Health Care POA Must Have Specific Authority to Agree

The Tennessee Court of Appeals recently decided Wilkins v. GGNSC Springfield, a case involving alleged nursing home abuse and neglect in which the decedent’s health care power of attorney signed an optional arbitration agreement on behalf of the decedent. The nursing home sought to compel arbitration, but the trial court denied the motion holding that the POA did not have authority to sign the arbitration agreement on behalf of the decedent. The Court of Appeals upheld this decision of the trial court.

n this case, the Court of Appeals reminds us of Tennessee law regarding powers of attorney:

The execution of a power of attorney creates a principal–agent relationship. Tenn. Farmers Life Reassurance Co. v. Rose, 239 S.W.3d 743, 749 (Tenn. 2007). “[A] person executing a power of attorney may empower his or her agent to do the same acts, to make the same contracts, and to achieve the same legal consequences as the principal would be personally empowered to do.” Id. “The language of a power of attorney determines the extent of the authority conveyed.” Id. (quoting Armstrong v. Roberts, 211 S.W.3d 867, 869 (Tex. Ct. App. 2006). “The more specific a power of attorney is concerning the performance of particular acts, the more the agent is restricted from performing acts beyond the specific authority granted.” Id. A power of attorney evidences to third parties the purpose of the agency and the extent of the agent’s powers. Id. A power of attorney “should be construed using the same rules of construction generally applicable to contracts and other written instruments, except to the extent that the fiduciary relationship between the principal and the agent requires otherwise.” Id. at 749–50 (footnote omitted). The legal effect of a written contract or other written instrument is a question of law. Id. at 750.

Examining the specific language of the POA at issue, the court found that the POA did not authorize the agent to sign the optional arbitration agreement. The court also noted that signing the document was not a condition to admission at the nursing home. Here is the language of the preamble of the POA. 

The Agent is authorized in her sole and absolute discretion to exercise the powers granted herein relating to matters involving Principal’s health and medical care. The Agent is authorized by and on Principal’s behalf to consent to proposed medical treatment, and shall give, withhold or withdraw consent for Principal based upon any choices of treatment within her best discretion, and to that end, Principal grants the following powers to Agent:

The court then looked to paragraph 2(c) of the power of attorney, which authorized the agent to “arrange for Principal’s hospitalization, convalescent care, hospice or home care,” but, the court noted that this power was only granted in order to “consent to proposed medical treatment” and to “withhold or withdraw consent … based upon any choices of treatment.”

The court found that this language did not grant the agent authority to sign the optional and separate arbitration agreement on behalf of the principal.

Tennessee Court of Appeals Reverses Finding of No Liability of Jailer for Failure to Provide Proper Medical Care to Inmate

The recent case of  Payne v. Tipton County gave the Tennessee Court of Appeals the opportunity to review the finding of the trial court of no liability on the part of the defendant, Tipton County, for failure to provide appropriate and timely medical care to an inmate.  The inmate suffered a severe hypertensive crisis while in custody of the county,  leading to renal failure, a stroke, heart attack, hemorrhage on his brain, anemia, seizures, kidney failure, and other conditions and resulting in a 45-day hospital admission.

The inmate appealed, and the Court of Appeals reversed the finding of the trial court. In reaching this decision, the Court of Appeals addressed what duty was owed to the inmate by Tipton County. The court noted that under Tennessee law prison officials have a duty to exercise reasonable care for the protection of those in their custody, but that they are not insurers of a prisoner’s safety. Instead, prison officials must act reasonably in light of the inmate’s known condition. The court went on to discuss the duty of a prison to provide inmates with access to proper medical treatment.

