### IN THE SUPREME COURT OF TENNESS EE AT NASHVILLE June 4, 2003 Session

STANLEY A. GUNTER v. LABO RATORY COR PORATION OF AMERICA, d/b/a LABCORP, ET AL 

### . Appeal by pe rmission from the Court of App eals Circuit Court for Davidson County No. 01-C-2890 Thomas W. Brothers, Judge

No. M2002-00600-SC-R11-CV - Filed December 19, 2003

We granted permission to appeal to determine the applicable statute of limitations in this action agains ta laboratory

that analyzes blood for purposes of providing evidence in pater nity cases. The trial court ruled that the c ase was“gove rned by the appli cable on

e y ear sta tute of lim

itations” in Tennessee Code Annotated sections 28-3-104 and 29-26-116 , which refer to injuries to the person and medical malpractice

claims , and dismissed the action because the suit was filed outside the oneyear limitation. The intermediate court app lied the th

ree-y ear sta tute of lim

itations a pplicabl e to suits for recovery

of monetary da ma ge s f or in ju ri es to pe rs on al pr op er ty a nd , t he re by, reversed the trial court’s ruling. We conc lude that t his action sounds in negligence rather tha n medical malpractice. Further, we conc lude that the economic l oss sustain ed by the plain tiff is an injury to propert y rather than to the person. Thus, we hold that the three-y ear statute of limitations for injury to personal prop er ty applies. Accordingly , we affirm the judgment of the Court of Appeals a nd remand the case to the trial court for furthe r proceedings consistent with this opinion. Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed

and Case Remanded to the Circuit Court for Davidson County

A DOLPHO A. B IRCH , J R ., J., delivered the opinion of the court, in which F RANK F. D ROWOT A , III, C.J., and E. R IL EY A NDERSON , J ANICE M. H OLDER , and W ILLI AM M. B ARKER , JJ., joined.

William E. Godbold, II

I, and Cherie D. Jewell, Chattanooga , Ten nes see , an d Th oma s J. Dem ent , II, Nashville, Tennessee, for the appellant, L abCorp. August C. Winter, Brentwood, Tennessee, for the a ppellee, Stanley A. G

unter. Opinion I. Facts and Procedural History

The facts as alleged by

the appellee, Stanley A. Gunter, r eveal that a judgment establishing1 Another t est was performed by Laboratory Invest ments, a co-def

endant i n the ca se. That test indic ated th at ther e was a 99.99 % chanc e that G unter w as the fath er of J.C . Labo ratory I nvestm ents is no t, howe ver, a p arty to this app eal.

2 In kee ping w ith the Co urt’s po licy, we ide ntify mino r childr en by th eir initials.

3 Th e Co urt of A ppe als held that the six-ye ar statute o f limitations fo r con tract ac tions d id no t app ly in this case. N either p arty raised this issue o n app eal to o ur Co urt.
-2- paternity and orderin g the pa

yme nt of child

support w as enter

ed aga inst him bas ed, in par

t, on the results of a blood

test perf orme d by th e appell ant, L aborato

ry Corpora tion of Ame

rica (d /b/a LabCorp). The resu

lts of that test 1 were iss ued on Ma

y 25 , 1999, and indicat

ed that there wa s a 99.94 % chance t

hat Gu nter wasthe father of J. C. 2 Gunter asserted, however, that he neve r had sexual relations with the mother of the child. Thus, he contended, in a complaint filed on September 21, 2001, that LabCorp neglig ently perfor me d the paternity test and ove rstated the probability of pa te rn it y. His complaint alleged negligenc e and breach of contr act, 3 and he sought damages in the amount of the economic loss occasioned by the obliga

tion imposed upon him to make child support pay ments. LabCorp, conte nding that the one-ye ar statute of limitations applicable to medical malpractice claims or personal injury claims ap plied and had run p rior to the filing o f the com

plaint, moved to dismiss the complaint for failure to state a claim uponwh ich relief can be granted. See Tenn. R. Civ. P. 12.02(6) (2003). Gunter responded that the three-y ear statute of l imitations f or person al pro perty tort actions should be applied instead. The trial court ruled that the case was “governed

