Banks v. Elks Club Pride Of Tennessee

1102 301 S.W.3d 214 (2010)

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Nature of the Case

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Facts

Banks (P), without any doubt the unluckiest person in the world, attended a social event at Elks (D). The chair on which she was seated collapsed, causing serious injuries to her back. P consulted with Dr. Boyce (D), a physician, who recommended lumbar surgery at the L3-L4 and L4-L5 levels. P agreed to have the procedure performed. Boyce (D) performed the surgery upon the L2-L3 and L3-L4 vertebrae. It was only after the surgery was completed that Dr. Boyce realized he mistakenly performed the surgery at the L2-L3, rather than the L4-L5 vertebrae. As a result, P was required to undergo a second surgery on May 17, 2006. After the surgery P was transferred to Cumberland Manor Nursing Home for further recuperation and rehabilitation. While a patient at Cumberland Manor, P developed a serious staphylococcus infection that required additional surgeries and extensive care and treatment. P filed suits against Elks (D) and Boyce (D) which were consolidated. Elks (D) moved to amend their answer to assert a comparative fault defense against Cumberland Manor. They alleged that they had learned during the discovery process that Cumberland Manor's improper care and treatment had contributed to P's staphylococcus infection. They also asserted that this infection had aggravated P's injuries and damages and that P was seeking to hold them responsible for these additional injuries and damages. Boyce (D) also sought to amend his answer to assert a comparative fault defense against Cumberland Manor, adopting the same language set forth in the Elks' (D) motion. The court denied the motions to amend their complaints. The appeals court denied their interlocutory appeal. Ds appealed.