Jamie Randolph, on behalf of her mother, Carolyn Randolph v. Gianfranco Meduri, M.D.

IN THE COURT OF APPEALS OF TENNESSEE

AT MEMPHIS

January 20, 2011 Session

JAMIE RANDOLPH, on behalf of her deceased mother, CAROLYN

RANDOLPH v. GIANFRANCO MEDURI, M.D., ET AL.

Direct Appeal from the Circuit Court for Shelby County

No. 84713 T.D. Charles McPherson, Judge

No. W2010-01224-COA-R3-CV - Filed March 2, 2011

This appeal arises out of an action to hold UT Medical Group, Inc. vicariously liable for the

alleged negligence of its employees. In 1997, the original plaintiff filed an amended

complaint for medical malpractice and wrongful death which specifically named two doctors

as employees of the defendant who negligently caused the death of a patient. As trial

approached, a substitute plaintiff attempted to add new allegations concerning the negligence

of a third doctor. The trial court denied the motion to amend and later granted a motion in

limine to exclude evidence concerning the alleged negligence of the third doctor as beyond

the scope of the 1997 amended complaint. The plaintiff consequently was unable to offer

expert testimony at trial to prove an employee of the defendant negligently caused the

patient’s death, and the trial court granted judgment in favor of the defendant. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

and Remanded

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and

J. S TEVEN S TAFFORD, J., joined.

Al H. Thomas and Aaron L. Thomas, Memphis, Tennessee, for the appellant, Jamie

Randolph.

Stephen W. Vescovo and Claire M. Cissell, Memphis, Tennessee, for the appellee, U.T.

Medical Group.

OPINION

I. Background and Procedural History

This appeal concerns a complaint for medical malpractice and wrongful death filed

in the Shelby County Circuit Court.1 On January 27, 1997, Jim Randolph filed an action on

behalf of his deceased wife, Carolyn Randolph (“Patient”), against UT Medical Group, Inc.

(“UTMG”); Michael Byrne, M.D.; and Gianfranco Meduri, M.D. The complaint alleged Mr.

Randolph took Patient to the emergency room of the Regional Medical Center (the “Med”)

in October 1994 after she complained of a cough with shortness of breath and chest pain on

her left side. An emergency room physician ordered a number of tests which led to a

diagnosis of pneumonia. Patient was thereafter admitted to the Med under the care of Dr.

Byrne and attended to by Dr. Meduri, both of whom Mr. Randolph alleged were employees

of UTMG. A few days later and after receiving a sedative to address restlessness, Patient

was found unresponsive and requiring resuscitation. Patient survived initially and was

transferred to the Intensive Care Unit. Patient’s condition nevertheless deteriorated and she

died approximately eleven days later.

Mr. Randolph’s original complaint sought recovery against Dr. Meduri, Dr. Byrne,

and UTMG for the alleged negligence that caused the death of his wife.2 The complaint

alleged “Defendants failed to properly assess the seriousness of [Patient’s] medical condition

and further failed to properly treat [Patient’s] medical condition causing her to suffer serious

and permanent harm and causing her to ultimately die.” According to the complaint, Patient

incurred the following damages as a direct and proximate result of “the negligence and

medical malpractice by the Defendants”:

a. caused to suffer and incur severe and physical damages to her body

resulting in injuries initially and subsequent follow up care by

physicians for continued treatment, thereby incurring substantial

medical expenses as well;

b. caused to suffer substantial loss of wages and/or the loss of the capacity

to earn her normal wages;

1

The complaint states Mr. Randolph previously filed a cause of action in Shelby County General

Sessions Court which was dismissed without prejudice on December 13, 1996.

2

Mr. Randolph’s complaint labeled each doctor a “Defendant” who held himself out as possessing

the necessary medical skill, knowledge, and expertise to diagnose and treat certain medical conditions in

accordance with the standard of care expected of similarly situated physicians in the Memphis community.

-2-

c. caused to endure severe emotion distress and mental anguish; and

d. caused her to suffer the loss of the normal enjoyment of the pleasures

of life until her death;

e. caused her to die.

The complaint demanded judgment for compensatory damages against the defendants in the

amount of $5,000,000.

