Michelle Rye v. Women's Care Center of Memphis, MPLLC d/b/a Ruch Clinic ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
January 23, 2014 Session
MICHELLE RYE, and her Husband, RONALD RYE v.
WOMEN’S CARE CENTER OF MEMPHIS, MPLLC d/b/a RUCH CLINIC,
a Tennessee for-profit Limited Liability Company, and DIANE LONG, M.D.
Interlocutory Appeal from the Circuit Court for Shelby County
No. CT-000920-09 Gina C. Higgins, Judge
No. W2013-00804-COA-R9-CV - Filed March 10, 2014
This interlocutory appeal concerns the trial court’s grant of partial summary judgment to the
Defendant/Appellee medical providers on various issues. The Plaintiff/Appellant couple filed
a complaint for damages stemming from the medical providers’ failure to administer a
RhoGAM injection during wife’s pregnancy. The couple alleged causes of action for
compensatory damages associated with medical malpractice, negligent infliction of emotional
distress, and disruption of family planning. The trial court granted summary judgment to the
medical providers on the wife’s claim for future medical expenses, husband’s claim for
negligent infliction of emotional distress, and the couple’s claim for disruption of family
planning. The trial court declined to grant summary judgment on wife’s physical injury
claim, her negligent infliction of emotional distress claim, and the claim that wife could
present evidence of the disruption of her family planning as evidence in her negligent
infliction of emotional distress claim. We reverse the trial court’s grant of summary judgment
on wife’s claim for future medical expenses associated with future pregnancy and husband’s
claim for negligent infliction of emotional distress, which he may support with evidence
concerning the disruption of the couple’s family planning. The trial court’s ruling is affirmed
in all other respects. Affirmed in part, reversed in part, and remanded.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed in
Part; Reversed in Part; and Remanded
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
and D. M ICHAEL S WINEY, J., joined.
Gary K. Smith and C. Philip M. Campbell, Memphis, Tennessee, for the appellant, Michelle
Rye and Ronald Rye.
William H. Haltom, Jr., and Margaret F. Cooper, Memphis, Tennessee, for the appellees,
Women’s Care Center of Memphis, MPLLC d/b/a Ruch Clinic and Diane Long, M.D.
OPINION
Background
The Plaintiffs/Appellants Michelle Rye and her husband Ronald Rye (together, “the
Ryes”) filed a complaint on February 24, 2009 alleging medical malpractice against the
Defendants/Appellees Women’s Care Center of Memphis, MPLLC, d/b/a Ruch Clinic (“the
Clinic”), and Diane Long, M.D., (together with the Clinic, “Appellees”), stemming from Dr.
Long’s failure to give Mrs. Rye a RhoGAM injection during the 28th week of her third
pregnancy.1 According to the complaint, Mrs. Rye, who has Rh negative blood, did not
receive an injection of RhoGAM during her third pregnancy, and, as a result, she became Rh-
sensitized—meaning she has antibodies in her body to Rh positive blood.2 The Ryes asserted
that this failure was a deviation from the recognized standard of care and that it caused
damages to the Ryes, including physical injuries to Mrs. Rye, disruption of family planning,
infliction of emotional distress on both Mrs. and Mr. Rye, and future medical expenses likely
to be incurred by Mrs. Rye for any future pregnancies or blood transfusions. According to
the Ryes’ complaint, they intended to have additional children, but because of the increased
risks to future pregnancies due to Mrs. Rye’s Rh-sensitization, they have altered their family
plans by attempting to avoid future conception.
The Appellees answered the complaint on April 7, 2009, admitting that the failure to
provide the RhoGAM injection was a deviation from the standard of care, but denying that
the Ryes had suffered any damages as a result. Discovery ensued, including the depositions
of the parties. The Ryes both testified that after the birth of their third child, Dr. Long
referred the couple to Dr. Michael Schneider, a doctor who specializes in high risk
pregnancies. According to both the Ryes, Dr. Schneider told them that any future pregnancy
would be “high risk” due to Mrs. Rye’s Rh-sensitivity. Further, Dr. Schneider informed the
Ryes that the risks would increase for every successive pregnancy due to an increased
immune system response from Mrs. Rye. Due to the possible complications of any future
pregnancy, the Ryes testified that they have chosen to attempt to limit their family through
the use of natural family planning methods. The Ryes testified, however, that because of their
1
The Ryes’ third child was born without complications.
2
As discussed in detail below, the risk associated with Rh-sensitization is that once a mother becomes
Rh-sensitized, if a mother conceives and carries a child with Rh positive blood, the mother’s antibodies may
attack the baby’s blood cells, leading to injuries to the unborn child.
-2-
religion, they are unable to pursue other forms of contraception. Specifically, Mrs. Rye
testified that she and her husband sought a special dispensation from their church to allow
Mrs. Rye to undergo voluntarily sterilization, as this would remove some of the anxiety about
a possible future pregnancy. However, Mrs. Rye testified that the church would not give a
dispensation for a voluntary sterilization unless the mother’s life was at risk. Mrs. Rye
testified to the fear and anxiety caused by this situation, especially given the risks she learned
any future child may face. Mrs. Rye testified that Dr. Schneider “kind of actually discouraged
us from having more children.” For this reason, Mrs. Rye testified that she and her husband
have altered their behavior in order to be less “risky” with regard to the possibility of having
another child. Despite her anxiety, neither Mrs. Rye nor her husband ever received any
psychological or psychiatric counseling.
Dr. Long testified in her deposition concerning the circumstances surrounding the
failure to give Mrs. Rye a RhoGAM injection at the appropriate time during her pregnancy.
According to Dr. Long, who served as Mrs. Rye’s obstetrician during her third pregnancy,
Mrs. Rye failed to receive the RhoGAM injection because her blood type was not properly
flagged on her chart when she was admitted as a Clinic patient or when she submitted to lab
tests at the Clinic. Dr. Long also testified that due to issues with Mrs. Rye’s prior
pregnancies, she was scheduled for different tests than those that were usually administered;
accordingly, Mrs. Rye did not have blood glucose testing around her 28 th week of pregnancy,
when the RhoGAM is supposed to be administered.
Dr. Long also explained the concerns associated with failing to give a RhoGAM
injection at an appropriate time during a pregnancy. The concerns, according to Dr. Long,
are not to the mother or the current baby, but to any subsequent baby that the mother may
conceive. According to Dr. Long, when a pregnant woman is Rh negative, has become Rh-
sensitized,3 as is the case with Mrs. Rye, and carries a child who is Rh positive, the
antibodies in the mother’s blood can “cross through the placenta and attack the baby’s red
blood cells and cause those baby’s red blood cells to lice, or damage them so that the baby’s
blood count could drop [causing the baby to become anemic.]” Dr. Long further testified that
although the actual risk of death to a fetus4 was low due to aggressive treatment and
3
Dr. Long testified that a pregnant woman becoming Rh-sensitized due to failure to give a RhoGAM
injection is, in itself, a rare event. However, it is undisputed for purposes of summary judgment that Mrs.
Rye became Rh-sensitized as a result of Dr. Long’s failure to administer a RhoGAM injection at the
appropriate time.
4
A fetus in this context is defined as “the human being in utero after the embryonic period and the
beginning of the development of the major structural features.” Mosby’s Medical, Nursing, and Allied Health
Dictionary 628 (5th ed. 1998). In this case, we refer to any offspring that Mrs. Rye may conceive, regardless
(continued...)
-3-
monitoring, there was still a “low risk” of death to a child conceived under this scenario.
According to Dr. Long, however, these risks increase with subsequent pregnancies. Dr. Long
further admitted that the decision to have or not have a child was a “huge deal” and that the
Ryes’ decision to attempt to prevent future pregnancies was reasonable given the potential
risks.
On July 13, 2010, the Appellees moved to dismiss the Ryes’ complaint, or in the
alternative, for a grant of summary judgment, contending that the Ryes had suffered no
compensable damages or injuries. The Appellees filed the affidavit of their expert witness
Dr. Thomas Stovall who opined that the risks to an Rh-sensitized woman are “extremely
remote” and that it could not be said with any reasonable degree of medical certainty that an
Rh-sensitized woman would ever sustain any injuries or damages. Dr. Stovall also opined
that it could not be said with any degree of medical certainty that if an Rh-sensitized woman
were to conceive another child, there would be any injury to such child.
In response, the Ryes submitted the affidavit of expert witness Dr. Joseph Bruner who
concluded that Mrs. Rye has sustained an injury because, biologically, she is not the same
person she was before she became Rh-sensitized. According to Dr. Bruner, Ms. Rye now
suffers from “diseased blood” that makes future pregnancies less safe to her future unborn
children. Specifically, Dr. Bruner opined that: (1) it is more likely than not that Mrs. Rye will
become pregnant again because the Ryes have declined to use contraceptives due to their
religious beliefs; (2) if Mrs. Rye becomes pregnant, there is an approximately 70% chance
that the fetus will have Rh positive blood; and (3) if Mrs. Rye becomes pregnant and the
child has Rh positive blood, it is more likely than not that the fetus will have moderate to
severe disease and require invasive procedures. These complications can include: (1)
enlarged spleen and liver, causing damage or rupture; (2) excessive bleeding due to low
blood cell count; (3) erythroblastosis fetalis;5 (3) hyperbilirubinemia, causing jaundice, or a
yellow tone of the skin and eyes; (4) kernicterus, a condition that can lead to deafness, speech
problems, cerebral palsy, or mental retardation; (5) high levels of insulin and low blood
4
(...continued)
of its stage of development, interchangeably, as a “fetus,” “unborn child,” or “child.”
5
Erythroblastosis fetalis is a condition that can cause “severe anemia, jaundice, enlargement of the
liver and spleen, which, without intervention, can lead to hypoxia, cardiac failure, generalized edema,
respiratory distress, and death.” Mosby’s Medical, Nursing, and Allied Health Dictionary 586 (5th ed. 1998).
Anemia is described as “a decrease in hemoglobin in the blood levels below normal range,” which can cause
fatigue, dizziness, headache, insomnia, and pallor. Id. at 86. Hypoxia is “inadequate oxygen at the cellular
level, characterized by tachycardia, hypertension, . . . dizziness, and mental confusion.” Id. at 804.
Tachycardia is a condition that causes an increased heart rate. See id. at 1584. Edema is an accumulation of
fluid in the body. See id. at 535.
-4-
sugar; (6) and hydrops fetalis, a condition where fluid accumulates in the baby’s body,
inhibiting breathing, interfering with lung growth, and possibly causing death; (7) and
anemia, which may lead to heart problems. Dr. Bruner further opined that with “good modern
medical treatment, most babies can be saved.” According to Dr. Bruner, the procedures used
to determine whether the child is at risk of complications also create risks to both the fetus
and to the mother. He further testified that Mrs. Rye’s irreversible Rh-sensitization sets her
up for an increased risk of life-threatening problems should she require a blood transfusion.
