# FILED

March 31, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk ESTATE OF

JULIE AMOSand ) RONALD AMOS, ) ) Plaintiffs/Appell

ees, )

) Appeal No. v. ) M1999-00998-COA-R3-CV ) VANDERBILT UNIVER SITY, INC. ) d/b/a VANDERBILT UNIVERSITY ) MEDICAL CENTER, ) Davidson Circuit ) No. 90C-4158 Defendant/Appel

lant. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE HAMILTON Y. GAYDEN, JUDGE

ABBY R . RUBE NFELD 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 PLAINTIFF S/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 I

N PART REVERSED IN PART AND REMANDED AS MODIFIED

WILLIAM B. CAIN, JUDGE1 Julie Story Am os died from com

plications related t

o AIDS in April o

f 1992. The case at bar c

oncerns no claim

for the wrongful de

ath of Julie Am

os. 2 

## O P I N I O N

This case represents a

nother chapter in a

protracted suit fil

ed bya father and mother against a healthcare provider for the allegedwrongful birth of their daughter. The child, Alison Amos, was born in Septembe r of 1989, having been

infected with the Human Immunodeficiency Virus (HIV) in utero through her moth er Julie. 1 In 1989 an HIV positive diagnosis brought with it a myriad of possible infections, such

as pneu mocyst is car inii . As mi ld as these infections m ight be to a healthy

immune syste m, in an immuno -deficient environ ment, especi

ally that of an i

nfant, just one such infection could spell disaster. Two months after her birth, Alison dev e loped pneumocysti s pneumonia, a c ommon AID S related infecti on, and died four da

y s later.

Julie Story Am

os 1 , Alison’s mother, was infected with HIV when she was transfused with fo ur un its of blood during a cosmetic operation performed at Vanderbilt

Univ ersi ty Medical Cen ter (hereinafte

r Vanderbilt) in A

ugust of 1984. Vanderbilt received those units from the regional blood

blank of the American Red Cross. At the time of

the operation, the HI

V virus had not

been isolated, ther

efore no test was available to screen blood prior to transfusion. At that time Vanderbilt had

no procedure for inf

orming transfused patients that they had received blood d

ur ing surgery.
By the Springof 1985 the HIV virus had been isolated, and Vanderbilt, as well as many other

medical fac

ilities across the c

ountry, was a

ctively scree

ning the blood given to current transfusion reci pie nts. However, many of the se facilities, including Vanderbilt, elected not to identify or warn former prior t ransfusio n recipients that they could ha ve been exposed to the HIV virus. As a result , some of these former patients led their lives infected and unawa re. Julie Story

lived thus for five years. In tha

t time she m

et and marrie

d Ronald Amos. Together they built a family with her two childr

en from a prev

ious marriage . In a ddi tion and most importa ntly, she gave birth to da ughter Al is on. Julie did not know he r HIV status3

until after Alison was hospitalized.

I. PROCEDURAL HISTORY AND POSTURE Alisondied on Monday, November 28, 19 89. Ron and Julie Amos, as Plaintiffs “Doe,” filed suit in Davidson County Circuit Court against Vanderbilt and the American Red Cross in March of 1 991. The complaint alleged , inter alia , th e following: 19. At no time from

March of 1985 until the present did [the Defendants] inform Plaintiff JANE DOE that shehad received a transfusion of blood or

that she was at ris

k for HIV-infec

tion.
* * * (Wrongful Birth

) * * *
26

. As a direct and proxim

ate result of the gr

ossly negligent, careless and reckless acts a nd om issions of the Defe ndants and their agents, to wit, the failure of Defendants to notify Plaintiff JANE DOE that she had r eceived a transfus

ion of blood and/or HIV-infected

blood in 1984 and was at risk for HIV-inf ection, Plaintiffs Jane and John

Doe failed to take

precautions to preve

nt the birth of an HIV

-infected infant.
27. As a direct and pr

oxim ate res ult of the grossly negligent, careless and reckless conduct o f Defendants, Plaintiff s JANE DOE and JOHN DOE

have suffered and w

ill c ontinue to suffer additional medical expenses, pain and suff er ing, di sabili ty, emotional distress, anguish, humiliation and other form s of emotion al and p sycholo gical i njury.

In April of 1991 the Red Cross rem ove d the case to feder al court. For

re asons not germane to t he issues before us,

the case was rem

anded back to state courtand again removed to federal court. After this sec on d removal the Plaintiffs settled with the American Red Cross. The federal district courtdeclined to exercise further jurisdic

tion over the case,

and the cause was t

hus returned to state

court.