The parties thereafter entered an agreed order removing Dr. Byrne from the lawsuit

because he was an employee of the State of Tennessee entitled to dismissal under Tennessee

Code Annotated section 9-8-301 et seq. The remaining defendants, Dr. Meduri and UTMG,

responded to the complaint with a motion for a more definite statement. The defendants

asserted the complaint failed to allege specific negligent acts or omissions for which relief

could be granted against them. According to the defendants, “[e]ven under the liberal notice

pleading rules the Complaint must give notice of some specific negligent act or omission so

that the defendant doctor can at least be made aware of the malpractice with which he is

charged.”

On June 24, 1997, Mr. Randolph filed an amended complaint “sole[ly] for the purpose

of adding a more definite statement as to the negligence of the Defendants Gianfranco

Meduri, M.D., and UT Medical Group.” The amended complaint contained the same

allegations as the original but included two key additions:

19. Defendant Meduri failed to properly treat Plaintiff Carolyn Randolph’s

seizures causing her to sustain increased hypoxia resulting in increased

encephalopathy causing her serious and permanent damages causing

her death.

20. Defendant University Physicians Foundation, d/b/a U.T. Medical Group

was negligent in not seeing that proper care was furnished to Plaintiff

Carolyn Randolph. More specifically, Plaintiff alleges that the

Hospital’s agents and/or employees were negligent in the medical care

and attention rendered to the Plaintiff, and did not exercise the degree

of care, skill and diligence used by medical facilities and their staff

generally in this community under the circumstances which presented

themselves at the time, including but not limited to, the choice of

medical techniques employed in caring for Plaintiff Carolyn Randolph.

-3-

Mr. Randolph non-suited his claim against Dr. Meduri approximately three years after the

filing of the amended complaint, leaving UTMG as the only defendant.

The focus of Mr. Randolph’s attention appears to have shifted over time from the

alleged malpractice of Drs. Byrne and Meduri to that of Drs. Claudia Krasnoff and Beverly

Williams-Cleaves. In a 2004 answer to the first set of interrogatories propounded by the

defendants, Mr. Randolph stated he intended to offer expert testimony at trial to demonstrate

that Dr. Krasnoff, a resident doctor at the Med, deviated from the standard of care when she

prescribed the drug Ativan to Patient. The expert would further testify that Patient’s

cardiopulmonary arrest directly resulted from the overmedication of Patient with Ativan. The

expert’s later-filed affidavit explained the administration of Ativan caused Patient to suffer

a respiratory depression, which caused her cardiopulmonary arrest and led to hypoxic

encephalopathy. The expert’s affidavit further stated that “as an attending physician, Beverly

Williams-Cleaves, was aware or had a duty to be aware of the fact that Resident Dr. Krasnoff

was ordering the Ativan. Dr. Cleaves too, then, would be negligent.” The expert’s affidavit

concluded that “as a proximate result of the failed acts or omissions of Drs. Krasnoff and

Cleaves, [Patient] suffered injuries that would not otherwise have occurred.”

Mr. Randolph nevertheless did not seek to amend his complaint prior to the scheduled

trial on November 19, 2009, to allege UTMG was liable for the negligent acts of Dr.

Williams-Cleaves. Further, Mr. Randolph failed to appear at trial, requiring the trial court

to continue the case.3 A few days later, the court granted a motion to substitute the

plaintiff/appellant, Jamie Randolph (“Plaintiff”), for her father and to reset trial for January

19, 2010. Plaintiff subsequently moved to amend the 1997 amended complaint under Rule

15.01 of the Tennessee Rules of Civil Procedure to state:

13. On 10/16/1994 Carolyn Randolph was prescribed Ativan 2mg 4-6 times

a day as needed for agitation. The attending UTMG physician who was

in charge of Carolyn Randolph’s care, Dr. Beverly Williams-Cleaves,

was aware of or should have been aware the abovementioned

prescription of Ativan.

14. Carolyn Randolph was given 2mg of Ativan on 10/16/1994 at 10:25

p.m., and 2mg of Ativan on 10/17/1994 at 3:20 a.m.

20. The attending UTMG physician who was in charge of Carolyn

Randolph’s care, Dr. Beverly Williams-Cleaves, was negligent in

allowing Ativan to be given to Carolyn Randolph in the dosage at

3

The parties’ briefs suggest the court set the case for trial fifteen times between 1997 and 2010.