Specifically, Dr. Bruner testified that because of Mrs. Rye’s Rh-sensitization, any time that
Mrs. Rye experiences a medical issue that requires a blood transfusion, including a future
pregnancy or a car accident, she will be required to wait longer for the procedure, which wait
can cause additional complications.
On July 15, 2011, the trial court held a hearing on the Appellees’ Motion to Dismiss,
or in the alternative, for Summary Judgment. At the conclusion of the hearing, the trial court
granted the motion in part and denied it in part. Specifically, the trial court granted summary
judgment to the Appellees for Mrs. Rye’s claim for future medical expenses. The trial court,
however, denied summary judgment on the remaining claims, but stated that it would
entertain a future motion for summary judgment on those issues. On August 10, 2011, the
trial court entered an order granting the Appellees’ Motion as to “all claims for future
damages for injuries to [Mrs.] Rye that relate to prospective injury relating to blood
transfusions or future pregnancies.” The trial court found that such damages had yet to be
sustained by Mrs. Rye and “it is a matter of speculation whether they will ever be sustained.”
The trial court, however, specifically denied summary judgment to the Appellees on the
issues of whether the Ryes “ha[d] suffered emotional distress and [whether Mrs.] Rye has
Rh disease because of the claimed negligence of the [Appellees].”
On January 24, 2012, approximately two weeks prior to the scheduled trial date in this
case, the Appellees filed a Supplemental Memorandum in support of their Motion to Dismiss,
or in the alternative, for Summary Judgment, arguing that Mrs. Rye had suffered no physical
injury or illness as a result of the Appellees’ breach of the standard of care. In addition, the
Appellees argued that both Mrs. Rye’s and Mr. Rye’s claims for emotional distress were
“stand alone” claims requiring expert proof. The thrust of the Appellees’ arguments was that
the Ryes had “developed no proof to support [their] claim[s].” According to Appellees, the
Ryes “have been given ample opportunity to develop proof in this case that they have, in fact,
sustained actual damages as a result of the failure of the defendants to administer a
RhoGAM injection. The [Ryes] have proved no such damages.”
The trial court heard oral argument on the Appellees’ renewed motion on February
6, 2012, the morning of the scheduled trial in this cause. At the hearing, the trial court ruled
that Mr. Rye had only a “stand alone” claim for emotional distress because he suffered no
-5-
physical injury, and that without expert testimony to support such claim, it must be dismissed.
The trial court, however, denied summary judgment to the Appellees on the issue of whether
Mrs. Rye has suffered a physical injury, finding that “there has been a change in her blood.”
At that time, counsel for the Ryes orally moved the trial court to grant an interlocutory
appeal. The trial court then granted leave for the Ryes to seek an interlocutory appeal,
specifically ruling that the parties should seek an interlocutory appeal of all the trial court’s
rulings in the case.
Over six months later, on November 28, 2012,6 the trial court entered an order
granting in part and denying in part the Appellees’ Motion to Dismiss, or in the alternative,
for Summary Judgement. Specifically, the Court denied summary judgment on the issue of
whether Mrs. Rye had suffered a physical injury for purposes of her emotional distress claim.
The trial court granted summary judgment with regard to: (1) Mr. Rye’s claim for emotional
distress, finding that his claim was a “stand alone” claim that was not supported by the
required expert testimony; and (2) the Ryes’ claim based on an independent cause of action
for disruption of family planning. The trial court held, however, that its ruling did not
preclude Mrs. Rye “from presenting evidence of how her family plans changed as an element
of damages going to emotional distress.” The trial court reiterated its earlier ruling regarding
future damages.
On December 26, 2012, the Ryes filed a written motion seeking an interlocutory
appeal in the trial court on the issues of: (1) whether the trial court correctly denied summary
judgment on the issue of whether Mrs. Rye has diseased blood , and therefore, has a physical
injury as a result of the Appellees’ negligence; (2) whether the trial court correctly denied
summary judgment on the issue of whether Mrs. Rye’s emotional distress claim, based on
the finding that the claim is not a “stand alone” claim requiring expert proof; (3) whether the
trial court correctly held that Mrs. Rye’s claim for future medical expenses was too
speculative to submit to the jury; (4) whether the trial court correctly granted summary
judgment to the Appellees’ on Mr. Rye’s claim for emotional distress; and (5) whether the
trial court correctly granted summary judgment to the Appellees as to whether the Ryes have
an independent, cognizable claim for disruption of family planning. On December 28, 2012,
the Appellees filed their own motion seeking an interlocutory appeal on the issues of whether
(1) Mrs. Rye’s suffered an actual physical injury for purposes of her emotional distress claim;
and (2) whether Mrs. Rye should be allowed to submit evidence of “how her family plans
changed as an element of damages going to emotional distress.”
On March 22, 2013, the trial court granted the Ryes’ Motion for an Interlocutory
6
The reason for the delay is not stated in the record.
-6-
Appeal, certifying all issues raised in the Ryes’ motion.7 On April 2, 2013, the Ryes filed an
application in this Court for an Interlocutory Appeal pursuant to Rule 9 of the Tennessee
Rules of Appellate Procedure.8 On the same day, the Appellees filed their own application
7
The trial court did not rule on the Appellees’ Motion for an Interlocutory Appeal. However, from
our review of the record, the Ryes’ Motion for an Interlocutory Appeal raised all issues considered by the
trial court, including those issues on which the Ryes prevailed. Therefore, the trial court’s order granting the
Ryes’ Motion for an Interlocutory Appeal also properly disposed of the Appellees’ Motion as well.
8
Rule 9 of the Tennessee Rules of Appellate Procedure outlines the procedure for seeking an
interlocutory appeal of a trial court’s order. Rule 9 provides, in relevant part:
(a) Application for Permission to Appeal; Grounds. Except as provided
in rule 10, an appeal by permission may be taken from an interlocutory
order of a trial court from which an appeal lies to the Supreme Court, Court
of Appeals or Court of Criminal Appeals only upon application and in the
discretion of the trial and appellate court. In determining whether to grant
permission to appeal, the following, while neither controlling nor fully
measuring the courts' discretion, indicate the character of the reasons that
will be considered: (1) the need to prevent irreparable injury, giving
consideration to the severity of the potential injury, the probability of its
occurrence, and the probability that review upon entry of final judgment
will be ineffective; (2) the need to prevent needless, expensive, and
protracted litigation, giving consideration to whether the challenged order
would be a basis for reversal upon entry of a final judgment, the probability
of reversal, and whether an interlocutory appeal will result in a net
reduction in the duration and expense of the litigation if the challenged
order is reversed; and (3) the need to develop a uniform body of law, giving
consideration to the existence of inconsistent orders of other courts and
whether the question presented by the challenged order will not otherwise
be reviewable upon entry of final judgment. Failure to seek or obtain
interlocutory review shall not limit the scope of review upon an appeal as
of right from entry of the final judgment.
(b) Procedure in the Trial Court. The party seeking an appeal must file
and serve a motion requesting such relief within 30 days after the date of
entry of the order appealed from. When the trial court is of the opinion that
an order, not appealable as of right, is nonetheless appealable, the trial
court shall state in writing the reasons for its opinion. The trial court's
statement of reasons shall specify: (1) the legal criteria making the order
appealable, as provided in subdivision (a) of this rule; (2) the factors
leading the trial court to the opinion those criteria are satisfied; and (3) any
other factors leading the trial court to exercise its discretion in favor of
permitting an appeal. The appellate court may thereupon in its discretion
allow an appeal from the order.
(continued...)
-7-
for an interlocutory appeal. On May 24, 2013, this Court entered an order granting both
applications. This Court limited review to the following issues:
1. Since the [Appellees] have admitted that the failure to
provide a RhoGAM injection to [Mrs.] Rye was a
deviation from the recognized standard of acceptable
professional obstetric and gynecological practice,
whether the trial court properly granted partial summary
judgment to the [Appellees] as to the [Ryes’] claims that
the Ryes’ future children are at risk for complications
and [Mrs.] Rye is at risk for harm in the event of future
blood transfusions as set forth in the Affidavit and
deposition testimony of [Dr.] Bruner [], based upon the
court’s findings that such risks are too speculative to be
submitted to the jury;
2. Whether the trial [c]ourt properly denied summary
judgment to the [Appellees] as to claims that [Mrs.] Rye
has “diseased blood” or Rh disease and[,] therefore[,] has
an injury in the form an altered bodily status;
3. Whether the trial [c]ourt properly denied summary
judgment to the [Appellees] as to the claim that [Mrs.]
Rye has suffered emotional distress, as such claim is not
a “stand alone” claim under Tennessee law;
4. Whether the trial [c]ourt properly granted summary
judgment to the [Appellees] as to the claim that [Mr.]
Rye has suffered emotional distress, as such claim is a
“stand alone” claim under Tennessee law; and,
5. Whether the fundamental right of procreation in
Tennessee articulated in Tennessee case law, e.g, Davis
v. Davis, 842 S.W.2d 588, 600–601 (Tenn. 1992),
8
(...continued)
(c) How Sought in Appellate Court; Cost Bond. The appeal is sought by
filing an application for permission to appeal with the clerk of the appellate
court within 10 days after the date of entry of the order in the trial court or
the making of the prescribed statement by the trial court, whichever is later.
A sufficient number of copies shall be filed to provide the clerk and each
judge of the appellate court with one copy. The application shall be served
on all other parties in the manner provided in rule 20 for the service of
papers.
-8-
confers any right of action or remedial damages for
disruption of family planning due to impairment of
reproductive capacity, and whether the right belongs only
to a woman or also to a man.
Standard of Review
This case was filed in 2009. Accordingly, the trial court’s rulings on the Appellees’
summary judgment motion are subject to the standard outlined in Hannan v. Alltel Publ’g
Co., 270 S.W.3d 1(Tenn. 2008).9
A trial court’s decision to grant a motion for summary judgment presents a question
of law. Our review is therefore de novo with no presumption of correctness afforded to the
trial court’s determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). This Court
must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been
satisfied. Abshure v. Methodist Healthcare-Memphis Hosps., 325 S.W.3d 98, 103 (Tenn.
2010).
