Amos v. Vanderbilt

FILED

ESTATE OF JULIE AMOS and )

RONALD AMOS, ) March 31, 2000

)

Cecil Crowson, Jr.

Plaintiffs/Appellees, ) Appellate Court Clerk

) Appeal No.

v. ) M1999-00998-COA-R3-CV

)

VANDERBILT UNIVERSITY, INC. )

d/b/a VANDERBILT UNIVERSITY )

MEDICAL CENTER, ) Davidson Circuit

) No. 90C-4158

Defendant/Appellant. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE HAMILTON Y. GAYDEN, JUDGE

ABBY R. RUBENFELD

Rubenfeld & Associates

2505 Hillsboro Road, Suite 201

Nashville, Tennessee 37212

A. BRUCE JONES

PATRICIA DEAN

Holland & Hart

555 Seventeenth Street, Suite 3200

Post Office Box 8749

Denver, Colorado 80201-8749

ATTORNEYS FOR PLAINTIFFS/APPELLEES

E. CLIFTON KNOWLES

JOHN S. BRYANT

STEVEN E. ANDERSON

Bass, Berry & Sims

2700 First American Center

Nashville, Tennessee 37238-2700

ATTORNEYS FOR DEFENDANT/APPELLANT

AFFIRMED IN PART

REVERSED IN PART

AND REMANDED AS MODIFIED

WILLIAM B. CAIN, JUDGE

OPINION

This case represents another chapter in a protracted suit filed by a father and

mother against a healthcare provider for the alleged wrongful birth of their daughter.

The child, Alison Amos, was born in September of 1989, having been infected with

the Human Immunodeficiency Virus (HIV) in utero through her mother Julie.1 In

1989 an HIV positive diagnosis brought with it a myriad of possible infections, such

as pneumocystis carinii. As mild as these infections might be to a healthy immune

system, in an immuno-deficient environment, especially that of an infant, just one

such infection could spell disaster. Two months after her birth, Alison developed

pneumocystis pneumonia, a common AIDS related infection, and died four days later.

Julie Story Amos1, Alison’s mother, was infected with HIV when she was

transfused with four units of blood during a cosmetic operation performed at

Vanderbilt University Medical Center (hereinafter Vanderbilt) in August of 1984.

Vanderbilt received those units from the regional blood blank of the American Red

Cross. At the time of the operation, the HIV virus had not been isolated, therefore no

test was available to screen blood prior to transfusion. At that time Vanderbilt had

no procedure for informing transfused patients that they had received blood during

surgery.

By the Spring of 1985 the HIV virus had been isolated, and Vanderbilt, as

well as many other medical facilities across the country, was actively screening the

blood given to current transfusion recipients. However, many of these facilities,

including Vanderbilt, elected not to identify or warn former prior transfusion

recipients that they could have been exposed to the HIV virus. As a result, some of

these former patients led their lives infected and unaware. Julie Story lived thus for

five years. In that time she met and married Ronald Amos. Together they built a

family with her two children from a previous marriage. In addition and most

importantly, she gave birth to daughter Alison. Julie did not know her HIV status

1

Julie Story Amos died from complications related to AIDS in April of 1992.

The case at bar concerns no claim for the wrongful death of Julie Amos.

2

until after Alison was hospitalized.

I. PROCEDURAL HISTORY AND POSTURE

Alison died on Monday, November 28, 1989. Ron and Julie Amos, as

Plaintiffs “Doe,” filed suit in Davidson County Circuit Court against Vanderbilt and

the American Red Cross in March of 1991. The complaint alleged, inter alia, the

following:

19. At no time from March of 1985 until the present did [the

Defendants] inform Plaintiff JANE DOE that she had received a

transfusion of blood or that she was at risk for HIV-infection.

***

(Wrongful Birth)

***

26. As a direct and proximate result of the grossly negligent,

careless and reckless acts and omissions of the Defendants and

their agents, to wit, the failure of Defendants to notify Plaintiff

JANE DOE that she had received a transfusion of blood and/or

HIV-infected blood in 1984 and was at risk for HIV-infection,

Plaintiffs Jane and John Doe failed to take precautions to prevent

the birth of an HIV-infected infant.

27. As a direct and proximate result of the grossly negligent,

careless and reckless conduct of Defendants, Plaintiffs JANE

DOE and JOHN DOE have suffered and will continue to suffer

additional medical expenses, pain and suffering, disability,

emotional distress, anguish, humiliation and other forms of

emotional and psychological injury.

In April of 1991 the Red Cross removed the case to federal court. For

reasons not germane to the issues before us, the case was remanded back to state

court and again removed to federal court. After this second removal the Plaintiffs

settled with the American Red Cross. The federal district court declined to exercise

further jurisdiction over the case, and the cause was thus returned to state court.

Post discovery Vanderbilt successfully argued its pretrial motion for

summary judgment on the ground that Plaintiffs failed to show a violation of the

applicable standard of care consistent with Tennessee’s Medical Malpractice Act.