-4-

which it was given. Carolyn Randolph was given 4mg of Ativan within

five hours which was a significant overdose. Carolyn Randolph was a

debilitated patient who should not have received more than 2mg of

Ativan over the course of twenty-four hours. It was this overdose of

Ativan which caused Carolyn Randolph to go into the unresponsive

state described above in paragraph 15. Defendant UTMG is liable for

the abovementioned negligent act of its employee, Dr. Beverly

Williams-Cleaves.

UTMG opposed the motion to amend for several reasons. First, UTMG submitted

Plaintiff unduly delayed in filing her motion to amend because she and her predecessor

waited over fifteen years to specify all of their allegations against UTMG. Second, UTMG

argued Plaintiff failed to give proper notice of the new allegations because her predecessor

did not set forth these allegations in response to its motion for more definite statement.

UTMG added that neither plaintiff moved to amend the complaint to allege UTMG was

responsible for the actions of Dr. Williams-Cleaves as an employee of UTMG until shortly

before trial, even though Mr. Randolph filed an expert affidavit in 2004 discussing the role

of the doctor in Patient’s care. Third, UTMG submitted that allowing the proposed

amendment would unduly prejudice the defendant because the ability of the witnesses to

remember the events at issue had diminished over time. Fourth, UTMG argued the

amendments were futile because Plaintiff could not establish an agency relationship between

UTMG and Dr. Williams-Cleaves with respect to the acts alleged. Finally, UTMG argued

the three-year statute of repose barred Plaintiff’s amendments, contending Plaintiff could not

amend her complaint to specify a vicarious liability claim against UTMG for the actions of

Dr. Williams-Cleaves because any direct action against her had been extinguished by

operation of law. The trial court agreed with UTMG and denied the motion to amend the

complaint.

UTMG followed the denial of Plaintiff’s motion to amend with a motion in limine to

exclude proof beyond the scope of the negligence and agency allegations of the 1997

amended complaint. UTMG stated a companion case concerning the alleged negligence of

the employees of the University of Tennessee Health Science Center (“UTHSC”), a distinct

entity from UTMG, was pending in the Tennessee Claims Commission. According to

UTMG, Plaintiff gave the impression she was pursuing her claims against the employees of

UTHSC, including Dr. Williams-Cleaves, in the Claims Commission. The parties apparently

agreed Dr. Williams-Cleaves was an employee of both UTHSC and UTMG but disagreed

about whether she was acting within the scope of her employment with UTMG when the

alleged negligence occurred. UTMG explained:

[I]t is important to understand Dr. Williams-Cleaves’ role as an attending

-5-

physician in 1994. As an attending physician, Dr. Williams-Cleaves had two

roles. She was on the faculty of the University of Tennessee Health Science

Center, and as such, she taught and supervised the resident physicians, such as

Dr. Krasnoff. She also had a private practice at UTMG, through which she

rendered some direct patient care. UTMG is a separate and distinct entity from

the University of Tennessee Health Science Center. UTMG would not be

liable for any actions of Dr. Williams-Cleaves when the doctor was acting on

behalf of the University of Tennessee, only.

UTMG argued Plaintiff should not be allowed to submit evidence of Dr. Williams-Cleaves’s

alleged negligence where Plaintiff did not specifically name Dr. Williams-Cleaves as a

negligent employee or agent of UTMG in the 1997 amended complaint.

The trial court heard arguments on the motion in limine prior to trial. Plaintiff asked

the court to admit evidence concerning the negligence of Dr. Williams-Cleaves despite the

denial of her motion to amend. Plaintiff submitted the acts of Dr. Williams-Cleaves as an

employee of UTMG fell within the general allegation of vicarious liability in the 1997

amended complaint. Plaintiff further submitted amendment of the complaint to specifically

allege negligence on behalf of Dr. Williams-Cleaves and UTMG’s vicarious liability for that

act of negligence was preferable but not essential to pursuit of Plaintiff’s claim.

Additionally, Plaintiff moved to amend the complaint under Rule 15.02 of the Tennessee

Rules of Civil Procedure to conform with the evidence, although no evidence had been

presented. The trial court again agreed with UTMG, granting the motion in limine and

rejecting the Rule 15.02 motion to amend.

