                   IN THE COURT OF APPEALS OF TENNESSEE,
                               AT KNOXVILLE
                                                                   FILED
             _______________________________________________________
                                                             May 28, 1998
                                    )
WAYNE MILLER and                    )     Hamblen County Circuit Court
                                                          Cecil Crowson, Jr.
ELIZABETH ANN MILLER,               )     No. 96-CV-117 Appellate C ourt Clerk
                                    )
   Plaintiffs/Appellants.           )
                                    )
VS.                                 )     C.A. No. 03A01-9709-CV-00411
                                    )
DAVID WILLBANKS, M.D.,              )
HAMBLEN PEDIATRIC                   )
ASSOCIATES, INC. and                )
MORRISTOWN-HAMBLEN                  )
HOSPITAL ASSOCIATION,               )
                                    )
   Defendants/Appellees.            )
                                    )
______________________________________________________________________________

From the Circuit Court of Hamblen County at Morristown.
Honorable John K. Wilson, Judge



Judy McCarthy, Knoxville, Tennessee
Dennis M. McCarthy, Knoxville, Tennessee
Attorneys for Plaintiffs/Appellants.


Douglas L. Dutton, Knoxville, Tennessee
Amy V. Hollars, Knoxville, Tennessee
Attorneys for Defendants/Appellees David Willbanks, M.D. and Hamblen Pediatric Associates,
P.C.


R. Franklin Norton, Knoxville, Tennessee
Gary G. Spangler, Knoxville, Tennessee
Attorneys for Defendant/Appellee Morristown-Hamblen Hospital Association


OPINION FILED:

AFFIRMED AND REMANDED


                                          FARMER, J.

CRAWFORD, P.J., W.S.: (Concurs)
LILLARD, J.: (Concurs)
                    Plaintiffs Wayne and Elizabeth Ann Miller appeal the trial court’s summary judgment

which dismissed the Millers’ claims for outrageous conduct and negligent infliction of emotional

distress against Defendants/Appellees David Willbanks, M.D., Hamblen Pediatric Associates, Inc.,

and Morristown-Hamblen Hospital Association. We affirm the trial court’s judgment based on our

conclusion that, even when viewed in the light most favorable to the Millers, the evidence fails to

support a cause of action for these claims against the Defendants.



                                          I. Procedural History



                    This lawsuit began when the Millers sued Dr. Willbanks, Hamblen Pediatric

Associates, and the Hospital for the torts of (1) outrageous conduct, (2) defamation, (3) negligent

infliction of emotional distress, and (4) invasion of privacy. The gravamen of the Millers’ complaint

was that Dr. Willbanks, who worked for Hamblen Pediatric Associates and treated patients at the

Hospital, erroneously diagnosed the Millers’ newborn daughter as suffering from Drug Withdrawal

Syndrome, wrongfully accused Mrs. Miller of using drugs during her pregnancy, and persisted in his

accusations of drug use even after receiving negative drug screens for both the infant and Mrs.

Miller.



                    After the Millers filed their complaint, the Defendants moved for summary judgment,

contending that the record did not support the Millers’ claims against the Defendants and,

alternatively, that the Defendants were immune from suit under Tennessee law. All three Defendants

claimed immunity pursuant to a Tennessee statute which requires certain persons to report suspected

child abuse to specified governmental officials (hereinafter, “Mandatory Child Abuse Reporting

Statute”).1 The Hospital additionally claimed immunity pursuant to the Tennessee Governmental

Tort Liability Act (GTLA).2 The trial court subsequently granted the Defendants’ respective motions

for summary judgment. In successive orders, the trial court dismissed the Millers’ claim for

outrageous conduct and ruled that all Defendants were immune from suit, Dr. Willbanks and

Hamblen Pediatric Associates pursuant to the Mandatory Child Abuse Reporting Statute and the



          1
              T.C.A. §§ 37-1-401 to -414 (1991 & Supp. 1995).
          2
              T.C.A. §§ 29-20-101 to -407 (1980 & Supp. 1995).
Hospital pursuant to the GTLA.



                On appeal, the Millers contend that the trial court erred (1) in ruling that Dr.