When a motion for summary judgment is made, the moving party has the burden of
showing that “there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The moving party may
accomplish this by either: (1) affirmatively negating an essential element of the non-moving
party’s claim; or (2) showing that the non-moving party will not be able to prove an essential
element at trial. Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008). However,
“[i]t is not enough for the moving party to challenge the nonmoving party to ‘put up or shut
up’ or even to cast doubt on a party’s ability to prove an element at trial.” Id. at 8. If the
moving party’s motion is properly supported, “[t]he burden of production then shifts to the
nonmoving party to show that a genuine issue of material fact exists.” Id. at 5(citing Byrd
v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). The non-moving party may accomplish this by:
“(1) pointing to evidence establishing material factual disputes that were overlooked or
ignored by the moving party; (2) rehabilitating the evidence attacked by the moving party;
(3) producing additional evidence establishing the existence of a genuine issue for the trial;
9
The Tennessee General Assembly recently passed 2011 Tenn. Pub. Acts 498, “enacting Tennessee
Code Annotated section 20-16-101 with the stated purpose ‘to overrule the summary judgment standard for
parties who do not bear the burden of proof at trial set forth in Hannan v. Alltel Publ’g Co., its progeny, and
the cases relied on in Hannan.’” Skyes v. Chattanooga Housing Authority,343 S.W.3d 18, 25 n.2 (Tenn.
2011). However, the new legislation will only impact causes of action accruing after June 10, 2011.
Accordingly, we apply the rule adopted by the Tennessee Supreme Court in Hannan to the facts of this case.
-9-
or (4) submitting an affidavit explaining the necessity for further discovery pursuant to Tenn.
R. Civ. P., Rule 56.06.” Martin v. Norfolk Southern Railway. Co., 271 S.W.3d 76, 84
(Tenn. 2008) (citations omitted).
When reviewing the evidence, we must determine whether factual disputes exist. In
evaluating the trial court’s decision, we review the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in the nonmoving party’s favor. Stovall
v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003). If we find a disputed fact, we must
“determine whether the fact is material to the claim or defense upon which summary
judgment is predicated and whether the disputed fact creates a genuine issue for trial.”
Mathews Partners, 2009 WL 3172134 at *3(citing Byrd, 847 S.W.2d at 214). “A disputed
fact is material if it must be decided in order to resolve the substantive claim or defense at
which the motion is directed.” Byrd, 847 S.W.2d at 215. A genuine issue exists if “a
reasonable jury could legitimately resolve the fact in favor of one side or the other.” Id.
“Summary Judgment is only appropriate when the facts and the legal conclusions drawn from
the facts reasonably permit only one conclusion.” Landry v. South Cumberland Amoco, et
al, No. E2009-01354-COA-R3-CV, (Tenn. Ct. App. March 10, 2010) (citing Carvell v.
Bottoms, 900 S.W.2d 23 (Tenn. 1995)).
“When considering the evidence, the reviewing court must consider the evidence in
a light most favorable to the non-moving party and must resolve all reasonable inferences in
the nonmoving party's favor.” King v. Betts, 354 S.W.3d 691, 712 (Tenn. 2011) (citing B
& B Enters. of Wilson Cnty., LLC v. City of Lebanon, 318 S.W.3d 839, 845 (Tenn. 2010).
Mrs. Rye’s Injury and Future Medical Damages
We begin first with Mrs. Rye’s claim that she has suffered a bodily injury and that she
is likely to incur future medical expenses. This case, and specifically these issues, concern
a claim for medical malpractice. Medical malpractice claims are governed by the Tennessee
Medical Malpractice Act, which in great measure has codified the elements of common law
negligence. See Gunter v. Lab. Corp. of Am., 121 S.W.3d 636, 639 (Tenn. 2003); Kilpatrick
v. Bryant, 868 S.W.2d 594, 598 (Tenn.1993). In order to prevail on a claim of medical
malpractice, a plaintiff must establish the following statutory elements: (1) the recognized
standard of professional care in the specialty and locality in which the defendant practices;
(2) that the defendant failed to act in accordance with the applicable standard of care; and (3)
that as a proximate result of the defendant's negligent act or omission, the claimant suffered
an injury which otherwise would not have occurred. Tenn. Code Ann. § 29-26-115(a).
With regard to these issues, Mrs. Rye argues that the trial court erred in granting
summary judgment to the Appellees on her claims that she is likely to incur future medical
-10-
expenses for complications arising from future blood transfusions and future pregnancies,
which complications are the proximate and legal result of the Appellees’ breach of the
standard of care. The Appellees, in contrast, argued in the trial court, and continue to argue
in this Court, that Mrs. Rye has suffered no injury in this case that can support a claim for
medical malpractice. Further, the Appellees argue that even if Mrs. Rye has suffered an
injury, the question of whether Mrs. Rye will incur future medical expenses for future blood
transfusions or pregnancy is mere speculation.
On the first point, we must disagree with the Appellees. Instead, we conclude that the
trial court did not err in declining to grant summary judgment to the Appellees on the issue
of whether Mrs. Rye has suffered a physical injury. In this case, it is undisputed that Mrs.
Rye’s Rh-sensitization has caused no physical pain or suffering to Mrs. Rye and that Mrs.
Rye has received no treatment for her Rh-sensitization. The Appellees assert that Mrs. Rye
is, thus, unable to prove that she has suffered any physical injury. Mrs. Rye disagrees and
cites the affidavit of Dr. Bruner.
We first note that the Appellees in this case filed no motion seeking to exclude the
affidavit or deposition testimony of Dr. Bruner on the basis that his opinions are based on
faulty methodology or that he is unqualified to testify as to the matters at issue in this case.
See McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (1997) (holding that in
determining the reliability of expert testimony, the court may consider “whether scientific
evidence has been tested and the methodology with which it has been tested; (2) whether the
evidence has been subjected to peer review or publication; (3) whether a potential rate of
error is known; (4) whether . . . the evidence is generally accepted in the scientific
community; and (5) whether the expert’s research in the field has been conducted
independent of litigation.”). In addition, this Court limited review of the issues in this case
in its order granting the parties’ interlocutory appeal; the issue of the admissibility and
reliability of Dr. Bruner’s testimony was not certified as an issue in this appeal. Under these
circumstances, we will not address any argument that Dr. Bruner’s testimony should not be
considered by this Court. See Heatherly v. Merrimack Mut. Fire Ins. Co., 43 S.W.3d 911,
914 (Tenn. Ct. App. 2000) (“[T]he issues are limited to those specified in this court's order
granting the [interlocutory] appeal.”); see also Simpson v. Frontier Community Credit
Union, 810 S.W.2d 147, 153 (Tenn.1991) (“[I]ssues not raised in the trial court cannot be
raised for the first time on appeal.”).
Turning to Dr. Bruner’s affidavit, Dr. Bruner clearly states that a woman who has
become Rh-sensitized has an altered body status consistent with an injury. Dr. Bruner
referred to this status as “diseased blood.” Dr. Bruner explained that Mrs. Rye’s altered body
status was the result of antibodies in her blood that were not present prior to her third
pregnancy. According to Dr. Bruner, those antibodies subject Mrs. Rye to increased risks in
-11-
the future. As he explained in his affidavit:
11. That harm includes injury to [Mrs.] Rye, who has
sustained an injury, in my opinion. Biologically, she is
not the same person she was before she became Rh-
sensitized. When her third pregnancy began, she had
normal blood, without the antibodies she now has in her
system for life. She now possesses diseased blood with
antibodies introduced into her bloodstream through no
fault of her own, a situation which would not have
occurred had she been given a timely RhoGAM
injection.
12. Rh disease is well known to hematologists (and well-
known to obstetricians and gynecologists as a risk)
literally for decades. . . .
Dr. Bruner further described Rh disease as an “auto-immune disorder.” Although the Ryes
and the Appellees disagree as to the extent and probability of such future risks, the fact that
Mrs. Rye’s future pregnancies, if any, will be subject to increased risks is not disputed. Both
parties also agree that whatever alteration occurred in Mrs. Rye’s blood, the alteration is
irreversible. Thus, the only disagreement concerns whether this altered body status is
properly termed an injury.
The term injury is broadly defined in Black’s Law Dictionary as “any wrong or
damage done to another.” Black’s Law Dictionary 706 (5th ed. 1979). The term bodily injury
is somewhat more narrow: “[p]hysical pain, illness, or any impairment of physical
condition.” Id. In turn, the term “impair” is defined as “to weaken, to make worse, to lessen
in power, diminish, or relax, or otherwise affect in an injurious manner.” Black’s Law
Dictionary 676 (5th ed. 1979). None of these definitions specifically require that a party
receive medical treatment in order to have an injury, nor have the Appellees cited any
authority for such assertion.10
10
In fact, the Appellees cite no authority to support any of their arguments in this section of their
brief. This Court has previously held that “the failure to cite relevant authority in the argument section of the
brief as required by Rule 27(a)(7) [of the Tennessee Rules of Appellate Procedure] constitutes a waiver of
the issue.” Bean v. Bean, 40 S.W.3d 52, 55–56 (Tenn. Ct. App. 2000). “[W]hile in this case we chose to
proceed with our review despite the fact that the parties chose not to abide by the rules of this Court, we
cannot say we will be so accommodating and choose to do the same in the future.” Wells v. Wells, No.
W2009-01600-COA-R3-CV, 2010 WL 891885, *4 (Tenn. Ct. App. March 15, 2010).
-12-
Under these broad definitions, Mrs. Rye’s Rh-sensitivity is a cognizable injury
sufficient to withstand the Appellees’ summary judgment motion. Here, Dr. Bruner has
clearly testified that Mrs. Rye has suffered an injury in the form of Rh disease, an altered
body status. While the Appellees submitted testimony from their own expert to refute Dr.
Bruner’s testimony, we must conclude that Dr. Bruner’s affidavit creates a material factual
dispute as to whether Mrs. Rye has suffered a bodily injury in this case. Under the Hannan
summary judgment standard, courts are not permitted to grant summary judgment if there are
material factual disputes. See Hannan v. Alltel Publ’g Co., 270 S.W.3d at 5 (“Summary
judgment should be granted only when, with the facts viewed in favor of the nonmoving
party, it is clear that no genuine issue of material fact exists.”).
Dr. Bruner’s conclusion is further supported by the testimony of the parties. Here, the
parties disagree as to whether Mrs. Rye’s Rh-sensitization will ever result in medical
complications for her or for her future children, as discussed infra. However, even Dr. Long
admits that Mrs. Rye’s Rh-sensitization creates at least some increased risk for any future
children she may have. The Ryes also testified that they have materially altered their behavior
and decisions regarding future children due to this perceived risk. Thus, Mrs. Rye’s Rh-
sensitization has undoubtedly had a negative affect on her life.
This issue was previously considered by the federal district court in Harms v.
Laboratory Corp. of America, 155 F. Supp. 2d 891 (N.D.Ill. 2001). In Harms, as in this case,
the plaintiff mother developed Rh-sensitization after her blood was misidentified during
pregnancy. Id. at 897–98. The plaintiff mother filed a complaint for damages based on
theories of negligence and res ipsa loquitor. The defendant, like the Appellees in this case,
filed a motion for summary judgment, arguing that because the condition caused the plaintiff
mother no “actual physical pain or suffering,” it did not constitute an injury to the plaintiff
mother. Instead, the defendant argued that the injury was only to future fetuses or children.
