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).