See Tenn. Code Ann.§29-26-115. The Plaintiffs appealed to this Court, and on May

30, 1997, we released our opinion holding expert opinion unnecessary to establish

3

Plaintiffs’ prima facie case. This Court stated the following:

As we have stated, Vanderbilt's decision not to implement a

notification policy was not "a matter of medical science or art

requiring specialized skills." In so holding, we do not dispute

that medical expert testimony would be important to assist a jury

in determining the notification issue on the merits. However, we

agree with New York's supreme court that the need for expert

testimony does not always signify medical malpractice. See

Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784, 650 N.Y.S.2d 629,

632, 673 N.E.2d 914, 917 (1996). Under these facts, we do not

think that scientific data and knowledge on which Vanderbilt

relied in making the decision indicates that this case sounds in

medical malpractice.

For the foregoing reasons, we conclude that Vanderbilt was

not engaging in the practice of medicine when it decided in the

late 1980's not to implement a policy to notify former patients

who had received blood prior to March of 1985 that they had

received blood which was not tested for the HIV virus. Thus, the

trial court erred in requiring the plaintiffs' expert proof to comply

with the Tennessee Medical Malpractice Act and it erred in

granting summary judgment to the defendant when the plaintiffs

failed to so comply. In light of this error, we reverse the trial

court's grant of summary judgment and remand this case to the

trial court so that it may be considered on the merits.

Estate of Doe v. Vanderbilt University, Inc., 958 S.W.2d 117, 122-23 (Tenn. Ct. App.

1997).

No additional discovery was taken, and the case proceeded to trial. The

plaintiffs presented proof regarding the alleged duty to warn Julie Amos of the

possibility that she had been infected with HIV in 1984 and of the need to be tested

for the virus. In addition, proof was taken concerning the manner in which Ron and

Julie Amos were informed about Alison’s and Julie’s HIV status. The medical and

funeral expenses associated with Alison’s birth and death were shown to be

$32,884.07.

Plaintiffs attempted to prove the emotional damage associated with Alison’s

birth and death, using their own testimony and the testimony of their relatives. In

addition, two of Plaintiffs’ expert witnesses testified in general terms regarding the

emotional impact of an AIDS diagnosis connected with the death of a child infected

4

in utero. While these experts testified in generalities, neither testified as to the

severity of the emotional distress suffered by either Ron or Julie Amos.

Both at the close of Plaintiffs’ proof and at the close of all the proof,

Defendant Vanderbilt moved for a directed verdict on the emotional damages portion

of the plaintiffs’ claims. The court denied those motions, finding the emotional

damages to be “parasitic” to the cause of action for negligence, finding direct lay

testimony as to the emotional injury suffered by the plaintiffs, and taking judicial

notice of the devastating emotional effect of an AIDS diagnosis on the plaintiffs. The

case was thus submitted to the jury. After consideration, the jury found the following

as evidenced in its verdict form:

1. Do you find the defendant Vanderbilt University negligent?

Yes: X No:

2. Do you find the defendant’s negligence to be the legal cause

of any injury to:

a. The estate of Julie Amos?

Yes: X No:

b. Ronald Amos?

Yes: X No:

***

3. Decide the total amount of damages sustained by each

plaintiff:

Estate of Julie Amos: $2,722,500

Ronald Amos: $1,639,200

Defendant Vanderbilt, now seeks relief from the jury verdict below, raising

several issues on appeal. Of these issues, the Court finds the following dispositive:

1. Whether Plaintiffs Amos properly proved entitlement to

damages for their emotional injury?

2. Whether Vanderbilt owed a duty to Ronald Amos to warn Julie

Amos of the possibility that she had been exposed to HIV in

1984?

II. THE DUTY OWED TO RONALD AMOS

In the interest of clarity, we address Vanderbilt’s second issue first. It is

argued that Vanderbilt owed no duty to Mr. Amos. Absent proof of this duty, there

5

is no negligence claim on his behalf. It is well to note that were Tennessee to

recognize “wrongful birth” as a separate cause of action from one for negligence, the

resolution of this issue might be different. See Andalon v. Superior Court, 208 Cal.

Rptr. 899, 905 (Call. App. 1984). However, Tennessee does not recognize “wrongful

birth” as anything other than a claim for ordinary negligence. See Owens v. Foote,

773 S.W.2d 911, 913 (Tenn. 1989). The same elements must be made out in Mr.

Amos’ cause as are to be made out for the estate of Julie Amos. The most troubling

of these elements is duty.

Although the jury awarded Mr. Amos over a million dollars in damages, the

plaintiffs failed to show that Vanderbilt owed any duty to Mr. Amos. It also bears

noting that Julie Story and Ronald Amos began a romantic relationship four years

after Ms. Story was infected via transfusion. The plaintiffs assert that damages to

Ronald Amos flow as a direct consequence from Vanderbilt’s failure to warn Julie

Story of her HIV status. While this assertion addresses the factual causal connection

between Vanderbilt and Ronald Amos, it fails to address a bigger issue.