by the applicable

one yea r statute of limitations” in Tennessee Code Annotated sections 28-3-104 and 29-26-116. Tennessee CodeAnnotated section 29-26-116(a)(1) (2000) provides that “[t]he statute of limitations in malpractice actions shall be one (1) y ear as set forth in [section] 28-3- 104.” Tenness ee Code A nnotated section 2 8-3-104 ( 2000) pro vides tha t the statu te of limitations for injuries to the person shall be commenced one year after the caus e of act

ion accr ued. On a ppeal, the Court of A

ppeals reversed the trial court’s ruling, holding that Gunter’s complain

t stated a cause of action for injuries to pers onal property, a nd thus is controlled by the three- year sta tute of limitations set forth in Tennessee Code Annotated section 28-3-105. We g rantedp ermission

to appea l pur suant to Rule 11 of the Tennessee Rules of Appellate Procedure to de termine the applicable statute of limitations in Gunter’s action against LabCorp.
II. Standard of Review

On appeal t

o this Court , Lab Corp cha

llenge s the sufficie

ncy of the c omplaint, contending that under the appli cable one-year sta tute of lim

itations the compla

int is time-barred. “The

applica ble statute of limitations in a particul ar c ause will be determined according to the g ravamen of the complaint.” Vance v. Schulder , 547 S.W.2d 927, 931 (Tenn. 1977). The determination of the gravamen of the complaint is a question of law which may be appr

opriately addr

essed in a motion to dismiss under Rule 12.02(6) of the Tennessee Rules of Civil Procedure.-3-

A Rule 12.02 (6) motion

to dismiss for

failure to state a claim upon which relief can be granted tests only

the sufficie

ncy of the co mplaint, not the stre ngth of a pl ainti ff's proof as does, for example, a motion for a directed verdict. The fa ilure to state a claim upon which relief

can b e granted is determined by an examination of the complaint alone. T he basis f or the moti on is that th

e alleg ations co ntain ed in the complain t, consider

ed alone and take n as true , are ins uffic ient to st ate a cl aim as a matter of law. The motion admi ts the trut h of all re levant a nd mater ial aver ments containedin the compl ain t but asserts that such facts do not constitute a cause of action. I n scr

utini zi ng the c omplaint in the fac e of a Rule

12.02(6) motion to dismiss, courts should construe the complaint liberally in favor of the plaintiff, taking all allegations of fact therein as true. The motion should be d

enied unl ess it

appears that the plaintiff can prove no set of facts in support of her claim that would

entitle her to relief.

Cook By & Through Uithoven v. Spinnaker's of Riverg ate, Inc. , 878 S.W.2d 934, 938 (Tenn. 1994) (citations omitted).

Becau se this case

comes to us upon a moti on to dismiss , we are require d to acce

pt the fa cts alleged in the complaint as true and to review solely the legal issue presented. Crews v. Buckman Lab s

. Int’l, I

nc. , 78 S.W.3d 852, 855 (Tenn. 2002). Thus, this matter presents issues of law which this Court rev

iews de n ovo with no

presumpt

ion of cor

rectne ss arisin g from the trial court’s conclusions. Carvell v . Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). III. Analys is

In this appeal, LabCorp contends that the Court of Appeals erred by apply ing the three-y

ear statute of limitati ons for pe

rsonal pr operty tort acti ons and a sserts, in stead, th at Gunter ’s claim is one of medical malpractice

subject to a

one-yea r statute of limitations. According to LabCorp, G unter’s action accrued on May