Post discovery Vand

erbilt successfully ar

gued its pretrial m

otion for summary judgment on the ground that Plain tiffs failed to show a violation of the

a pp licable

standard of care c

onsistent with Tennessee’s Medical M alpractice Act. See Tenn. Code Ann.§29-26 -115. The Plaintiffs a ppealed tothis Court, and on May 30, 1997, we release

d our opinion holding exper t opinion unnecessary

to e sta blish4

Plaintiff s’ prima facie

case. This Court

stated the followin

g:
As we have stated, V

anderbilt's decisi

on not to implem

ent a notification

poli cy was n ot "a ma tter o f medical science or art requiringspecialized skills." In so h olding, we do not disput e that medical expert testimony would be important to assist a jur y in determining the notifi cation issue on th e merits. However, we agree with New York' s supr eme cou rt that the need for expert testimony does not always signif y medi cal malpractice. See Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784, 65 0 N.Y.S.2d 629, 632, 673 N.E.2d 914, 917 (19 96). U nder thes e facts, we do not think that scientific dat

a and kno wledge on which Vanderbil t relied in makin g t he decision indicate s that this case sounds i n medical malpractice.
For the foregoing reasons, we conclude that Vanderbilt was not engaging in the pract

ice of medicin

e when it decided i n the lat e 1980's not to implement a policy to notify forme r patien t s who had received blood pr ior to March of 1985 that they had received blood which was not tested for t he HIV virus. T

hus, the trial court erred in re

quiring the

plaintiffs' expert

proof to comply witht he Ten nessee Medical Ma lpractice Act an

d 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 c ourt's grant of summary judgm ent and remand this ca se to th e trial court so that it

may be cons

idered on the me

rits.

Estate of Doe v. Vanderbilt Uni versity, Inc., 958 S.W.2d 117, 122-23 (Tenn. Ct.App. 1997).

N o additional discovery was taken, and the

case proceeded to t

rial. The plaintiffs presented proof regarding the a lleg ed duty to warn J ulie 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 whic

h Ron and Julie Amos wer e informed ab out Aliso n’s and Julie ’s HIV status. Th e medical and funeral expenses associated with Alison’s birth and dea th wer e shown to be $32,884.07.

Plainti ffs attempted to pr

ove the emotiona

l damage asso

ciated with Alison’ s birthand death, using thei r own testimony

and the testimony

of their relatives. In addition, two of Plaintiffs’ expert witnesses testified in general term

s regarding

the emotional impact

of an AIDS diagnosis connected with the death of a child infected5

in utero . While these experts tes tifie d in generalities, neither testified a s to the severity of the

emotional distr

ess suffered by

either Ron or Julie A

mos.

Both at the close of Pla int iffs’ proof and at the close of all the proof, Defendant

Vanderbilt mo

ved for a directed verdic

t on the emotional dam

ages portion of the plaintiffs’ c

laims. The c

ourt denied those m

otions, finding the emot ional damages to be “parasiti

c” to the cause of a

ction for negligen ce, finding direct lay testimony as to the emotio

nal injury suffered by the plaintiffs, and taking judicial notice of the devastating emotional effect of an AIDS diagnosis on th e plaintiffs. The

case was thus submittedto the jury. After consideration, the

jury found the following as evi dence d in i ts ver dict f orm: 1. Do you find th

e defendant Vande

rbilt University

negligent? Yes: X No:
2. Do you find the d efend ant’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 a

mount of dam

ages sustained by

each plaintiff: Estate of Julie Am

os: $2,722,500 Ronald Amos: $1,639,200

Defendant

Vanderbilt, now seeks relief from the jury

verdict below, r

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

1. Whether Plaint

i ffs Amo s properly prove d entitlement to damages for the ir emotio nal inj ury?
2. Whether

Vanderbilt owed a

duty to Ronald Am

os to warn Julie Amos of the possibil

it y that she had bee

n exposed to HIV in 1984?

II. THE DUTY OWED TO RONALD AM OS In the i nterest of

clarity, we

address Vanderbil

t’s second issue fi

rst. It is argued that Vanderbilt owed no duty to Mr. Amos. Absent proof of this duty, there6

is no negligence claim

on his behalf. It is w el l 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 d ifferent. See Andalon v. Super ior Court , 208 Cal. Rptr. 899, 905 (Call. A

pp. 1984). Howev

er, Tennessee d

oes not recognize “

wrongful birth” as anything other than a cl aim for ordinary negligence. See Owens v. Foote, 773 S.W.2d 911, 913 (Tenn. 1989). T he same elem

ents mus t be made out in Mr. Amos’ cause as are to be made out for the estate of Julie Amos. T

he most troubling of these elements is duty.
Although the jury awarded Mr. A

mos over a m

illion dollars in

damages, the plaintiffs failed to show that V anderbilt ow ed any dut

y to Mr. Amos. It also bears noting that Julie Story and Ronald Amos began a r o mantic relationship four years afterMs . Story was infected via transfusion. The plaintiffs assert that damag es t o Ronald Amos flow as a direct consequenc e from Vande

rbilt’s f ailure to warn Julie Story of her HIV statu s. While this assertion addresse s the factual causa l connection between Vanderbilt and Ronald Amos, it fails to add ress a bigger issue.

