Robert Crotty v. Mark Flora, M.D.

09/29/2023

IN THE SUPREME COURT OF TENESSEE

AT NASHVILLE

October 5, 2022 Session

ROBERT CROTTY, ET AL. v. MARK FLORA, M.D.

Appeal by Permission from the Court of Appeals

Circuit Court for Davidson County

No. 17C614 Joe P. Binkley, Jr., Judge

___________________________________

No. M2021-01193-SC-R11-CV

___________________________________

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.

Tenn. R. App. P. 11 Appeal by Permission;

Judgment of the Trial Court Affirmed; Remanded to the Trial Court

HOLLY KIRBY, J., delivered the opinion of the court, in which SHARON G. LEE, JEFFREY S.

BIVINS, and SARAH K. CAMPBELL, JJ., joined. ROGER A. PAGE, C.J., filed an opinion

concurring in part and dissenting in part.

Phillip North, Renee Levay Stewart, Brigham A. Dixson, and Brent A. Kinney (in trial

court), Nashville, Tennessee for the appellant, Mark Flora, M.D.

Richard D. Piliponis, Benjamin J. Miller, and Sarah L. Martin, Nashville, Tennessee, for

the appellees, Robert Crotty and Jennifer Crotty.

Marty R. Phillips and Craig P. Sanders, Jackson, Tennessee, for the amicus curiae,

Tennessee Defense Lawyers Association.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

This interlocutory appeal arises out of a healthcare liability lawsuit brought by

Plaintiff/Appellees Robert and Jennifer Crotty against Defendant/Appellant urologist Mark

Flora, M.D.1

On January 3, 2016, Dr. Flora performed surgery on Robert Crotty to treat a kidney

stone. The procedure proved more challenging than expected because part of the kidney

stone was reportedly impacted, or embedded into the wall of Mr. Crotty’s ureter. During

the surgery, Dr. Flora placed a stent in Mr. Crotty’s ureter to allow fluid to drain properly.

Five days later, Mr. Crotty came to the hospital reporting worsening pain. The next

day, January 9, 2016, Mitchell Wiatrak, M.D., a urologist in the same practice group as Dr.

Flora, performed a second surgery on Mr. Crotty. In the course of that procedure, Dr.

Wiatrak noted that Mr. Crotty’s ureter was perforated and that fluid was leaking outside of

Mr. Crotty’s collecting system. Dr. Wiatrak removed the stent Dr. Flora had placed, but

he could not establish proper drainage. Consequently, the next day, January 10, 2016, Mr.

Crotty received a nephrostomy tube, to facilitate needed drainage.2 Ultimately, another

physician had to remove Mr. Crotty’s kidney.

1

Because this is an interlocutory appeal, the facts have not yet been determined. The basic events

are largely undisputed, and we summarize them from the parties’ pleadings, motions in the trial court, and

various exhibits filed in support of those motions, including deposition transcripts, expert disclosures, and

medical records.

2

Nephrostomy is “[s]urgery to make an opening from the outside of the body to the renal pelvis

(part of the kidney that collects urine). This may be done to drain urine from a blocked kidney or blocked

ureter into a bag outside the body.” Nephrostomy, Definition within the NCI Dictionary of Cancer Terms,

-2-

On March 10, 2017, Mr. Crotty and his wife Jennifer Crotty sued Dr. Flora in the

Circuit Court of Davidson County. The complaint alleged, inter alia, that Dr. Flora (1)

negligently perforated Mr. Crotty’s ureter during the initial procedure, (2) negligently

either failed to recognize that Mr. Crotty’s ureter had been perforated or failed to

acknowledge the perforation, and (3) negligently discharged Mr. Crotty without telling him

that his ureter had been perforated. The damages sought included past and future medical

expenses.3

The answer filed by Dr. Flora generally denied any negligence in his treatment of

Mr. Crotty. Relevant to this appeal, the answer reserved the right to amend to assert

comparative fault “[s]hould discovery reveal that negligent acts or omissions of Plaintiffs

and/or non-parties caused or contributed to Plaintiffs’ injuries and damages.” Also relevant

to this appeal, the answer asserted that Tennessee Code Annotated section 29-26-119, a

provision of the Health Care Liability Act, barred the Plaintiffs from recovering damages

paid by a collateral source.

Discovery ensued. The parties deposed the Crottys, Dr. Flora, Dr. Wiatrak, and

experts for both sides.

At no point did Dr. Flora seek to amend his answer. Instead, on December 4, 2019,

Dr. Flora moved for partial summary judgment.4

The trial court granted Dr. Flora’s motion in part. The trial court acknowledged a

factual dispute on precisely when Mr. Crotty’s ureter was perforated. It concluded,

Nat’l Cancer Inst., https://www.cancer.gov/publications/dictionaries/cancer-terms/def/nephrostomy (last

visited July 20, 2023).

3

The complaint also sought non-economic damages in excess of $750,000 and asserted that any

cap on jury-awarded damages imposed pursuant to Tennessee Code Annotated sections 29-39-102(e) and

(g) would violate their rights under various provisions of the Tennessee and United States Constitutions.

The assertions in the Crottys’ complaint predate our decision in McClay v. Airport Management Services

LLC, 596 S.W.3d 686, 696 (Tenn. 2020) (rejecting similar constitutional arguments). These claims are not

at issue in this appeal.

4

The judge originally assigned to the case, Judge Hamilton V. Gayden, Jr., recused himself before

ruling on Dr. Flora’s motion. The case was then transferred to Judge Joe P. Binkley, Jr.

-3-

however, that even if a jury determined that the perforation occurred during the procedure

performed by Dr. Flora, such an injury “is a known complication of the procedure

performed by Defendant Flora that occurs in the absence of negligence.” For that reason,

the trial court dismissed the claim that Dr. Flora negligently perforated Mr. Crotty’s ureter,

knew it had been perforated, and concealed that fact from Mr. Crotty.5

Trial on the remaining claims was set for September 21, 2020. That trial date was

later continued to August 16, 2021 due to the Covid-19 pandemic.

As the trial date approached, the parties filed an array of pretrial motions. As

relevant here, the Crottys filed a motion in limine asking the trial court to prohibit Dr. Flora

from commenting, arguing, or submitting any evidence that any person other than Dr. Flora

was at fault for Mr. Crotty’s injuries. The motion pointed out that Dr. Flora’s answer had

never been amended to plead the doctrine of comparative fault. As a result, the Plaintiffs

argued, Dr. Flora was precluded from asserting responsibility for the injury by anyone else,

under Tennessee Rule of Civil Procedure 8.03 as applied in George v. Alexander, 931

S.W.2d 517 (Tenn. 1996).

The Crottys also filed a related motion in limine; this one asked the trial court to

specifically exclude any comment, argument, or evidence asserting or suggesting fault by

Dr. Wiatrak, who was never made a party to the case. The motion sought to exclude any

suggestion that Dr. Wiatrak caused any of Mr. Crotty’s injuries.

In addition, the Crottys filed a pretrial motion regarding the assertion in Dr. Flora’s

answer that Tennessee Code Annotated section 29-26-119 precludes the Plaintiffs from

recovering damages paid by a collateral source. The motion asked the trial court to rule

that the statute does not abrogate the collateral source rule in this case, permit them to seek

the full undiscounted amount of Mr. Crotty’s medical expenses, and prohibit Dr. Flora from

using evidence of insurance or related discounts.

Dr. Flora filed a single response opposing both of the Plaintiffs’ pretrial motions on

fault or causation by any person other than Dr. Flora, including but not limited to Dr.

Wiatrak. Dr. Flora’s response said he had “no intention of asserting comparative fault

against any party or non-party,” including Dr. Wiatrak. Dr. Flora nevertheless opposed the

motions because he “intends to submit evidence that Mr. Crotty’s injury was in part the

5

This holding is not at issue in this interlocutory appeal.

-4-

result of a known complication that occurred during the procedure performed by Dr.