25, 1999, when the report on theblood test was issued, andexpired May 25, 2000, one yea

r after th e date the statute

began to run. Gunter responds that the three-y ear statute of limitations period for negligence actions is applicable in this case, and thus, tha t the Court of Appeals correctly

ruled that his complaint, filed on September 21, 2001, was not time-barred. A. Negligence in L

aboratory Testing as Medical Malpractice

T o de te rm in e w hi ch li mi ta ti on s s ta tu te co nt ro ls Gu nt er ’s cl ai m a ga in st th e l ab or at or y, w e must first decide whether the claim sounds in medical malpractice or negligence. “[T]he distinction betweenmedical malpractice and neglig ence is a subtle one, for medical malpractice is but a species of negligence and ‘no r

igid analy tical line separates thetwo.’” W einer v. Lenox Hill Hosp. , 673 N. E. 2d 914, 9 16 (N. Y. 199 6) (qu otin g Scott v. Uljanov , 541 N.E.2d 398, 399 (N.Y. 1989)). Tennessee has attemptedto distinguish medical malpractice from neglig ence
. See Tenn. Code Ann. § 29-26-1 15; Bradshaw v. Daniel , 854 S.W.2d 865, 870 (Tenn. 1993).4 Section 29 -26-115 (a) provid es:

In a ma lpra cti ce act

ion, the cla imant

shal l ha ve t he bur den of provi ng by evi dence a s prov ided by subse ction (b ):
(1) The recognized standard of acceptable professional practice i n the profession and the specialty thereof, i f any, t hat the defendant practi ces in the community i n which the defendant prac tices or in a similar com munity a t the time the alleged injury o r wron gful actio n occ urred ;
(2) T hat the d efend ant acte d with les s than o r failed to act with o rdina ry and reaso nab le care in accorda nce wi th s uch s tandard; a nd
(3) As a proxi mate res ult of th e defendant 's negli gent act or omissi on, th e plain tif f suf fered injuries w hich wo uld no t otherw ise have occu rred

.

-4- A claim of common law negligence require s proof of the following elements: a duty of care owedby t he defe ndant to the plaintif

f; conduct f

allin g below the applicable standard of ca re that amounts to abreach

of that du ty; a n injury or loss; cause in fact; and proximate or legal cause

. White
v. Lawrence , 975 S.W.2d 525, 529 (Tenn. 1998). Medical malpractice actions are spec ifica lly controlledby the medical malpra ctice statute, Tennessee Code Annotated section 29-26-115, which essentia lly codifies the common law elements of negligence

. Kilpatrick v. Bry ant , 868 S.W.2d 594, 598 (Te nn. 19 93). Section 29-26-115 places on the claimant the burden of proving the following statutory elements: (1) the recognized standard of professional care; ( 2) that the defenda nt failed to act in acco rdance with the applicable standard of ca re; and (3) that as a proximate result of the defend ant's neglig ent act o r omission, the claimant suffered an injury which otherwise w ould not have occurred. 4 See Moon v. St. Thomas Hosp. , 983 S.W.2d 225, 229 (Tenn. 1998).

In distingu

ishing be tween the two claim s , it should be noted that not all cases involving health or medical entities sound in medical malpractice. See Pullins v. Fentress County Gen. Hosp. , 594 S.W.2d 663, 669 (Tenn. 1979) (indicating that medical malpractice statutes did not apply in the determination of whether hospital breached its duty to ke ep hospita

l free f rom spide

rs); see also Bradshaw v. Daniel , 854 S.W.2d 865, 870 (Tenn. 1993) (“[A phy sician-patient relationship] is not necessary for the ma

intenanc e of an a

ction bas ed on negligenc e, and th is Court has s pecific ally recognized

that a phy sician ma

y ow e a duty

to a non-p atient thi

rd party for injur ies c au sed by the physician’s negligenc e . . . .”) ; Peete v. Shelby County Health Care Corp. , 938 S.W.2d 693, 696 (Tenn. Ct. App. 1996) (holding that a complaint by patient that a piec e of orthopedic suspension bar above her hospital bed fell and struck the top of her hea d was a claim for ordinary negligence, not medical ma lpr actice, and thus patient was not required to prove statutory elements of malpractice action). At the other

end of the

spectru m, the med

ical malp ractice statutemay extend to acts of nonphy sicians, such as nurses, when they are involved in the medical treatment of a patient. Cf. Seavers
v. Methodist Med. Ctr. , 9 S.W.3d 86, 96 (Tenn. 1999) (finding that based on the doctrine of res ip sa loquitur, the appel lant rais e d a genuine issue of material fact that nur ses negligently restrained or positioned patient’ s arm wh ile she was under their care, resulting in the damage to her right ulnar nerve).-5-