Id. at 910. The United States District Court rejected this argument, stating:
[Mother] suffers from Rh sensitization. Whether this condition
causes her actual physical pain and suffering, [mother] has been
permanently altered by this sensitization. As a direct result of this
sensitization, the experts in this case agree that [mother] has a 60
percent chance of suffering from complications with any future
pregnancy. Thus, the court disagrees with [the defendant’s]
characterization that [mother] has not suffered a present physical
injury.
Id. We agree with the reasoning in Harms. Accordingly, regardless of whether any
complications resulting from Mrs. Rye’s Rh-sensitization actually occur in the future, we
-13-
conclude the Appellees have failed to show that Mrs. Rye cannot prove that she has suffered
from an injury in this case. Instead, the record contains conflicting proof as to whether Mrs.
Rye has suffered an actual injury in this case. When there is conflicting proof in the record
on an issue, summary judgment is inappropriate. As recently explained by this Court:
[S]ummary judgment proceedings have never been envisioned as
substitutes for trials of disputed factual issues. [CAO Holdings,
Inc. v. Trost, 333 S.W.3d 73, 87 (Tenn. 2010)] (citing Fruge v.
Doe, 952 S.W.2d 408, 410 (Tenn. 1997)). Summary judgment
“should not replace a trial when disputed factual issues exist,
because its purpose is not to weigh the evidence, to resolve
factual disputes, or to draw inferences from the facts.” Downs v.
Bush, 263 S.W.3d 812, 815 (Tenn. 2008) (emphasis added).
Courts should grant summary judgment “only when both the
facts and the conclusions to be drawn from the facts permit a
reasonable person to reach only one conclusion.” Carvell v.
Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).
Brooks Cotton Co., Inc. v. Williams, 77 U.C.C. Rep. Serv. 2d (West) 493, 381 S.W.3d 414, 428–29
(Tenn. Ct. App. 2012). For the foregoing reasons, we affirm the trial court’s denial of the
Appellees’ Motion for Summary Judgment on this issue.
For the same reasons, we also disagree with the Appellees as to Mrs. Rye’s claim for
future medical expenses associated with future pregnancies. Accordingly, we reverse the trial
court’s grant of summary judgment to the Appellees on the issue of future medical expenses
for Mrs. Rye’s future pregnancies. However, we agree with the Appellees that any future
damages from possible blood transfusions required by Mrs. Rye are, at best, contingent and
speculative. Therefore, we affirm summary judgment to the Appellees on this issue.
“When faced with a motion for summary judgment challenging the adequacy of its
evidence of damages, a plaintiff need only demonstrate that damages exist and that they are
not entirely speculative.” Hannan v. Alltel Publ’g Co., 270 S.W.3d at 21 (citing Cormier v.
Dist. of Columbia Water & Sewer Auth., 946 A.2d 340, 348 (D.C. 2008)). According to this
Court in Overstreet v. Shoney's, Inc., 4 S.W.3d 694 (Tenn. Ct. App. 1999):
Damages may never be based on mere conjecture
or speculation. See Western Sizzlin, Inc. v. Harris,
741 S.W.2d 334, 335–36 (Tenn. Ct. App. 1987);
Nashland Assocs. v. Shumate, 730 S.W.2d 332,
334 (Tenn. Ct. App. 1987). However, uncertain or
-14-
speculative damages are prohibited only when the
existence, not the amount, of damages is uncertain.
See Jennings v. Hayes, 787 S.W.2d 1, 3 (Tenn. Ct.
App. 1989); Cummins v. Brodie, 667 S.W.2d 759,
765 (Tenn. Ct. App. 1983). Evidence required to
support a claim for damages need only prove the
amount of damages with reasonable certainty. See
Airline Constr., Inc. v. Barr, 807 S.W.2d at 274;
Redbud Coop. Corp. v. Clayton, 700 S.W.2d 551,
561 (Tenn. Ct. App. 1985).
Id. at 703.
This Court recently discussed the issue of future medical damages in the context of a
personal injury case. See Singh v. Larry Fowler Trucking, Inc., 390 S.W.3d 280 (Tenn. Ct.
App. 2012). In Singh, this Court explained:
To remove awards for future medical expenses from the realm of
speculation, persons seeking future medical expenses must
present evidence (1) that additional medical treatment is
reasonably certain to be required in the future and (2) that will
enable the trier-or-fact to reasonably estimate the cost of the
expected treatment.
The first component of a claim for future medical
expenses is, in the language of the Tennessee Pattern Jury
Instructions, evidence that additional medical treatment is
“reasonably certain to be required in the future.” This
“reasonable certainty” standard requires more than a mere
likelihood or possibility. It requires the plaintiff to establish with
some degree of certainty that he or she will undergo future
medical treatment for the injuries caused by the defendant's
negligence. It does not, however, require proof of future medical
treatment to an absolute or metaphysical certainty. Rather, the
“reasonable certainty” standard requires the plaintiff to prove that
he or she will, more probably than not, need these medical
services in the future.
Id. at 287 (quoting Henley v. Amacher, No. M1999-02799-COA-R3-CV, 2002 WL 100402,
at *13–14 (Tenn. Ct. App. Jan. 28, 2002)). As further explained by the Tennessee Supreme
-15-
Court:
Tennessee law [] requires that, to recover for future effects of an
injury, the future effects must be shown to be reasonably certain
and not a mere likelihood or possibility and that, before a
plaintiff may recover for potential injuries, there must be a
reasonable degree of medical certainty that the plaintiff will
develop a disease in the future as a result of an injury.
Potts v. Celotex Corp., 796 S.W.2d 678, 681 (Tenn.1990) (citing Maryland Casualty Co. v.
Young, 211 Tenn. 1, 6, 362 S.W.2d 241, 243 (Tenn. 1962); Williams v. Daniels, 48
Tenn.App. 112, 121–122, 344 S.W.2d 555, 559 (Tenn. Ct. App. 1960)). Thus, summary
judgment under Hannan is only appropriate in this type of case when the undisputed facts in
the record show that the claimed damages are a “mere likelihood or possibility.” Celotex, 796
S.W.2d at 681.
We will first consider the evidence in the record regarding Mrs. Rye’s claim for future
medical expenses related to a future pregnancy. In his affidavit and deposition, Dr. Bruner
opines that Mrs. Rye will, more likely than not, become pregnant again. Dr. Bruner testified
that he based this opinion on the fact that the Ryes have declined to use birth control and that
Mrs. Rye had previously become pregnant three times under such circumstances. Dr. Bruner
further testified that should Mrs. Rye become pregnant, the child has a 70% chance of being
Rh positive. Dr. Bruner finally opined that such an Rh positive child would, more likely than
not, suffer moderate to severe complications due to Mrs. Rye’s above-average susceptibility,
which complication would require aggressive treatment. These complications can include
anemia, fluid retention, enlarged organs, mental retardation, and even death. According to Dr.
Bruner, both the complications from the Rh-sensitization, as well as the treatment for such
complications, result in increased danger to both Mrs. Rye and her potential unborn child.11
For example, Dr. Bruner opined that the invasive testing procedures used to determine
whether any complications have occurred can themselves sometimes, though rarely, cause
premature birth, which can result in cerebral palsy or mental retardation.
In contrast, the Appellees’ expert, Dr. Stovall, opined in his affidavit that any future
11
We note that the Appellees argue that Mrs. Rye can prove no damages on this issue because Dr.
Bruner testified that, more likely than not, any future child of Mrs. Rye who was Rh positive would receive
treatment to ameliorate complications associated with that status. We reject this argument. The Ryes are
seeking damages for the future medical expenses, including appropriate treatment of an unborn child, who
is put at risk due to Mrs. Rye’s Rh-sensitization. The fact that an unborn child will most likely receive
treatment does not defeat their claim for future medical expenses; it merely alters the type and extent of
damages that could be awarded.
-16-
risks to Mrs. Rye as a result of a future pregnancy are “extremely remote” and that “it cannot
be said with any reasonable degree of medical certainty that an Rh-sensitized patient will ever
sustain any injuries or damages.” Dr. Stovall further opined that the risks associated with Rh-
sensitization amounted to a mere one-and-one-half (1.5) to two (2) percent.
We, like the trial court, are concerned by the many contingencies that must be met in
order for Mrs. Rye to sustain any future medical expenses as a result of her Rh-sensitization,
even considering only the testimony of Dr. Bruner. Specifically, Dr. Bruner testified that, first,
Mrs. Rye must become pregnant. Although we note that Dr. Bruner testified that such event
is more likely than not to occur, we also note that, by their own testimony, the Ryes’ have
taken steps to prevent the occurrence of a future pregnancy. Indeed, in the six years that this
case has been pending, it appears that the Ryes’ efforts not to conceive a child have been
successful. However, if, despite their best efforts, Mrs. Rye does become pregnant, Dr. Bruner
testified that the child will, more likely than not, be Rh positive, leading to complications for
the child both in utero and once it is born. Thus, two contingencies must be met before there
is any risk at all to an unborn child; only if those two contingencies are met is there any risk
to either Mrs. Rye or her unborn children. However, Dr. Bruner testified that if these two
contingencies are met (i.e., if Mrs. Rye becomes pregnant and if the child is Rh positive), the
child will, more likely than not, suffer moderate to severe complications, due to Mrs. Rye’s
above average susceptibility to the antibodies in her blood. Dr. Bruner also testified that in
this event, Mrs. Rye is also likely to suffer complications. Dr. Bruner testified that such
complications include high blood pressure, fluid retention, and proteinuria, which is
“something very closely akin to preeclampsia.” 12
Under these circumstances, we are reluctant to conclude that the proof submitted by
Mrs. Rye regarding these damages is anything more than contingent and speculative. Other
courts have refused to allow plaintiffs to submit proof of future damages to unborn children
in similar situations. See Harms v. Laboratory Corp. of America, 155 F. Supp. 2d 891, 912
(N.D.Ill. 2001) (granting summary judgment as to the plaintiffs’ claim for “damages for risk
of future harm to a fetus” due to Rh-sensitization because “it is impossible to determine
without speculation what sort of injury—if any—the fetus would suffer”). However, we
recognize that it is not the province of this Court to weigh the evidence at this stage of the
proceedings. As we have previously stated, to obtain summary judgment, the Appellees must
have either: (1) affirmatively negated an essential element of the non-moving party’s claim;
or (2) shown that the non-moving party will not be able to prove an essential element at trial.
12
“Preeclampsia” is defined as “an abnormal condition of pregnancy characterized by the onset of
acute hypertension after the twenty-fourth week of pregnancy.” Mosby’s Medical, Nursing, and Allied Health
Dictionary 1308 (5th ed. 1998). Other definitions of preeclampsia include “hypertension, edema, and/or
proteinuria.” Id. at 1346.