Wiatrak, but not due to any negligent act or omission on the part of Dr. Wiatrak.” Dr. Flora

argued that “[s]uch evidence does not amount to a comparative fault allegation,” so he did

not have to amend his answer to plead fault by Dr. Wiatrak or anyone else under Rule 8.03.

On the collateral source rule issue, Dr. Flora filed his own motion taking the

opposite position from the Crottys. His motion repeated the assertion in his answer that

Tennessee Code Annotated section 29-26-119 applies. Based on Dr. Flora’s interpretation

of that statute, he asked the trial court to exclude evidence of medical expenses not paid by

the Plaintiffs or by insurance they purchased because those were the only medical expenses

the Plaintiffs could recover.

The trial court granted the Crottys’ first general comparative fault motion in limine

as unopposed but held a hearing on the pretrial motion specific to Dr. Wiatrak. After the

hearing, the trial court ruled for the Crottys. It found that “the proffered expert proof that

the events causing the loss of Mr. Crotty’s [k]idney occurred during the subsequent

treatment by Dr. Wiatrak constitutes blame shifting and thus required a specific assertion

of comparative fault by Defendant.”

On the pretrial motions on the collateral source rule, the trial court granted the

motion filed by the Crottys and denied the motion filed by Dr. Flora. Its order stated that

the Plaintiffs’ medical expenses were paid, in whole or in part, by insurance purchased by

the Crottys. Under Tennessee Code Annotated section 29-26-119, it held, the Plaintiffs

could seek the “cost of reasonable and necessary medical care” charged by the provider,

not merely the amounts paid. The trial court said it would let Dr. Flora “make an offer of

proof as to the amounts paid” for Mr. Crotty’s medical care, but under the collateral source

rule, it excluded any evidence of the amounts paid or that the Plaintiffs had health

insurance.

Dr. Flora asked the trial court to reconsider its orders, or let him pursue an

interlocutory appeal. The trial court declined to change its prior orders but granted Dr.

Flora’s motion for interlocutory appeal under Tennessee Rule of Appellate Procedure 9.6

6

Rule 9(a) of the Tennessee Rules of Appellate Procedure provides that:

[A]n appeal by permission may be taken from an interlocutory order of a trial court . . .

only upon application and in the discretion of the trial and appellate court. In determining

-5-

The trial court’s order included excerpts from the hearing transcript in which the trial court

orally summarized the issues for appeal.

Dr. Flora applied for permission to appeal in the Court of Appeals under Tennessee

Rule of Appellate Procedure 9(c), which the Court of Appeals denied. Dr. Flora then

sought permission to appeal in this Court.7 After reviewing the Crottys’ response in

opposition, this Court granted Dr. Flora’s application for permission to appeal.

In contrast to an appeal as of right under Tennessee Rule of Appellate Procedure 3,

“[w]hen dealing with an interlocutory appeal, the Court can and will deal only with those

matters clearly embraced within the question certified to it.” Young v. City of LaFollette,

479 S.W.3d 785, 789 (Tenn. 2015) (alteration in original) (quoting Tenn. Dep’t of Mental

Health & Mental Retardation v. Hughes, 531 S.W.2d 299, 300 (Tenn. 1975)); see also

Wallis v. Brainerd Baptist Church, 509 S.W.3d 886, 896 (Tenn. 2016) (citing Sneed v. City

of Red Bank, 459 S.W.3d 17, 22 (Tenn. 2014)).

Here, the trial court did not precisely frame the issues certified for interlocutory

appeal. However, it generally certified (1) its grant of the Crottys’ motion in limine under

Tennessee Rule of Civil Procedure 8.03 to exclude any comment, argument, or evidence

asserting fault by Dr. Wiatrak or suggesting Dr. Wiatrak caused Mr. Crotty’s injuries; and

(2) its order on the collateral source rule, permitting the Crottys to put on evidence of the

full undiscounted amount of Mr. Crotty’s medical expenses charged by the providers,

whether to grant permission to appeal, the following, while neither controlling nor fully

measuring the courts’ discretion, indicate the character of the reasons that will be

considered: (1) the need to prevent irreparable injury, . . . (2) the need to prevent needless,

expensive, and protracted litigation, . . . and (3) the need to develop a uniform body of law

....

Tenn. R. App. P. 9(a). Rule 9(b) continues, “When the trial court is of the opinion that an order, not

appealable as of right, is nonetheless appealable, the trial court shall state in writing the specific issue or

issues the court is certifying for appeal and the reasons for its opinion.” Tenn. R. App. P. 9(b).

7

Dr. Flora characterized his request to this Court as an “Application for an Extraordinary Appeal

from the Denial of a Rule 9 Application” sought under Tennessee Rule of Appellate Procedure 10. In an

order entered on December 14, 2021, we clarified that under Tennessee Rule of Appellate Procedure 9(c),

Dr. Flora’s request was properly brought as an application for permission to appeal under Tennessee Rule

of Appellate Procedure 9, not Rule 10. The Court deemed Dr. Flora’s application to be otherwise timely

and opted to treat it as a Rule 11 application.

-6-

letting Dr. Flora make an offer of proof on the amounts actually paid by the Crottys, but

prohibiting Dr. Flora from revealing those amounts or the existence of health insurance to

the jury.8

ANALYSIS

We consider first Rule 8.03 of the Tennessee Rules of Civil Procedure and the trial

court’s exclusion of any comment, argument, or evidence suggesting that Dr. Wiatrak was

at fault or caused Mr. Crotty’s injuries. We then turn to the issue on the collateral source

rule.

I. Rule 8.03

Here, the Defendant seeks to introduce evidence that the damage to Mr. Crotty’s

ureter actually occurred during the first procedure performed by Dr. Wiatrak, six days after

the procedure performed by Dr. Flora. For purposes of this appeal, it is undisputed that

Dr. Flora did not amend his answer to affirmatively plead comparative fault by anyone,

including Dr. Wiatrak.9

8

The trial judge’s order granting permission for the interlocutory appeal included the following

excerpt from the transcript of the hearing, in which he orally outlined the issues for appeal:

But I tend to agree, you know, I think I’ve settled on what I believe the statute says about

the medical expenses and how they’re to be treated in a healthcare liability case. You

know, and Dedmon is a personal injury case. It’s not a healthcare liability case. And

healthcare liability statutes have treated medical expenses a little differently. But I tend to

agree with Ms. Stewart. The language is very confusing in the Health Care Liability Act

regarding medical expenses. And it seems to be in places contradictory. But I’ve tried to

make peace with all that and tried to figure out—you know, you’ve got to land on

something. You’ve got to make a decision. So I’ve made peace with it and think I

understand it. But I don’t think it would hurt to take another look at that. I think the bigger

issue is the blame-shifting issue. That really needs a look by the appellate courts. And I

understand that argument. I’ve got that same exact issue coming up this Friday. And it—

it’s very puzzling and confusing. But what I’m going to come down on, until I’m told

otherwise, is 8.03 requires the defendant to name somebody to shift the blame to.

Transcript of Record in Vol. 8 at 1010–11 (32:24–33:22), Crotty v. Flora, No. 17C-614.

9

In this Court, Dr. Flora argues that his answer satisfied his obligations under Rule 8.03, citing

Bidwell ex rel. Bidwell v. Strait, 618 S.W.3d 309 (Tenn. 2021) and Romine v. Fernandez, 124 S.W.3d 599

-7-

Dr. Flora argues that that Rule 8.03 of the Tennessee Rules of Civil Procedure does

not apply to this situation because the evidence regarding Dr. Wiatrak only negates the

causation element of the Crottys’ case, and Dr. Flora does not assert that Dr. Wiatrak was

negligent or at fault. For that reason, Dr. Flora insists, he was not required under Rule 8.03

to identify Dr. Wiatrak in his answer as an alleged tortfeasor. Dr. Flora also argues that an

interpretation of Rule 8.03 that would require him to name Dr. Wiatrak in his answer would

put Rule 8.03 in conflict with a provision of the Health Care Liability Act that requires

defendants who allege fault against a nonparty to file a “certificate of good faith” showing

their “good faith basis” for alleging “fault” by the nonparty. See Tenn. Code. Ann. § 29-

26-122(b) (2012).

