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DAY ON TORTS
The Lessons Of Mercer and Gray Abandoning ‘stare decisis’ is sometimes the best course By John A. Day Stare decisis is a good thing. As a general rule, it is essential that courts rule consistently over the years. Predictability of results in the courtroom is important, both for litigants and for those who are conducting their affairs in the real world. No reasonable person can disagree with the opening paragraph. But the vast majority of people also agree that the beauty of the common law is its flexibility, its ability to reflect a changing world. “The law is a living growth, not a changeless code.”1 Thus, it is important not to hog-tie the common law into foolish consistency. Changes in social norms are not the only occasions that give rise to the need to abandon stare decisis in appropriate cases. Sometimes, courts make mistakes. This statement should shock no one, least of all judges, who know the number of times they have put their head on the pillow at night and realized that they made a mistake. Making errors is human. Anyone who expects a court to hit every ball pitched to it over the fence for a home run is a fool. There are many reasons for judicial errors, the principle one being the failure of lawyers to educate judges on the law and, when no ready answer is found in the case law, on the public policy implications of deciding a case one way or the other. Inadequate research, sloppy briefs, and mediocre oral arguments fail their only purposes: to educate and persuade the court. At the trial level especially, overworked judges count on lawyers to help them get it right. So, given the fact that mistakes will be made, the question is what should a court do when it comes upon an error. There are three options. First, the court can hold its nose and follow the putrid precedent. Second, the court can engage in jurisprudential gymnastics, distinguish this here and that there, and, over time, the precedent will become a hollow shell. Third, the court can hit the issue head-on, declare the precedent invalid, and right the previous error. The latter takes tremendous courage, particularly if the precedent is “new.” (If a non-lawyer just happens to be reading this magazine because some lawyer left it on the coffee table in a doctor’s waiting room, “new” in the common law is an event that has occurred in the past 20 years.) Something more than courage is required when a court reverses one of its own “new” cases. This is what happened in Mercer v. Vanderbilt University Inc.2 The central issue was whether the defendants in a medical negligence case can ask a jury to assign fault to the plaintiff for having engaged in careless conduct that required his admission to the hospital where the alleged medical negligence later occurred. The defendants had strong precedent in their favor — the eight-year old decision in Gray v. Ford Motor Co.3 The plaintiffs attempted to distinguish Gray, saying that the injury complained of (a brain injury) was not a result of the original car wreck but rather a result of medical negligence that occurred in the hospital four days later. In my opinion, Gray was bad law the day it was decided. Patients are entitled to treatment consistent with the standard of care regardless of how they came to be in the hospital. Juries should be told that health care providers are only liable for the harm they cause, but should not be permitted to assign fault for antecedent negligence that simply gave rise to the need for medical care. Gray was a mistake, pure and simple. But the Mercer court had three judges who were on the Gray opinion, (then) Chief Justice Anderson, Justice Birch, and (now) Chief Justice Drowota. Who would vote to overturn “new” law? Justice Holder wrote the Mercer opinion for the court, and brought along Justices Anderson, Birch and Barker.4 The majority opinion briefly examined, and then rejected, the jurisprudential gymnastics option. Rather, the court went to the heart of the issue and held that “principles of comparative fault do not apply in medical negligence actions in which a patient’s negligent conduct provides only the occasion for the medical attention, care or treatment, which is the basis for the action.”5 Gray was expressly overruled. Undoubtedly, these four justices will be criticized for overruling such recent precedent. They will be called anti-doctor, pro-plaintiff, revisionist jurists. I disagree with this criticism. To follow common law precedent for precedent’s sake alone is foolish. Trial judges and court of appeals judges must follow the precedent established by the Tennessee Supreme Court. The Supreme Court should use appropriate care in drafting its opinions so that they are worthy of future application. But, in the rare event of a mistake, judges must be willing to excise such tumors from the common law, lest they metastasize and cause more harm. Gray was a malignant tumor. The four judges who chose to excise it from our law should be championed for their willingness to go outside the box, scalpel in hand, and do what needed to be done. “The law is never settled until it is settled right.”6 Notes 1. These are the words over the entrance to Yale Law School. 2. 134 S.W.3d 121 (Tenn. 2004). 3. 914 S.W.2d 464 (Tenn. 1996). 4. Chief Justice Drowota dissented. He believed that the facts in Gray could be distinguished from the facts in Mercer and did not believe it was necessary or appropriate to reverse Gray in order to find for the plaintiff on the comparative fault issue. The chief justice also reached a different conclusion from the majority on several other issues in the appeal; these issues are not addressed in this article. 5. 134 S.W.3d at 134. 6. These are the words of the late Thomas Lambert, a professor at Suffolk School of Law and a tort law genius. John A. Day is a trial lawyer with Branham & Day PC in Nashville. He received his law degree from the University of North Carolina. he dreams about torts.
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