-17-
Hannan, 270 S.W.3d at 8–9. As evidenced by the Appellees’ repeated assertions in their brief
that “the record is devoid of proof” as to Mrs. Rye’s claim for future medical expenses, the
Appellees assert that they have shown that Mrs. Rye will be unable to prove the existence of
these damages at trial. The Hannan decision, however, created a particularly high standard
for defendants when attempting to gain summary judgment under this prong. According to the
Tennessee Supreme Court in Hannan, “[i]t is not enough for the moving party to challenge
the nonmoving party to ‘put up or shut up’ or even to cast doubt on a party’s ability to prove
an element at trial.” Id. at 9. Indeed, this Court has described the Hannan standard as a
“substantially more rigorous standard,” than prior summary judgment standards in Tennessee
and elsewhere. White v. Target Corp., 2012 WL 6599814, at *7 (Tenn. Ct. App. Dec. 18,
2012); see Harms, 155 F. Supp. 2d at 912 (applying the less stringent federal summary
judgment standard to conclude that the damages sought were speculative). This Court has
explained the burden placed on defendants under this standard:
Under Hannan, to obtain summary judgment in its favor, [the
defendant] must negate an element of [the plaintiff’s] claim or
show that [the plaintiff] cannot establish the elements of her
claim. It is not enough to say . . . that [the plaintiff] has not yet
proffered evidence to substantiate her assertion[s] . . . . Under
that circumstance, [the defendant] has not “disprove[d] an
essential factual claim” made by [the plaintiff], and therefore has
not shifted the burden to [the plaintiff].
White, 2012 WL 6599814, at *7 (footnote omitted). The White Court further stated:
Under Hannan, as we perceive the ruling in that case, it is not
enough to rely on the nonmoving party's lack of proof even
where, as here, the trial court entered a scheduling order and
ruled on the summary judgment motion after the deadline for
discovery had passed. Under Hannan, we are required to assume
that the nonmoving party may still, by the time of trial, somehow
come up with evidence to support her claim.
White, 2012 WL 6599814, at *7, n.3.
In this case, we must conclude that the Appellees have not “disprove[d] an essential
factual claim” made by Mrs. Rye. Instead, there is conflicting evidence in the record as to the
likelihood that Mrs. Rye will sustain future medical expenses related to a future pregnancy.
While we agree that the evidence in the record casts doubt on Mrs. Rye’s ability to prove the
existence and likelihood of damages in the form of future medical expenses related to a
-18-
potential future pregnancy at trial, this is simply insufficient to justify a grant of summary
judgment.
The Appellees assert, however, that summary judgment is appropriate and cite Sterling
v. Velsicol Chem Corp., 855 F.2d 1188 (6th Cir. 1988) to support their argument. In Sterling,
the plaintiffs sought damages related to exposure to a corporation’s chemical waste burial site.
After a bench trial, the district court found in favor of the plaintiffs on a number of claims,
including the plaintiffs’ claims for future medical expenses related to their increased
susceptibility to cancer due to the exposure. Id. at 1194. Applying Tennessee law regarding
speculative damages, the United States Court of Appeals for the Sixth Circuit reversed the
award of future medical expenses, concluding that the damages were speculative. According
to the Court:
In the instant case, the district court found an increased risk for
susceptibility to cancer and other diseases of only twenty-five to
thirty percent. This does not constitute a reasonable medical
certainty, but rather a mere possibility or speculation. Indeed, no
expert witnesses ever testified during the course of trial that the
five representative plaintiffs had even a probability—i.e., more
than a fifty percent chance—of developing cancer and kidney or
liver disease as a result of their exposure to defendant's
chemicals.
Id. at 1205.
Sterling is not analogous to the present situation for several reasons. First, the Sixth
Circuit’s decision in Sterling occurred after a bench trial. Id. at 1194. Thus, it did not
implicate the federal summary judgment standard, much less the high summary judgment
standard applicable in this case. Second, the issue in Sterling involved a discreet tort that has
been subject to voluminous litigation—potential risk of susceptibility to future disease. The
issue in Sterling was whether the exposure to the allegedly dangerous chemicals would cause
a disease, such as cancer, in the future, which disease would then subject the plaintiffs to
future medical expenses. Increased susceptibility to a future disease is not at issue in this case;
instead, we are simply dealing with a case where it is disputed as to whether, and to what
extent, Mrs. Rye’s current physical condition will cause injuries to herself and her future
children. Further, the proof submitted in Sterling simply does not rise to the level of proof
offered by Mrs. Rye in this case. As noted by the Sixth Circuit, the Sterling “plaintiffs’
experts could not formulate a quantitative measure to a reasonable medical certainty of excess
kidney, liver, and cancer risk, it was left to speculation as to possible consequences of the
ingestion of the alleged carcinogens on the future health of each plaintiff.” Id. at 1205.
-19-
Indeed, based on the evidence, the district court concluded that there was only a twenty-five
to thirty percent chance of the plaintiffs developing cancer or other diseases from their
exposure to the chemicals. Id. In contrast, in this case, Dr. Bruner testified that Mrs. Rye is
likely to become pregnant, likely to conceive a child that is Rh positive, and likely to suffer
from moderate to severe complications during the pregnancy. Dr. Bruner testified that all of
these contingencies were more likely than not to occur. Although Dr. Stovall’s testimony
disputes Dr. Bruner’s opinions, we must conclude that Dr. Bruner’s testimony creates a
material factual dispute. Thus, summary judgment on this issue was not appropriate.13
With regard to Mrs. Rye’s claim for future medical expenses related to blood
transfusions, however, we agree with the trial court and affirm summary judgment in favor
of the Appellees. In this case, Dr. Bruner testified that “if Mrs. Rye is involved in a medical
emergency henceforth in which she will require a blood transfusion, she is an increased risk
of life-threatening problems.” From our review of Dr. Bruner’s affidavit and deposition
testimony, however, nothing indicates that Dr. Bruner believes, based on his medical
knowledge and expertise, that Mrs. Rye is more likely than not to be involved in a medical
emergency requiring a blood transfusion. Although Dr. Bruner testified that a blood
transfusion may be required during pregnancy, which he had previously opined was more
likely than not to occur, nowhere in Dr. Bruner’s affidavit or deposition testimony does he
state, with a reasonable degree of medical certainty, that Mrs. Rye is likely to require a blood
transfusion due to a future pregnancy. Under these circumstances, we must conclude that the
undisputed evidence in the record establishes that the likelihood of Mrs. Rye requiring a blood
transfusion in the future is no more than a mere possibility. Without some testimony regarding
Mrs. Rye’s future need for a blood transfusion “in terms of a ‘probability, a ‘better than even
chance’, [or] ‘more likely than not,’” Dr. Bruner’s testimony does not “take[] the proof out
of the realm of speculation and into the realm that satisfies the traditional preponderance of
13
As an alternative argument, the Appellees assert that Mrs. Rye cannot assert a claim for future
medical expenses associated with a future pregnancy and accompanying complications because the Ryes
“cannot bring a cause of action on behalf of a fetus that does not exist.” The Appellees cite Tennessee’s
wrongful death statute, which requires proof that a fetus was viable to recover for the wrongful death of the
fetus. See Tenn. Code Ann. §20-5-106. We respectfully reject this argument. First, we note that this
argument was not raised in the Appellees’ Motion to Dismiss, or in the alternative, for Summary Judgment,
accompanying Memorandum, or Supplemental Memorandum. Instead, it appears that this argument was
raised for the first time on appeal. It well-settled that a party may not raise an issue for the first time on
appeal. See Heatherly v. Merrimack Mut. Fire Ins. Co., 43 S.W.3d 911, 916 (Tenn. Ct. App. 2000) (“As
a general matter, appellate courts will decline to consider issues raised for the first time on appeal that were
not raised and considered in the trial court.”). Even assuming this argument was properly raised, we
respectfully disagree with the Appellees’ assertion. As we perceive it, the Ryes have not brought a cause of
action “on behalf of” any future child they may conceive, but rather for medical expenses Mrs. Rye is likely
to incur as a result of complications with a future pregnancy. The cause of action, therefore, belongs to Mrs.
Rye, rather than a future unborn child.
-20-
the evidence standard.” Jacobs v. Nashville Ear, Nose & Throat Clinic, 338 S.W.3d 466, 483
(Tenn. Ct. App. 2010) (citing Kilpatrick, 868 S.W.2d at 599–603)). As explained by the
Tennessee Supreme Court:
A doctor’s testimony that a certain thing is possible is no
evidence at all. His opinion as to what is possible is no more
valid than the jury's own speculation as to what is or is not
possible. Almost anything is possible . . . .”
Lindsey v. Miami Development Corp., 689 S.W.2d 856 (Tenn. 1985) (citing Palace Bar, Inc.
v. Fearnot, 269 Ind. 405, 381 N.E.2d 858, 864 (Ind. 1978)). Accordingly, summary judgment
in favor of the Appellees on the issue of future medical expenses related to future blood
transfusions is affirmed.
Disruption of Family Planning
The Ryes next argue that the trial court erred in granting summary judgment on their
claim that each of them has a cognizable claim for disruption of family planning pursuant to
the Tennessee Supreme Court’s decision in Davis v. Davis, 842 S.W.2d 588, 600–601 (Tenn.
1992). In the alternative, the Ryes argue that if there is no independent right of action for
disruption of family planning, this disruption should be considered “an aspect, component,
or manifestation of the harm to Mrs. Rye, which to the extent it impairs reproduction has
consequences for both husband and wife by definition.” The Appellees argue, in contrast, that
disruption of family planning is not cognizable as an independent cause of action, nor is it an
appropriate type of damages for either Mrs. Rye or Mr. Rye.
In Davis, a divorced husband and wife disputed what could be done to the
cryogenically preserved product of their in vitro fertilization efforts, referred to in the Opinion
as “frozen embryos.” Wife originally desired that she should have custody of the frozen
embryos, allowing her to become pregnant once the divorce was final. Husband objected,
preferring to wait to determine whether he wanted a child after the divorce. The trial court
determined that the frozen embryos were “human beings” and awarded custody to the Wife.
The Court of Appeals reversed, finding that husband had a “constitutionally protected right
not to beget a child where no pregnancy has taken place” and holding that “there is no
compelling state interest to justify [ ] ordering implantation against the will of either party.”
The Court of Appeals further held that “the parties share an interest in the seven fertilized
ova” and remanded the case to the trial court for entry of an order vesting them with “joint
control . . . and equal voice over their disposition.” Id. at 589.