A. Comparative Fault

In 1992, this Court issued its landmark decision in McIntyre v. Balentine, replacing

traditional contributory negligence with a common law system of modified comparative

fault. 833 S.W.2d 52, 55–56 (Tenn. 1992). “Concepts of fairness and efficiency are the

basis of comparative fault.” Owens v. Truckstops of Am., 915 S.W.2d 420, 424 (Tenn.

1996) (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 67, at 468–

70 (5th ed. 1984); McIntyre, 833 S.W.2d at 56, 58)). The adoption of a comparative fault

(Tenn. Ct. App. 2003). He points to passages in his answer that include generic references to comparative

fault and an independent intervening cause, and a later response to an interrogatory in which he associated

Mr. Crotty’s alleged injury with his subsequent treatment. In this way, Dr. Flora now claims, he sufficiently

invoked comparative fault as to Dr. Wiatrak and complied with Rule 8.03. This argument appears

inconsistent with our reasoning in Moreno v. City of Clarksville, 479 S.W.3d 795, 807–08 (Tenn. 2015)

(citing with approval Shaffer v. Memphis Airport Auth., Serv. Mgmt. Sys., Inc., No. W2012-00237-COA-

R9-CV, 2013 WL 209309, at *8 (Tenn. Ct. App. Jan. 18, 2013) (holding that a discovery response is not

an answer under Tennessee Code Annotated section 20-1-119)). But, in any event, this argument was not

made to the trial court, and in fact is at odds with Dr. Flora’s assertion to the trial court: “Dr. Flora has no

intention of asserting comparative fault against any party or non-party.” We therefore decline to consider

that argument in this appeal.

Dr. Flora also suggests that, notwithstanding the requirements of Rule 8.03, the evidence he seeks

to utilize should be admissible because its substance could or should have been included in Dr. Wiatrak’s

original operative report and is necessary to avoid misleading the jury. We view this question as outside

the scope of the issue described by the trial court in its grant of permission for an interlocutory appeal in

this case.

-8-

system was intended to achieve “a more just apportionment of fault between plaintiffs and

defendants.” Austin v. State, 222 S.W.3d 354, 357 (Tenn. 2007).

In that spirit, the McIntyre Court limited10 the doctrine of joint and several liability.

833 S.W.2d at 58. In its stead, McIntyre held:

[F]airness 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 this nonparty the percentage of the total

negligence for which he is responsible. However, in order for a plaintiff to

recover a judgment against such additional person, the plaintiff must have

made a timely amendment to his complaint and caused process to be served

on such additional person. Thereafter, the additional party will be required

to answer the amended complaint. The procedures shall be in accordance

with the Tennessee Rules of Civil Procedure.

Id. Thus, under the new procedures outlined in McIntyre, defendants in negligence cases

could allege “as an affirmative defense” that a nonparty “caused or contributed to” the

injury or damage for which the plaintiff sought recovery. Id. The holding, however,

created a potential statute of limitations predicament for plaintiffs. What if a defendant

asserted that a nonparty caused or contributed to the injury after the statute of limitations

had run? In that situation, the plaintiff would be deprived of the opportunity to bring the

nonparty into the lawsuit.

Shortly after McIntyre, Tennessee’s General Assembly embraced the Court’s

adoption of comparative fault and enacted a statute to address precisely this predicament.11

See Bidwell ex rel. Bidwell v. Strait, 618 S.W.3d 309, 323 (Tenn. 2021). Tennessee Code

10

Joint and several liability remains applicable in limited circumstances. See, e.g., Owens v.

Truckstops of Am., 915 S.W.2d 420, 433 (Tenn. 1996) (“[T]he adoption of comparative fault did not alter

that products liability law under which the liability of defendants in the chain of distribution of a product,

who are liable under a theory of strict liability, is joint and several.”).

11

Act effective May 19, 1993, ch. 407 § 1, 1993 Tenn. Pub. Acts (codified as Tenn. Code Ann. §

20-1-119).

-9-

Annotated section 20-1-119, sometimes called the “comparative fault savings statute,”12

provides a ninety-day “grace period” for plaintiffs to amend their complaint to add as a

defendant a nonparty “alleged by a defendant to have caused or contributed to the plaintiff’s

injury, even if the statute of limitations . . . has expired.”13 Bidwell, 618 S.W.3d at 324

(citing Tenn. Code Ann. § 20-1-119 (2021 & Supp. 2023).

Around the same time, the Court amended Rule 8.03 of the Tennessee Rules of Civil

Procedure to add comparative fault to the list of affirmative defenses.14 The official

12

See, e.g., 1 Lawrence A. Pivnick, Tennessee Circuit Court Practice § 1.7 n.1 (Dec. 2022)

13

That statute currently provides:

(a)(1) 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 that 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 that person’s fault either:

(A) Amend the complaint to add the person as a defendant . . .; or

(B) Institute a separate action against that person . . . .

....

(b) A cause of action brought within ninety (90) days pursuant to subsection (a) shall not

be barred by any statute of limitations.

Tenn. Code Ann. § 20-1-119 (2023). This section has been amended three times since its original passage:

once in 1999 to add a provision addressing governmental entities, a second time in 2009 to incorporate

minor clerical changes not relevant here, and a third time in 2023 to add a section specifying that a defendant

in a civil action where comparative fault is an issue includes an insurance company that issued an uninsured

motor vehicle coverage policy and was served with process.

14

Following other amendments not relevant here, that rule now reads:

In pleading to a preceding pleading, a party shall set forth affirmatively facts in short and plain

terms relied upon to constitute accord and satisfaction, arbitration and award, express assumption

of risk, comparative fault (including the identity or description of any other alleged tortfeasors),

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comment to this amendment by the Court’s Advisory Commission on the Rules of Practice

and Procedure cautioned: “Note that the defendant must identify or describe other alleged

tortfeasors who should share fault, or else the defendant normally would be barred from

shifting blame to others at trial.” Tenn. R. Civ. P. 8.03, adv. comm. cmt. (1993). The

Court envisioned that section 20-1-119 and Rule 8.03 would work in tandem to effectuate

the objectives of the comparative fault system. See, e.g., Owens, 915 S.W.2d at 425

(commenting that, had the plaintiff’s cause of action arisen after McIntyre and after the

enactment of section 20-1-119, the defendant “still would have the right to assert that

[nonparties] caused or contributed to the plaintiff’s injury, and the plaintiff would have the

right, for 90 days under Section 20-1-119, to assert a claim against such person or persons”

(citing Tenn. R. Civ. P. 8.03 and 14.01)).

B. George v. Alexander, Section 20-1-119, and Rule 8.03

Soon after McIntyre, the enactment of section 20-1-119, and the amendment of Rule

8.03, the Court considered an appeal involving a situation similar to this appeal. In George

v. Alexander, the plaintiff sued two anesthesiologists after she allegedly suffered nerve

damage during a surgical procedure. 931 S.W.2d 517, 519 (Tenn. 1996). The defendants

denied any negligence and reserved the right to amend their answer to assert “additional

defenses” as discovery warranted. Id. In discovery, the defendants claimed they “had no

definitive opinion” about the cause of the plaintiff's injuries. Id. They never amended their

answer to affirmatively plead any additional defenses under Rule 8.03. Id.

Prior to trial, the George defendants sought to introduce expert testimony asserting

that the plaintiff’s injuries were actually caused by the nonparty surgeon’s positioning of

the patient’s body later in the procedure. Id. at 519–20. The plaintiff moved to exclude

the testimony, which the trial court denied. Id. at 520. The expert testimony was admitted,

discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches, license,

payment, release, res judicata, statute of frauds, statute of limitations, statute of repose, waiver,

workers’ compensation immunity, and any other matter constituting an affirmative defense. When

a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the

court, if justice so requires, shall treat the pleading as if there had been a proper designation.

Tenn. R. Civ. P. 8.03 (emphasis added).