The existence of duty

is as much a ques

tion o f public p olicy 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 Tenne ssee S upreme Courthas “specifically recognized that a physician ma y owe a duty to

a non-patient third party for injuries caused b y the physician’s negligenc e.” Brad shaw v. Daniel, 854 S.W.2d 865,a

t 870 (Tenn. 1993) (

citing Wharton Transport Corp. v. Bridges , 606 S.W.2d 521, 526(Tenn. 1980 )). Howe ver, that t hird party m

ust be an identifiable plaintiff, and the imposition of liability m

ust n ot ex pose the defendant to “liability indeterminate

as to amount, time, class, or number. ” See Wharton Transpor t Corp.

v. Bridges , 606 S.W.2d 5 21, 526(Tenn. 1980) (citing Ultramares Corp. v. Tou che, 255 N.Y.170, 174 N .E. 441 (1931)).The plaintiffs would ar gue that Vanderbilt

owed a duty to Ron Amos

as a foreseeable

husband to Julie and fa

ther to Alison. Following this reasoning , an y other party who would run the ris

k of emotional inj ury via intimate conta ct wit h Jul ie Sto ry duri ng th e time that Vanderbilt ch ose not to warn her of her possible HIV sta tus would enjoy the benefi t of a duty on Vanderbilt’s p art.7

The proof in the record shows no continuing relationship between Vanderbilt

and Julie Story following her surgery in 1984. Vanderbilt had no contact withJulie Story until she a nd her husband Ronald A mos checked into

Vanderbilt Hospital with Alison. As s oo n as Alison wa s diagnos ed, each member of Alison’s immediate

family was tested, including Ro nald Amos. Yet the plaintiffs argue Vanderbil t’s duty to warn Juli e Story flowe

d to Mr. Amos long before they even met. Thesefacts 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 ex

isting imme

diate family

members o f risks attendant to a spot ted fever diagnosis

. See Bradshaw v. Daniel , 854 S.W.2d, at 871. The Court specifically held that the existence of the physician-patie nt relat ionshi p 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 apatient's illness

. See Bradshaw, id., at 872. The phy sician-patient relationship

must be of such a character, or the plaintiff’s potential harm (not his or her mere existence), m

ust be so apparent as t

o impose upon the

defendant a duty

to actor refrain. See Turner v. Jordan, 957 S.W.2d 815, at 818 (Tenn. 1997) ; see also Bradshaw, supra , at

872; Wharton Transpor t Corp., v. Bridges, 606 S.W.2d 521, 526 (Tenn. 1980). Even if Vanderbilt was a ware of the possibil

ity 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 identifiabl e du ring the period of ina ction so as to justify

imposing a duty on Vanderbilt.

Atthe time Julie

Story receive

d the transfusion in 1984 , she was a divorced, 25-year-old-w

oman, embarking

on a brand new futur

e. Five years later,

after having endured the hardship of div orce, she would meet Ronald Amos and

begin thinking againabout 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 effec t wo uld encompass

everyone in her life to come. Fo r this Cour

t to impose liabil

ity on Vanderbilt

for the emotional in

juries to Mr. A

mos, we woul

d necessarily h

ave to hold that, after receiving a warning concerning her HIV status,

Julie Story wou

ld have taken one of myri

ad options available t

o her; and that Ronald Amos, had he been in Julie Story’s lif

e, would have take

n steps to avoid the birt

h, and that those step s would have indeed av oided the pain of wat ching a child die fro m HIV.8

This Court is unwilling to so hold. Mr. Amos was not a n identifiable party atthe time Vande

rbilt’s duty a

rose; n or was injury to

Mr. Amos for

eseeable 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 Ronal d Amos, we therefore m ust vacate the jury awa

rd 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 EMOTIONA L DISTRESS Although the case before us on appeal has been described by the parties as concerning

“failure to

warn” and “w

rongfulbirth,” there ca

n be no argument t

hat this

case so unds in negligen ce. The first appeal in th is case resolves thi s much. See Estate of Doe v. Vanderbilt Univ., Inc. 958 S.W.2d 117 (Tenn. Ct. A

pp. 1997). The appellees argue that the case at bar is not an acti

o n for n egligent infliction of emotional distress. They assert that this claim

is for “wrongful birth” and, therefore, di stinct from an action

in negligence which

results in emoti

onal injury. Their argument suggests a distinction without a difference.

While the concept is relatively novel in the legal universe, there have been several c ases c oncerning the diffe rent types of ac

tion 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 classif

ications: 1. Wrongful

pregnancy or conception is an ac tion brought by the parents on their ow

n behalf torecover dama

ges resulting from afailed pregnancy avoida nce technique (e.g., v asec tomy, tubal ligat ion, abortion, misfilled birth control prescription, etc.); usually the resulting child

is healthy. See, e.g., M

iller v. Johnson, 231 Va. 177, 3 43 S.E.2d 301 (1986); Garrison v. Foy, 486 N.E.2d 5 (Ind.App.1985); Nanke v. Na pier, 34 6 N.W.2d 520 (Iowa 1984); Weintraub v. Br own, 98 A.D.2d

