, the Court said:

                  We believe that fairness demands an action for contribution based upon the
                  following factors:(1) the Huskeys’claim was litigated pursuant to Wisconsinlaw;
                  (2) Process Control may have been a tortfeasor contributing to Huskey’s injuries
                  but was not subject to personal jurisdiction in the Huskeys’suit; and (3) G.E. was
                  jointly and severallyliable under Wisconsinlaw to the Huskeys for any damages
                  or fault assigned by the jury to other tortfeasors.

Id. at 916-17.

         Methodistasserts that its suit for contribution should be allowed becauseit falls under both the second and third

circumstances set out in General Electric. After careful examination, we disagree with Methodist’s contention for

reasons hereinafter set out.

         Methodist first argues that this is an appropriateaction for contribution becausethe parties “act[ed] in concert

or collectivelywith one another.” Smith sued Anderson for medical malpractice alleging that his standard of care fell

below that of the standard of medical care in the community based upon the assertions that he failed to properly use

appropriatedrugs and medicine, he failed to properlyperform the angioplasty, he failed to recognize the seriousnessof

Smith’s condition, he failed to ensure proper monitoring of Smith’s condition after the angioplasty, and he failed to

promptly and properly treat Smith’s condition. Smith sued Methodist for the negligent acts of its nurses i

                  a) failing to use diagnostic tools and information available to determine Mrs.
                  Smith’s condition;
                  b) failing to properly monitor Mrs. Smith’s condition;
                  c) failing to promptly and properly diagnose Mrs. Smith’s condition;
                  d) failing to promptly and properly treat Mrs. Smith’s condition;
                  e) failing to promptly recognize and properlyrespond to signs and symptoms of
                  Mrs. Smith’s condition;
                  f) failing to promptlyand properlydocument the courseof Mrs. Smith’s condition
                  and treatment; and
                  g) failing to promptly and properlycommunicateand consult with a physician or
                  other qualified health care provider possessing the training, experience and skill
                  necessary to promptly and properly diagnose and treat Mrs. Smith’s condition.

         If there was negligence on the part of both of these parties,they could be denominated joint tortfeasors because



                                                           6
of their alleged joint concurrent negligence. Prior to McIntyre, this would render them jointly and severallyliable.

McIntyre specificallynoted that at least as to ordinary joint tortfeasors,joint and several liability is no longer viable

in Tennessee. See McIntyre, 833 S.W.2d at 58. The duties and responsibilities of the nurses on the one hand and

the surgeon on the other are distinctly different,and the allegations against them concern separateand unrelated actions.

“A person is deemed to act in concert when he acts with another to bring about some preconceived result.”

Black’s Law Dictionary, 262 (5th ed. 1979)(emphasis added); see also Vance v. Billingsly, 487 F. Supp.

439, 442 (E.D. Tenn. 1980). Any doubt as to whether there was a concert of action between the physician and the nurse

is dispelled by Methodist’s statements in its answer to plaintiff’s amended complaint: “[I]f any injuries or damages

allegedly suffered by plaintiffs resulted from negligent acts, such were the sole, direct and proximateresult of the acts

of third parties for whose acts Methodist is not liable under the doctrine of respondeat superior or any other theory.

Such parties include Dr. Keith G. Anderson and his employer, The Sutherland Clinic, Inc.. . .” Accordingly, Methodist

is not entitled to pursue contribution on the grounds that the parties were acting collectively or in concert.

         Methodist next asserts that in accordance with the principles set out in General Electric, the present case

presentsan “appropriate case” in which fairness demands that contribution be allowed. It bases this argument on the

allegations that Smith did not want to include Anderson as a defendant in the original suit, and that Anderson intended

to help Smith win a large verdict against Methodist.2 Methodist alleges that for these reasons it was forced to settle the

suit, and should now be allowed to seek contribution from Anderson.

         Methodist further argues that a “situation in which a plaintiff and a defendant are working together to attempt

to secure an inappropriateallocation of fault, is exactly the sort of situation in which fairness demands that an action

for contribution be held appropriate.” We disagree. In General Electric, the parties had no chance to bring Process

Control into the action becauseof a lack of jurisdiction. Therefore, it was impossible to assess fault using the principles

set forth in McIntyre. Without allowing a suit for contribution, it would have been impossible for General

Electric to reduce the damages by assessing fault on the other defendants. However, we do not have a situation that

even approximates the situation in General Electric. In fact, we have a situation in which the defendants were

joined in an action, and one party decided to settle instead of go to trial.