The existence of duty is as much a question of public policy as it is a

question of law for the court. See Bain v. Wells 936 S.W.2d 618, at 625 (Tenn. 1997)

(citing Bradshaw, 854 S.W.2d 865, at 870 (Tenn. 1993)). The Tennessee Supreme

Court has “specifically recognized that a physician may owe a duty to a non-patient

third party for injuries caused by the physician’s negligence.” Bradshaw v. Daniel,

854 S.W.2d 865,at 870 (Tenn. 1993) (citing Wharton Transport Corp. v. Bridges, 606

S.W.2d 521, 526(Tenn. 1980)). However, that third party must be an identifiable

plaintiff, and the imposition of liability must not expose the defendant to “liability

indeterminate as to amount, time, class, or number.” See Wharton Transport Corp.

v. Bridges, 606 S.W.2d 521, 526(Tenn. 1980)(citing Ultramares Corp. v. Touche, 255

N.Y.170, 174 N.E. 441 (1931)). The plaintiffs would argue that Vanderbilt owed a

duty to Ron Amos as a foreseeable husband to Julie and father to Alison. Following

this reasoning, any other party who would run the risk of emotional injury via

intimate contact with Julie Story during the time that Vanderbilt chose not to warn her

of her possible HIV status would enjoy the benefit of a duty on Vanderbilt’s part.

6

The proof in the record shows no continuing relationship between

Vanderbilt and Julie Story following her surgery in 1984. Vanderbilt had no contact

with Julie Story until she and her husband Ronald Amos checked into Vanderbilt

Hospital with Alison. As soon as Alison was diagnosed, each member of Alison’s

immediate family was tested, including Ronald Amos. Yet the plaintiffs argue

Vanderbilt’s duty to warn Julie Story flowed to Mr. Amos long before they even met.

These facts distinguish this case from Bradshaw, supra. That case concerned a family

already in existence at the time the alleged duty arose. The nature of the duty

established in Bradshaw was to advise the existing immediate family members of

risks attendant to a spotted fever diagnosis. See Bradshaw v. Daniel, 854 S.W.2d, at

871. The Court specifically held that the existence of the physician-patient

relationship is sufficient to impose upon a physician an affirmative duty to warn

identifiable third persons in the patient's immediate family against foreseeable risks

emanating from a patient's illness. See Bradshaw, id., at 872. The physician-patient

relationship must be of such a character, or the plaintiff’s potential harm (not his or

her mere existence), must be so apparent as to impose upon the defendant a duty to

act or refrain. See Turner v. Jordan, 957 S.W.2d 815, at 818 (Tenn. 1997); see also

Bradshaw, supra, at 872; Wharton Transport Corp., v. Bridges, 606 S.W.2d 521, 526

(Tenn. 1980). Even if Vanderbilt was aware of the possibility that Julie Story would

meet a man and have a baby, under the facts as they were shown by the plaintiffs, Mr.

Amos was not identifiable during the period of inaction so as to justify imposing a

duty on Vanderbilt.

At the time Julie Story received the transfusion in 1984, she was a divorced,

25-year-old-woman, embarking on a brand new future. Five years later, after having

endured the hardship of divorce, she would meet Ronald Amos and begin thinking

again about a family. Her choices, informed or not, would set the course of her life

and have an impact on others. The ever widening arc of cause and effect would

encompass everyone in her life to come. For this Court to impose liability on

Vanderbilt for the emotional injuries to Mr. Amos, we would necessarily have to hold

that, after receiving a warning concerning her HIV status, Julie Story would have

taken one of myriad options available to her; and that Ronald Amos, had he been in

Julie Story’s life, would have taken steps to avoid the birth, and that those steps

would have indeed avoided the pain of watching a child die from HIV.

7

This Court is unwilling to so hold. Mr. Amos was not an identifiable party

at the time Vanderbilt’s duty arose; nor was injury to Mr. Amos foreseeable at the

time. Inasmuch as we find error in the portion of the trial court’s order imposing a

duty on Vanderbilt with regard to the plaintiff Ronald Amos, we therefore must

vacate the jury award as to Mr. Amos. See Tenn. R. App. P. 13(a); Bradshaw v.

Daniel, 854 S.W.2d 865, at 869 (Tenn. 1993).

III. EMOTIONAL INJURY AND EMOTIONAL DISTRESS

Although the case before us on appeal has been described by the parties as

concerning “failure to warn” and “wrongful birth,” there can be no argument that this

case sounds in negligence. The first appeal in this case resolves this much. See

Estate of Doe v. Vanderbilt Univ., Inc. 958 S.W.2d 117 (Tenn. Ct. App. 1997). The

appellees argue that the case at bar is not an action for negligent infliction of

emotional distress. They assert that this claim is for “wrongful birth” and, therefore,

distinct from an action in negligence which results in emotional injury. Their

argument suggests a distinction without a difference.

While the concept is relatively novel in the legal universe, there have been

several cases concerning the different types of action which form a broad swath of

juridical fabric styled “wrongful birth.” See 83 ALR3d 15§2; see also PRENATAL

INJURIES, 62A Am. Jur. 2d §89 p.454. Specifically our state supreme court has had

this to say about the concept and classifications:

1. Wrongful pregnancy or conception is an action brought by

the parents on their own behalf to recover damages resulting from

a failed pregnancy avoidance technique (e.g., vasectomy, tubal

ligation, abortion, misfilled birth control prescription, etc.);

usually the resulting child is healthy. See, e.g., Miller v. Johnson,

231 Va. 177, 343 S.E.2d 301 (1986); Garrison v. Foy, 486

N.E.2d 5 (Ind.App.1985); Nanke v. Napier, 346 N.W.2d 520

(Iowa 1984); Weintraub v. Brown, 98 A.D.2d 339, 470 N.Y.S.2d

634 (1983); Sherlock v. Stillwater Clinic, 260 N.W.2d 169

(Minn.1977).