339, 470 N.Y.S. 2d 634 (1983); Sherlock v. St illw ater Clinic, 260 N.W.2d 169 (Minn.1977).
2. Wrongful birth is a

n action b y the p arents on their own behalf to recover dam

ages for the birth of

an impaired child when the impairme

nt results e

ithe r from an act

or omission of the defendant or because

the defendant failed to diagnose or discover agenetic defect (

e.g., g enetic counsel[l]ing, failure to perform readily available diagnostic

tests, etc.) in

the parents or the infant9

in time to obtain a

e ugenic abortion or to prevent pregnancy altogether. See, e.g., James G. v. Case rta, 332 S.E.2d 872 (W.Va.1985)

(Involving two c auses of actions); Harbeson v. Parke-Davis, Inc., 98 Wa sh.2d 460, 656 P.2d 483 (1 983) (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, 39 7 N.Y.S.2d 363,

366 N.E.2d 64 (1977); Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d689 (1967).

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

in its opinion in Owens v. Foote. The plaintiffs in Owens traveled on the assertion that the physicia

n defendant had “

neglig ently performed a vas ectomy on Mr. Owens, negligently

failed to conduct and

interpret post-oper

ative tests, and

failed to advise plaintiffs correctly about the test results.” Owens v. Foote, 773 S.W.2d 911, 911-912 (Tenn. 1989). I n notin g 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 Courtin Smith v. Gor

e, 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 inv olving actions of this nature, includ i ng their various denom inations. Refere

nce is made to p. 741 for the definition of wro ngfu l birth. However, medical malpractice

suits of this nature,

br ought b y parents, alleging birth

defects of

an infant, are not

unknown in this State and we see no reason

to endeavor to fit the

m into some s

pecific catego ry bey ond a suit for ordin ary negligence. See, e.g., Sc haeferby Schaefer v. L arsen, 688 S.W.2d 43 0 (Tenn.App.1984).
Owens v. Foote, 773 S.W.2d 911, 913 (Tenn. 1989). Hence the chara cterization “wrongful

birth” does nothing to f urther the discussion of Vanderbil t’s alleged omission. The key elem ents of a cause of a

ction sounding in negligen ce are well k nown. To establish a prim a facie case, a

plaintiff must p

rove that the defend

an t breached an established duty , and that such br each pro ximately 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 Est ate in the

case at bar, the most difficult of these elements is injury. The vast discrepan c y between the medical da

mage s prov en and the general damages awarded, as well as the statements in the pleadings descri bing emotional dis

tress allegedly

caused by10

Vanderbil t’s failure to warn Mrs. Amos of her possible HIV status, suggests

that the majority of the $4.3 million dolla rs of damages was a

warded to com

pensate for the Amoses’ emotional inju ry. It is not sur

prising, therefo re, that upon rem and Vanderbil t’s counsel argu ed the requirement o f expert testim

ony to prove the emotional injury suffe

red by the plaint

iffs. This argument

was based on our

supre me court’s opinion in the case of Camper v. Minor

. In that case, a tr uck driver, who suffered no substantia

l ph ysical injury, sued a negligent m otorist’s estate,

seeking damages for post trauma

tic stress disorder. The Court considered this clai

m to be one of negligent inflicti

on of emotional di stress. Said the c ourt: Anysurvey of the

law in this area must begin with a clear and frank recognition

thatthe law of negligent infliction of emotional distress, however it is formulated in a specifi c j urisdiction, is fund ame ntally concerned with strik ing a balance between t wo opposing objectives: firs t, promoting

the underlying pur

pose of negligenc e law--that of compensating pe rsons who have sustained emotional injuries attributable to the wrongful conduct of others; and second, avoiding the t rivia l or fr audulent claims that have been thought to be inevitable due to the subjective nature of these injuries. The tension produce d by this ongoing atte

mpt to winnow out invalid cla

ims at t he summary judgm

ent level has caused inconsistency an

d incoherence in the

law; indeed, as the Washington

Supreme C ourt ap tly s tated some year s 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 d iscuss the requirement placed upon an individual seeking compensation fo

r mental inju

ry. The Cour

t in Camper

considered the vari

ous attempts taken in Tennessee

to weigh t

he considerations enu

merated supra . Reference is made

in Camper

to the inconsistent body of law concerning the general rule limiting remedy for em otional injury absent a “physical manifestation” of that injury. S ee Camper, 915 S.W.2d, a t 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 continual ly found it ne

cess ary to deviate from the "physical m

anifestation" rule

by either form

ally creating exceptions to the rule or by apply ing the rule in a nonrig

orous fashion. This practice of

creating ad hoc exc

eptions has made

our law of negligent inflict

ion of emot

i onal distress confusi

ng and11

unpredictable; ind e ed, the practice appears to have, a

s the plaintiff here argues, "robbed t he law o f logic , consistency a nd fairness."
A lthoug h there is some truth to this charge, the Tennessee cases in this area do conta in a common

thread: the courts'