Willbanks and Hamblen Pediatric Associates were entitled to immunity pursuant to the Mandatory

Child Abuse Reporting Statute, (2) in ruling that the Hospital was immune from suit under the

GTLA, and (3) in dismissing the Millers’ claim for outrageous conduct based on the lack of evidence

to support this claim. The Millers have chosen not to appeal the trial court’s dismissal of their

claims for defamation and invasion of privacy. Accordingly, this appeal requires us to address only

the propriety of the trial court’s dismissal of the Millers’ claims for outrageous conduct and negligent

infliction of emotional distress.



                Summary judgment is appropriate only when the parties’ “pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” T.R.C.P. 56.04. In determining whether or not a genuine issue of material fact exists

for purposes of summary judgment, the trial court is required to consider the question in the same

manner as a motion for directed verdict made at the close of the plaintiff’s proof. Byrd v. Hall, 847

S.W.2d 208, 210 (Tenn. 1993). That is, the trial court, and this court on appeal, “must take the

strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable

inferences in favor of that party, and discard all countervailing evidence.” Id. at 210-11.



                                               II. Facts



                In light of the foregoing standard, we accept as true the Millers’ version of events as

attested to in the affidavits submitted by them in opposition to the Defendants’ motions for summary

judgment. These affidavits reveal that the Millers’ daughter, Heather Nicole Miller, was delivered

by caesarian section at the Hospital on September 19, 1995. Mrs. Miller apparently was discharged

before Heather, and she and Mr. Miller returned home. In the early morning hours of September 21,

1995, the Millers were awakened by Mr. Miller’s father with a message from the Hospital. Mr.

Miller immediately contacted the Hospital and spoke with Dr. Willbanks.
               During their conversation, Dr. Willbanks informed Mr. Miller that Heather was “in

distress,” but Dr. Willbanks refused to elaborate despite Mr. Miller’s repeated questioning, other

than to say that Heather had some type of illness, possibly sepsis. Dr. Willbanks told Mr. Miller that

he was going to perform a lumbar puncture on Heather, but he refused to explain why, indicating

only that it was a necessary procedure. Dr. Willbanks then asked the Millers to be at the Hospital

at about 8:30 that morning. When Mr. Miller indicated that the Millers would travel to the Hospital

immediately, Dr. Willbanks agreed to wait for them to arrive, but he again refused to provide further

explanation over the telephone.



               The Millers arrived at the Hospital at about 4:45 a.m., but Dr. Willbanks was not

there and had left no message for the Millers. At the Millers’ request, a nurse directed them to the

nursery, where they observed Heather lying in a crib with an intravenous needle protruding from her

scalp. None of the Hospital staff would answer the Millers’ questions, so the Millers waited for Dr.

Willbanks.



               Dr. Willbanks met with the Millers at about 8:30 a.m. During this meeting, Dr.

Willbanks explained that Heather had been crying excessively and had been jittery. He then asked

Mrs. Miller whether she took any drugs during her pregnancy. When Mrs. Miller responded by

saying that she had taken only an occasional Tylenol, Dr. Willbanks told her that it was important

for Heather’s health that she tell him honestly whether she had taken any drugs. Despite Mrs.

Miller’s denials, Dr. Willbanks stated that he did not believe she was telling the truth, that he had

seen Drug Withdrawal Syndrome in infants many times, that he was positive Heather was suffering

from this syndrome, and that he intended to continue treating Heather for the syndrome. At Dr.

Willbanks’ request, Mrs. Miller agreed to take a drug test.



               About one hour after their meeting with Dr. Willbanks, the Millers were approached

by a Hospital social worker, who questioned them concerning their drug use, as well as their

backgrounds, their living arrangements, and their other children. This meeting increased the Millers’

anxiety because, in addition to being concerned for their daughter’s health, they feared that their

family might be disrupted or even separated because of Dr. Willbanks’ accusations of drug use.
               The Millers experienced further embarrassment and humiliation because somehow

word spread to patients and visitors that Heather was a “drug baby” going through withdrawal.

Specifically, Mr. Miller overheard two unidentified people discussing the “drug baby” on the ward.