Alth ough this Court has not specifically articula ted the analysis to be

used to distinguish an ordinary negligence claim from a

medical malpractice c laim, the distinguishing feature is evident from our review of the previously mentioned cases. When aplaintiff’s claim is for injuries resulting from neglig ent medical treatment, the claim sounds in medical malpractice. See, e .g. , Seavers , 9 S.W.3d at 86. When a plaintiff’s claim is for injuries resulting from neglige nt acts that did not affect the medical t

reatmen t of a pat ient, the claim sounds in ordinary negligence. See, e .g. , Bradshaw , 854 S.W.2d at 870. The New York courts have specific ally addressed this issue and have concluded as follows:

a claim sounds in medical malpractice when the challeng ed conduct “constitutes medical treatment or

be ars a substantial relationship to the rendition of medical treatment by a licensed phy sician.” By co ntrast, w hen “the gravamen of the complaint is not n egligence in furnishing medical treatment to a patient, but the hospital's failure in fulfilling a different duty ,” the claim sounds in negligence.

Weiner , 673 N. E.2d a t 916 (quot ing Bleiler v. Bodnar , 479 N .E.2d 230, 2 34-3 5 (N. Y. 19 85)) . We embracethis analysis and hold that when a c lai m all ege s negligent conduct which constitutes or bears a substantial relationship to the rendition of medical treatment by a medical professional, the medical ma lp ra ct ic e s ta tu te is ap pl ic ab le . C on ve rs el y, when the conduct alleged is not substantia

lly related to the rendition of medical treatment by a medical professional, the medica l malpractice statute does not apply.

The crucia

l questi on here, then, is whether the services perf ormed by L

abCorp for Gunter bear a substantial relationship to the rendition of medical treatment. Of course, there may be circumstances where th

e analy sis o f a pers on’s blood could be s ubstantia

lly related to the rendition of medical treatment. But whenthat ana lys is is perf

ormed to o

btain a DNA profile for purposes of paternity determination, no rendition of medical treatment is involved. See, e .g. , Smith v. Katzman , 611 N.E.2d 10 13, 1014 ( Ohio Ct. App. 1992) (recognizing precede nt that “negligent

blood-grouping analy sis [done for

a pater nity suit] is not a

claim t hat a rises out of the medical diagnoses, care or treatment of any person”). Thus, the core

issue in this case –the adequacy of the laboratory ’s blood testing procedures–does not implicate issues of medical competence or judgment linked to Gunter’s treatme nt. Accordingly , we hold that the medical malpractice statute and its concomitant one-yea r limitation o f action s have no applica tion to Gunt

er’s cla im.

We acknowledge that this rule conflicts with langua ge in the cases of Terry

v. Niblack , 979 S.W.2d 583 (Tenn. 1998) and Miller v. Niblack , 942 S.W.2d 5 33 (Tenn . Ct. App. 1 996). The courts in those cases applied the medical malpractice statute to blood testing for paternity

determination; however, the issue of the propriety of applying the

medical malpractice stat

ute w as not raised nor
was it pertinent to the outcome of the cases. Thus, we con sider the language indicating tha t the medical malpractice statutes apply to blood testing for a

paternity deter

mination to be obiter dictum and not binding. See Shoushav. Matthews Drivurself Serv., Inc. , 358 S.W.2d 471, 473-74 (Tenn. 1962) (noting that “a decisionis authority for the point or points decided, a nd nothing more, and that general expressi ons in an opinion are to be taken in connection with the case in which they were5 “(a) T he follo wing ac tions sha ll be co mm ence d within o ne (1 ) year afte r the ca use o f action a ccrue d:

(1) Actions for libel, for i njuries t o the person, fals e imprisonment, malici ous prosecution, breach of marriage pro mise . . . .” T enn. C ode Ann. § 28-3 -104 (a)(1 ) (20 00)

.