2. Wrongful birth is an action by the parents on their own

behalf to recover damages for the birth of an impaired child when

the impairment results either from an act or omission of the

defendant or because the defendant failed to diagnose or discover

a genetic defect (e.g., genetic counsel[l]ing, failure to perform

readily available diagnostic tests, etc.) in the parents or the infant

8

in time to obtain a eugenic abortion or to prevent pregnancy

altogether. See, e.g., James G. v. Caserta, 332 S.E.2d 872

(W.Va.1985) (Involving two causes of actions); Harbeson v.

Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483 (1983) (En

banc ); Naccash v. Burger, 223 Va. 406, 290 S.E.2d 825 (1982);

Stribling v. deQuevedo, 288 Pa.Super. 436, 432 A.2d 239 (1980);

Howard v. Lecher, 42 N.Y.2d 109, 397 N.Y.S.2d 363, 366 N.E.2d

64 (1977); Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689

(1967).

Smith v. Gore, 728 S.W.2d 738,741 (Tenn. 1987). The Court expanded upon this

discussion in its opinion in Owens v. Foote. The plaintiffs in Owens traveled on the

assertion that the physician defendant had “negligently performed a vasectomy on Mr.

Owens, negligently failed to conduct and interpret post-operative tests, and failed to

advise plaintiffs correctly about the test results.” Owens v. Foote, 773 S.W.2d 911,

911-912 (Tenn. 1989). In noting the procedural posture of the Owens appeal at

Smith’s release, Justice O’Brien wrote:

[W]hile this case was in the appellate process the decision of this

Court in Smith v. Gore, 728 S.W.2d 738 (Tenn.1987) was

released. Many of the questions raised here were answered in the

Smith decision by Justice Drowota. In passing, the Court noted

the several cases reported nationally involving actions of this

nature, including their various denominations. Reference is

made to p. 741 for the definition of wrongful birth. However,

medical malpractice suits of this nature, brought by parents,

alleging birth defects of an infant, are not unknown in this State

and we see no reason to endeavor to fit them into some specific

category beyond a suit for ordinary negligence. See, e.g.,

Schaefer by Schaefer v. Larsen, 688 S.W.2d 430

(Tenn.App.1984).

Owens v. Foote, 773 S.W.2d 911, 913 (Tenn. 1989). Hence the characterization

“wrongful birth” does nothing to further the discussion of Vanderbilt’s alleged

omission. The key elements of a cause of action sounding in negligence are well

known. To establish a prima facie case, a plaintiff must prove that the defendant

breached an established duty, and that such breach proximately or legally caused

injury to the plaintiff. See Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn.1993);

see also Bradshaw v. Daniel, 854 S.W.2d 865, 873 (Tenn. 1993). For the Estate in the

case at bar, the most difficult of these elements is injury. The vast discrepancy

between the medical damages proven and the general damages awarded, as well as

the statements in the pleadings describing emotional distress allegedly caused by

9

Vanderbilt’s failure to warn Mrs. Amos of her possible HIV status, suggests that the

majority of the $4.3 million dollars of damages was awarded to compensate for the

Amoses’ emotional injury. It is not surprising, therefore, that upon remand

Vanderbilt’s counsel argued the requirement of expert testimony to prove the

emotional injury suffered by the plaintiffs. This argument was based on our supreme

court’s opinion in the case of Camper v. Minor. In that case, a truck driver, who

suffered no substantial physical injury, sued a negligent motorist’s estate, seeking

damages for post traumatic stress disorder. The Court considered this claim to be one

of negligent infliction of emotional distress. Said the court:

Any survey of the law in this area must begin with a clear and

frank recognition that the law of negligent infliction of emotional

distress, however it is formulated in a specific jurisdiction, is

fundamentally concerned with striking a balance between two

opposing objectives: first, promoting the underlying purpose of

negligence law--that of compensating persons who have sustained

emotional injuries attributable to the wrongful conduct of others;

and second, avoiding the trivial or fraudulent claims that have

been thought to be inevitable due to the subjective nature of these

injuries. The tension produced by this ongoing attempt to

winnow out invalid claims at the summary judgment level has

caused inconsistency and incoherence in the law; indeed, as the

Washington Supreme Court aptly stated some years ago, "any

attempt at a consistent exegesis of the authorities is likely to break

down in embarrassed perplexity." Hunsley v. Giard, 87 Wash.2d

424, 553 P.2d 1096, 1098 (1976).

Camper v. Minor, 915 S.W.2d 437, 440 (Tenn. 1996).

The Court went on to discuss the requirement placed upon an individual

seeking compensation for mental injury. The Court in Camper considered the various

attempts taken in Tennessee to weigh the considerations enumerated supra.

Reference is made in Camper to the inconsistent body of law concerning the general

rule limiting remedy for emotional injury absent a “physical manifestation” of that

injury. See Camper, 915 S.W.2d, at 444-46 (quoting Memphis State Ry. Co. v.