desire to separate, at the

prima fac ie stage and in a m eaningful and rational manner, the m

eritorious cases f

rom the nonm

er itorious ones.
915 S.W.2d 437,

at 445-46. It

was against this bac

kdrop that the Court a

dopted the most recent rule concerning cla

ims for neglige

nt infliction of em

otional distress. Said the Court: Alth ough o ur seemingly disparate cases in

this area are thus reconcilable

on a functional level , we nevertheless a gree with the plaintiff here and with m

any other juri sdictions that the time has come to abandon the rigid and ov erly formulaic "physical manifestation" or "injury" r ule. This rul

e has pro ved to be infle xible and inadequate in pra ctice; and, as note

d in th e preceding section,

it completely

ignores the fact tha

t some valid emo tional injuri es simpl y may not be a ccompan ied by a contemporaneou s physical injury or have physical consequences. Therefore, in accordance wi th our statement in Carroll

that "[we have] realized that in some situations, whether t he pla intiff has incurred a literal physi

cal injury ha

s little to dowithwhether the emotional damages complained of are reasonable," id. at 594, we conclude that the rul

e shall no longer be used to test the validity of a prima facie case

of negligent inflict

ion of emotional d

istress.
This negative conclusion lo gically raises

its po si tive counterpart: what is required t o make out

a prima facie ca se? Aft er considering the stre

ngths and weaknesses

of the opti on s used in other jurisdicti

ons, we conclude that these cases should be analyzed under the general negligence approach discussed above. In otherwords, the plaintiff must present material evidence as to each of the five elements of general negligence--duty , breach of duty, inju r y or loss, causa tion in fact, and pr

oximate, or le

gal, cause, Kilpatrick v. Bry

an t, 868 S.W.2d 594, 598 (Tenn.1993); Bradshaw

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

in order to avoid summa

ry judgme

nt. Furthermore, we agree that in order to guard against trivia

l or fr audulent actions, the law ought to providea recovery only for "serious" or "severe" emotional injury. Burgess v. Superior Court (Gupt a), 2 C al.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 t o adequately cope with the mental stress engendered b y the circumstances of the cas e."12

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, 10 10 (5th Cir.1991); Pross er and Keeton on the Law of Torts, § 54, at 364-65, n. 60. Finally , we conclude th at th e claimed inj ury or impairme ntmust be supported

by expert m

edic al or scientific proof. See Leon g v. T

akasaki, 55 Haw. 398, 520 P .2d 758, 766-67 (1974) ("the plainti ff should be perm

itted to prove medically the damages o

ccasio ned by his me

ntal responses to defendant's negligent act").
Id. at 446. Appellees defend the finding of the trial court t

hat Camp er

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

be made between negligence resultin g in “wrongful bi

rth” and from “

failure to warn”

on the

one hand and negligent infl iction of emotion

al distress on the other hand. However, the language qu oted above clearly suggests that when,

as here, the inj ury to be compensated

is of primaril

y of an emot

ional nature, no

such distinction exists. T he damages recoverable for negligence of this nature have b een clearly defined. If liability is est ablis hed, a ll dama ges fo resee ably p rocee ding from t he birth and proximately

caused by the ac

t or omission of th

e defendant s hall be rec overable, “including

damages for

emotional distress.” Owens v. Foote, 773 S.W.2d 911, at 913 (Tenn. 1989) (cit

ing Smith v. Gore, 728 S.W.2d 738, 751 (198 7)).

IV. THE NEED FOR EXPERT TESTIMONY Itis difficult to imagin e 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 i s and what it is not. It is a

suit for negligence alleging failure to warn and wrong ful birth.

Itis not a suit for wron gful death of Julie Amos. It is not a suit by R onald Amos for loss of consortiu m of Julie Amos. It is not a suit for the wrongful death of AlisonAmos. It is no

t a suit for physical inj u ry to Ronald Am os, Julie Amos or Alison Amos.

The seeds of this trage

dy were pl anted in 1984 in the intr oduction by transfusion

into the blood of Julie A

mos of the HIV

virus. It is neither

alleged in the complaint

nor established by

the proof that Vanderbilt was at fault in the introduc

tion13

of the HIV virus in the

blood s tream of Mrs. Amos. Her subsequent death resulted from the inexorable progr

ession of the

HIV virusinto 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 Vander bilt 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 p ursue a retroacti ve process to identif

y and warn for

mer patients, such as Julie Amos, of possibl e exposure to the HI V virus because of pri or transfusions. Inherent in the jury verdict are findings of duty, breach of duty, injury

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

594, 598 (Tenn. 1993). As to the estate of J ulie Amos there is substantial and material evidence to support the jury verdict as to fault and this portion of t he jury v erdict cannot be disturbed. Whitaker v. Harmon , 879 S.W.2d 865 (Tenn. Ct. App. 1994).