The court reviewed the evidence and testimony presented at trial and found that the County failed to provide the inmate with appropriate medical care and failed to follow its own procedures with regard to providing the inmate with medical care. Specifically, the Court of Appeals found that Tipton County breached its duty to provide proper medical treatment during the inmate’s confinement by:

(1) failing to give [the inmate] a physical within fourteen days of his confinement, as required by the [jail’s procedures]; (2) failing to consider the results of the earlier physical at anytime after [the inmate] began exhibiting symptons; (3) failing to ensure that [the inmate] was examined and diagnosed by a physician at anytime during his confinement once he began to exhibit symptoms, as required by [the jail’s] own Manual; and (4) failing to take [the inmate’s] blood pressure at anytime prior to [the date the inmate was hospitalized], despite the fact that Tipton County officers were able to perform that function.

On this basis, the Court of Appeals reversed the trial court and remanded the case for a determination of damages.

Tennessee Court Holds that Jury Need Not Be Instructed on Financial Effect of Fault Being Assessed Against a Non-Party That Had Previously Settled

Recently, the Tennessee Court of Appeals reviewed the case of Lake v. The Memphis Landsmen in its third trip to the court. A number of issues were raised in the appeal, but by far the most interesting one concerned the plaintiffs’ contention that the trial court erred in including a non-party who plaintiffs previously settled with on the jury verdict form. The plaintiffs also contended that to the extent the non-party was properly included on the form, the trial court should have instructed the jury on the effect of allocating negligence to the non-party. Why is this issue important to the plaintiffs? Because the jury handed down an $8,543,530 verdict but attributed 100% fault to the non-party. 

This case concerned a wreck between a passenger bus and a concrete truck. The concrete truck took a left turn and struck the bus causing it to collide with a light pole and eject the plaintiff and resulting in a traumatic brain injury to the plaintiff. The plaintiffs settled with the concrete truck defendant before trial and then proceeded to trial against several other defendants on various theories of liability concerning the passenger bus.

In this appeal, the Court of Appeals first explained that Tennessee has a system of modified comparative fault, adopted by the Tennessee Supreme Court in 1992 in the landmark case of McIntyre v. Balentine, 833 S.W.2d 52,56 (Tenn. 1992). Under this system, fault is apportioned among all parties in proportion to their degree of culpability, and a defendant is only liable for the percentage of damages that his or her own negligence caused. In McIntyre, the court also adopted the non-party defense, allowing juries to apportion fault to non-parties with culpability. McIntyre, 833 S.W.2d at 58. 

The plaintiffs attempted to argue that the settling defendant should not have been included on the verdict form because the case involved two separate impacts – one between the concrete truck and the passenger bus, and one between the bus and the light pole. The plaintiffs contended that it was the second impact that proximately caused the plaintiff’s traumatic brain injury, not the impact between the concrete truck and the bus.   

The Court of Appeals explained the two kinds of causation that a plaintiff must prove in order to prevail on a negligence claim – cause in fact, or “but-for” causation, and proximate cause. As the court explained, “[c]ause in fact means that the injury would not have occurred ‘but-for’ the negligent conduct.” Proximate cause, on the other hand, concentrates on three factors:

(1) whether the tortious conduct was a substantial factor in bringing about the harm complained of; (2) whether there is some rule or policy that should relieve the wrongdoer of liability because of the manner in which the tortious act resulted in the harm; and (3) whether the harm could have been reasonably foreseen or anticipated by a person of ordinary intelligence and prudence. (citing Hale v. Ostrow, 166 S.W.3d 713, 719 (Tenn. 2005).

The Court of Appeals found that all three factors were met with regard to the concrete truck – it was a substantial factor in bringing about the plaintiff’s injuries, the plaintiffs did not cite any rule or policy to relieve the concrete truck of liability, and the plaintiff’s injuries were a reasonably foreseeable result of the concrete truck’s negligence. Thus, the court held that the concrete truck should have been included on the verdict form.

The court then turned to the plaintiffs’ argument that the trial court should have charged the jury about the effect of a finding of fault on the part of the concrete truck. Because the jury apportioned all of the fault to the concrete truck and since the plaintiffs had already settled with the concrete truck, the plaintiffs were unable to recover any of the awarded damages of more than $8.5 million.