Bernstein, 137 Tenn. 637, 194 S.W. 902 (1917)). After exhaustive review the Court

noted the following:

Tennessee courts have continually found it necessary to deviate

from the "physical manifestation" rule by either formally creating

exceptions to the rule or by applying the rule in a nonrigorous

fashion. This practice of creating ad hoc exceptions has made our

law of negligent infliction of emotional distress confusing and

10

unpredictable; indeed, the practice appears to have, as the

plaintiff here argues, "robbed the law of logic, consistency and

fairness."

Although there is some truth to this charge, the Tennessee

cases in this area do contain a common thread: the courts' desire

to separate, at the prima facie stage and in a meaningful and

rational manner, the meritorious cases from the nonmeritorious

ones.

915 S.W.2d 437, at 445-46. It was against this backdrop that the Court adopted the

most recent rule concerning claims for negligent infliction of emotional distress. Said

the Court:

Although our seemingly disparate cases in this area are thus

reconcilable on a functional level, we nevertheless agree with the

plaintiff here and with many other jurisdictions that the time has

come to abandon the rigid and overly formulaic "physical

manifestation" or "injury" rule. This rule has proved to be

inflexible and inadequate in practice; and, as noted in the

preceding section, it completely ignores the fact that some valid

emotional injuries simply may not be accompanied by a

contemporaneous physical injury or have physical consequences.

Therefore, in accordance with our statement in Carroll that "[we

have] realized that in some situations, whether the plaintiff has

incurred a literal physical injury has little to do with whether the

emotional damages complained of are reasonable," id. at 594, we

conclude that the rule shall no longer be used to test the validity

of a prima facie case of negligent infliction of emotional distress.

This negative conclusion logically raises its positive

counterpart: what is required to make out a prima facie case?

After considering the strengths and weaknesses of the options

used in other jurisdictions, we conclude that these cases should be

analyzed under the general negligence approach discussed above.

In other words, the plaintiff must present material evidence as to

each of the five elements of general negligence--duty, breach of

duty, injury or loss, causation in fact, and proximate, or legal,

cause, Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn.1993);

Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.1993)--in order

to avoid summary judgment. Furthermore, we agree that in order

to guard against trivial or fraudulent actions, the law ought to

provide a recovery only for "serious" or "severe" emotional

injury. Burgess v. Superior Court (Gupta), 2 Cal.4th 1064, 9

Cal.Rptr.2d 615, 618, 831 P.2d 1197, 1200 (1992); St. Elizabeth

Hosp. v. Garrard, 730 S.W.2d 649, 653 (Tex.1987). A "serious"

or "severe" emotional injury occurs "where a reasonable person,

normally constituted, would be unable to adequately cope with

the mental stress engendered by the circumstances of the case."

11

Rodrigues v. State, 52 Haw. 156, 283, 472 P.2d 509, 520 (1970);

Paugh v. Hanks, 6 Ohio St.3d 72, 77-78, 451 N.E.2d 759, 765

(1983); Plaisance v. Texaco, Inc., 937 F.2d 1004, 1010 (5th

Cir.1991); Prosser and Keeton on the Law of Torts, § 54, at

364-65, n. 60. Finally, we conclude that the claimed injury or

impairment must be supported by expert medical or scientific

proof. See Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758,

766-67 (1974) ("the plaintiff should be permitted to prove

medically the damages occasioned by his mental responses to

defendant's negligent act").

Id. at 446. Appellees defend the finding of the trial court that Camper is to be

distinguished from the case at bar. Their argument is that a distinction must be made

between negligence resulting in “wrongful birth” and from “failure to warn” on the

one hand and negligent infliction of emotional distress on the other hand. However,

the language quoted above clearly suggests that when, as here, the injury to be

compensated is of primarily of an emotional nature, no such distinction exists. The

damages recoverable for negligence of this nature have been clearly defined. If

liability is established, all damages foreseeably proceeding from the birth and

proximately caused by the act or omission of the defendant shall be recoverable,

“including damages for emotional distress.” Owens v. Foote, 773 S.W.2d 911, at 913

(Tenn. 1989) (citing Smith v. Gore, 728 S.W.2d 738, 751 (1987)).

IV. THE NEED FOR EXPERT TESTIMONY

It is difficult to imagine a more tragic and heart-wrenching fate than that

which has befallen the Amos family. Yet, adequate consideration on appeal requires

delineation of what this case is and what it is not. It is a suit for negligence alleging

failure to warn and wrongful birth.

It is not a suit for wrongful death of Julie Amos. It is not a suit by Ronald

Amos for loss of consortium of Julie Amos. It is not a suit for the wrongful death of

Alison Amos. It is not a suit for physical injury to Ronald Amos, Julie Amos or

Alison Amos.

The seeds of this tragedy were planted in 1984 in the introduction by

transfusion into the blood of Julie Amos of the HIV virus. It is neither alleged in the

complaint nor established by the proof that Vanderbilt was at fault in the introduction

12

of the HIV virus in the bloodstream of Mrs. Amos. Her subsequent death resulted

from the inexorable progression of the HIV virus into Acquired Immune Deficiency

Syndrome. The minor child, Alison Amos, died because of the inter uteral

transmission of the HIV virus into her blood by her innocent and unknowing mother.

