Crotty v. Flora (HCLA – Attempt to Assert Alternative Causation Theory Against Subsequent, Nonparty Provider Without Any Fault Allegation)

Style: Crotty v. Flora, M.D.

TSC Docket No.: M2021-01193-SC-R11-CV

Date of TSC Opinion: September 29, 2023

Link to TSC Opinion:  Click here.     Link to Concurring / Dissenting Opinion:

Summary of TSC Majority Opinion:  In this interlocutory appeal, the defendant physician in a health care liability action asks us to review two pretrial orders. In the first, the trial court excludes evidence that a nonparty physician was the cause-in-fact of the claimant’s injuries because the defendant never amended his answer to include that allegation, as required under Rule 8.03 of the Tennessee Rules of Civil Procedure as applied in George v. Alexander, 931 S.W.2d 517 (Tenn. 1996). Because he does not allege that the nonparty physician was negligent, the defendant asks us to modify our holding in George and reverse the trial court’s order. We respectfully decline to do so. In the second pretrial order on appeal, the trial court considered Tennessee Code Annotated section 29-26-119, a provision that partially abrogates the common law collateral source rule in health care liability actions. It held that section 29-26-119 does not abrogate the collateral source rule under the facts of this case. We agree with the trial court that the collateral source rule remains in effect in this case. We affirm both of the trial court’s pretrial rulings.

Summary of Concurring / Dissenting Opinion: This interlocutory appeal involves two pretrial orders. I concur with the holding and analysis of the majority as to the first pretrial order involving Rule 8.03 and George v. Alexander, 931 S.W.2d 517 (Tenn. 1996). However, I respectfully dissent from the majority’s holding and analysis as to the second pretrial order involving Tennessee Code Annotated section 29-26-119 and the collateral source rule. This issue requires the Court to interpret the meaning of section 29-26-119. I would hold that, when section 29-26-119 governs damages in a health care liability action, the statute’s clear language contemplates only “actual economic losses suffered . . . paid or payable,” thereby abrogating the collateral source rule. Thus, I would reverse the trial court’s pretrial order.

Link to Court of Appeals Opinion:  There is no opinion from the Court of Appeals. The TSC took this case on a Rule 10 appeal after a Rule 9 appeal was rejected by the Court of Appeals.  The Rule 9 application was granted by Judge Joe Binkley in Case No. 17C614 in the Circuit Court for Davidson County, Tennessee.

Summary by the Court of Appeals:  None

Order from the Trial Court: The trial court’s order on “Plaintiff’s Motion to Exclude Testimony Regarding Alleged Fault of Nonparty Physicians” is available. Click here.

Permission to Appeal Granted: March 25, 2022

Appellants’ Briefs Filed: April 25, 2022

Appellees’ Briefs Filed: May 25, 2022

Appellants’ Reply Brief Filed: June 7, 2022

Appellees’ Reply Brief Filed:

Amicus Briefs Permitted:  

Oral Argument Date: October 5, 2022

Link to Oral Argument Video: https://www.youtube.com/watch?v=zY_qhVcPyvw