                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                      May 2000 Session

   TIMOTHY P. HANCOCK, et al. as next friends and parents of the minor
 BREANNA HANCOCK v. THE CHATTANOOGA-HAMILTON COUNTY HOSPITAL
     AUTHORITY, d/b/a T.C. THOMPSON CHILDREN’S HOSPITAL, ET AL.

       Interlocutory Appeal from the Circuit Court for Hamilton County
                  No. 94-CV-2355     Samuel H. Payne, Judge

                                      filed July 27, 2000

                             No. E1999-00169-COA-R9-CV


The issues in this medical malpractice case turn on whether the holding of the Supreme Court in the
case of Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593 (Tenn. 1999) applies to the facts
now before us. Because the cause of action in the instant case accrued prior to the release of the
Supreme Court’s opinion in Jordan, we conclude that the holding in that case cannot be
retrospectively applied to the instant case. Accordingly, we affirm the trial court’s judgment
dismissing that portion of the amended complaint seeking loss of consortium damages.

          Tenn. R. App. P. 9 Appeal by Permission; Judgment of the Circuit Court
                                Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and HERSCHEL P. FRANKS, J., joined.

George E. Koontz and John D. McMahan, Chattanooga, Tennessee, for the appellants, Timothy P.
Hancock and Tina M. Hancock.

Robert Boehm and Daniel M. Stefaniuk, Chattanooga, Tennessee, for the appellee, The Chattanooga-
Hamilton County Hospital Authority, d/b/a T.C. Thompson Children’s Hospital.

Arthur P. Brock, John B. Bennett, and Stephany S. Pedigo, Chattanooga, Tennessee, for the appellee,
Kenneth Platt, M.D.

                                           OPINION
                                          I. Background

       The plaintiffs, Timothy P. Hancock and his wife, Tina M. Hancock, filed this action on
December 15, 1994. The complaint alleges that the defendants, Kenneth Platt, M.D., and The
Chattanooga-Hamilton County Hospital Authority, doing business as T.C. Thompson Children’s
Hospital (“CHCHA”), were negligent in their treatment of the plaintiffs’ daughter, Breanna
Hancock. The complaint alleges that the defendants’ negligence resulted in Breanna’s death on
January 20, 1994. With respect to damages, the complaint alleges that

               [a]s a direct and proximate result of the defendants’ negligence and/or
               reckless conduct, the plaintiffs have suffered and continue to suffer
               from extreme mental anguish and emotional distress. The plaintiffs,
               as next best [sic] friends and legal guardians of Breanna Hancock,
               further alleges [sic] as damages, the pecuniary value of their
               daughter’s life.

        On January 25, 1999, the Supreme Court released its opinion in the case of Jordan v. Baptist
Three Rivers Hospital, 984 S.W.2d 593 (Tenn. 1999). Jordan deals with the question of “whether
claims for loss of spousal and parental consortium in wrongful death cases are viable in Tennessee
under [T.C.A.] § 20-5-113.” Id. at 595. The Supreme Court, expressly overruling Davidson
Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967 (Tenn. 1903), held in Jordan “that
consortium-type damages may be considered when calculating the pecuniary value of a deceased’s
life.” Id. at 600-01.

      Following release of the Supreme Court’s opinion in Jordan, the plaintiffs amended their
complaint by adding the following language:

               As a proximate and direct result of the negligence of the defendants,
               Breanna Hancock died. In addition to damages for the pecuniary
               value of the life of Breanna Hancock, plaintiffs sue the defendants for
               consortium losses including, but not limited to, loss of the
               companionship, comfort, society, guidance, solace and love of
               Breanna Hancock to her parents and family as a direct result of her
               wrongful death.

       Dr. Platt subsequently moved for a judgment on the pleadings, and CHCHA moved to
dismiss the amendment. On October 19, 1999, the trial court dismissed the amendment on what it
considered to be three independently sufficient grounds:

               This is a medical malpractice case. The plaintiffs’ amendment is time
               barred pursuant to the statute of repose set forth at Tennessee Code
               Annotated §29-26-116. The amendment, filed July 20, 1999, states
               a claim not heretofore pleaded. The Court finds that the case accrued


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               no later than January 20, 1994, and all claims, regardless of the date
               of discovery, were to have been brought by January 20, 1997.

               In the instant wrongful death case, the plaintiffs are parents seeking
               to recover the loss of consortium of their deceased child. The Court
               in Jordan v. Baptist Three Rivers Hospital, et al., 984 S.W.2d 593
               (Tenn. 1999), explicitly stated that the Jordan decision was not
               applicable in a case wherein parents seek the loss of consortium of
               their deceased child. Jordan v. Baptist Three Rivers Hospital, et al.,
               984 S.W.2d at 595-596. Therefore, the Jordan decision does not
               apply to the instant wrongful death case and the damages which may
               be recovered in the instant case are governed by the case law as it
               existed prior to Jordan.