         2
             Counsel for Anderson apparently sent Methodist’s attorneys a letter stating in pertinent part:

                   Apparently, the hospital thought we would roll over and contributeto a settlement
                   when you hired an expert in Atlantato attack Dr. Anderson. Please let me assure
                   you and all involved on behalf of the hospital that we will not contributeone red
                   cent to a settlement and that I will do everything that I possibly can do to insure
                   that a large verdict, including punitive damages, results against Methodist
                   Hospitals as a result of this trial.

                                                            7
         A clear explanation of how comparative fault should be used to supersede the remedy of contribution is found

in Owens v. Truckstops of Am., 915 S.W.2d 420 (Tenn. 1996). Owens examined the earlier opinion of

Bervoets v. Harde Ralls Pontiac-Olds, Inc., 891 S.W.2d 905 (Tenn. 1994), a case on which Methodist relies

to assert that contribution should be allowed in the case at bar. In Bervoets, the Tennessee Supreme Court allowed

a suit for contribution when a plaintiff injured in an automobileaccident sued several defendants. One of the defendants

entered into a settlement agreement with the plaintiff which released the claims againstall the parties,and subsequently

sought contribution from the other tortfeasors.

         The Owens Court explained this ruling:

                   The holding in Bervoets was that under comparative fault, Jackson and Adanac,
                   Inc. were not jointly and severally liable to the plaintiff, but, Jackson, who paid
                   the plaintiffs’ damages in full, would be allowed, in that transitional case,
                   to assert a claim for contribution against Adanac, Inc. so that liability would be
                   assessed, as explained on the petition to rehear, according to “the percentage of
                   fault attributable to each of the defendants.”

                           Had the plaintiff’s cause of action in Bervoets arisen
                   subsequent to the adoption of comparative fault, Jackson, in an
                   effort to reduce the extent of his liability, would have alleged in
                   his answer that Adanac, Inc. caused or contributed to the
                   damages, and the plaintiff, on pain of recovering less than full
                   damages, would have amended his complaint pursuant to
                   Section 20-1-119 to assert a claim against Adanac, Inc. Thus,
                   the purpose of comparative fault, the assessment of liability in
                   proportion to fault, would have been accomplished without the
                   proceeding to enforce contribution, which was made necessary
                   in Bervoets because the time within which the plaintiff could
                   assert a claim against Adanac, Inc. directly had expired when
                   McIntyre was decided.

Id. at 429 (emphasis added).

                   Methodist’s reliance on the Uniform Contribution Among Tort-feasors Act,

T.C.A. § 29-11-101 through § 29-11-106 (1980) is misplaced. The Act applies only to those

situations where “two(2) or more persons are jointly or severally liable in tort for the same injury

to person or property or for the same wrongful death.” T.C.A. § 29-11-102. McIntyre ended

joint and several liability for the concurrent acts of tortfeasors, and General Electric explains

those instances where T.C.A. § 29-11-101 et seq. would be applicable. The third circumstance

mentioned in General Electric for the applicability of contribution, i.e., where fairness demands,

is expressed by the Court with the caution that it is not a catch-all provision and is not meant to

defeat “the fundamental concepts of our comparative fault law.” General Electric, 969 S.W.2d

at 916. What Methodist seeks in this action would defeat the fundamental concept of



                                                           8
comparative fault, because, the concept envisions allocation of fault in one proceeding, insofar

as possible. See Owens, 915 S.W.2d 420, 425 (Tenn. 1996). Methodist had every opportunity to take

this case to trial, present evidence against its co-defendantsAnderson and Sutherland and then have the jury decide

percentage of fault and assess damages among the defendants. Methodist chose not to take this course and now must

live with the consequences. It matters little that Smith did not wish to prosecuteher claim against Anderson because

it is basic to our system of justice that in civil actions the plaintiff is in control of her own case and can proceed as she

sees fit.

         To allow defendantsto second-guessa plaintiff’s tactics in trying a lawsuit would open a Pandora’s Box in

every case involving multiple defendants. To follow Methodist’s argument to its conclusion would allow a defendant

against whom a verdict is rendered to seek contribution on the ground that plaintiff’s trial tactics resulted in a verdict

in favor of a co-defendant. Such a result would be incongruous.

         Fairness does not require that a defendant,in an action that could have been tried on the merits with complete

allocation of fault, be allowed to voluntarilyobtain a releaseof a non-settling defendant,and then sue for contribution.

To allow such a result flies in the face of the entire principle of comparative fault as pronounced in McInt

         The order of the trial court is affirmed. Costs of appeal are assessed to the appellant.

                                                                     _________________________________
                                                                     W. FRANK CRAWFORD,
                                                                     PRESIDING JUDGE, W.S.

CONCUR:

____________________________________
DAVID R. FARMER, JUDGE

____________________________________
HOLLY KIRBY LILLARD, JUDGE




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