The Tennessee Supreme Court granted review, ostensibly to “give adequate guidance
-21-
to the trial court in the event the parties cannot agree.” Id. at 590. During the pendency of the
proceedings, however, the parties’ desires shifted: Wife wanted to donate the frozen embryos
to a childless couple; Husband wanted to dispose of the frozen embryos. The Tennessee
Supreme Court ultimately concluded that the trial court should apply a balancing test based
on the interests of each potential parent in the frozen embryos. Id. The Court advised that:
“if the party seeking control of the preembryos intends merely to donate them to another
couple, the objecting party obviously has the greater interest and should prevail.” Id. at 604.
In reaching its ultimate decision in the case, the Tennessee Supreme Court relied on
the fundamental right of privacy regarding child-bearing, as examined by the United States
Supreme Court:
If the right of privacy means anything, it is the right of the
individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting
a person as the decision whether to bear or beget a child.
Id. at 600 (quoting Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S. Ct. 1029, 1038, 31 L. Ed. 2d
349 (1972) (emphasis in original)). The Court further explained:
That a right to procreational autonomy is inherent in our
most basic concepts of liberty is also indicated by the
reproductive freedom cases, see, e.g., Griswold v. Connecticut,
381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); and Roe v.
Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), and
by cases concerning parental rights and responsibilities with
respect to children. See, e.g., Wisconsin v. Yoder, 406 U.S. 205,
92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972); Prince v. Massachusetts,
321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944); Cleveland
Board of Education v. LaFleur, 414 U.S. 632, 94 S. Ct. 791, 39
L. Ed. 2d 52 (1974); Pierce v. Society of the Sisters of the Holy
Names of Jesus and Mary, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed.
1070 (1925); and Bellotti v. Baird, 443 U.S. 622, 99 S. Ct. 3035,
61 L. Ed. 2d 797 (1979). In fact, in Bellotti v. Baird, the Supreme
Court noted that parental autonomy is basic to the structure of our
society because the family is “the institution by which we inculcate and pass down many of
our most cherished values, morals and cultural.” Bellotti, 443 U.S. at 634, 99 S.Ct. at 3043.
Davis, 842 S.W.2d at 601.
-22-
We do not disagree with the Ryes that the Davis case implicates the right to largely
uninhibited family planning in the circumstances at issue in that case. However, we do not
agree that the decision in Davis creates an independent right of action against a private
individual or company for disruption of this right, as the Ryes suggest. Indeed, the Davis
Opinion specifically states that both the Tennessee and United States Constitutions "protect
individuals from unwarranted governmental intrusion into matters such as the one now
before us, involving intimate questions of personal and family concern." Id. at 600 (emphasis
added). Further, the holding in Davis, as cited by the Ryes in their brief, reiterates the
requirement that the intrusion be governmental in nature: “it is the right of the individual . .
. to be free from unwarranted governmental intrusion into . . . the decision whether to bear
or beget a child.” Id. (emphasis added). There are no allegations in this case that either of the
Appellees are government actors or that this case involves any kind of “governmental
intrusion.” Accordingly, the Davis Opinion is simply not applicable to the facts at issue in
this case. Under these circumstances, we decline to conclude that the holding in Davis should
be extended to confer an independent right of action on the part of either Mrs. Rye or Mr. Rye
against a non-governmental third-party. See Cagle v. Cass, No. W2001-00760-COA-R3-CV,
2001 WL 792644, at *3 (Tenn. Ct. App. 2001 ) (holding that one who “is not an employee of
the state or federal government, nor can he be said to be a state actor, and therefore is
incapable of violating the adverse parties constitutional rights”) (citing Bryant v. Tenent, Inc.,
969 S.W.2d 923, 925 (Tenn. Ct. App. 1997) (citing State v. Hale, 840 S.W.2d 307, 312 (Tenn.
1992))).
The Ryes fail to cite any cases in which disruption of family was held to constitute an
independent cause of action for either a potential mother or father. The only case cited by the
Ryes on this issue, other than Davis, is Moss v. Pacquing, 455 N.W.2d 339 (Mich. App. Ct.
1990). In Moss, the plaintiff filed an action for medical malpractice after a defendant doctor’s
alleged malpractice caused her to become sterile. The plaintiff’s husband also filed a loss of
consortium claim. The trial court granted summary judgment in favor of the defendant as to
both claims on the basis of the expiration of the statute of limitations. The Michigan Court of
Appeals reversed, holding that there was a factual dispute as to when the plaintiff discovered
her injury for purposes of the discovery rule. The Moss case, therefore, is not relevant to the
case-at-bar. First, nothing in the Opinion discusses an independent right of action for loss of
family planning; the Moss case involved a typical claim for medical malpractice. Further,
the issue of whether either the plaintiff’s or her husband’s claims had merit was never
entertained by the Court; the only issue addressed was the tolling of the statute of limitations.
The Ryes seem to suggest, however, that this case illustrates that a husband has his
own claim for loss of the ability to have children without undue risk. We disagree. In Moss,
the husband filed a claim for loss of consortium, rather than for disruption of family planning.
This is a recognized claim in both Michigan and Tennessee. See Furby v. Raymark
-23-
Industries, Inc., 154 Mich.App. 339, 343, 397 N.W.2d 303 (Mich. Ct. App. 1986)
(recognizing a claim for loss of consortium under Michigan law). For example, in Jordan v.
Baptist Three Rivers Hosp., 984 S.W.2d 593, 602 (Tenn.1999), this Court explained
Tennessee’s loss of consortium claim:
Loss of consortium consists of several elements, encompassing
not only tangible services provided by a family member, but also
intangible benefits each family member receives from the
continued existence of other family members. Such benefits
include attention, guidance, care, protection, training,
companionship, cooperation, affection, love, and in the case of
a spouse, sexual relations.
Id. at 602. In contrast, Mr. Rye did not assert any cause of action for loss of consortium, nor
do any of Mr. Rye’s assertions regarding the disruption of family planning fall within the
typical elements of a loss of consortium claim described above. Thus, the Moss case is
inapposite to the facts presented in this case. Based on the foregoing, we must conclude that
Tennessee law currently provides for no independent cause of action for disruption of family
planning. Further, we have been provided no law suggesting that any other jurisdiction has
recognized disruption of family planning as an independent cause of action. Without any
other law to support their arguments, we decline to extend Tennessee law to create such a
cause of action. The purview of this Court is not to create new causes of action. We, therefore,
affirm the trial court’s grant of summary judgment to the Appellees on the basis of its
conclusion that there is no independent cause of action for disruption of family planning in
Tennessee.
After granting summary judgment to the Appellees on the issue of an independent
cause of action, the trial court further ruled that Mrs. Rye would be allowed to present
evidence regarding the disruption of family planning as a measure of damages in her
negligent infliction of emotional distress claim. Both parties take issue with this ruling. The
Ryes argue that both Mrs. Rye and Mr. Rye should be allowed to present evidence of
disruption of family planning as a measure of damages in their emotional distress claims. In
contrast, the Appellees argue that neither party should be allowed to submit evidence on this
issue. We agree with the Ryes that evidence of disruption of family planning is relevant
evidence regarding the damages sustained by either Mrs. Rye or Mr. Rye, in their respective
claims for negligent infliction of emotional distress, if any.
The facts are undisputed in this case that the Ryes were informed that Mrs. Rye’s Rh-
sensitization could create risks to future children born to Mrs. Rye. Although it is disputed as
to how likely the risks are, the risks could include anemia, brain damage, or death. It is further
-24-
undisputed that due to these risks, the Ryes chose to modify their behavior in an attempt to
prevent future conceptions. Even Dr. Long admitted in her deposition that the Ryes’ choice
to attempt to prevent future pregnancies was reasonable, given the risks. The Appellees cite
no law for their argument that this type of disruption is not properly considered as a form of
damages relevant to a claim for negligent infliction of emotional distress, nor has our research
revealed any. Accordingly, we conclude that, to the extent that either Mrs. Rye or Mr. Rye
have a cognizable claim for negligent infliction of emotional distress, that party may present
evidence of the disruption of family planning as evidence of the damages sustained as a result
of that tort.
Negligent Infliction of Emotional Distress Claims
The final issues in this case concerns the trial court’s rulings with regard to both Mrs.
and Mr. Rye’s claims for emotional distress. With regard to Mrs. Rye, the trial court declined
to grant summary judgment as to her claim for emotional distress, concluding that the
Appellees failed to show that Mrs. Rye had not suffered an accompanying physical injury.
Thus, the trial court concluded that Mrs. Rye’s claim did not fail for lack of supporting expert
proof. The Appellees contend that this was error. In contrast, the Ryes contend that the trial
court erred in granting summary judgment to the Appellees on Mr. Rye’s claim for emotional
distress. The trial court concluded that Mr. Rye had suffered no physical injury; therefore,
based on the holding in Estate of Amos v. Vanderbilt University, 62 S.W.3d 133 (Tenn.
2001), the trial court concluded that Mr. Rye’s emotional distress claim was a “stand alone”
claim that must be supported by expert proof. Finding no expert proof on this issue in the
record, the trial court dismissed Mr. Rye’s claim. We conclude that the trial court should not
have granted summary judgment to the Appellees with regard to either claim.
It is undisputed that the Ryes’ claims for emotional distress involve negligent infliction
of emotional distress, rather than intentional infliction. In 1996 the Tennessee Supreme Court
addressed the appropriate proof required for a negligent infliction of emotional distress claim.
In Camper v. Minor, 915 S.W.2d 437 (Tenn.1996), the plaintiff filed suit for negligent
infliction of emotional distress. It was undisputed in Camper that the plaintiff suffered no
physical injuries other than a scraped knee, for which the plaintiff required no treatment of
any kind. Id. at 439. Under the law at the time, however, to recover for negligent infliction
of emotional distress, a plaintiff was required to show that he or she had sustained a physical
injury. As explained by the Court:
The physical injury requirement served to objectify the inquiry;
it assured that the plaintiff's allegations of emotional injury were
grounded in an independently verifiable event. Although the
degree of physical injury required to substantiate the plaintiff's
-25-
emotional damages claim was not always consistent, and was
sometimes quite negligible, the requirement nevertheless
remained central to this area of negligence law.
Id. at 445 (quoting Carroll v. Sisters of St. Francis Health Services, Inc., 868 S.W.2d 585
(Tenn.1993)). The Court noted, however, that the so-called “physical manifestation rule”
“proved to be inflexible and inadequate in practice,” as it “completely ignore[d] the fact that
some valid emotional injuries simply may not be accompanied by a contemporaneous physical
injury or have physical consequences.” Camper, 915 S.W.2d at 446. Accordingly, the
Camper Court concluded that “the time ha[d] come to abandon the rigid and overly formulaic
‘physical manifestation’ or ‘injury’ rule,” and the Court held that physical injury would “no
longer be used to test the validity of a prima facie case of negligent infliction of emotional
distress.” Id. Instead, the Court decided that claims for negligent infliction of emotional
distress should be analyzed under a “general negligence” approach, requiring each of the five
elements of general negligence: duty, breach of duty, injury or loss, causation in fact, and
proximate, or legal, cause. Id. The Court also noted that “in order to guard against trivial or
fraudulent actions, the law ought to provide a recovery only for ‘serious’ or ‘severe’ emotional
injury,” meaning that “a reasonable person, normally constituted, would be unable to
adequately cope with the mental stress engendered by the circumstances of the case.” Id.