6 “Th e follow ing actio ns shall b e com men ced within thre e (3) ye ars from the acc ruing o f the cau se of ac tion: (1) Actions for inj uries to personal or real property . . . .” Tenn. Code A nn. § 28-3-105 (200 0).

-6- used, and when they

go bey ond that, they are

not authority for another case”).

B. Nature of the Injury Concluding that the action in this case sounds in negligence, ra ther than medical malpractice,
we must now determine whether the injury was to the pers on or to prop erty . This distin ction is importantbecause

a one-y ear sta tute of limitations applies to “injuries to the person ,” 5 w hereas, a th re e- yea r l im it at io ns pe ri od ap pl ie s t o i nj ur ie s t o p ro pe rt y. 6

In holding that injuries to the person are not limited to phy sical injuries and that damage done to a pl ainti ff’s re putat ion i s an “i njury to t he pers on,” t he Cou rt has state d the f ollo wing:

It is then our conclusion that the phrase ‘injuries to the person’ as used in the instant statute is to be construed comprehensively and as contemplating its ap plication to actions involving injuries that are other than phy sical. Its pu rpose is to includ

e within that period of limitation actions brought for injuries resulting from inva sions of r ights that inhere in man as a

rationa l being, that is, rights to which one is entitled by r eason of being a person in the ey es of the law. Such rights, of cours e, are to be distingu ished fr om those which ac crue to a

n individua

l by reason o f some

peculiar st at us or by v ir tu e o f a n i nt er es t c re at ed by c on tr ac t o r p ro pe rt y.
Brownv. Dunstan , 409 S .W.2 d 365, 367 (T enn. 1 966) ( quot ing Commerce Oil Ref. Corp. v. Miner , 199 A.2d 606 (R.I. 1964)). Similarly , this Court has “reject[ed] the notion that injury to property as contemplated [by section 28-3-105] is limited to physical injury

to property,” a

dopting instead the opinion that a loss in value is also considered injury to property. Vance v. Schulder , 54 7 S.W.2 d 92 7, 932 (Ten

n. 1977). Thus, both

of the limitations sta

tutes invo lving pr

operty inju ries an d personal injuries have been interpreted to apply to negligence

claims for solely economic d amage s: claims for economic damages arising from invasions of rights that “inhere in man as a rational being” are gover

ned by the limitations period for injuries to the person, see Brown , 409 S.W.2d at 367, and claims for ec onomic da mages a rising f rom prope

rty rights are governed by

the three-y ear limitations period for injuries to property

. See Tip’s Packa ge Stor e, I nc., v. Com

mercial Ins. Managing Inc. , 86 S.W.3d 543, 552 (Tenn. 2 001). Ou r final task, then, is to determine whether Gunter’s alleged injuries arise out of his proper ty rights or his rig

hts as a “rational being.”
Here, Gunter seeks monetary da mage s based on a financial obligation, his child support pay ments, that he has incurred because of the blo od test. Hi s alleg ed econ omic injur y do es not ar

ise-7-

out of an invasion of a right which “inheres in man as a rational being” such

as the rig ht to a good reputation. See Brown , 409 S.W.2d a t 367. Acc ordingl

y, w e must

conclude that this cause of action is governed by

the three-y ear statute of limitations for injuries to property . Consequently, we af firm the reve rsal of th e trial c ourt by

the Court o f Appea

ls.
IV. Conclusion By this decision we conc lude that the appli cable st

atute of limitations for a negligence action agains ta blood te sting la borato ryregarding a re

port which was used to impose child support pay ments is the three-ye ar

statute of limitations for

injury to property . Accordingly , we vacate the order of the trial court dismissing the complaint as barred by the statute of

limitations. We affirm the Court o f Appea

ls and re mand the c ase for

further procee dings.

The costs of

appeal are taxed to the Appellant, L aboratory Corporation of America, for which
ex ec ut io n m ay i ss ue if

ne ce ss ar y.

___________________________________ ADOL PHO A. BI

RCH, JR., JUSTI

CE