The grant of UTMG’s motion in limine effectively ended the case. Plaintiff’s claim

for vicarious liability against UTMG hinged on expert proof intended to establish the

negligence of Dr. Williams-Cleaves. After counsel conceded Plaintiff lacked expert proof

to establish the negligence of anyone other than Dr. Williams-Cleaves, UTMG moved for

judgment as a matter of law. The trial court determined Plaintiff could not carry her burden

of proof as a matter of law and accordingly granted judgment in favor of the defendant.4

Plaintiff later moved under Rule 59.04 of the Tennessee Rules of Civil Procedure to alter or

amend the order granting UTMG’s motion in limine and the order granting a final judgment

in favor of the UTMG. The trial court denied the motion and this appeal ensued.

4

The procedure employed to resolve this dispute is somewhat unique and arguably inconsistent with

Rule 41.02 of the Tennessee Rules of Civil Procedure. Plaintiff nevertheless does not take issue with the

manner in which the court ruled.

-6-

II. Issue Presented

The sole issue before this Court, as we perceive it, is whether the trial court abused

its discretion when it excluded evidence of Dr. Williams-Cleaves’s alleged negligence.

Plaintiff raised additional issues with respect to the denial of her Rule 15.01 and Rule 15.02

motions to amend but waived these issues when she decided not to address them in the

argument section of her brief. Tenn. R. App. P. 27(a)(7); Tenn. Ct. App. R. 6(a), (b); Bean

v. Bean, 40 S.W.3d 52, 55-56 (Tenn. Ct. App. 2000) (citations omitted).

III. Standard of Review

We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Biscan v. Brown, 160 S.W.3d 462, 468 (Tenn. 2005) (citing Mercer v. Vanderbilt

Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004)). The same standard applies when a trial

court determines whether to exclude evidence at variance with the pleadings. Sanford v.

Waugh & Co., 328 S.W.3d 836, 847 (Tenn. 2010) (citing Biscan, 160 S.W.3d at 468). “The

trial court has great discretion to admit or to disallow evidence subject to an objection based

upon the scope of the issues and pleadings and to determine whether the evidence is

encompassed by the general issues raised in the pleadings.” 71 C.J.S. Pleading § 779 (2000)

(citations omitted); accord 61b Am. Jur. 2d Pleading § 922 (2d ed. 1999) (citation omitted).

A trial court abuses its discretion if it (1) applies an incorrect legal standard, (2) reaches an

illogical or unreasonable decision, or (3) bases its decision on a clearly erroneous evaluation

of the evidence. Elliott v. Cobb, 320 S.W.3d 246, 249-50 (Tenn. 2010) (citing Lee Med., Inc.

v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)).

IV. Analysis

Tennessee courts have long adhered to the principle that a party’s proof must

correspond with the allegations set forth in the pleadings. E.g. Fid.-Phenix Fire Ins. Co. of

N.Y. v. Jackson, 181 S.W.2d 625, 629 (Tenn. 1944); Elec. Controls v. Ponderosa Fibres of

Am., 19 S.W.3d 222, 227 (Tenn. Ct. App. 1999) (citation omitted); John J. Heirigs Const.

Co. v. Exide, 709 S.W.2d 604, 607 (Tenn. Ct. App. 1986) (citations omitted); Park v. Sinclair

Ref. Co., 142 S.W.2d 321, 326 (Tenn. Ct. App. 1940) (citations omitted).

“While technical forms in pleadings are not now required, still the parties

should be confined to the case made in the pleadings; the proof should

correspond with the allegations; the parties ought not to be allowed to charge

one case in their pleadings and prove a case substantially different . . . .”

Am. Lead Pencil Co. v. Nashville, C. & St. L. Ry., 134 S.W. 613, 615 (Tenn. 1911) (quoting Foster

-7-

v. Jackson, 67 Tenn. (8 Baxt.) 433, 434-35 (1874)); see also 61b Am. Jur. 2d Pleading § 925

(2d ed. 1999) (citations omitted) (“Under modern practice, as well as at common law, a

plaintiff cannot sue on one cause of action and recover on another.”). Judgments awarded

beyond the scope of the pleadings are void.5 Brown v. Brown, 281 S.W.2d 492, 497 (Tenn.

1955) (citations omitted). The policy underpinning this rule is that “since the purpose of

pleadings is to give notice to all concerned regarding what may be adjudicated, a judgment

beyond the scope of the pleadings is beyond the notice given the parties and thus should not

be enforced.” Id. at 497.