Finally, the Court held, “the claimed injury or impairment must be supported by expert
medical or scientific proof.” Id. Thus, a physical injury was not required to prove negligent
infliction of emotional distress, so long as the claim was supported by expert proof.
The question remained, however, as to whether expert proof was required in cases in
which the plaintiff could show either a physical or other tortious injury. The issue was settled
in Estate of Amos v. Vanderbilt University, 62 S.W.3d 133 (Tenn. 2001). Specifically, the
Court was asked to decide “whether the special proof requirements of Camper v. Minor, 915
S.W.2d 437, 446 (Tenn. 1996), extend to all negligence claims in which damages for
emotional distress are sought as an item of compensatory damages.” The Court held that the
special proof requirements did not apply to all claims of negligent infliction of emotional
distress. Estate of Amos, 62 S.W.3d at 136–37.
In Estate of Amos, the plaintiff wife was exposed to human immunodeficiency virus
(HIV) during a routine surgery due to the alleged negligence of the defendant medical
providers. Id. at 135. As a result of her infection, the plaintiffs’ unborn child contracted HIV
in utero. Id. The plaintiffs later learned that they had both contracted HIV. The plaintiffs filed
suit, seeking compensation for medical malpractice, failure to warn, and negligent infliction
-26-
of emotional distress.14 The trial court awarded damages to the plaintiffs for negligent
infliction of emotional distress. The Court of Appeals reversed the award, concluding that
because the plaintiffs had submitted no expert proof to support their claim, the rule in Camper
disallowed the claim. The plaintiffs appealed to the Tennessee Supreme Court.
The Tennessee Supreme Court disagreed with the Court of Appeals’ interpretation of
Camper, explaining:
[The defendant] contends that Camper's requirements of
expert medical or scientific proof and serious or severe injury
extend to all negligence claims resulting in emotional injury. We
disagree. The special proof requirements in Camper are a unique
safeguard to ensure the reliability of "stand-alone" negligent
infliction of emotional distress claims. Camper, 915 S.W.2d at
440; see also Miller v. Willbanks, 8 S.W.3d 607, 614 (Tenn.
1999). The subjective nature of "stand-alone" emotional injuries
creates a risk for fraudulent claims. Miller, 8 S.W.3d at 614
("legitimate concerns of fraudulent and trivial claims are
implicated when a plaintiff brings an action for a purely mental
injury"); see Camper, 915 S.W.2d at 440. The risk of a
fraudulent claim is less, however, in a case in which a claim for
emotional injury damages is one of multiple claims for damages.
When emotional damages are a "parasitic" consequence of
negligent conduct that results in multiple types of damages, there
is no need to impose special pleading or proof requirements that
apply to "stand-alone" emotional distress claims. See Kush v.
Lloyd, 616 So. 2d 415, 422–23 (Fla. 1992); see also Naccash v.
Burger, 223 Va. 406, 290 S.E.2d 825, 831 (1982); Phillips v.
United States, 575 F. Supp. 1309, 1318–19 (D.S.C. 1983).
Even before Camper, a plaintiff could recover for
emotional injuries as one of several items of compensatory
damages. See, e.g., Smith v. Gore, 728 S.W.2d 738, 751–52
(Tenn. 1987) (in an action for wrongful pregnancy, plaintiffs
could recover damages for medical expenses, pain and suffering,
loss of wages, and emotional distress or mental anguish); Laxton
v. Orkin Exterminating Co., Inc., 639 S.W.2d 431, 431, 434
(Tenn. 1982) (damages allowed for mental anguish, personal
14
The plaintiffs’ child died a few months after birth. Wife died during the pendency of the
proceedings.
-27-
injury, and property damages resulting from the negligent
contamination of plaintiffs' water supply); Roberson v. Univ. of
Tenn., 829 S.W.2d 149, 152 (Tenn. Ct. App. 1992) (damages for
gender discrimination included actual damages, damages for
emotional distress, attorneys' fees, costs, and punitive damages).
Before Camper, however, Tennessee courts did not allow
recovery for mental injuries "without accompanying physical
injury or physical consequences, or without other independent
basis for tort liability." Laxton, 639 S.W.2d at 433. The Camper
holding contemplated a plaintiff who was involved in an incident
and received only emotional injuries. With its abandonment of
the “physical manifestation” rule, the Camper Court opened the
door for legitimate "stand-alone" claims of negligent infliction of
emotional distress. See Laura J. Bradley, Case Note, Bain v.
Wells, 936 S.W.2d 618 (Tenn.1997), 65 Tenn. L.Rev. 293, 305.
The Camper holding did not alter the longstanding rule that
emotional injuries are compensable if accompanied by additional
claims for damages. Imposing the more stringent Camper proof
requirements upon all negligence claims resulting in emotional
injury would severely limit the number of otherwise compensable
claims. Such a result would be contrary to the intent of our
opinion in Camper—to provide a more adequate, flexible rule
allowing compensation for valid “stand-alone” emotional injury
claims. Camper, 915 S.W.2d at 446.
Estate of Amos, 62 S.W.3d at 136–37.
The Court concluded that the wife had a cognizable claim for breach of the duty to
warn. In addition, the Court held that husband’s injuries were a reasonably foreseeable result
of the defendant’s breach. Thus, both husband and wife had independent claims for damages
beyond their emotional distress claims. Therefore, the Court concluded that neither husband’s
nor wife’s negligent infliction of emotional distress claims were “stand alone” claims
requiring expert proof. The Court, consequently, reinstated the trial court’s award of
compensatory damages to the plaintiffs.
More recently, in Rogers v. Louisville Land Co., 367 S.W.3d 196 (Tenn.2012), the
Tennessee Supreme Court reaffirmed the rules expressed in Camper and Estate of Amos. The
Rogers Court outlined the elements of the tort of negligent infliction of emotional distress and
compared it to intentional infliction of emotional distress:
-28-
The elements of a claim for negligent infliction of emotional
distress include the elements of a general negligence claim,
which are duty, breach of duty, injury or loss, causation in fact,
and proximate causation. In addition, the plaintiff must prove that
the defendant's conduct caused a serious or severe emotional
injury. Thus, both actions for intentional infliction of emotional
distress and negligent infliction of emotional distress . . . require
an identical element: a showing that the plaintiff suffered a
serious mental injury resulting from the defendant's conduct.
Rogers, 367 S.W.3d at 206 (internal citations and footnotes omitted). As explained by the
Court:
The reason for the rule imposing liability only when extreme and
outrageous conduct causes serious or severe emotional distress
is apparent—to avoid the judicial system being flooded with
potentially fraudulent, manufactured or overstated claims arising
from the “transient and trivial” emotional distresses of daily life,
recognizing that “[i]f the plaintiff is to recover every time that
[his or] her feelings are hurt, we should all be in court twice a
week.”
Id. at 209 (quoting Russell Fraker, Note, Reformulating Outrage: A Critical Analysis of the
Problematic Tort of IIED, 61 Vand.L.Rev. 983, 988 (2008)). Further, the Court reaffirmed
that the expert proof requirement applies only to a “stand alone” claim for negligent infliction
of emotional distress. The Court distinguished between a “stand alone” emotional distress
claim and one in which the plaintiff's emotional distress is “a ‘parasitic’ consequence of
negligent conduct that results in multiple types of damages.” Rogers, 367 S.W.3d at 206 n.
10. The Rogers Court explained:
When the claim for negligent infliction of emotional distress is
a “stand-alone” claim, i.e., one for emotional disturbance alone
in the absence of a physical injury, the serious or severe mental
injury must be proven “through expert medical or scientific
proof.” Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 528
(Tenn. 2008). When the cause of action for negligent infliction
is for “emotional damages [that] are a ‘parasitic’ consequence of
negligent conduct that results in multiple types of damages,”
there is no requirement that the serious or severe mental injury be
proven by expert proof. Estate of Amos v. Vanderbilt Univ., 62
-29-
S.W.3d 133, 137 (Tenn.2001).
Rogers, 367 S.W.3d at 206 n.10. Thus, a plaintiff may recover for negligent infliction of
emotional distress without the need for expert proof when the claim is accompanied by
“physical injury or physical consequences,” or another “independent basis for tort liability.”
Estate of Amos, 62 S.W.3d at 37 (citing Laxton, 639 S.W.2d at 433).
Turning to the claims of the Ryes, it is clear that Mrs. Rye’s claim for emotional
distress is not a “stand alone” claim. This Court, like the trial court, has declined to grant
summary judgment to the Appellees as to whether Mrs. Rye has a physical injury due to her
Rh-sensitization. Thus, the Appellees have not met their burden to show that Mrs. Rye cannot
prove, at trial, that her emotional distress claim is not accompanied by “physical injury or
physical consequences.” Estate of Amos, 62 S.W.3d at 37 (citing Laxton, 639 S.W.2d at
433). It is apparent from the record that any anxiety or distress that Mrs. Rye has allegedly
suffered is causally related to the Appellees’ alleged negligence and her resulting Rh-
sensitization. Thus, Mrs. Rye’s emotional distress claim is clearly “parasitic” to her claim for
medical malpractice. See Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 530 (Tenn. 2008)
(holding that a plaintiff need not meet the special proof requirements when emotional distress
results from his or her own injuries); see also Harms, 155 F. Supp. 2d at 910 (declining to
grant summary judgment on plaintiff’s emotional distress claim, based on the conclusion that
“[a]ny concerns about a pregnancy or complications that arise during that pregnancy clearly
affect the woman who carries the fetus”). In addition, we have also declined to grant
summary judgment to the Appellees as to Mrs. Rye’s claim for future medical expenses
related to a potential future pregnancy. Accordingly, Mrs. Rye’s claim for future medical
expenses related to the Appellees alleged medical malpractice serves as an “independent basis
for tort liability.” Estate of Amos, 62 S.W.3d at 37 (citing Laxton, 639 S.W.2d at 433). Thus,
the trial court did not err in declining to grant summary judgment to the Appellees on Mrs.
Rye’s claim for negligent infliction of emotional distress.
We next consider Mr. Rye’s claim for emotional distress. It is undisputed in this case
that Mr. Rye has not suffered from any physical injury. The Ryes contend, however, that Mr.