- 11 -

and the jury found in favor of the defendant anesthesiologists. Id. The plaintiff appealed

to this Court. Id.

The question in George centered on the proper application of Rule 8.03. The

plaintiff argued that the expert testimony shifted the blame for the injuries away from the

defendants and onto the nonparty surgeon who positioned the plaintiff’s body, so Rule 8.03

required the defendants to affirmatively plead the surgeon's comparative fault as a defense.

Id. The defendants argued they had no such duty because they sought only to show that

the nonparty surgeon was the cause in fact of the plaintiff’s injuries, not that he was

negligent or legally at fault. Id. at 520–21. Because the testimony only involved one

element of negligence—cause in fact—Rule 8.03 never came into play and the testimony

was admissible even absent an amendment to the defendant’s answer. Id. at 521.

The George Court characterized the defendants’ argument as “plausible at first

blush,” but nevertheless rejected it:

[T]he defendants’ position ignores the fact that “blame-shifting” in a

negligence context actually has to do with the element of causation in fact.

Once the defendant introduces evidence that another person’s conduct fits

this element, it has effectively shifted the blame to that person. Therefore, if

the defendants’ position were to be accepted, any defendant wishing to

transfer blame to another person at trial could always maintain that it is not

trying to show that the other’s conduct satisfies the legal definition of

negligence, but that it is merely trying to establish that the other person’s

conduct actually caused the injury. In the latter situation, however, the

defendant has fully accomplished what Rule 8.03 was intended to prevent: it

has effectively shifted the blame to another person without giving the

plaintiff notice of its intent to do so. Therefore, the purpose of Rule 8.03

would be undermined to a substantial degree if the defendants’ overly

technical argument were to prevail.

Id. at 521 (emphasis in original).

Justice Lyle Reid penned a separate opinion in George, concurring only in the

judgment. Id. at 522 (Reid, J., concurring in the judgment). In his view, the testimony was

excludable under Rule 8.03 only to the extent that it established negligence by the surgeon

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in positioning the plaintiff’s body. Id. at 527. Under Justice Reid’s preferred approach, a

defendant could introduce evidence of an alternate cause in fact without affirmatively

pleading comparative fault under Rule 8.03, but could not do so if that evidence also

established negligence by a nonparty. Id.

The majority in George remained unpersuaded:

[I]f the position advocated by defendants and the concurrence were to

prevail, then the defendant, by carefully limiting its evidence of another

person’s role in causing the injuries to the element [of] causation in fact,

could completely and effectively shift the blame to that person without

affording the plaintiff any notice whatsoever of its intent. A defendant would

still be justified in totally surprising the plaintiff and foisting the blame on

other persons, a result that violates the purpose of Rule 8.03.

Id. at 521–22. Thus, George emphasized that Rule 8.03 requires defendants to be

transparent, to give plaintiffs notice and a fair opportunity to bring into the litigation a

nonparty who allegedly contributed to the plaintiff’s injury. It held that, if a defendant in

a negligence case asserts that a nonparty was a cause-in-fact of the plaintiff’s injury, this

amounts to “blame-shifting” that triggers a defendant’s duty under Rule 8.03 to

affirmatively plead that allegation, even if the defendant does not accuse the nonparty of

negligence. Id. at 521.

Since that decision, as predicted in Owens, the Court has applied Rule 8.03 and

section 20-1-119 in a harmonious way to implement the “[c]oncepts of fairness and

efficiency [that] are the basis of comparative fault.” Owens, 915 S.W.2d at 424 (citations

omitted). For example, in Brown v. Wal-Mart Disc. Cities, the plaintiff was injured by

slipping in spilled water and ice while in a store owned by defendant Wal-Mart. 12 S.W.3d

785, 786 (Tenn. 2000). The person who spilled the water and ice was never identified. Id.

At trial, the jury was permitted to consider the fault of the unknown tortfeasor who spilled

the water, and it attributed 70% of the fault to that person. Id. Ruling on the plaintiff’s

motion for a new trial, however, the trial judge concluded it had erred in letting the jury

assign fault to the unidentified tortfeasor and issued an order holding the defendant liable

for 100% of the judgment. Id. The Court of Appeals affirmed, and the defendant appealed

to this Court. Id. at 787.

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On appeal, the Court in Brown described Rule 8.03 as “a rule of pleading which

allows a defendant to allege that a nonparty contributed to the plaintiff’s damages,

ultimately allowing the plaintiff to plead and serve, and the trier of fact to assign fault to,

the comparative tortfeasor alleged in defendant’s answer.” Id. Under Rule 8.03, the Court

said, “either the identity or a description of another potential tortfeasor is sufficient” to let

the parties conduct discovery. Id. (citing George, 931 S.W.2d at 521–22).

The Brown Court then pointed out that section 20-1-119 enables plaintiffs “to plead

and serve nonparties alleged in a defendant’s answer as potential tortfeasors,” even if the

statute of limitations has run as to the nonparties. Id. at 788. Thus, it said, the statute

“contemplates that the plaintiff will actually know the identity of the alleged individual or

entity.” Id. The Court reviewed how other jurisdictions interpreted their “comparative

fault statute[s] and rules of pleading.” Id. Ultimately, considering Rule 8.03, George, and

section 20-1-119, Brown held that, “unless the nonparty is identified sufficiently to allow

the plaintiff to plead and serve process on such person pursuant to Tenn. Code Ann. § 20-

1-119, the trial court should not permit the attribution of fault to the nonparty.” Id. at 787–

88.

Similarly, in Austin v. State, this Court considered whether plaintiffs can rely on the

90-day grace period in section 20-1-119 to sue nonparties if a defendant’s answer does not

explicitly allege comparative fault under Rule 8.03. 222 S.W.3d 354 (Tenn. 2007). The

plaintiffs in Austin were injured in a car accident and sued the county for negligence in

signage and maintenance of the intersection. Id. at 355–56. The county’s answer asserted

that the intersection was under the control of the State, not the county. Id. at 356. The

plaintiffs then filed a complaint against the State, which responded with a motion for

summary judgment based on expiration of the statute of limitations. Id. The plaintiffs

argued they could rely on the ninety-day grace period in section 20-1-119, even though the

county did not assert comparative fault in its answer. Id. The trial court granted summary

judgment for the State, and the Court of Appeals affirmed. Id. The plaintiffs then appealed

to this Court. Id.

The defendant State in Austin argued that section 20-1-119 was never triggered

because the county’s answer did not explicitly allege that a nonparty caused or contributed

to the plaintiff's injury. Id. at 357. The Court disagreed. It noted that past cases had

rejected narrow construction of section 20-1-119 and stressed that “a plaintiff should not

be denied an opportunity to recover against that potential tortfeasor simply because a

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defendant’s answer did not follow a precise legal formula.” Id. at 357–58 (citing Romine

v. Fernandez, 124 S.W.3d 599, 604–05 (Tenn. Ct. App. 2003). Concomitantly, under Rule

8.03:

A defendant is not required to allege the fault of the nonparty explicitly or

use the words “comparative fault.” Consistent with the liberal pleading

standards of the Tennessee Rules of Civil Procedure, the determination of

whether comparative fault is an issue cannot turn on the presence or absence

of such precise language.

Id. at 358 (citing Karash v. Pigott, 530 S.W.2d 775, 777 (Tenn. 1975)).

Consistent with George’s reasoning on blame-shifting, the Austin Court explained

that, although the county’s answer did not explicitly allege that the State was at fault, “the

clear implication of the allegation that the State controlled the stop sign is that any

negligence in the placement or maintenance of the stop sign should be attributed to the

State.” Id. at 358. It rejected the State’s argument that the county’s answer did not assert

comparative fault but instead asserted a “general defense” that simply denied all fault. Id.

at 358–59. The Court concluded that the county’s answer “raise[d] the affirmative defense

of comparative fault,” so the plaintiffs could rely on the ninety-day grace period in section

20-1-119 to sue the State. Id. at 359.