Under whatever terminology is used, this case s ounds in negligence and aside from the stipula

ted birth, med

ical and f uneral expenses of $32,884. 07 in the delive ry, treatm

e nt and death of Alison

Amos, all dam

ages asserted res

ult from negligent infliction of

emotional distr

ess.
Camper v. Minor, 915 S.W.2d

437 (Tenn. 1996) is

a landmark in th

e efforts of the Tenne ssee S upreme Court to come to grips with the alm ost totally subjec

tive nature of injuries involving emotional distr

ess. Following a com

prehensive

review, the Tennessee Supreme Court held compensable only “severe or serious” emotional injury shown by an exper t to be of such a degree that a reasonable pers on normally constitute d would be u nable to cope with the attendant ment

al stress. 915 S.W.2d 437, 446.
Camper

was foll owed th e same year b y 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 P

ipe & Foundry Co., 570 S.W.2d 861 (T enn. 1978) into the general negl

igence frame

work. Said the co

urt: We reit erat e that plai ntiff must es tablish t hat defend ant’s14

negligence factually and legally caused plaintiff to suffer serious or severe emotional injuries . As we made cl ear in Camper , our ruling does not

provide recovery for “every m inor disturbance to a per son’s mental tranquility.” Barnhill v. Davis , 300 N.W.2d 104, 107 (Iow a 1 981), but only for serious or severe emotional injuries. A “ ‘seri

ous’ or ‘severe’ emotional injury occurs wher e areasonable person , n ormally co nstituted, would be un

able to adequately

cope with the m

enta l stres s engendered by t he circumstances of the case.” Camper v. Minor , 915 S.W.2d a t 446.
Our hold ing in Camper

and here should not be c onstrued to allow recovery for fright or fea r alon e. Likewise, hurt feelings, trivial upsets, and temporary discomfort wo

uld not besufficient for re co very. Only those serious or severe emotional injuries which disable a r e asonable, norm ally constituted p

erson from coping adequately wi

th the stress are suf

ficient to form

the basis for recovery. A

dditionally, the

“claime d inj ury or impairm

ent must be supported by expert medical or scientific proof.” Id.
931 S.W.2d 527, 532 (Tenn. 1996).
Appe llees argue that e motio nal da mages a re “par asiti c” to t heir c laim o f wrongful birth and thus recoverable. In support they cite Kush v. Lloyd , 616 So.2d 415 (Fla. 1992), w

herein the Suprem

e Court of Florida h

eld: [W]e are not certain

thatthe impact doct

rine ever was inte

nded to be applied to a tort such a s wrongful birth. Prosser a

nd Keeton state that the impact doctrine should not be applied where emotional damages are a

n additional “par

asitic” consequence

of conduct that itself is a freestanding

tort apart from any emotio

nal injury. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 54, at 361-65 (5th ed. 1984). T he American

Law Institute is in general accord . Restateme nt (Second) of Tor

ts § 47 & § 47 cmt. b (1965). Obviously, the [plaintiffs] have a claim f or wrongful birth even

if no emotional i

njuries had been a

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

Under Camper

and Ramsey , even if one accepts the “parasitic” argument in Kush , the law of Tennes s ee wou ld still require that the “parasitic

” damages be establi shed by expert testim ony. More cle

arly analogous to

the case at b ar i s McCracken, et al. v. City of M illington , NO. 02A01-970 7-CV-00165, 1999 WL142391 (Tenn. Ct. App

. 1999). In this case, Jona McCracken sought damages as the result of an autom

obile accident in

which her husband was fatally inj ured and she15

was physicall

y in jured. She also sought loss of consortium damages for the brief period that her husba

nd survived the accide

nt. In addition, she sought damages for the negligent infliction o f emotional dist

ress. The trial

c ourt fou nd that she had suffered compensatory

damages of $175, 000 of

which $46,250 was r

ecoverable

from the City of Milli

ngton because the City

was 25% at fault.It might well be said that her claim for emotional injury was “ parasitic” to her claim for pers ona l physical injuries and loss of

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

were from emotional injury and rem aining $75,000 from the physical injury and loss of consortium.

In dis allo wing damages f or negligent inflicti

on of emotional di stress the Western Sectio

n of the Court of Appe

als held: Ev en a ssuming that Jona’s emotional injuries were foreseeable, however, we would still find that Jona is not entitled to recover dama

ges for negligent infliction of emotional distress. A plaintiff may

recov e r under this legal the ory only if he

or she has suffered a seriou s or severe em otional injur

y . See Ramsey , 931 S.W.2d at 5 32; Camper , 915 S.W.2d a t 446 (citations omitted). Additionally,

the plaintiff’s serio us or severe injury must be supported by expert medical or scientific proo f. See Ramsey , 931 S.W.2d at 532; Camper, 915 S.W.2d at 446 (citing Leong v. Takasa ki, 520 P.2d 758, 766-67 ( Haw. 1974)). T

he plaintif f’s injury is suff

iciently seriou s or severe if “ a reasonable person, normally c

onstituted, would be

unable to adequately

cope withthe ment

al stres s engendered by t he circumstanc

es of the case.” Ramsey , 931 S.W.2d at 532 (quoting Camper , 915 S.W.2d at 446). * * * Additi onally, we find that Jona ha s failed to prove b y expert medical or scientific