Rye has an actual injury because his right to family planning has been disrupted. We have
previously determined that Tennessee law does not recognize an independent cause of action
for disruption of family planning, but that such disruption may be considered as an element
of damages with regard to other independent bases of liability. We did not hold, however, that
this disruption served as an independent basis of liability; rather, our holding merely allows
Mr. Rye to submit evidence of this disruption as a type of damages for any actual causes of
-30-
action he might have. Mr. Rye has asserted no other claims in this case.15 Thus, we conclude
that Mr. Rye has suffered no physical injury or consequences and asserted no “independent
basis for tort liability” from which the Court could conclude that his claim is not a “stand
alone” claim pursuant to Estate of Amos. Estate of Amos, 62 S.W.3d at 37 (citing Laxton,
639 S.W.2d at 433).
Mr. Rye argues, however, that this Court can find that Mr. Rye has a proper claim for
emotional distress because other cases have allowed recovery under similar situations prior
to the adoption of the “stand alone” rule expressed in Estate of Amos. For example, Mr. Rye
cites the Virginia Supreme Court’s opinion in Naccash v. Burger, 223 Va. 406, 290 S.E.2d
825, 831 (1982). In Virginia at the time, the general rule did not allow recovery for emotional
distress “unless the [distress] result[ed] directly from tortiously caused physical injury.” The
plaintiffs in Naccash, however, asserted that their emotional distress stemmed not from a
physical injury to themselves, but from the birth, suffering and eventual death of their child,
who was born with Tay-Sachs disease.16 The Court held that under these limited
circumstances, an exception was warranted:
The restrictions upon recovery imposed by the provisos in
[our prior cases] were designed to discourage spurious claims
15
Mr. Rye does not argue in his brief to this Court that the claim for future medical expenses relative
to any of Mrs. Rye’s potential future pregnancies provides a basis for a conclusion that Mr. Rye’s emotional
distress claim is not a “stand alone” claim pursuant to Estate of Amos. Indeed, nothing in the Ryes’ brief
leads this Court to conclude that Mr. Rye is arguing that Mrs. Rye’s claim for future medical expenses serves
as an “independent basis for tort liability” belonging to Mr. Rye for purposes of the “stand alone” rule. See
Flax, 272 S.W.3d at 529–30 (holding that to support a finding that an emotional distress claim is “parasitic”
consequence of other claims for negligence, the “parasitic claims” must be “personal to the plaintiff”).
16
Tay-Sachs disease is:
an invariably fatal disease of the brain and spinal cord that occurs in Jewish
infants of eastern European*410 ancestry. A diseased child appears normal
at birth, but, at four to six months, its central nervous system begins to
degenerate, and it suffers eventual blindness, deafness, paralysis, seizures,
and mental retardation. The life expectancy of an afflicted child is two to
four years.
Naccash, 290 S.E.2d at 827. The Naccash plaintiffs underwent genetic testing while pregnant with their first
child. The test showed that Father was not a carrier for Tay-Sachs disease; because the gene for Tay-Sachs
is recessive, the plaintiffs were informed that there was no need to test Mother. “Satisfied with the report,
[Mother] ‘went ahead and had’ her baby.” Id. However, soon after her birth, the plaintiffs’ child began
showing abnormalities associated with Tay-Sachs disease. Further tests showed that Father was indeed a
carrier of the Tay-Sachs gene. The plaintiffs’ daughter ultimately died from the disease. Id.
-31-
asserted by chance witnesses to physical torts involving others.
The considerations prompting imposition of the limitations do
not exist here; no one suggests that the [plaintiff parents’]
emotional distress was feigned or that their claim was fraudulent.
Indeed, to apply the restrictions here, or to refuse to recognize an
exception to the general rule, “would constitute a perversion of
fundamental principles of justice.”
Furthermore, we believe it would be wholly unrealistic to
say that the [plaintiffs] were mere witnesses to the consequences
of the tortious conduct involved in this case. In our view, the
parents' emotional distress was no less a direct result of wrongful
conduct than the distress endured by the plaintiffs in[ our
previous decisions]; the evidence shows an unbroken chain of
causal connection directly linking the erroneous Tay-Sachs
report, the deprivation of the parents' opportunity to accept or
reject the continuance of [Mother’s] pregnancy, and the
emotional distress the parents suffered following the birth of their
fatally defective child.
Naccash, 290 S.E.2d at 831.
The Naccash case is inapposite to the case at bar. First, Tennessee, unlike Virginia in
1982, has long departed from a rule requiring a physical injury in all negligent infliction of
emotional distress cases. Instead, the Tennessee Supreme Court has outlined a far less
stringent standard. First, a plaintiff may recover, without the need for expert proof, when the
plaintiff has suffered not only a physical injury, but also an “independent basis for tort
liability.” Estate of Amos, 62 S.W.3d at 37 (citing Laxton, 639 S.W.2d at 433). The Naccash
plaintiffs would have undoubtedly met this standard as the Virginia Supreme Court essentially
likened their claim for medical expenses associated with caring for their daughter to a medical
malpractice action. Naccash, 290 S.E.2d at 829 (“Whether a cause of action exists for the
wrongs complained of and the damages sought here is a question that should be determined,
in our opinion, according to traditional tort principles. Only a novel twist in the medical
setting differentiates the present situation from the ordinary malpractice action.”) (emphasis
added); see also Tenn. Code Ann. § 20-1-105 (stating that the parents of a minor child who
sustains an injury have the right to maintain an action for the expenses related to that injury).
Further, Tennessee jurisprudence does not completely disallow recovery for emotional distress
when the plaintiff cannot show a physical injury or other tort was committed against him or
her. Instead, the plaintiff in that situation must simply present some expert proof to support
his or claim. Estate of Amos, 62 S.W.3d at 37. We do not consider this to be an
insurmountable standard. Accordingly, cases decided in other jurisdictions under rules that
-32-
are not analogous to the “stand alone” rule adopted by the Tennessee Supreme Court in
Camper are simply inapposite to the case-at-bar.
Mr. Rye, based on the undisputed facts in the record, simply cannot show that he,
himself, has suffered any physical injury or physical consequences from the Appellees’
negligence, nor does he have an independent basis for tort liability in this case. The Tennessee
Supreme Court has cautioned courts from finding exceptions to the rule expressed in Camper
and Estate of Amos:
Although sympathy for a particular plaintiff may tempt us to
hold that certain circumstances “obviously” result in severe
emotional injuries, we must also recognize that such a holding
would subvert the principles set forth in Camper and would likely
lead to the kind of ad hoc decisions that originally made
[negligent infliction of emotional distress] case law unpredictable
and incoherent. Furthermore, we do not believe the requirement
that a severe emotional injury be proven by expert medical or
scientific evidence is unduly burdensome to those plaintiffs who
have suffered legitimate “stand-alone” emotional injuries.
Flax, 272 S.W.3d at 531. Accordingly, the trial court did not err in concluding that Mr. Rye’s
claim for emotional distress is a “stand alone” claim requiring expert proof to prevail at trial.
Having concluded that Mr. Rye’s claim for emotional distress claim was properly
deemed a “stand alone” claim by the trial court, the Appellees urge this Court to affirm the
trial court’s grant of summary judgment to the Appellees based on Mr. Rye’s failure to submit
expert proof in support of his claim. This we cannot do. This Court recently considered a
similar issue in Boals v. Murphy, No. W2013-00310-COA-R3-CV, 2013 WL 5872225 (Tenn.
Ct. App. Oct. 30, 2013). In Boals, the plaintiffs filed an action for emotional distress after
their mother was improperly cremated against their wishes. The trial court granted summary
judgment in favor of the defendant, finding that the plaintiffs’ claims were “stand alone”
claims for infliction of emotional distress. The trial court further ruled that because the
plaintiffs had failed to seek treatment or otherwise offer any expert proof to support their
emotional distress claims, the claims must fail. This Court reversed on the basis of the high
burden the Hannan opinion sets for summary judgment cases. The Court explained:
[R]egardless of whether the Plaintiffs will be required to submit
expert proof on their claims at trial, the Hannan standard
precludes a grant of summary judgment on the Plaintiffs'
“various negligence claims” on the basis that the Plaintiffs
-33-
failed—at the summary judgment stage—to present such proof.
In the case at bar, the trial court granted summary judgment in
favor of [the defendant] because the Plaintiffs had not yet
submitted expert proof of their serious or severe emotional
injury. Under Hannan, a party who moves for summary
judgment cannot “negate” an element of the nonmoving party's
claim simply by noting that the nonmoving party has no evidence
to prove the element. Under that circumstance, the moving party
has not “disprove[d] an essential factual claim” made by the
plaintiff, and therefore has not shifted the burden to the plaintiff.
White [v. Target Corp.], [No. W2010-02372-COA-R3-CV,]
2012 WL 6599814, at *7 [(Tenn. Ct. App. Dec. 18, 2012)]
(quoting Martin [v. Norfolk So. Rwy. Co.], 271 S.W.3d [76,] 84
[(Tenn. 2008)]). In general, as we interpret the holding in
Hannan, it will not suffice to simply point out that the
nonmoving party has no evidence to support his claim:
Under Hannan, as we perceive the ruling in that
case, it is not enough to rely on the nonmoving
party's lack of proof even where, as here, the trial
court entered a scheduling order and ruled on the
summary judgment motion after the deadline for
discovery had passed. Under Hannan, we are
required to assume that the nonmoving party may
still, by the time of trial, somehow come up with
evidence to support her claim.
Id. at *7 n.3. Thus, a grant of summary judgment is not
appropriate on the basis that the plaintiff has not yet submitted
sufficient evidence to support each element of his claim.
Boals, 2013 WL 5872225, at *14–15.
The same is true in this case. The trial court properly concluded that Mr. Rye’s claim
for negligent infliction of emotional distress is a “stand alone” claim, requiring expert proof
to prevail at trial. However, the trial court failed to properly consider the high burden of the
Hannan standard in concluding that Mr. Rye’s failure to submit expert proof, prior to trial,
was fatal to his claim. Based on the holding in Boals, we conclude that Mr. Rye’s failure to
submit expert proof to support his negligent infliction of emotional distress claim prior to the
trial in this case is not sufficient to support a grant of summary judgment. The trial court’s
-34-
ruling on this issue is, therefore, reversed.
Conclusion
The judgment of the Circuit Court of Shelby County is affirmed in part, reversed in
part, and remanded to the trial court for all further proceedings as may be necessary and are
consistent with this Opinion. Costs are taxed one-half to Appellants Michelle Rye and Ronald
Rye, and their surety, and one-half to Appellees, Women’s Care Center of Memphis, MPLLC,
d/b/a Ruch Clinic, and Diane Long, M.D., and their surety,17 for all of which execution may
issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
17
Because both parties in this case filed Applications for Permission to file an Interlocutory Appeal,
both parties filed surety bonds with this Court.
-35-