# FILED January 8, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT JACKSON

LARRY AUBREY HENSON, ) ) Plaintiff/Appella

nt, ) Shelby Circuit No. 79501

) v. ) ) ELIZABETH ELLEN SORRELL, ) Appeal No. 02A01-9711-CV-00291 ) Defendant/Appellee. )

SEPARATE CONCURRENCE AND DISSENT

I write separately only to indicate disag reement with an inference that may be drawn from the majority opinion. The last sentence in the opinion statesthat a party such as Henson may recover damages immediately

flowing from the

wrongful condu

ct, as in Sm ith v. Gore , 728 S.W.2d 738 (Tenn. 1987). As noted in the majority opinion, the plaintiff mother in Smith was pe rmitted to

recover in a med ica l ma lpr act ice act ion for dam ages imm edi ate ly re lat ed t o pr egna ncy a nd childbirth

. To the extent that it may be inferred from this that Henson could recover from So rrell damages for any pa

yments Hans

on made related t

o Sorrell’s preg

nancy and c

hildbirth , based on common law tort claims, I disagree. Smith , of course, was a medical malpractice action against a physician and a hospital. The

case at b ar i s a cl aim by o ne parent against the other. Payment of expenses fo r p regnancy and childbirth are addressed in Te nnessee Code Annotated § 36-2- 311(a)(13), whi

ch provides: (a) U pon establishing parentage, the court shall make an order declaring the fa the r of the child. This order shall include the follow ing: * * * (13) Determination of

liability for

a mother’s reas

onable expenses for her

preg nan cy, confinement and recovery to either or both parties. . . . Tenn. Code Ann. § 36-2-311(a)(13) (Supp. 1998) (emphasis added ). In an action between the mother and father, as opposed to a medical malpractice action such as Smith , the comprehensive statutory sche me specifically addresses the liability of the pa rents for these expenses, and “[a]pplication of general common law principles of tort recovery is not appropriate . . . .” Smi th , 728 S.W.2d at 751.2

The majority opinion distinguishes between the parents’ obligation of child support and the assessment

of medical expenses associated with pregnancy and childbirth, noting that child support is “an obligat ion owed to the child” and characte rizing me dical expenses for pregnancy and childbirth as “obligations incurred, not by the child,but by the party involved, “namely, the mother. However, medical treatme nt ass oc iated with pregnancy and childbirth is treatment of the child as well as the mother. Med

ical treatment of

the chil d in utero and in childbirth, while critical to the child’s health and well-being, is not cove red by the s tatutory re

quirement of child

support. Undoubtedly

this is the reason the Legislature mandated that parentage orde rs include a determination of the parents’ r espective liabili

ty for these

expenses. Since the Legislature requires the court to allocate liability for these expenses pursuant to Section 36-2-311(a)(13), I believe that this would supplant one parent’s common law tort claim against the other parent for payment of such expenses. Therefore, to the extent that it may be inferred from the majority opinion that Henson could state a claim under common law tort theories to recover from Sorrell any payments he was required t o make related to Sorrell’s pregnancy and childbirth, I dissent. I fully concur with the remaind e r of the majority opinion.

HOLLY KIRBY LILLARD, J.