proof that her emotional injuries were severe or serious. According to Jona’s psychiatrist, her symptom s were “within the normal grieving process and may no t lead to any future long term complications.” T hus, und er the definition of “severeor seri ous in jury” adopte d by our suprem e court in Camper and Ramsey , we conclude that Jon a has fai led to carry her burden of proof with respect to this issue. In light of our

discussion

above, we find tha

t the requirem

ents of Ramsey ha ve not been satisfied in the instant case and consequently

hold that the trial co

urt erred in its ass essment of Jona’s damages. On

remand, the c

ourt should reduce its

prio r assessment

of Jona’s da mages by $100,000.00, the amount that the court assigned as dam ages for negligent in

f li ction of emotional distress.16

McCracken, et al. v. City of M illington , No. 02A0 1-9707- CV-00165, 1999 WL142391, ** 11-12 (Tenn. Ct. App. Mar. 17, 1999).

A t th e conclusion of all of the proof in this case , Vanderbilt ren ewed its motion for a dir

ected verdict as to

emotional dam

ages. The trial

court held: THE COURT: Oka

y. The issue of emotiona

l distress, the Courtoverrules the

defendant ’s motion for two r easons. 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 direc t testimony a s to the suffering of persons in a conce ptual same situa

ti on as th e plaintiffs, the deceased a nd the l iving plaint iff. And thirdl y, again, you know, the effect and diagnosis of AID S in this case in and of itself would cau se any norm al pe rs on to have imm

ediate emotional distress. The Cou rt will make j udicial k

nowledge of that.
Camper and Ramsey, in expandin g the right to recover damages for negligent infliction of em

otional distr

ess, struc k a balance that does not allow the courtto take judicial notice as a substitute for expert testimony that plaintiff’s injuries

are “severe or serious”. The Supreme Court struck the balan ce by requiring expert testimony and thus far has o nly vitiated the n eed for expert tes

timony in ca

ses of intentional infliction of em otional distress. I

n the November

15, 1999 decision i

n Wayne Miller, et al. v

. Wilbanks, et al. , 8 S.W.3d 607 (Tenn. 1999), t he Suprem e 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 elem

ents inherent in inten

tional conduct. Thu s, concerns with unwarranted claims are not addressed by the kind of conduct that must

be proved to obtain dam ages for emotional distress. In the absence of a ny reliable indi

cia of a severe mental injury suggested by the conduct, some safeguard must be imposed to limit frivolous litig ation. A cco rdingly, when the conduct complained

of is negligent rather than intentional, the plaintiff must prove the serious mental inju ry by expert m edical or scientific proof.See Camper , 915 S.W.2d a

t 446.
8 S.W.3d 607, 614-15 (Tenn. 1999).

If there is to be an “AI

DS” exception to

the expert testim

ony requirem

ent of Camper, Ramseyand Miller , it must come from the Suprem e Court of Tennessee.17

While the words “tr

ivial” and “fr

audulent” have no appl

icability in the face of this tragedy, t

he definition of “serious” or “severe” cannot provide a basis for judicial notice, but expert testimony is required to carry

the plaintiff’s b

urden of proof to sh ow tha t “. . . a reasonable person normally

constituted, would be

unable to adequately

cope with the menta

l stress engendered

by the circumstances of the cas e.” Camper v. Minor

, 915 S.W.2d 437, 446 (Tenn. 1996).
Appellee as ser ts that Camper should not be given retr oactive application underthe facts of this ca se. While it is t rue that retroact

ive application of a statute affe cting vested substantive ri ghts is constitutionally

prohibited under Ar

ticle 1, Section 20 of the Te nnessee Constitution, evolving changes in the common law pronounced by adjudicatio n are not so inhibited. Dupuis v. Hand , 814 S.W.2d 340 , 343 (Tenn. 1991); Davis v . Da vis , 657 S.W.2d 753 (Tenn. 1983). R eliance on Cumberland

Capital Corp. v. P

atty , 556 S.W.2d 516 , 540 (Tenn. 1977) is misplaced. That case involved not a change in common law , but rather the f ailure of an existing statuteto pass co nstituti onal muster. We find more pers uasive the

situation in which

acommon law rule is changed or an existing remedy is abolished by comm on law. In this regard, the progression of cases dealing with comparative fault are instructive.

The Supreme Cour

t’s decision in Camper

v. Minor expanded a plaintiffs ability to rec over f or emot iona l dis tress . The Su preme Court’s decision i n Macintyre

v. Balentineexpanded th e abili ty of a plaintiff to recov er for negligence. See McIntyre v. Balentine , 833 S.W.2d 52 (Tenn. 1992). The MacIntyre court abolished the contributory negligence b ar, the l ast clear chance doctrine, and right

to contribution pro rata among joint tor tfeasors as it had e

xisted under prior co

mmon and statutory law. The Camper court “abolished ” the exclusivity of the “physical manifestation” and “zone of d anger” doctrines.
According

to Plaintiffs the McIntyre decisi on woul d not have been retroactively

applied to affect the righ

t of an individual to re

cover under the

Uniform Contribution

Among Tortfe

asors Act. The Supreme

Court addressed this

retroactive application

in B ervoets v. Harde Ralls Olds-Pontiac, Inc. Bervoets concerned a contribution

case brought under the aforementioned act. For var i ous and sundry reasons the case w

as tried and

twice retried. The se

cond retrial took pla

ce after the18

Supreme Court

issued its well-know

n opinion in McIntyre,supra

.