This death resulted from the complications of AIDS.

The sole basis upon which Vanderbilt is charged with fault in this case is

in the failure of Vanderbilt, after the development in 1985 of tests that could detect

the HIV virus, to pursue a retroactive process to identify and warn former patients,

such as Julie Amos, of possible exposure to the HIV virus because of prior

transfusions. Inherent in the jury verdict are findings of duty, breach of duty, injury

or loss, causation in fact, and proximate cause. Kilpatrick v. Bryant, 868 S.W.2d 594,

598 (Tenn. 1993). As to the estate of Julie Amos there is substantial and material

evidence to support the jury verdict as to fault and this portion of the jury verdict

cannot be disturbed. Whitaker v. Harmon, 879 S.W.2d 865 (Tenn. Ct. App. 1994).

Under whatever terminology is used, this case sounds in negligence and

aside from the stipulated birth, medical and funeral expenses of $32,884.07 in the

delivery, treatment and death of Alison Amos, all damages asserted result from

negligent infliction of emotional distress.

Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996) is a landmark in the efforts

of the Tennessee Supreme Court to come to grips with the almost totally subjective

nature of injuries involving emotional distress. Following a comprehensive review,

the Tennessee Supreme Court held compensable only “severe or serious” emotional

injury shown by an expert to be of such a degree that a reasonable person normally

constituted would be unable to cope with the attendant mental stress. 915 S.W.2d

437, 446.

Camper was followed the same year by Ramsey v. Beavers, 931 S.W.2d 527

(Tenn. 1996) wherein the Supreme Court integrated the “zone of danger” rule

formulated in Shelton v. Russell Pipe & Foundry Co., 570 S.W.2d 861 (Tenn. 1978)

into the general negligence framework. Said the court:

We reiterate that plaintiff must establish that defendant’s

13

negligence factually and legally caused plaintiff to suffer serious

or severe emotional injuries. As we made clear in Camper, our

ruling does not provide recovery for “every minor disturbance to

a person’s mental tranquility.” Barnhill v. Davis, 300 N.W.2d

104, 107 (Iowa 1981), but only for serious or severe emotional

injuries. A “ ‘serious’ or ‘severe’ emotional injury occurs where

a reasonable person, normally constituted, would be unable to

adequately cope with the mental stress engendered by the

circumstances of the case.” Camper v. Minor, 915 S.W.2d at 446.

Our holding in Camper and here should not be construed to

allow recovery for fright or fear alone. Likewise, hurt feelings,

trivial upsets, and temporary discomfort would not be sufficient

for recovery. Only those serious or severe emotional injuries

which disable a reasonable, normally constituted person from

coping adequately with the stress are sufficient to form the basis

for recovery. Additionally, the “claimed injury or impairment

must be supported by expert medical or scientific proof.” Id.

931 S.W.2d 527, 532 (Tenn. 1996).

Appellees argue that emotional damages are “parasitic” to their claim of

wrongful birth and thus recoverable. In support they cite Kush v. Lloyd, 616 So.2d

415 (Fla. 1992), wherein the Supreme Court of Florida held:

[W]e are not certain that the impact doctrine ever was intended to

be applied to a tort such as wrongful birth. Prosser and Keeton

state that the impact doctrine should not be applied where

emotional damages are an additional “parasitic” consequence of

conduct that itself is a freestanding tort apart from any emotional

injury. W. Page Keeton et al., Prosser and Keeton on the Law of

Torts § 54, at 361-65 (5th ed. 1984). The American Law Institute

is in general accord. Restatement (Second) of Torts § 47 & § 47

cmt. b (1965). Obviously, the [plaintiffs] have a claim for

wrongful birth even if no emotional injuries had been alleged.

616 So.2d 415, 422 (Fla. 1992).

Under Camper and Ramsey, even if one accepts the “parasitic” argument in

Kush, the law of Tennessee would still require that the “parasitic” damages be

established by expert testimony. More clearly analogous to the case at bar is

McCracken, et al. v. City of Millington, NO. 02A01-9707-CV-00165, 1999

WL142391 (Tenn. Ct. App. 1999). In this case, Jona McCracken sought damages as

the result of an automobile accident in which her husband was fatally injured and she

14

was physically injured. She also sought loss of consortium damages for the brief

period that her husband survived the accident. In addition, she sought damages for

the negligent infliction of emotional distress. The trial court found that she had

suffered compensatory damages of $175,000 of which $46,250 was recoverable from

the City of Millington because the City was 25% at fault. It might well be said that

her claim for emotional injury was “parasitic” to her claim for personal physical

injuries and loss of consortium, as the trial court found that $100,000 of her damages

were from emotional injury and remaining $75,000 from the physical injury and loss

of consortium.

In disallowing damages for negligent infliction of emotional distress the

Western Section of the Court of Appeals held:

Even assuming that Jona’s emotional injuries were

foreseeable, however, we would still find that Jona is not entitled

to recover damages for negligent infliction of emotional distress.