The plaintiffs argued that McIntyre supports their position because in McIntyre the court states that “the trial court shall instruct the jury on the effect of the jury’s finding as to the percentage of negligence as between the plaintiff or plaintiffs and the defendant or defendants.” McIntyre, 833 S.W.2d at 57. However, the court disagrees finding that this language only provides that the jury should learn the effect of allocating fault between plaintiffs and defendants, not defendants and defendants. The court explains that if the jury were to know that a plaintiff could not recover the full award from one defendant, the jury might allocated more fault to another negligent actor. The Court of Appeals therefore found no error in the trial court’s decision not to instruct the jury on the effect of allocating fault to the concrete truck. 

My memory is that this is the first Tennessee Court of Appeals opinion on the issue of whether the jury should be instructed of the effect of finding of "0%" of fault.   The Tennessee Supreme Court will be asked to hear this case.

Poor Lighting Leads to Reversal of Summary Judgment for Defendant in Tennessee Fall Down Case

Knowledge of inadequate lighting was enough to create a jury issue of dangerous condition in  Christian v. Ayers L.P. d/b/a Ms. Lassie’s Lodge, No. E2013-00401-COA-R3-CV (Tenn. Ct. App. March 28, 2014), according to the Eastern Section of the Tennessee Court of Appeals.

Plaintiff attended an event for “Relay for Life” sponsored by the American Cancer Society at defendant owned Ms. Lassie’s Lodge. When plaintiff left the event between 6:30 and 7:00 p.m., it was dark outside. Plaintiff testified that she had trouble seeing the ground and walked slowly with extra caution to her car in the parking area adjacent to the lodge. There was no lighting on the walkway or in the parking area. Plaintiff fell mid-stride after her left foot went down further than her right foot near the edge of the walkway. She suffered a four-part humerus fracture and incurred $52,000 in medical expenses after hospitalization and surgery.

Owner’s representative and partner testified that she had opened and closed the lodge that evening. Upon arriving, owner’s representative flipped “some switches” and became aware that the lights on the walkway and in the parking lot were not on, causing her to look unsuccessfully for the switch for the outside lights. She was then told that there was no switch and the lights should come on automatically. It was later determined by workers after plaintiff’s fall that multiple exterior bulbs, including the lights in question, were burned out.

The trial court reviewed defendant’s summary judgment motion under Tenn. Code Ann. § 20-6-101 (Tennessee’s statutory summary judgment standard effective July 2011) and found that plaintiff had not presented sufficient evidence regarding defendant’s notice of the alleged dangerous condition.

In a Tennessee premises liability case, the plaintiff must prove, in addition to the elements of negligence, that the defendant premises owner (or its agent) caused or created the dangerous or defective condition at issue, or that the defendant premises owner (or its agent) had actual or constructive knowledge of the dangerous or defective condition prior to the incident giving rise to the plaintiff’s injuries.  The premises owner has a duty to exercise reasonable care under all the circumstances to prevent injury to persons lawfully on the premises.

This duty is premised upon the assumption that the owner has superior knowledge of any perilous conditions that may exists on the property. Tennessee legal precedent concerning a premises owner’s duty specifically includes the provision of adequate lighting. By showing actual knowledge of the lack of adequate lighting, a plaintiff demonstrates that the property owner had a duty to act reasonably under the circumstances and remedy the dangerous condition.

Therefore, based on the defendant representative’s admission to having knowledge that the lights in question were inoperative at the time of plaintiff’s fall, the court of appeals reversed the trial court’s dismissal of plaintiff’s claim. The appellate court ruled that the jury should decide whether owner, having knowledge of the lack of outdoor light, took sufficient action or whether failure to take further action was reasonable under the circumstances. The jury should also consider, according to the appellate court, whether owner could or should have become more aware of the dangerous condition through the exercise of reasonable care, such as inspecting and testing the outdoor lighting and recognizing that the lack of lighting in the parking lot.