Since then, this Court has commented that construing section 20-1-119 as a remedial

statute is “consistent with the liberal pleading standards of the Tennessee Rules of Civil

Procedure,” citing Rule 8.03. Bidwell, 618 S.W.3d at 324 (citing Austin, 222 S.W.3d at

358). It has eschewed narrow construction of either Tennessee Code Annotated section

20-1-119 or Rule 8.03, and has instead applied them synergistically, “in a manner

consistent with the concepts of fairness and efficiency that underlie the comparative fault

system.” Id. (quoting Austin, 222 S.W.3d at 357).

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C. Defendant’s Argument

Here, Dr. Flora seeks to submit evidence at trial that Mr. Crotty’s injury occurred

during the procedure performed by Dr. Wiatrak, but Dr. Flora does not seek to prove that

Dr. Wiatrak was negligent. He argues that that Rule 8.03 does not apply because the

evidence about Dr. Wiatrak is part of his general defense; it negates a required element of

the Crottys’ case, namely, causation. Dr. Flora emphasizes that he does not believe Dr.

Wiatrak was negligent or a tortfeasor legally at fault for Mr. Crotty’s injuries.

Dr. Flora points out that Rule 8.03 requires a responsive pleading to “set forth

affirmatively facts in short and plain terms relied upon to constitute . . . comparative fault

(including the identity or description of any other alleged tortfeasors).” Tenn. R. Civ. P.

8.03 (emphasis added). Because he does not assert “fault” by Dr. Wiatrak or that Dr.

Wiatrak is a “tortfeasor,” he argues, Rule 8.03 did not require him to set forth facts

supporting the affirmative defense of comparative fault.

This is a fair point. The language in Rule 8.03 does use the terms “fault” and

“tortfeasor.” Unfortunately for Dr. Flora, however, that argument was made—and

rejected—in George v. Alexander. Indeed, the Court in George specifically called out the

very thing that happened: “[T]he defendant, by carefully limiting its evidence of another

person’s role in causing the injuries to the element of causation in fact, could completely

and effectively shift the blame to that person without affording the plaintiff any notice

whatsoever of its intent.” 931 S.W.2d at 521. Dr. Flora’s interpretation would justify

“totally surprising the plaintiff and foisting the blame on other persons, a result that violates

the purpose of Rule 8.03.” Id. at 521–22. George noted that such an interpretation would

eviscerate the transparency Rule 8.03 requires: “[A]ny defendant wishing to transfer blame

to another person at trial could always maintain that it is not trying to show that the other’s

conduct satisfies the legal definition of negligence, but that it is merely trying to establish

that the other person’s conduct actually caused the injury.” Id. at 521 (emphasis in

original).

For that reason, Dr. Flora can hardly claim surprise that his decision not to even

mention Dr. Wiatrak in his answer resulted in the trial court’s decision under Rule 8.03 and

George to exclude evidence suggesting Dr. Wiatrak was the cause in fact of Mr. Crotty’s

injuries. As in Austin, even though Dr. Flora does not explicitly allege that Dr. Wiatrak

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was at fault, “the clear implication of the allegation” that Mr. Crotty’s injuries occurred

during Dr. Wiatrak’s surgery “is that any negligence . . . should be attributed to” Dr.

Wiatrak, not Dr. Flora. See Austin, 222 S.W.3d at 358. The allegation makes Dr. Wiatrak

a potential tortfeasor. This is precisely what George described as “blame-shifting.” 931

S.W.2d at 521.15

Citing recent amendments to the Health Care Liability Act, Dr. Flora nevertheless

argues that, if we fail to overrule George, calamity awaits. He argues that George puts

Rule 8.03 squarely in conflict with Tennessee Code Annotated section 29-26-122(b),16

which requires defendants who allege fault against a nonparty to file a “certificate of good

15

Dr Flora also contends George does not apply to this case based on a comment in King v.

Anderson County, that “[c]ause in fact or ‘actual cause’ means ‘that the injury or harm would not have

occurred ‘but-for’ the defendant’s negligent conduct.” 419 S.W.3d 232, 246 (Tenn. 2013) (quoting

Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993)). From this, Dr. Flora argues that “causation in

fact,” as the term is used in George, refers solely to an element of negligence. Consequently, Dr. Flora

argues that absent some accompanying evidence of negligence by Dr. Wiatrak, the evidence he sought to

use at trial is not the sort of evidence referred to in George. Respectfully, this argument is essentially a re-

packaging of the approach Justice Reid advocated in his George concurrence, which was soundly rejected

by the George majority. See 931 S.W.2d at 521–22.

16

Tennessee Code Annotated section 29-26-122(b) provides:

(b) Within thirty (30) days after a defendant has alleged in an answer or amended answer

that a non-party is at fault for the injuries or death of the plaintiff and expert testimony is

required to prove fault as required by § 29-26-115, each defendant or defendant’s counsel

shall file a certificate of good faith stating that:

(1) The defendant or defendant’s counsel has consulted with one (1) or more

experts, which may include the defendant filing the certificate of good faith, who have

provided a signed written statement confirming that upon information and belief they:

(A) Are competent under § 29-26-115 to express an opinion or opinions in the

case; and

(B) Believe, based on the information reviewed concerning the care and treatment

of the plaintiff for the incident or incidents at issue, that there is a good faith basis to allege

such fault against another consistent with the requirements of § 29-26-115 . . . .

Tenn. Code. Ann. § 29-26-122(b)(1).

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faith” showing there is “a good faith basis to allege such fault against another . . . .” Tenn.

Code Ann. § 29-26-122(b)(1)(B).

On Defendant’s telling, section 29-26-122(b) puts him in a bind. Because he does

not assert Dr. Wiatrak was negligent, it is not possible for him to comply with the good-

faith certificate requirement. That in turn prevents him from pleading “facts in short and

plain terms” to support his alternate cause-in-fact allegation under Rule 8.03 as interpreted

in George. Because George leaves him caught between a rock and a hard place, Dr. Flora

insists, George must yield to this provision in the Health Care Liability Act.

The procedural posture of this case does not require us to resolve whether Dr. Flora

would have been required under section 29-26-122(b) to file a certificate of good faith, had

he amended his answer to allege that Mr. Crotty’s injury occurred during the procedure

performed by Dr. Wiatrak, rather than the procedure performed by Dr. Flora.17 We need

only determine whether section 29-26-122(b) makes it necessary for us to reverse or

modify George. It does not.

As a whole, the Health Care Liability Act compels transparency and early disclosure

of all parties’ allegations and the factual basis for those allegations, to facilitate early

resolution of claims if that is possible and fairness at trial if it is not. See, e.g., Stevens ex

rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 554 (Tenn. 2013)

(noting statutory provisions that establish an “express notice requirement”; “facilitate early

resolution of healthcare liability claims by requiring plaintiffs to advise defendants who

the plaintiff is, how to reach him or her, and how to contact his or her attorney”; and “serve

17

In the alternative, Dr. Flora cites other statutes related to section 29-26-122(b) to predict

“travesty” in the form of near-limitless obligations for defendants if we decline to overrule George. Dr.

Flora observes that section 29-26-122(b) cross-references section 29-26-115, which outlines the burden of

proof for a claimant who asserts negligence. See Tenn. Code Ann. § 29-26-115. Dr. Flora also points out

a third statute stating that a defendant’s failure to file a good faith certificate after alleging fault of a nonparty

make the allegations “subject to being stricken with prejudice.” Tenn. Code Ann. § 29-26-122(c). If

George continues to require defendants to include in their answer allegations about alternative causes-in-

fact of plaintiffs’ injuries, Dr. Flora claims, health care defendants will have no choice but to plead

comparative fault and file good faith certificates as to each and every clinical provider who treated a

plaintiff. Respectfully, George and the provisions of the Health Care Liability Act cited by Dr. Flora have

co-existed for over a decade, and we have not yet seen indications that the scenario Dr. Flora predicts has

come to pass. Regardless, in the procedural posture of this case, we need not rule on what Dr. Flora’s

statutory obligations would have been had he included in his answer an allegation that Mr. Crotty’s injuries

occurred during the procedure by Dr. Wiatrak.