A plaintiff may recover under this legal theory only if he or she

has suffered a serious or severe emotional injury. See Ramsey,

931 S.W.2d at 532; Camper, 915 S.W.2d at 446 (citations

omitted). Additionally, the plaintiff’s serious or severe injury

must be supported by expert medical or scientific proof. See

Ramsey, 931 S.W.2d at 532; Camper, 915 S.W.2d at 446 (citing

Leong v. Takasaki, 520 P.2d 758, 766-67 (Haw. 1974)). The

plaintiff’s injury is sufficiently serious or severe if “a reasonable

person, normally constituted, would be unable to adequately cope

with the mental stress engendered by the circumstances of the

case.” Ramsey, 931 S.W.2d at 532 (quoting Camper, 915 S.W.2d

at 446).

***

Additionally, we find that Jona has failed to prove by expert

medical or scientific proof that her emotional injuries were severe

or serious. According to Jona’s psychiatrist, her symptoms were

“within the normal grieving process and may not lead to any

future long term complications.” Thus, under the definition of

“severe or serious injury” adopted by our supreme court in

Camper and Ramsey, we conclude that Jona has failed to carry

her burden of proof with respect to this issue.

In light of our discussion above, we find that the requirements

of Ramsey have not been satisfied in the instant case and

consequently hold that the trial court erred in its assessment of

Jona’s damages. On remand, the court should reduce its prior

assessment of Jona’s damages by $100,000.00, the amount that

the court assigned as damages for negligent infliction of

emotional distress.

15

McCracken, et al. v. City of Millington, No. 02A01-9707-CV-00165, 1999

WL142391, ** 11-12 (Tenn. Ct. App. Mar. 17, 1999).

At the conclusion of all of the proof in this case, Vanderbilt renewed its

motion for a directed verdict as to emotional damages. The trial court held:

THE COURT: Okay. The issue of emotional distress, the

Court overrules the defendant’s motion for two reasons. First of

all, this is a – that’s a good word – parasitic element of damages

in this case. And, secondly, even if that were not the case, there

is some proof in this case both by direct testimony as to the

suffering of persons in a conceptual same situation as the

plaintiffs, the deceased and the living plaintiff. And thirdly,

again, you know, the effect and diagnosis of AIDS in this case in

and of itself would cause any normal person to have immediate

emotional distress. The Court will make judicial knowledge of

that.

Camper and Ramsey, in expanding the right to recover damages for

negligent infliction of emotional distress, struck a balance that does not allow the

court to take judicial notice as a substitute for expert testimony that plaintiff’s injuries

are “severe or serious”. The Supreme Court struck the balance by requiring expert

testimony and thus far has only vitiated the need for expert testimony in cases of

intentional infliction of emotional distress. In the November 15, 1999 decision in

Wayne Miller, et al. v. Wilbanks, et al., 8 S.W.3d 607 (Tenn. 1999), the Supreme

Court held:

In cases of negligent infliction of emotional distress, however,

the conduct giving rise to the tort is not marked by extraordinary

or outrageous elements inherent in intentional conduct. Thus,

concerns with unwarranted claims are not addressed by the kind

of conduct that must be proved to obtain damages for emotional

distress. In the absence of any reliable indicia of a severe mental

injury suggested by the conduct, some safeguard must be imposed

to limit frivolous litigation. Accordingly, when the conduct

complained of is negligent rather than intentional, the plaintiff

must prove the serious mental injury by expert medical or

scientific proof. See Camper, 915 S.W.2d at 446.

8 S.W.3d 607, 614-15 (Tenn. 1999).

If there is to be an “AIDS” exception to the expert testimony requirement

of Camper, Ramsey and Miller, it must come from the Supreme Court of Tennessee.

16

While the words “trivial” and “fraudulent” have no applicability in the face

of this tragedy, the definition of “serious” or “severe” cannot provide a basis for

judicial notice, but expert testimony is required to carry the plaintiff’s burden of proof

to show that “. . . a reasonable person normally constituted, would be unable to

adequately cope with the mental stress engendered by the circumstances of the case.”

Camper v. Minor, 915 S.W.2d 437, 446 (Tenn. 1996).

Appellee asserts that Camper should not be given retroactive application

under the facts of this case. While it is true that retroactive application of a statute

affecting vested substantive rights is constitutionally prohibited under Article 1,

Section 20 of the Tennessee Constitution, evolving changes in the common law

pronounced by adjudication are not so inhibited. Dupuis v. Hand, 814 S.W.2d 340,

343 (Tenn. 1991); Davis v. Davis, 657 S.W.2d 753 (Tenn. 1983). Reliance on

Cumberland Capital Corp. v. Patty, 556 S.W.2d 516, 540 (Tenn. 1977) is misplaced.

That case involved not a change in common law, but rather the failure of an existing

statute to pass constitutional muster. We find more persuasive the situation in which

a common law rule is changed or an existing remedy is abolished by common law. In

this regard, the progression of cases dealing with comparative fault are instructive.

The Supreme Court’s decision in Camper v. Minor expanded a plaintiffs

ability to recover for emotional distress. The Supreme Court’s decision in Macintyre

v. Balentine expanded the ability of a plaintiff to recover for negligence. See

McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). The MacIntyre court abolished

the contributory negligence bar, the last clear chance doctrine, and right to

contribution pro rata among joint tortfeasors as it had existed under prior common

and statutory law. The Camper court “abolished” the exclusivity of the “physical

manifestation” and “zone of danger” doctrines.