No doubt that this was the right decision by the court of appeals. Summary judgment should not have been granted in this case.  

The case is a helpful reminder that common law has defined some specific obligations that much be met to meet that duty of reasonable care.  One of those obligations is the duty to have adequate lighting.  Those common law obligations are in essence court declarations of the standard of care for owners and operators of premises, and evidence of a breach of those obligations puts one on the path to a trial by jury.

Tennessee's Three-Year Health Care Liability Statute of Repose Bars Claim

 This case involves the Tennessee Medical Malpractice Act and the application of the three-year statute of repose.  On December 19, 1999, Jessie Bentley suffered severe injuries during labor and delivery by the defendant medical providers.  Suit was not filed until February 1, 2013 and the defendants all immediately moved for dismissal citing the three-year statute of repose and the Calaway decision.  Relying on the Crespo decision, plaintiff defended by arguing application of the statute of repose violated his due process rights and violated the equal protection clause.  The trial court granted the dismissal and the appeal followed. 

The Court of Appeals began its analysis with the proposition that vested rights of action in tort are constitutionally protected property interests and thus they are protected by both the due process and equal protection clauses of the Constitution.  Next, the Court turned to the Calaway decision, 193 S.W. 3d 509 (Tenn. 2005), in which the Tennessee Supreme Court held that a "plaintiff's minority does not toll the medical malpractice statute of repose".   In short, the Calaway Court reasoned that to allow disability or minority to toll the statute of repose would defeat the very purpose of the statute.  However, the Court was mindful of those plaintiffs and lawyers who had relied upon prior decisions and ruled the statute of repose would only have prospective application to cases commenced after December 9, 2005. 

The Court of Appeals also found the plaintiff's reliance on the Crespo decision was misplaced.  In Crespo, approximately one year after the birth of their minor child, the parents hired counsel to pursue a medical malpractice claim.  Relying on prior precedent, the malpractice investigation proceeded at a "relatively leisurely pace, which was perfectly reasonable given the clearly stated law at the time."  Four years after the birth, as the plaintiff's were awaiting responses to requests for medical records and were preparing to file suit, the Calaway decision was rendered and Crespo's case was instantly gone.  Under those circumstances, the Court of Appeals found the Crespos had been denied due process and their right to equal protection were violated.  

However, in this case, the Bentley plaintiffs had waited for seven years after the Calaway decision to file suit.  And unlike the plaintiffs in Crespo, they had not been actively pursuing their case at the time of the Calaway decision.  As such, the Court of Appeals affirmed the dismissal pursuant to the statute of repose. 

The case is Bentley v. Wellmont Health SystemNo. E2013-01956-COA-R3-CV (Tenn. Ct. App.  April 10, 2014).

 

Not All Rear-End Collisions Result in Plaintiff's Verdicts

The Tennessee Court of appeals recently affirmed a jury’s defense verdict in a rear-end car crash case in Hicks v. Prahl, No. E2013-00285-COA-R3-CV (Tenn. Ct. App. March 25, 2014). Plaintiff was driving on an entrance ramp trying to merge onto a highway when, according to her testimony, she slowed down to negotiate a sharp curve on the entrance ramp and was rear-ended by defendant’s vehicle. Defendant, on the other hand, testified that plaintiff slowed to a complete stop twice while attempting to merge onto the highway, the second of which immediately preceded the collision. According to defendant, plaintiff came to a complete stop on the entrance ramp and then began moving forward again. Defendant then rotated her neck over her left shoulder to look for approaching traffic and lifted her foot off the brake, causing her car to move forward. Defendant testified that when she returned to looking ahead she discovered that plaintiff had stopped in front of her again. Defendant stated that she quickly applied her brakes but was not able to avoid crashing into the rear end of plaintiff’s car. Defendant explained that she had no reason to suspect that plaintiff would stop a second time because the curve on the entrance ramp allowed defendant to see that there were no cars in front of plaintiff’s car and no other reason for such a stop.