The advent of Rule 15.02 of the Tennessee Rules of Civil Procedure has modified the

above rule to an extent. Elec. Controls, 19 S.W.3d at 227 n.3 (citing Tenn. R. Civ. P. 15.02).

Rule 15.02 allows trial of an unpled issue by express or implied consent of an adverse party

followed by amendment of the pleadings to encompass the issue. Tenn. R. Civ. P. 15.02;

Zack Cheek Builders, Inc. v. McLeod, 597 S.W.2d 888, 890 (Tenn. 1980). A party’s proof

nevertheless remains confined to the pleadings unless the adverse party impliedly or

expressly consents to consideration of the unpled issue at trial. Snodgrass v. Freemon,

M2002-01247-COA-R3-CV, 2003 WL 21748805, at *1 (Tenn. Ct. App. July 29, 2003)

(citing Hiller v. Hailey, 915 S.W.2d 800, 804-05 (Tenn. Ct. App. 1995)). An unpled issue

cannot serve as the basis of a judgment in favor of the plaintiff absent trial by consent.

Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 300 (Tenn. Ct. App. 2001)

(footnote omitted) (citations omitted).

It follows that a trial court may exclude proof of an issue not fairly within the scope

of the pleadings upon the objection of the adverse party. See Sanford v. Waugh & Co., 328

S.W.3d 836, 847 (Tenn. 2010) (affirming the exclusion of proof on issues not raised in the

plaintiff’s complaint). Courts, however, should only exclude proof that materially varies

from the pleadings because only a material variance defeats a party’s right to recover. See

McCray v. Hughes, 385 S.W.2d 124, 126 (Tenn. Ct. App. 1964) (citation omitted). A

variance between the pleadings and the proof is material only where an adverse party is

misled to his or her prejudice.6 McCray, 385 S.W.2d at 126 (citation omitted); see also

5

Rule 15.02 creates an exception to this general rule. Elec. Controls v. Ponderosa Fibres of Am.,

19 S.W.3d 222, 227 n.3 (Tenn. Ct. App. 1999) (citing Tenn. R. Civ. P. 15.02). The trial court determined,

however, the parties did not try the issue of Dr. Williams-Cleaves’s negligence by express or implied

consent. Plaintiff does not argue the trial court erred in this regard.

6

Rule 15.02 reinforces the role of prejudice when determining whether to exclude evidence at

variance with the pleadings. It states, in pertinent part:

If evidence is objected to at the trial on the ground that it is not within the issues made by

(continued...)

-8-

Sanford, 328 S.W.3d at 847 (placing some emphasis on the fact that the defendants had a

reasonable argument of unfair surprise). This Court has explained:

“Modern authorities hold, and statutes sometimes expressly provide that no

variance between the allegation of a pleading and the proof offered to sustain

it shall be deemed material if the adverse party is not surprised or misled to his

prejudice in maintaining his action or defense on the merits . . . . It may be

fatal where the adverse party is misled to his prejudice, but otherwise it is to

be disregarded as immaterial.”

McMahan v. McMahan, 276 S.W.2d 738, 746 (Tenn. Ct. App. 1954) (quoting 71 C.J.S.

Pleading § 535); see also 61b Am. Jur. 2d Pleading § 923 (2d ed. 1999) (explaining that a

variance is immaterial if an adverse party receives sufficient notice of unpled issues and does

not suffer prejudice during litigation of those issues). “The purpose of this rule is to prevent

surprise; where there is no surprise, there is no good reason for enforcing the rule on

variance.” 61b Am. Jur. 2d Pleading § 923 (2d ed. 1999) (citations omitted).

The same principles apply in negligence and wrongful death actions. 61b Am. Jur.

2d Pleading §§ 926, 927 (2d ed. 1999). “The rule is that where the charge in the declaration

as to which a variance is claimed does not go to the defendant’s alleged acts of negligence

and does not, in any way, mislead the defendant, there is no fatal variance.” Harvey v. S. Ry.

Co., 399 S.W.2d 523, 526 (Tenn. Ct. App. 1965) (citations omitted).