Bervoets conce rned t he fol lowin g stat ement f rom McIntyre : [B]ecause a particular defe

ndant will hencefor

th be liable only for the percentage of a plaintiff's da mages occasioned by that defendant's negligence, situat ions where a defe

ndant has paid morethan his "share" of a judgment will

no longe r arise, a nd therefore the Uniform Contri bu tion Among Tort feasors Act, T. C.A

. § 29-11-101--106 (1980) will no longer deter

mine the apportionment of liab ility between co-defendan ts. 833 S.W.2d at 58. A danac, the defendant in contrib ution, app ealed the t rial court ’s denial of its motio

n to d ismi ss Safeco’s suit brought under the “abolished” statute. The Court of

Appeals affirmed

the trial court, a

nd the Supreme Court granted Rule 11 application to “clarify the situation.” Bervoets v. Har de RallsPontiac-Olds, Inc. et al., 891 S.W.2d 905 (T enn. 1994, reh. gr

anted 1995). Said th

e court: Although we certainly

did not intend in McInty re to totally abolis h the r emedy of c ontribution, it is obviou s from the above-quoted passage

that we did intend tha

t the "pro rata share of damages" appr

oach of the UCAT

A, which provide s th at the fault of the parties is not to be considered in de termining eac h party's share of

damages, shoul

d not continue to

be utilized after the McIntyre

decisio n was r eleased. Becau se we intended to adopt a comprehensiv

e scheme of co

mparative fa

ult in McIntyre , and because the "pro rata s hare" approach set for th in the UCATA is in direct co nflict with such a schem e, we felt it nec

essary to explicitly provide such guidance to the trial courts charged with the duty of trying tort cases in this state. Although Safeco re adi ly admits that the "pro rata share" ap proach to contribution is incons istent with the princ

iple s o f comparativ

e fault, it contends t

hat our substantial dic tum regardingcontribution in McIntyre should not apply to the retrial in this case for two ba

sic reasons. Firs

t, Safeco conten

ds that it had an expectation

that it would be able to pursu

e a UCATA-ty

pe contribution

claim a gain st Ada nac at the ti me it entered into the settlement

agreement,

that this expectation

con st ituted an accrued or vested right, and

th at it is therefore

impermiss

ible to retroactively

apply the principles of McIntyre so as to deprive it of that vested right. We are not convin ced, however, t hat the retroactive

application of McIntyre in fact ser ves to deprive Safeco of any "right, " vested or oth erwi se. In fact, it is entirely possiblethat Safeco could a ctually obtain a better result underthe principles of comparativ

e fault than it could und er the UCATA approach.19

Bervoets, 891 S.W.2d, a

t 907. The well se

ttled p oint is that t

here can be no vested right in an existing law w

hich precludes its or

derly cha nge when public policy so demands. See Cavender v.Hewitt , 145 Tenn 471, 239 S.W. 767, 770 (192 2). Retroactive

application of Camper

is beneficial to the

appelle e insofar as Camper expands the right

to recover for em

otional injury.

It hurts the appelle

e only because it“strikes a bala nce” against such expanded scope of liability by requiring expert testimony to prove that the emotional injuries claimed were “sever e” or “serious”. This case was in the “pipel ine” at th e time Camper was decided in 1996.What is involved in this case is neither constitutional nor statuto ry but simply

evolution of the

common law by common law adjudication. C o nsistency requir

es and fairness dictates that Camper

apply to this

case. Davis v. Davis , 657 S.W.2d 753 (T enn. 1983); Luna

v. Clayton , 65 5 S.W.2d 893 (T enn. 1983); Lease v. Tipton , 722 S.W.2d 379 (Tenn. 1986).

There being no compete nt p roof 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 dam

ages shown. Our ho

lding comports with t

he action of

the trial court in that it foun d Vande rbilt d id not act reck lessly o r inten tional ly.

V. DISPOSITION The parties have r

aised several other

issues on appeal. O

ur resolution of the two above neces sarily preter mits those not m

entioned in this opinion.The verdict of the trial court is modified as follows. Inasmuch as the plaintiffs failed to present expert te stimony of se vere emotional

injury consiste

nt with the rule in Camper v. Minor

, 915 S.W.2d 437 , 440 (Tenn. 1996) , the award to Juli e Amos is reduced to reflect the medical damages proven, i.e., the medical ex penses of $32,884.07, associa

ted with Alison’s

birth and death. T

he jury awa

rd to Ron Amos is vacate

d. The verdict is affirmed as modified. Despite its successful appeal of the issues,

costs on appeal are taxed against Appel lant 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, JUDGE20

CONCUR:

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

__________________________________ _ WILLIAM C. KOCH, JR., JUDGE