Plaintiff was talking on her cell phone at the time of the crash. Plaintiff’s daughter testified that she was talking with her mother who was using the speaker phone while driving. Daughter and husband also corroborated plaintiff’s testimony about the sharp curve on the entrance ramp requiring significant deceleration. The opinion mentions that plaintiff amended her complaint to seek $1.5 million dollars in damages, although there’s no description of plaintiff’s injuries, medical expenses, or other damages. Plaintiff refused medical treatment at the scene because she did not think it was a “major accident,” but she did go to the emergency room later that day.

At trial, plaintiff testified that she did not ever stop on the entrance ramp while attempting to merge onto the highway, but instead she merely lifted her foot off the gas pedal. When impeached with the averment in the complaint that she was “stopped to wait for traffic,” plaintiff testified that the pleading was in error. Plaintiff also testified that she could not remember making the statements to personnel in the emergency room that she was rear-ended while “sitting stopped in her car.”

Plaintiff appealed the jury’s unanimous defense verdict, claiming that there was no material evidence to support it. The standard of review required the appellate court to take the strongest legitimate view of all the evidence in favor of the verdict, assuming the truth of all evidence that supports the verdict, allowing all reasonable inferences to sustain the verdict, and discarding all countervailing evidence. In so doing, the appellate court determined that defendant did not breach any duty of care owed to plaintiff because it was not unreasonable for defendant to expect plaintiff to continue moving forward into the merge lane and for defendant to look over her shoulder to check for oncoming traffic. Thus there was material evidence in the record to support the jury’s finding that defendant was not negligent.

Plaintiff also argued that the trial court erred in allowing defendant to assert comparative fault based on plaintiff being on her cell phone with her daughter at the time of the crash. Defendant responded on appeal, and the court of appeals agreed, that the issue of comparative fault is irrelevant because the jury found that defendant was without fault and therefore never reached the issue of whether plaintiff was comparatively at fault.

Plaintiff’s final argument on appeal asserted that the trial court made comments in front of the jury that amounted to prejudicial and reversible error. Despite several admonishments by the court and a bench conference outside the presence of the jury, plaintiff’s counsel continued to pursue a line of questioning that the court found to be a misrepresentation of the pleadings and procedural posture of the case. After a thorough review of the transcript, the appellate court found that the trial court’s comments did not amount to reversible error.

Without more information about what happened during trial, my guess is that the jury simply found the defendant to be more credible, especially in light of plaintiff’s conflicting statements on whether she ever stopped on the entrance ramp prior to the collision. Regardless, this case serves as a good reminder that just because you have a client who was rear-ended by another vehicle does not mean that you always have a case of clear liability. Facts and other circumstances (such as plaintiff’s credibility and demeanor during trial) can still lead jurors to find that the rear driver was not a fault.

One also has to wonder whether the demand of $1,500,000 had anything to do with the jury's attitude in this case.  We know nothing about the injuries, the medical expenses, or other losses.  But a demand of $1,500,000 in a case where (a) both vehicles were driving at a slow rate of speed; (b) both vehicles were operational after the incident; and (c) the plaintiff did not leave the scene in an ambulance or even go to the ER until later that day raises some questions in my mind about how one could see $1,500,000 in damages.

Now, before I get a bunch of angry comments and emails, yes, I know it is possible for one to have life-altering injuries in such situations.  I get it.  But I also know that if - just if- the jury thought the plaintiff was seeking to much money they may well punish her for doing so. 

Just sayin.'

Nurse Practitioners Now Exempt From Subpoena to Trial

The Tennessee General Assembly has passed, and the Governor has signed, legislation adding nurse practitioners to the list of people who are ordinarily exempt from subpoena to trial.   Nurse practitioners are still subject to being subpoenaed to give a deposition.