- 18 -

an investigatory function, equipping defendants with the actual means to evaluate the

substantive merits of a plaintiff’s claim by enabling early discovery of potential co-

defendants and early access to a plaintiff’s medical records.”). Section 29-26-122(b)

specifically compels transparency and early disclosure. It requires a party who alleges fault

by a nonparty to show the basis for that allegation, to let the opposing party to evaluate it,

conduct discovery, and decide whether to bring the nonparty into the litigation. These

provisions promote the goals of the comparative fault system: fairness, efficiency, and a

just apportionment of fault.

Rule 8.03 and section 20-1-119, as interpreted by this Court, interact to accomplish

those same goals. In Brown, we described Rule 8.03 as a rule intended to “allow[] a

defendant to allege that a nonparty contributed to the plaintiff's damages” and let the

plaintiff bring that nonparty into the litigation, while section 20-1-119 enables a plaintiff

to plead in such nonparties even if “the statute of limitations would otherwise bar the

plaintiff’s cause of action against the comparative tortfeasor alleged in defendant’s

answer.” Brown, 12 S.W.3d at 787–88. It would be passing strange for us to hold that, by

enacting statutes that compel transparency and facilitate fairness, efficiency, and a just

apportionment of fault, the legislature intended to abrogate nearly two decades of

comparative fault jurisprudence advancing those same goals.

As explained in Austin, Rule 8.03 does not require defendants “to allege the fault of

the nonparty explicitly or use the words ‘comparative fault.’” Austin, 222 S.W.3d at 358.

It does not require “precise language.” Id. In Austin, the county’s mere allegation that the

State controlled the intersection where the accident occurred was enough to let the plaintiff

bring the State into the litigation under section 20-1-119. Id. Here, Dr. Flora put nothing

in his answer to afford the Crottys that same opportunity. We are not persuaded that section

29-26-122(b) left Dr. Flora no choice but to omit from his answer anything that would have

told the Crottys he intended to “effectively shift the blame to” Dr. Wiatrak. See George,

931 S.W.2d at 521.

In short, though Dr. Flora insists the Court must overturn George, he has not offered

a convincing argument why doing so is necessary. “We are mindful that the power of this

Court to overrule former decisions is very sparingly exercised and only when the reason is

compelling.” Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 262 (Tenn.

2015) (internal quotation marks and citation omitted). We have described the types of

reasons that might qualify: “Generally, well-settled rules of law will be overturned only

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when there is obvious error or unreasonableness in the precedent, changes in conditions

which render the precedent obsolete, the likelihood that adherence to precedence would

cause greater harm to the community than would disregarding stare decisis, or an

inconsistency between precedent and a constitutional provision.” In re Estate of

McFarland, 167 S.W.3d 299, 306 (Tenn. 2005). None are present here.

Accordingly, we respectfully decline to modify our holding in George. We hold

that the trial court did not err in applying Rule 8.03 and George to exclude evidence at trial

that the injury to Mr. Crotty’s ureter occurred during the procedure performed by Dr.

Wiatrak.

II. Application of Collateral Source Rule

The second issue in this case requires us to consider the effect of the Health Care

Liability Act on the common law collateral source rule. As outlined above, the parties here

filed cross-motions in limine regarding evidence of Mr. Crotty’s medical expenses that

would be admitted at trial. The Crottys’ motion argued that Tennessee Code Annotated

section 29-26-119 does not apply because Mr. Crotty fits within the express exception in

the statute. The motion asked the trial court to permit the Plaintiffs to submit evidence of

the full, undiscounted amount of Mr. Crotty’s medical expenses and, under the collateral

source rule, prohibit Dr. Flora from introducing evidence of insurance or related discounts

on medical fees. Dr. Flora’s cross-motion asserted that Tennessee Code Annotated section

29-26-119 precludes Plaintiffs from recovering, or introducing evidence of, the amount of

medical bills charged but never paid by Plaintiffs or their insurance. Based on Dr. Flora’s

interpretation of the statute, his cross-motion asked the trial court “to exclude any mention

or introduction of evidence regarding medical expenses that were not paid by Plaintiffs or

paid by insurance that Plaintiffs actually purchased.”

The trial court granted the Plaintiffs’ motion and denied Dr. Flora’s motion. It

reasoned:

Because Plaintiff’s claimed medical expenses were paid in whole or in part

by insurance purchased in whole or in part privately and individually, the

Court finds that Tenn. Code Ann. § 29-26-119 permits Plaintiff to claim the

“cost of reasonable and necessary medical care” and that “cost of reasonable

and necessary medical care” refers to the amount charged by the provider,

- 20 -

not the amount paid. Defendant may make an offer of proof as to the amounts

paid for the medical care at issue, but otherwise the collateral source rule is

in full force and effect and neither the amounts paid nor the fact that Plaintiff

had health insurance may be disclosed to the jury.

On appeal, Dr. Flora and amicus curiae Tennessee Defense Lawyers Association

argue that Tennessee Code Annotated section 29-26-119 abrogated the collateral source

rule in health care liability cases like this one. They maintain that the trial court erred in

applying the collateral source rule to let the Plaintiffs submit evidence of undiscounted

medical expenses and prohibit Dr. Flora from submitting evidence of medical expenses

actually paid by the Plaintiffs or their insurance.

The collateral source rule is a longstanding common law doctrine. In Dedmon v.

Steelman, this Court explained it by quoting the Restatement (Second) of Torts:

The collateral source rule as applied in Tennessee and elsewhere is

succinctly articulated in the widely-cited Section 920A of the Restatement

(Second) of Torts:

(1) A payment made by a tortfeasor or by a person acting for him to a

person whom he has injured is credited against his tort liability, as are

payments made by another who is, or believes he is, subject to the

same tort liability.

(2) Payments made to or benefits conferred on the injured party from

other sources are not credited against the tortfeasor’s liability,

although they cover all or a part of the harm for which the tortfeasor

is liable.

535 S.W.3d 431, 442 (Tenn. 2017) (quoting Restatement (Second) of Torts § 920A (1977)

(entitled “Effect of Payments Made to Injured Party”)).

As reflected in this Restatement section, the collateral source rule is both a

substantive rule of law and an evidentiary rule. Id. at 443. “Substantively, it affects the

amount of damages that may be awarded against a defendant by prohibiting reduction of a

plaintiff’s recovery by benefits from sources unrelated to the tortfeasor.” Id. “The

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evidentiary component of the collateral source rule flows from the rule of law. If a

plaintiff’s recovery may not be reduced by collateral benefits, then ‘evidence that a plaintiff

has received benefits or payments from a collateral source independent of the tortfeasor’s

procuration or contribution’ must be excluded.” Id. at 444 (quoting Bozeman v. State, 879

So.2d 692, 699 (La. 2004)). Thus, in personal injury cases where the collateral source rule

applies, plaintiffs may submit evidence of the injured party’s full, undiscounted medical

bills as proof of the party’s “reasonable medical expenses,” and defendants are precluded

from submitting evidence of discounted amounts for medical services accepted by medical

providers because of the injured party’s insurance. Id. at 467.

The issue in this appeal centers on the trial court’s ruling on the evidentiary issue.

Generally, the admissibility of evidence is within the sound discretion of the trial court,

and its decision to admit or exclude evidence is overturned on appeal only when there is

an abuse of discretion. Borne v. Celadon Trucking Servs. Inc., 532 S.W.3d 274, 294 (Tenn.

2017) (internal citations omitted). An abuse of discretion may occur, however, if the trial

court applies an incorrect legal standard. Id. The question here, then, is whether the trial

court erred in holding that “the collateral source rule is in full force and effect” in this case.

On appeal, Dr. Flora argues that Tennessee Code Annotated section 29-26-119

abrogates the collateral source rule, so the trial court abused its discretion by applying an

incorrect legal standard. Addressing this question requires us to interpret the statute.