The Hospital nurses also were cold and rude to the Millers. Later in the day, Mr. Miller’s parents

arrived, but they left angry at Mrs. Miller because they believed that she was responsible for

Heather’s medical problems.



               Throughout the day, the Millers requested information on the drug tests and on

Heather’s diagnosis and prognosis, but they received no answer and were told that Dr. Willbanks was

unavailable. Finally, at about 8:00 p.m., Mr. Miller demanded to see the head nurse. The head nurse

informed the Millers that the drug tests on both Heather and Mrs. Miller had come back negative at

11:00 a.m. and that the Millers could leave.



               When the Millers returned to the Hospital on September 22, 1995, Dr. Willbanks still

did not meet with them. Instead, Dr. Willbanks’ associate, Dr. Toffoletto, informed the Millers that

the tests had revealed nothing wrong with Heather and that the medications and treatment being

administered for Drug Withdrawal Syndrome were being continued only as a precaution.



               Despite the negative drug test results, Dr. Willbanks conveyed his suspicions that

Mrs. Miller had used drugs during her pregnancy to the Grainger County Health Department. On

September 26, 1995, a social worker and nurse from the Health Department visited the Millers’

home, where they interviewed the Millers, inspected their living arrangements, and examined

Heather, all over Mr. Miller’s objections. The social worker again visited the Millers’ home on

October 6, 1995. Mr. Miller again objected, and the social worker did not return.



             III. The Millers’ Claim for Negligent Infliction of Emotional Distress



               In Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996), our supreme court adopted the

general negligence approach to the tort of negligent infliction of emotional distress. In order to avoid

summary judgment under this approach, a plaintiff “must present material evidence as to each of the

five elements of general negligence -- duty, breach of duty, injury or loss, causation in fact, and
proximate, or legal, cause.” Camper v. Minor, 915 S.W.2d at 446. Moreover, the plaintiff must

present evidence that he suffered a serious or severe emotional injury, and he must support this

claimed injury with expert medical or scientific proof. Id.; accord Bain v. Wells, 936 S.W.2d 618,

624 (Tenn. 1997). Hurt feelings, trivial upsets, and temporary discomfort do not meet the

requirement of serious or severe emotional injury; only those emotional injuries “which disable a

reasonable, normally constituted person from coping adequately with the stress are sufficient to form

the basis for recovery.” Ramsey v. Beavers, 931 S.W.2d 527, 532 (Tenn. 1996).



                The failure to provide medical or scientific proof of a serious emotional injury was

fatal to the plaintiff’s claim in Miller v. Niblack, 942 S.W.2d 533 (Tenn. App. 1996). In that case,

the plaintiff, individually and on behalf of her daughter, filed a negligent infliction of emotional

distress claim against the laboratory which erroneously excluded a defendant in an earlier paternity

proceeding as the father of the plaintiff’s daughter. Miller v. Niblack, 942 S.W.2d at 535-56. This

court affirmed the trial court’s dismissal of the negligent infliction of emotional distress claim based,

in part, on the plaintiff’s failure to present, by affidavit or otherwise, expert medical or scientific

proof regarding the plaintiff’s alleged emotional injuries. Id. at 542.



                In the present case, we likewise conclude that the Millers’ failure to present expert

medical or scientific proof of their emotional injuries is fatal to their claim for negligent infliction

of emotional distress. In a deposition, Mrs. Miller testified that Dr. Willbanks’ accusations created

tension and hostility between her and Mr. Miller’s family and that this stress caused the Millers to

separate for four months before reconciling. At one point, Mr. Miller’s father even threatened to

seek custody of Heather and the Millers’ other children. The Millers also suffered humiliation

because the Hospital nurses gave them “dirty looks” while Heather was being treated for Drug