Here are the other people who are exempt from subpoena to trial under T.C.A. Section 24-9-101(a):

  •  An officer of the United States;
  • An officer of Tennessee;
  • An officer of any Tennessee court or municipality;
  • The clerk of any court of record other than that in which the suit is pending;
  • A member of the Tennessee general assembly while in session, or clerk or officer thereof;
  • A practicing physician, physician assistant, advanced practice nurse, psychologist, senior psychological examiner, chiropractor, dentist or attorney;
  • A jailer or keeper of a public prison in any county other than that in which the suit is pending; and
  •  A custodian of medical records, if such custodian files a copy of the applicable records and an affidavit with the court and follows the procedures provided for producing records as required by law.

 

 

 

Preserving Timely Filings of Tort Actions in Tennessee General Sessions Court

The Tennessee Court of Appeals recently held that a General Sessions plaintiff cannot skip the procedure for filing unserved process to avoid letting the statute of limitations run.

Tenn. Code Ann. § 16-15-902 requires a plaintiff in General Sessions court to return process within 60 days of issuance. § 16-15-902 does not explicitly state that a plaintiff must return the process if it is unserved. Under Tenn. Code Ann. § 16-15-710, however, a plaintiff who does return process as unserved must take action to rely on the original filing date for the statute of limitations. Once the plaintiff returns the process as unserved, the plaintiff has to either have process reissued within 9 months or refile the case within one year.

In Gates v. Perry, No. 2013-01992-COA - R9-CV (Tenn. Ct. App. March 26, 2014) the plaintiff never filed the unserved process with the court, and instead had a new warrant issued eighteen months later. The plaintiff argued that, since he never filed the unserved process, Tenn. Code Ann. § 16-15-710 was never triggered. The trial court agreed, and denied a motion to dismiss by the defendant.

The Court of Appeals reversed, explaining it “cannot accept the argument that our General Assembly intended to penalize a plaintiff who acts and reward a plaintiff who does nothing as concerns the return of unserved process.” The Court of Appeals held:

[I]f an unserved process is not returned unserved within 60 days of issuance, a plaintiff in general sessions court who wishes to rely on the original commencement as a bar to the running of the statute of limitations has nine months from the end of the 60 days from the issuance of the prior process to obtain new process or the plaintiff must recommence the action within one year after 60 days from the issuance of the initial process not served and not returned.

So in a nutshell, to rely on the original filing date to toll the statute of limitations, a General Sessions plaintiff must comply with § 16-15-902 by returning any unserved process within 60 days, and then comply with § 16-15-710 by either having process reissued within 9 months or by refiling the case within 1 year.

Close Enough for Horseshoes and Hand Grenades: Substantial Compliance Rather Than Strict Compliance in HealthCare Liability Case

This is yet another Tennessee medical malpractice (health care liability) notice case and the issue is whether strict compliance is required for T.C.A. § 29-26-121 (a)(3) and (4), which requires an affidavit from the party mailing the notice. The underlying procedural facts were not in dispute: plaintiff fully and strictly complied with the pre-suit notice provisions of T.C.A. § 29-26-121(a) but failed to simultaneously file an affidavit of the party mailing the pre-suit notice. Instead, the plaintiff filed it after the notice was given and before the defendants filed any responsive pleading. In response, the defendants filed a “gotcha” motion to dismiss arguing the failure to simultaneously file the affidavit required a dismissal of the case.

The trial court disagreed noting the error had been remedied prior to the defendants filing a responsive pleading and ultimately finding the plaintiff had complied with the notice provision of the Act. An interlocutory appeal was granted pursuant to Rule 10 and the Court of Appeals made quick work of the issue relying on the Tennessee Supreme Court’s decision in Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., No. M2012-00582-SC-SO9-CV, 2013 WL 61580000.

In Stevens, the Tennessee Supreme Court had been asked to decide whether strict compliance was required with T.C.A. § 29-26-121(a)(2)(E) (the HIPPA compliant medical authorization section of the Act). Ultimately, the Tennessee Supreme Court held that substantial compliance rather than strict compliance was all that was required for that particular section because the provision was non-substantive and no prejudice had befallen the defendants as a result of the non-compliance.