As a prefatory matter, we note that the trial court’s order on the parties’ cross-

motions stated that Mr. Crotty’s “claimed medical expenses were paid in whole or in part

by insurance purchased in whole or in part privately and individually.” This language in

the trial court’s order mirrors part of the language in the statute. See Tenn. Code Ann. §

29-26-119. Though the trial court’s framing of the issue on appeal was not precise, both

the trial court and the parties focused on the proper interpretation of section 29-26-119 and

not the underlying facts on precisely how Mr. Crotty’s insurance was purchased and how

the medical expenses were paid.18 Consequently, for this appeal, we focus our analysis on

18

The plaintiffs’ pretrial motion suggested that there is no factual dispute between the parties

regarding Mr. Crotty’s insurance and referred to supporting testimony and documentation. On review, it

appears that the appellate record may not contain all the evidence pertinent to the trial court’s finding.

However, neither party has argued before this Court that the evidence preponderates against the trial court’s

factual finding or asserted that the factual finding itself was an abuse of discretion. See Tenn. R. App. P.

13(d); Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (“A court abuses its discretion

- 22 -

the legal issue and defer to the trial court’s conclusion that Mr. Crotty’s claimed medical

expenses were paid “in whole or in part by insurance” that was “purchased in whole or in

part privately and individually.”

On that premise, we proceed. Section 29-26-119 provides:

In a health care liability action in which liability is admitted or established,

the damages awarded may include (in addition to other elements of damages

authorized by law) actual economic losses suffered by the claimant by reason

of the personal injury, including, but not limited to, cost of reasonable and

necessary medical care, rehabilitation services, and custodial care, loss of

services and loss of earned income, but only to the extent that such costs are

not paid or payable and such losses are not replaced, or indemnified in whole

or in part, by insurance provided by an employer either governmental or

private, by social security benefits, service benefit programs, unemployment

benefits, or any other source except the assets of the claimant or of the

members of the claimant’s immediate family and insurance purchased in

whole or in part, privately and individually.

Tenn. Code Ann. § 29-26-119. To say that section 29-26-119 is not a model of

clarity is perhaps an understatement. We proceed methodically.

As a whole, section 29-26-119 addresses what “the damages awarded may include”

in a health care liability action. Id. Thus, it operates directly as to the substantive aspect

of the collateral source rule, because it speaks to “the amount of damages that may be

awarded against a defendant.” Dedmon, 535 S.W.3d at 443. Still, the statute indirectly

affects the evidentiary component of the collateral source rule, which governs evidence

that may be admitted or excluded. Id. at 444. Analysis of section 29-26-119 is important

to determine whether the trial court in this case applied the correct legal standard.

when it causes an injustice to the party challenging the decision by . . . basing its decision on a clearly

erroneous assessment of the evidence.”) Moreover, at oral argument, counsel for the Crottys asserted that

Mr. Crotty had insurance through his employer and the premiums were deducted from his paycheck. See

Robert Crotty, Et Al. v. Mark Flora, M.D., YouTube (Oct. 5, 2022), at 43:44,

https://www.youtube.com/watch?v=zY_qhVcPyvw&list=PLiM19icVezb2pzcgKsFlTXWGZ5_60FALG

&index=8.

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In considering section 29-26-119, it is worth noting that, when it was enacted nearly

50 years ago in 1975, health management organizations (HMOs) were in their incipiency.

See A Brief History of Managed Care, Nat’l Council on Disability,

https://www.ncd.gov/policy/appendix-b-brief-history-managed-care (last visited Aug. 30,

2023). The legislature would not have had in mind the current situation, where HMOs

contractually require health care providers to discount fees and pay insureds’ medical

expenses partly by requiring providers to forgive a portion of them. See Lawson v. Hawkins

Cnty., 661 S.W.3d 54, 59 (Tenn. 2023) (“In interpreting statutory provisions, our role is to

determine how a reasonable reader would have understood the text at the time it was

enacted.” (citing State v. Deberry, 651 S.W.3d 918, 924 (Tenn. 2022))).

In a similar vein, Tennessee Supreme Court cases applying section 29-26-119

appear to simply refer to the claimants’ undiscounted medical fees as their medical

expenses, with no reference to discounted fees. This is consistent with longstanding

common law that allowed plaintiffs to use their full, undiscounted medical bills to show

reasonable and necessary medical expenses. Dedmon, 535 S.W.3d at 466. Based on that

premise, prior Supreme Court cases on section 29-26-119 have not mentioned discounted

fees and have framed the question as whether defendants can get “credit” under the statute

for amounts paid by insurance or other such benefits.

For example, in Nance by Nance v. Westside Hosp., this Court described section 29-

26-119 as having “eliminated as damages that may be awarded against health care

providers, sums paid or payable to victims of medical malpractice from sources identified

therein.” 750 S.W.2d 740, 741 (Tenn. 1988). The opinion framed the question on appeal

as whether worker’s compensation benefits are included in a statute “that gives health care

providers a reduction in damages for benefits available to tort victims from several

specifically named collateral sources ‘or any other source.’” Id. at 741. Nance made no

mention of discounted fees.

Also, in Hunter v. Ura, the Court considered the part of section 29-26-119 at issue

here, the exception for insurance purchased privately. 163 S.W.3d 686, 710–11 (Tenn.

2005). Like Nance, Hunter includes no reference to discounted medical fees. Similar to

Nance, Hunter framed the question as whether the defendant health care providers could

get a “credit” against the jury’s verdict under section 29-26-119 for a payment under the

decedent’s insurance plan. Id. at 691. In its reasoning, the Court noted that because section

29-26-119 “is in derogation of the common law rule that allowed plaintiffs to recover

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medical expenses, whether paid by insurance or not, it must be strictly construed.” Id. at

711. Hunter ultimately held that “the trial court properly applied Tennessee Code

Annotated section 29-26-119 in denying the defendants’ motion for a credit against the

jury’s verdict based on the payment” because the decedent had contributed to the insurance

plan. Id.

Hunter relied heavily on Steele v. Ft. Sanders Anesthesia Group, P.C., a Court of

Appeals decision that also construed the language in section 29-26-119 that creates an

exception for insurance purchased privately. Id. (citing Steele, 897 S.W.2d 270, 282 (Tenn.

Ct. App. 1994)). Hunter favorably cited Steele as holding that section 29-26-119 “permits

a plaintiff to introduce medical expenses when the plaintiff has paid part of the insurance

premium.” Id. (quoting Steele, 897 S.W.2d at 282). Steele likewise does not mention

discounted fees.

Thus, Nance, Hunter, and Steele all appear to permit claimants to submit evidence

of the full, undiscounted medical expenses; none refer to discounted fees. All viewed

section 29-26-119 as addressing whether health care liability defendants could get credit

for medical expenses paid by insurance or similar benefits. These cases form the

backdrop for our consideration of the text of the statute.

At the outset, section 29-26-119 states that, in a health care liability action, “the

damages awarded may include . . . actual economic losses suffered by the claimant.” Tenn.

Code Ann. § 29-26-119. The statute does not define the term “actual economic losses

suffered by the claimant.” Id.

In looking at the phrase “actual economic losses suffered by the claimant,” Black’s

Law Dictionary defines “actual” as “[e]xisting in fact; real.” Actual, Black’s Law

Dictionary (11th ed. 2019). It contrasts “actual” with “constructive,” which means

“[l]egally imputed; existing by virtue of legal fiction though not existing in fact.”

Constructive, Black’s Law Dictionary (11th ed. 2019). The full, undiscounted fees are not

legally imputed costs; they exist. See Arthur v. Catour, 833 N.E.2d 847, 853 (Ill. 2005)

(“[P]laintiff received health-care services and became liable for the resulting expenses

upon receipt of those services, not when the final bill was eventually issued. Her liability

was not somehow nonexistent merely because the providers submitted bills directly to her

insurer.”); see also Lori A. Roberts, Rhetoric, Reality, and the Wrongful Abrogation of the

Collateral Source Rule in Personal Injury Cases, 31 Rev. Litig. 99, 140 (2012) (“[B]ills

- 25 -

sent by medical care providers . . . are real obligations that, but for a plaintiff’s private

health care insurance, the patient would be responsible for satisfying.”). On the front end,

patients typically agree they are liable for all fees. If a patient’s insurance company denies

his claim, the patient gets no benefit from any discounts negotiated by the insurance

company and must pay out of pocket the full, undiscounted fees. Arthur, 833 N.E.2d at

853 (“[I]t is not uncommon for an insurer, upon receipt of such bills, to deny coverage,

leaving the patient/plaintiff personally liable for the balance. For example, the policy might

have lapsed for nonpayment of premiums, or the policy may not cover some services, such

as cosmetic or reconstructive surgery.”); Arthur v. Catour, 803 N.E.2d 647, 650 (Ill. App.