Withdrawal Syndrome. The Millers failed, however, to substantiate their claims of serious

emotional injuries with expert medical or scientific proof. Absent such proof, we conclude that the

record contains inadequate evidence to support the element of serious emotional injury which we

believe is required by Camper v. Minor. See Miller v. Niblack, 942 S.W.2d at 542. Accordingly,

we affirm the trial court’s dismissal of the Millers’ claim for negligent infliction of emotional

distress.
                         IV. The Millers’ Claim for Outrageous Conduct



               Based on the foregoing analysis, the Millers’ claim for outrageous conduct also must

fail. Under Tennessee law, the tort of outrageous conduct, also known as intentional infliction of

emotional distress, consists of three essential elements: “(1) the conduct complained of must be

intentional or reckless; (2) the conduct must be so outrageous that it is not tolerated by civilized

society; and (3) the conduct complained of must result in serious mental injury.” Bain v. Wells, 936

S.W.2d 618, 622 (Tenn. 1997) (citing Medlin v. Allied Inv. Co., 398 S.W.2d 270, 274 (Tenn. 1966)).

Thus, the torts of intentional infliction of emotional distress and negligent infliction of emotional

distress share a common element: the requirement of a showing of serious mental or emotional

injury.



                Although the appellate courts of this state apparently have not considered the issue

of whether expert medical or scientific proof is necessary to support a claim for intentional infliction

of emotional distress, other jurisdictions have considered this issue and have concluded that such

proof is required. In Childs v. Williams, 825 S.W.2d 4 (Mo. Ct. App. 1992), for example, the

Missouri Court of Appeals indicated that:



                        To prove a claim for intentional infliction of emotional
                distress where no physical injury has occurred, it is necessary to show
                “emotional distress or mental injury” which “must be medically
                diagnosable and must be of sufficient severity so as to be medically
                significant.” Bass v. Nooney Co., 646 S.W.2d 765, 772-73 (Mo.
                banc 1982). Expert medical testimony is the exclusive means to meet
                this requirement. Casey v. Casey, 736 S.W.2d 69, 72 (Mo. App. E.D.
                1987).



Childs v. Williams, 825 S.W.2d at 10 (emphasis in original). Similarly, the Supreme Court of Rhode

Island recently stated that:



                [W]e require for recovery, . . . along with the vast majority of judicial
                authority, that psychic as well as physical injury claims must be
                supported by competent expert medical opinion regarding origin,
               existence, and causation. See, e.g., Ondis v. Pion, 497 A.2d 13, 17
               (R.I. 1985).



Vallinoto v. DiSandro, 688 A.2d 830, 839 (R.I. 1997).



               In imposing the same requirement, the Supreme Court of Pennsylvania gave the

following explanation:



                       The species of tort created by [Restatement (Second) of Torts]
               section 46 provides only the most nebulous definition of “outrageous”
               conduct. This in turn renders the cause of action one which tends to
               defy principled adjudication. . . .

                       ....

                       It is basic to tort law that an injury is an element to be proven.
               Given the advanced state of medical science, it is unwise and
               unnecessary to permit recovery to be predicated on an inference based
               on the defendant’s “outrageousness” without expert medical
               confirmation that the plaintiff actually suffered the claimed distress.
               Moreover, the requirement of some objective proof of severe
               emotional distress will not present an unsurmountable obstacle to
               recovery. Those truly damaged should have little difficulty in
               procuring reliable testimony as to the nature and extent of their
               injuries. We therefore conclude that . . . existence of the alleged
               emotional distress must be supported by competent medical evidence.



Kazatsky v. King David Mem’l Park, Inc., 527 A.2d 988, 993-95 (Pa. 1987) (footnote omitted).



                                           V. Conclusion



               In accordance with the foregoing authorities, we hold that the Millers’ failure to

present expert medical or scientific proof of their alleged serious emotional injuries is fatal not only

to their claim for negligent infliction of emotional distress, but also to their claim for intentional

infliction of emotional distress (outrageous conduct). In light of our disposition of this appeal, we

need not review the correctness of the trial court’s ruling that Dr. Willbanks and Hamblen Pediatric

Associates were immune from suit under the Mandatory Child Abuse Reporting Statute or that the

Hospital was immune pursuant to the GTLA.



                The trial court’s judgment is affirmed. Costs of this appeal are taxed to Appellants,
for which execution may issue if necessary.



                                              ____________________________________
                                              FARMER, J.



______________________________
CRAWFORD, P.J., W.S. (Concurs)



______________________________
LILLARD, J. (Concurs)