While the courts are liberal with respect to variances between the allegations

and the proof in actions founded on negligence, it is a settled rule that the

plaintiff must recover, if at all, upon proof establishing the specific acts of

negligence alleged in his declaration, complaint, or petition. Having pleaded

specifically the act or acts constituting the defendant’s negligence, other acts

of negligence cannot be relied upon unless the declaration, complaint, or

petition is amended to conform to the proof.

61b Am. Jur. 2d Pleading § 926 (2d ed. 1999). “Where the plaintiff alleges, in his pleading,

acts of negligence causing . . . death, he may recover only upon proof of such allegations.”

6

(...continued)

the pleadings, the court may allow the pleadings to be amended and shall do so freely when

the presentation of the merits of the action will be subserved thereby and the objecting party

fails to satisfy the court that the admission of such evidence would prejudice that party in

maintaining the action or defense upon the merits.

Tenn. R. Civ. P. 15.02.

-9-

61b Am. Jur. 2d Pleading § 927 (2d ed. 1999).

The decision of whether a trial court should exclude proof because it materially varies

from the pleadings ultimately depends on the scope of the allegations therein. A court

evaluating this issue encounters competing concerns. On one hand, courts typically construe

complaints in favor of the plaintiff, Abshure v. Methodist Healthcare-Memphis Hosps., 325

S.W.3d 98, 104 (Tenn. 2010) (citing Holloway v. Putnam Cnty., 534 S.W.2d 292, 296

(Tenn.1976)), and courts as a general rule have liberally construed pleadings when

addressing the question of variance, Lampley v. Waygood, 422 S.W.2d 708, 711 (Tenn. Ct.

App. 1967). On the other hand, “[a]n essential purpose of a pleading is to give notice of the

issues to be tried so that the opposing party will be able to prepare for trial,” Abshure, 325

S.W.3d at 103 (citations omitted), and courts must guard against the prejudice that arises

when a plaintiff recovers for claims not fairly within the scope of the complaint, see Brown,

281 S.W.2d at 497.

A trial court resolving these competing concerns must construe the pleadings “to do

substantial justice.” Tenn. R. Civ. P. 8.06. In many cases, substantial justice will require a

liberal construction of the pleadings that permits adjudication of a plaintiff’s claim on the

merits. A court, however, is not bound to read a claim into a pleading where none exists.

Rawlings, 78 S.W.3d at 300 (citing Donaldson v. Donaldson, 557 S.W.2d 60, 62 (Tenn.

1977); Rampy v. ICI Acrylics, Inc., 898 S.W.2d 196, 198 (Tenn. Ct. App. 1994)). “While a

complaint need not contain ‘in minute detail’ the facts giving rise to the claim, it nevertheless

must contain allegations ‘from which an inference may fairly be drawn that evidence on these

material points will be introduced at trial.’” Utter v. Sherrod, 132 S.W.3d 344, 351 (Tenn.

Ct. App. 2004) (quoting Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 704

(Tenn. 2002)). “‘[T]here is no duty on the part of the court to create a claim that the pleader

does not spell out in his complaint.’” Id. (quoting Trau-Med, 71 S.W.3d at 704).

The question before this Court is whether the trial court abused its discretion when

it concluded proof of Dr. Williams-Cleaves’s negligence was beyond the scope of the

allegations in the 1997 amended complaint.7 Plaintiff argues the general allegation of

vicarious liability contained in the 1997 amended complaint was sufficient to permit proof

on the alleged negligence of Dr. Williams-Cleaves. Plaintiff submits the general allegation

7

The appellant does not set forth the standard of review in her brief and therefore does not expressly

analyze whether the trial court’s alleged error amounts to an abuse of discretion. We note for the benefit of

the Bar that a recent amendment to Rule 27 of the Tennessee Rules of Appellate Procedure now requires for

each issue presented on appeal “a concise statement of the applicable standard of review (which may appear

in the discussion of the issue or under a separate heading placed before the discussion of the issues)[.]”

Tenn. R. App. P. 27(a)(7)(B) (effective July 1, 2010).

-10-

against UTMG satisfied the minimal pleading requirements of Rule 8.01 of the Tennessee

Rules of Civil Procedure as a matter of law, even if the complaint did not name Dr. Williams-

Cleaves as an employee committing negligent acts for which UTMG was liable. A liberal

construction of the 1997 amended complaint would provide a satisfactory basis upon which

to hold UTMG vicariously liable for Dr. Williams-Cleaves’s negligence according to

Plaintiff.