Likewise, in this case, the Court of Appeals concluded the true “purpose and essence” of the statute was to provide pre-suit notice to a defendant and that had been satisfied. The fact that the affidavit had not been served until shortly after the complaint was filed did not result in any prejudice to the defendants because simply having to proceed with the case or the passage of time could not, on their own, constitute prejudice. Given the preference to resolve cases on their merits, the Court of Appeals held the interests of justice would not be served by dismissing the complaint for failure to simultaneously serve the affidavit and the plaintiffs should be allowed to correct the oversight.

Finally we are beginning to see some notion of fairness find its way into this troublesome area of the law.  There are several notice and certificate of good faith cases pending before the Tennessee Supreme Court, and it needs to continue to send the message that while the statute must be followed substantial compliance is all that is required.  And what do I mean about substantial compliance?  Compliance to the extent that any deficiencies do not result in any substantial prejudice to the defendant. 

In other words, no more gotchas.

The case is Chambers v. Bradley County, No. E2013-01064-COA-R10-CV (March 28, 2014).

Tennessee Medical Malpractice Case Rich With Law on Speculative Damages, NIED Claims and Whether Disruption of Family Planning Is A Valid Claim

Memphis, Tennessee medical malpractice cases always seem to have a more than their fair share of twists and turns.  This health care liability case has more twists and turns than the Cherohala Skyway TN 165 / NC143 from Tellico Plains to Robbinsville ( a great road for our motorcycling friends).

During her third pregnancy, Plaintiff Michelle Rye was under the care of Dr. Diane Long, a physician with Women's Care Center of Memphis. Because Ms. Rye has Rh negative blood, the standard of care dictated she be given a RhoGAM injection during her pregnancy.   The defendants failed to give Ms. Rye the RhoGAM injection and she developed Rh-sensitization as a result.   Rh-sensitization is a condition in which, if the in utero child has Rh positive blood, the mother's antibodies attack the baby's blood cells causing injury to the baby. 

The defendants admitted they failed to comply with the standard of care but denied the plaintiffs had suffered any damage. In particular, in support of their motion for summary judgment, the defendants attached the affidavit of Dr. Stovall who opined it could not be said with any reasonable degree of medical certainty that any Rh-sensitized female would ever sustain any injuries or damage and the same was true even if the woman conceived another child as the child would have to have Rh-positive blood for the condition to be in play.

The plaintiffs countered that the defendants' malpractice had caused them to alter their family planning. Specifically, following the birth of their third child, the defendants referred the plaintiffs to Dr. Schneider, a doctor who specialized in high risk pregnancies. Dr. Schneider advised the plaintiffs that any future surgery would be high risk and the risks would increase for every successive pregnancy because of Mrs. Rye's immune system response. According to the plaintiffs, Dr. Schneider actually discouraged the plaintiffs from having any additional children. Because of their religion, the plaintiffs used natural family planning methods. Since natural methods are not completely effective at preventing pregnancy, the plaintiffs had tremendous anxiety about the possibility of future pregnancies and the complications that would result, although neither plaintiff ever sought any psychological counseling for the anxiety. However, the anxiety was such that the plaintiffs approached their church seeking permission for Mrs. Rye to undergo voluntary sterilization but the request was denied. 

Further, even the defendant doctor admitted in her deposition that the decision of whether to have a child was a "huge deal" and the plaintiffs' decision to alter their family planning was reasonable. And finally, the plaintiffs presented an expert affidavit that Ms. Rye now has diseased blood and there was a 70% chance that if she became pregnant again her fetus would have Rh-positive blood and the complications could be moderate to severe and may require blood transfusions for the mother and invasive procedures for the infant. 

The procedural history of the motion for summary judgment is rather complicated and both parties filed competing applications for interlocutory appeal. But the issues were succinctly distilled by the Court of Appeals when they granted the application for interlocutory appeal and limited review to the following issues:  

1. Since the defendants admitted they failed to comply with the standard of care, did the trial court err in finding the damages were too speculative and subsequently granting summary judgment on the plaintiffs' claims that their future children are at risk for complications and Mrs. Rye is at risk for blood transfusions?