2004), aff’d, 833 N.E.2d 847 (2005) (“Plaintiff was billed over $19,000 [in undiscounted

medical expenses] and, but for her insurance coverage, she was liable for that amount.”)

(emphasis in original).

As a whole, the statute clearly contemplates at least some “losses” that will never

come directly out of the claimant’s pocketbook, such as those that are ultimately paid by

insurance purchased in whole or in part by the claimant. Tenn. Code Ann. § 29-26-119

(“any other source except . . . insurance purchased in whole or in part, privately and

individually”). That suggests the phrase “actual economic losses” is not limited to amounts

actually paid but also includes financial liability incurred by claimants as a result of the

personal injury.

This understanding is consistent with the definition of “loss” in the insurance

context: “the amount of an insured’s financial detriment by death or damage that the insurer

is liable for.” Loss, Merriam-Webster Dictionary, https://www.merriam-

webster.com/dictionary/loss (last visited June 22, 2023); see also Loss, Black’s Law

Dictionary 1132 (11th ed. 2019) (“The amount of financial detriment caused by an insured

person’s death or an insured property’s damage, for which the insurer becomes liable”);

Loss, Am. Heritage Dictionary of the Eng. Language,

https://www.ahdictionary.com/word/search.html?q=loss (last visited June 22, 2023) (“The

amount of a claim on an insurer by an insured”).

We also consider the example of “actual economic losses suffered by the claimant”

listed in the statute that is pertinent to this case—the “cost of reasonable and necessary

medical care.” Tenn. Code Ann. § 29-26-119 (emphasis added). The term “cost” is defined

as “[t]he amount paid or charged for something; price or expenditure.” Cost, Black’s Law

Dictionary 436 (11th ed. 2019) (emphasis added); see also Cost, Merriam-Webster

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Dictionary, https://www.merriam-webster.com/dictionary/cost (last visited June 22, 2023)

(“[T]he amount or equivalent paid or charged for something” (emphasis added)).

Considering these definitions, for an insured claimant, the “cost of reasonable and

necessary medical care” could be read as referring to either the amount charged (the full,

undiscounted bills) or the amount paid (the discounted fees).

We look to applicable principles of statutory construction for guidance. First, to

interpret statutes, courts seek to determine how the statutory text would have been

understood when the statute was enacted. Lawson, 661 S.W.3d at 59 (citation omitted). In

Dedmon, this Court recognized that longstanding common law in Tennessee permits

plaintiffs in personal injury cases to use their full, undiscounted medical bills to satisfy the

burden of proving the reasonable value of medical expenses. 535 S.W.3d at 466. Of

course, Dedmon dealt with common law and not interpretation of a statute, but it shows

how the reasonable value of medical expenses was likely understood when section 29-26-

119 was enacted in 1975. More importantly, section 29-26-119 is in derogation of the

common law collateral source rule, so the statute must “be strictly construed and confined

to [its] express terms.’” Moreno v. City of Clarksville, 479 S.W.3d 795, 809 (Tenn. 2015)

(quoting Doyle v. Frost, 49 S.W.3d 853, 858 (Tenn. 2001)).

Under these principles, the best reading of the phrase “cost of reasonable and

necessary medical care” in section 29-26-119 is the full, undiscounted medical fees. It is

consistent with how the phrase was likely understood when the statute was enacted, and it

comports with Hunter’s directive to construe section 29-26-119 strictly because it “is in

derogation of the common law rule that allowed plaintiffs to recover medical expenses,

whether paid by insurance or not.” Hunter, 163 S.W.3d at 711.

The next segment of section 29-26-119 sets out the circumstances in which the

collateral source rule is abrogated. The statement of what the damages in a health care

liability action “may include” is followed by a qualifier: “but only to the extent that such

costs are not paid or payable . . . by insurance provided by an employer . . . or any other

source.” Tenn. Code Ann. § 29-26-119. This language abrogates the collateral source rule

by limiting awardable damages to “actual economic losses . . . not paid or payable . . . by

insurance . . . or any other source.” Id.

The abrogation provision is followed by the private insurance exception at issue in

this appeal. “Actual economic losses” are those “not paid or payable” by “any . . . source

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except the assets of the claimant or of the members of the claimant’s immediate family and

insurance purchased in whole or in part, privately and individually.” Tenn. Code Ann. §

29-26-119 (emphasis added). Thus, the phrase “paid or payable” applies to both the

abrogation provision and the private insurance exception.19 So we consider what “paid or

payable” means in this context.

In interpreting the phrase “paid or payable,” the term “payable” means a sum that

“may, can, or must be paid.” Payable, Merriam-Webster Dictionary,

https://www.merriam-webster.com/dictionary/payable (last visited June 22, 2023).

Because the insured typically agrees on the front end he is liable for the full, undiscounted

fees, the entire charged amount is “payable” from his perspective. The full, undiscounted

medical fees are typically “paid” in three ways—the insurance company negotiates a

discount under which part of the fees are forgiven, the insurance company pays part of

them out-of-pocket at the discounted rate, and the patient pays the rest out-of-pocket. The

fact that the insurer ultimately pays out-of-pocket a lesser, negotiated amount does not

mean that the charged amount is not “payable.”

Thus, under the statutory private insurance exception, the common law collateral

source rule is not abrogated where the medical costs are “paid or payable” by “assets of the

claimant or of the members of the claimant’s immediate family and insurance purchased

in whole or in part, privately and individually.” Tenn. Code Ann. § 29-26-119. In other

words, if the statutory exception applies, the statute does not preclude application of the

common law collateral source rule.

In health care liability cases where the common law collateral source rule remains

in effect, plaintiffs “may use their full, undiscounted medical bills to satisfy the burden of

proving the reasonable value of medical expenses.”20 Dedmon, 535 S.W.3d at 466.

19

The statute says damages may include actual economic losses “but only to the extent that such

costs are not paid or payable . . . by insurance provided by an employer . . . or any other source”—the

abrogation provision—“except the assets of the claimant or of the members of the claimant’s immediate

family and insurance purchased in whole or in part, privately and individually”—the exception. Tenn.

Code Ann. § 29-26-119 (emphasis added).

20

“To rebut the plaintiffs’ proof that those charges are reasonable, defendants are free to submit

any competent evidence in rebuttal that does not run afoul of the collateral source rule.” Dedmon, 535

S.W.3d at 466 (noting that “a defendant is permitted to introduce relevant evidence regarding necessity,

reasonableness, and whether a claimed service was actually rendered” (quoting Fye v. Kennedy, 991 S.W.2d

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Assuming for purposes of this appeal that Mr. Crotty’s medical expenses were paid “in

whole or in part by insurance” that was “purchased in whole or in part privately and

individually,” the trial court did not err in holding that “the collateral source rule is in full

force and effect” as the premise for its ruling on the parties’ cross-motions in limine.

Accordingly, we affirm the trial court’s evidentiary ruling.

CONCLUSION

For the reasons stated herein, we affirm the decisions of the trial court on the

motions in limine at issue in this interlocutory appeal. This case is remanded to the trial

court for further proceedings consistent with this opinion. The costs of this appeal are

taxed to Defendant Mark Flora, M.D., for which execution may issue if necessary.

___________________________________

HOLLY KIRBY, JUSTICE

754, 764 (Tenn. Ct. App. 1998)). “The jury then determines the ‘reasonable value’ of the medical services

in light of all of the evidence.” Id.

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