Plaintiff further argues that consideration of Dr. Williams-Cleaves’s negligence would

not prejudice UTMG. Plaintiff contends the parties knew about and litigated the facts

surrounding Dr. Williams-Cleaves’s negligence for several years. Plaintiff submits

the litigation established way back in 2004, and then from 2006-2009, that the

only basis for UTMG’s liability was the alleged negligence of its employee,

Dr. Williams-Cleaves; that this circuit court action would proceed solely based

on UTMG’s vicarious liability for the negligence of Dr. Williams-Cleaves; and

that this was the sole issue to be tried at trial.

Plaintiff points to a 2006 motion to transfer filed in the Claims Commission as giving notice

to UTMG that her predecessor intended to pursue a claim against Dr. Williams-Cleaves as

a UTMG employee in the circuit court case. Plaintiff submits UTMG’s counsel, Steven

Vescovo, received a copy of that motion and received notice that Plaintiff would pursue a

claim of vicarious liability for Dr. Williams-Cleaves’s actions in the circuit court case.

Although Plaintiff does not expressly reference materiality, she essentially argues

presentation of the issue before the trial court would not surprise or prejudice UTMG and,

thus, no fatal variance existed that would support excluding evidence of Dr. Williams-

Cleaves’s alleged negligence.

UTMG wholly disagrees.8 UTMG argues the purpose of a complaint is to notify a

defendant of the causes of action alleged against it and the facts giving rise thereto. UTMG

contends the 1997 amended complaint did not give notice that Dr. Krasnoff was allegedly

negligent in ordering an overdose of Ativan, that Dr. Williams-Cleaves was allegedly

negligent because she failed to discover and countermand that order, or that UTMG was

vicariously liable for their actions. UTMG further explains the 1997 amended complaint did

8

UTMG submits the 1997 amended complaint did not allege vicarious liability as to the defendant

because paragraph twenty of the complaint specifically referenced “the hospital” and UTMG is not a

hospital. Plaintiff responds that the sole reference to “the hospital” in paragraph twenty is a scrivener’s error

and refers to UTMG. It is not entirely clear whether the trial court deemed “the hospital” as referring to

UTMG. We assume for the sake of argument that paragraph twenty of the 1997 amended complaint alleged

UTMG’s agents and/or employees were negligent in the medical care and attention rendered to Patient.

-11-

not put it on notice that Plaintiff believed Dr. Williams-Cleaves was acting within the scope

of her employment with UTMG when supervising a UTHSC resident, Dr. Krasnoff, who

allegedly administered a lethal dose of Ativan. UTMG concludes the trial court correctly

excluded any evidence concerning the alleged negligence of Dr. Williams-Cleaves, especially

where UTMG filed a motion for more definite statement more than twelve years prior to trial.

We are unable to conclude the trial court abused its discretion when it excluded

evidence of Dr. Williams-Cleaves’s negligence. We disagree with Plaintiff’s contention that

the general allegation of vicarious liability in the 1997 amended complaint provided UTMG

sufficient notice, as a matter of law, that Plaintiff intended to hold UTMG responsible for the

alleged negligence of Dr. Williams-Cleaves. Courts in other jurisdictions have stated that

a plaintiff generally alleging negligence of a defendant employer under the theory of

respondeat superior need not name the specific employee who committed the underlying

negligent acts. See O'Bryan v. Holy See, 556 F.3d 361, 382 n.9 (6th Cir. 2009) (citation

omitted) (“General allegations against employees are sufficient for the purposes of notice

pleading: ‘a complaint that generally alleges an employer's negligence need not specifically

identify each employee involved to hold the employer liable under respondeat superior.’”);

Dillard v. Kern Cnty., 144 P.2d 365, 369 (Cal. 1943) (citations omitted) (“Ordinarily, in

pleading the negligence of defendant employer, based upon respondeat superior, the plaintiff

need not allege the name of the employee because of the superior position of the employer.”).

We conclude, however, this rule should not govern our analysis where the plaintiff has

specifically named certain employees in the complaint as committing the negligence for

which the defendant employer is liable. Cf. E. Tenn. Coal Co. v. Daniel, 42 S.W. 1062, 1064

(Tenn. 1897) (“[W]here definite acts of negligence are alleged in the declaration as grounds

of liability against the defendant, the proof will be confined to the acts alleged.”). Plaintiff

narrowed the scope of the dispute through her specific allegations with respect to Drs.