2. Did the trial court err by denying summary judgment to the defendants on Mrs. Rye's claim that she now has diseased blood and therefore has an injury in the form of altered health status?

3. Did the trial court err in failing to grant summary judgment on Mrs. Rye's emotional distress claim since it was not a "stand alone" claim?

4. Did the trial court err in granting summary judgment on Mr. Rye's claim for emotional distress since it was a "stand alone" claim?

5. Is disruption of family planning a cause of action under Tennessee law? If it is, does it belong to a woman, a man or both?

As for the first issue, the Court found the trial court properly denied summary judgment to the defendants on whether Mrs. Rye had suffered an actual injury. The plaintiffs' expert affidavit unequivocally opined Mrs. Rye had an irreversible altered body status in the form of an autoimmune disorder and the risk of the disorder to future pregnancies was not disputed. While the defendants pointed to the fact that Mrs. Rye had not received any medical treatment for her condition, the Court of Appeals relied upon the broad definition of "injury" and "impair" found in Black's Law Dictionary and noted that neither required a party to actually undergo any medical treatment to have an injury.

After a lengthy discussion about speculative damages, the Court of Appeals concluded that "regardless of whether any complications resulting from Mrs. Rye's Rh-sensitization actually occur in the future, we conclude the [defendants] have failed to show that Mrs. Rye cannot prove that she has suffered from an injury in this case." Since there was conflicting proof in the record, the Court of Appeals reversed the trial court's grant of summary judgment on the issue of future medical expenses for Mrs. Rye's future pregnancies. 

On the issue of future blood transfusions, the Court of Appeals held the future damages related to Mrs. Rye's blood transfusions were too speculative finding plaintiff's expert affidavit had not opined to a reasonable degree of medical certainty that Mrs. Rye would need future blood transfusions. Instead, that element of damage had been couched as merely a possibility. As such, the Court of Appeals affirmed the trial court's dismissal of that portion of plaintiffs' claims.

Next up was the claim related to disruption of family planning. The plaintiffs asserted the Tennessee Supreme Court's decision in Davis v. Davis was dispositive and permitted the claim. Davis involved a dispute between a divorcing couple about how to dispose of frozen embryos. The Court of Appeals disagreed distinguishing Davis on the basis that it involved the issue of unwarranted governmental intrusion into the decision of whether or not to have children. The Court of Appeals declined to extend the holding in Davis to cases involving non-governmental entities. Since Tennessee law does not recognize an independent claim for disruption of family planning, the trial court's grant of summary judgment on that claim was affirmed. However, the Court of Appeals did rule that the Ryes could present evidence of the disruption of their family planning as part of the damages for the negligent infliction of emotional distress claim, to the extent the claim survived.

Finally, the last issue is the aforementioned negligent infliction of emotional distress claim. The central issue was whether Mr. and Mrs. Ryes' NIED claims were stand-alone and thus required expert proof of which plaintiffs had offered none.   The opinion offers a nice history of the law on this issue. Ultimately, the Court of Appeals concluded Mrs. Rye's claim was not stand-alone but instead "parasitic" to her medical malpractice claim. Thus, expert medical proof was not necessary to proceed on her claim.

As for Mr. Rye, it was undisputed he did not suffer any physical injury nor did he have an independent basis for tort liability. Therefore, expert proof would be necessary. However, the Court of Appeals did not affirm the grant of summary judgment. Instead, the trial court was reversed under Hannan, i.e, "a party who moves for summary judgment cannot 'negate' an element of the nonmoving party's claim simply by noting the nonmoving party has no evidence to prove the element." 

The case is Rye v. Women's Care Center of Memphis, W2013-00804-COA-R9-CV (Tenn. Ct. App. March 10, 2014).