According to Plaintiffs the McIntyre decision would not have been

retroactively applied to affect the right of an individual to recover under the Uniform

Contribution Among Tortfeasors Act. The Supreme Court addressed this retroactive

application in Bervoets v. Harde Ralls Olds-Pontiac, Inc. Bervoets concerned a

contribution case brought under the aforementioned act. For various and sundry

reasons the case was tried and twice retried. The second retrial took place after the

17

Supreme Court issued its well-known opinion in McIntyre,supra.

Bervoets concerned the following statement from McIntyre:

[B]ecause a particular defendant will henceforth be liable only for

the percentage of a plaintiff's damages occasioned by that

defendant's negligence, situations where a defendant has paid

more than his "share" of a judgment will no longer arise, and

therefore the Uniform Contribution Among Tortfeasors Act,

T.C.A. § 29-11-101--106 (1980) will no longer determine the

apportionment of liability between co-defendants.

833 S.W.2d at 58. Adanac, the defendant in contribution, appealed the trial court’s

denial of its motion to dismiss Safeco’s suit brought under the “abolished” statute.

The Court of Appeals affirmed the trial court, and the Supreme Court granted Rule

11 application to “clarify the situation.” Bervoets v. Harde Ralls Pontiac-Olds, Inc.

et al., 891 S.W.2d 905 (Tenn. 1994, reh. granted 1995). Said the court:

Although we certainly did not intend in McIntyre to totally

abolish the remedy of contribution, it is obvious from the

above-quoted passage that we did intend that the "pro rata share

of damages" approach of the UCATA, which provides that the

fault of the parties is not to be considered in determining each

party's share of damages, should not continue to be utilized after

the McIntyre decision was released. Because we intended to

adopt a comprehensive scheme of comparative fault in McIntyre,

and because the "pro rata share" approach set forth in the UCATA

is in direct conflict with such a scheme, we felt it necessary to

explicitly provide such guidance to the trial courts charged with

the duty of trying tort cases in this state.

Although Safeco readily admits that the "pro rata share"

approach to contribution is inconsistent with the principles of

comparative fault, it contends that our substantial dictum

regarding contribution in McIntyre should not apply to the retrial

in this case for two basic reasons. First, Safeco contends that it

had an expectation that it would be able to pursue a UCATA-type

contribution claim against Adanac at the time it entered into the

settlement agreement, that this expectation constituted an accrued

or vested right, and that it is therefore impermissible to

retroactively apply the principles of McIntyre so as to deprive it

of that vested right. We are not convinced, however, that the

retroactive application of McIntyre in fact serves to deprive

Safeco of any "right," vested or otherwise. In fact, it is entirely

possible that Safeco could actually obtain a better result under the

principles of comparative fault than it could under the UCATA

approach.

18

Bervoets, 891 S.W.2d, at 907. The well settled point is that there can be no vested

right in an existing law which precludes its orderly change when public policy so

demands. See Cavender v.Hewitt, 145 Tenn 471, 239 S.W. 767, 770 (1922).

Retroactive application of Camper is beneficial to the appellee insofar as Camper

expands the right to recover for emotional injury. It hurts the appellee only because

it “strikes a balance” against such expanded scope of liability by requiring expert

testimony to prove that the emotional injuries claimed were “severe” or “serious”.

This case was in the “pipeline” at the time Camper was decided in 1996. What is

involved in this case is neither constitutional nor statutory but simply evolution of the

common law by common law adjudication. Consistency requires and fairness dictates

that Camper apply to this case. Davis v. Davis, 657 S.W.2d 753 (Tenn. 1983); Luna

v. Clayton, 655 S.W.2d 893 (Tenn. 1983); Lease v. Tipton, 722 S.W.2d 379 (Tenn.

1986).

There being no competent proof of damages to Mrs. Amos beyond the

medical expenses of Alison’s birth and death, the award of damages will be modified

to reflect the damages shown. Our holding comports with the action of the trial court

in that it found Vanderbilt did not act recklessly or intentionally.

V. DISPOSITION

The parties have raised several other issues on appeal. Our resolution of

the two above necessarily pretermits those not mentioned in this opinion. The

verdict of the trial court is modified as follows. Inasmuch as the plaintiffs failed

to present expert testimony of severe emotional injury consistent with the rule in

Camper v. Minor, 915 S.W.2d 437, 440 (Tenn. 1996), the award to Julie Amos is

reduced to reflect the medical damages proven, i.e., the medical expenses of

$32,884.07, associated with Alison’s birth and death. The jury award to Ron

Amos is vacated. The verdict is affirmed as modified. Despite its successful

appeal of the issues, costs on appeal are taxed against Appellant Vanderbilt. The

cause is remanded for such further proceedings as the trial court may deem

necessary. See Tenn. R. App. P. 40.

_________________________________

WILLIAM B. CAIN, JUDGE

19

CONCUR:

___________________________________

BEN H. CANTRELL, P.J., M.S.

___________________________________

WILLIAM C. KOCH, JR., JUDGE

20