Meduri and Byrne. Her decision to name specifically these persons and their acts of

negligence misled UTMG with respect to the scope of Plaintiff’s claims and, thus, gives

reason to reject the above rule here.

We further disagree with the suggestion UTMG failed to demonstrate that proof of

Dr. Williams-Cleaves’s negligence materially varied from the allegations set forth in the

1997 amended complaint. A liberal reading of the complaint reveals Plaintiff alleged a claim

of vicarious liability only with respect to the negligence of Drs. Meduri and Byrne. Nowhere

does the 1997 amended complaint allege Dr. Williams-Cleaves was an employee of UTMG

whose negligence contributed to the death of Patient. Plaintiff’s complaint simply did not

contain allegations from which UTMG could fairly draw the inference that Plaintiff intended

to hold UTMG liable for the actions of Dr. Williams-Cleaves. As a result, the 1997 amended

complaint did not give UTMG sufficient notice of Plaintiff’s intent to hold the defendant

liable for the alleged negligence of Dr. Williams-Cleaves.

-12-

The record likewise does not demonstrate UTMG received sufficient notice of

Plaintiff’s intent to pursue this issue through other means. As UTMG correctly points out

in its brief, Plaintiff’s various complaints and responses to UTMG’s discovery requests are

devoid of any reference to Dr. Williams-Cleaves, either by name or description. The only

express reference in the record as to the negligence of Dr. Williams-Cleaves is found in a

2004 expert affidavit. That affidavit nonetheless does not establish that Dr. Williams-

Cleaves committed said negligence within the scope of her employment with UTMG, and

Plaintiff’s responses to the defendant’s first set of interrogatories only indicate she intended

to establish the negligence of Dr. Krasnoff as a basis for her claim against UTMG. Although

UTMG’s counsel may have received some notice via the motion to transfer in the companion

case, Plaintiff did not attempt to amend her complaint consistent with the representation

contained in the motion until 2010. Under the particular facts of this case, UTMG had a

reasonable argument that Plaintiff’s last-minute claim regarding UTMG’s vicarious liability

for the negligence of Dr. Williams-Cleaves constituted unfair surprise. See Sanford v.

Waugh & Co., 328 S.W.3d 836, 848 (Tenn. 2010) (affirming the grant of a motion in limine

excluding evidence on a plaintiff’s theory where the defendants “had a reasonable argument

that they were unfairly surprised on the eve of trial” by the plaintiff’s “last-minute claim”).

We conclude the trial court did not abuse its discretion in this case. Plaintiff waited

over twelve years from the filing of her complaint and over five years after her predecessor

admittedly learned of Dr. Williams-Cleaves’s role in Patient’s care before she attempted to

allege a claim for vicarious liability based on the acts of Dr. Williams-Cleaves in her capacity

as an employee of UTMG. Although the record suggests UTMG may have been aware that

an issue regarding Dr. Williams-Cleaves had arisen, it does not establish UTMG had

sufficient notice that Plaintiff intended to litigate that issue in the circuit court case as

opposed to the companion case in the Claims Commission. The trial court apparently

credited UTMG’s argument that admission of proof regarding Dr. Williams-Cleaves’s

negligence would prejudice the defendant. The court consequently excluded the proof as

beyond the scope of the pleadings and granted judgment in favor of UTMG. While the trial

court arguably could have permitted proof of Dr. Williams-Cleaves’s negligence, we disagree

the court abused its discretion in disallowing it under the circumstances of this case. Plaintiff

has accordingly presented no basis upon which to overturn the judgment of the trial court.9

We affirm the trial court’s decision.

9

We note Plaintiff did not argue before the trial court and does not argue before this Court that a

continuance of the case allowing UTMG sufficient opportunity to prepare a defense as to the negligence of

Dr. Williams-Cleaves was the proper course of action.

-13-

V. Conclusion

For the foregoing reasons, we affirm the decision of the trial court. Costs of the

appeal are taxed to the appellant, Jamie Randolph, and her surety for which execution may

issue if necessary.

_________________________________

DAVID R. FARMER, JUDGE

-14-