               The instant case accrued before Jordan was decided. Jordan may
               not be applied retrospectively to the instant case.

       The plaintiffs appeal, challenging the correctness of each of the trial court’s bases for
dismissing the amendment. We will focus on the trial court’s third ground -- that Jordan cannot be
retrospectively applied -- as we find it dispositive of this appeal.

                                      II. Standard of Review

        Because the issues before us are questions of law, our review is de novo with no presumption
of correctness. Tenn. R. App. P. 13(d); Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.
1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).

                                            III. Analysis

        As previously stated, the Supreme Court in Jordan overruled Davidson Benedict Co. v.
Severson, 109 Tenn. 572, 72 S.W. 967 (Tenn. 1903) and held “that consortium-type damages may
be considered when calculating the pecuniary value of a deceased’s life.” Id. at 600-01. This
holding “[did] not create a new cause of action but merely refine[d] the term ‘pecuniary value.’” Id.
at 601.

       We recently addressed the question of whether Jordan can be applied retrospectively in
Rothstein v. Orange Grove Center, Inc., C/A No. E1999-00900-COA-R3-CV, 2000 WL 682648
(Tenn. Ct. App. E.S., filed May 25, 2000). In that case, we stated the following:

               Article I, § 20 of the Constitution of Tennessee provides that “no
               retrospective law, or law impairing the obligations of contracts, shall
               be made.” In Blank v. Olsen, 662 S.W.2d 324 (Tenn. 1983), the
               Supreme Court said, quoting with approval, Am.Jur.2d Court § 234,


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                      that the overruling of a judicial construction of a statute will not be
                      given retrospective effect where rights are vested, and the decision
                      will be treated as in effect a legislative change of a statutory rule.
                      Clearly, Jordan overruled a prior judicial construction of a statute
                      establishing rights of parties, bringing Jordan within the
                      constitutional prohibition. This rule is sometimes confused with the
                      common law rule, which the Court may, if it so expresses, make its
                      ruling retrospective when making changes in the common law. This
                      is because as a general rule rights are not vested under common law
                      principles, and are subject to be changed by the courts.

Rothstein, 2000 WL 682648 at *2.

         Our decision in Rothstein is in accord with two earlier decisions from the Western Section
of this Court. See Hill v. City of Germantown, C/A No. 02A01-9803-CV-00078, 1999 WL 142386
(Tenn. Ct. App. W.S., filed March 17, 1999), perm. app. granted September 20, 1999; McCracken
v. City of Millington, C/A No. 02A01-9707-CV-00165, 1999 WL 142391 (Tenn. Ct. App. W.S.,
filed March 17, 1999). In those cases, the Court, speaking through Judge Farmer, quoted the
following language from Blank v. Olsen, 662 S.W.2d 324, 325 (Tenn. 1983):

                      There is nothing said in [the case1 under discussion in Blank]
                      indicating it is to have retrospective effect, and in the absence of such
                      an expressed intent the rule is...that the decision overruling a judicial
                      construction of a statute will not be given retroactive effect.

Hill, 1999 WL 142386 at *11; McCracken, 1999 WL 142391 at *17. Finding that Jordan did not
include any language expressly providing for its retrospective application, the Western Section held
that it could not be so applied. Hill, 1999 WL 142386 at *11; McCracken, 1999 WL 142391 at *17.

        The plaintiffs concede that Hill and McCracken are contrary to their position.2 They attempt
to avoid the effect of these cases in a variety of ways: (1) by minimizing their precedential value;
(2) by distinguishing those cases from the instant case; (3) by challenging the rationale of Hill and
McCracken; and (4) by arguing that a different rule applies to the instant case.

        The plaintiffs first attempt to minimize the precedential value of Hill and McCracken by
emphasizing that they are unpublished opinions and that they are not the final word on the matter
because the Supreme Court has granted permission to appeal in the Hill case. This is all true, of
course, but it is of little consequence. In our judgment, the holdings in Hill and McCracken, as well


          1
               Pierce v. Woods, 597 S.W.2d 295 (T enn. 1980).
           2
                 W e d e c i d e d R oth ste in after the parties f iled their briefs. W e assum e the plaintif fs w ould m a k e t h e s a m e
a r g u m e n t s w i t h r e sp e c t t o R oth ste in.


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as the holding in Rothstein, are based on well-established legal principles. The Supreme Court’s
decision to grant permission to appeal in Hill does not persuade us that we should ignore the
common holding in those three cases.

         The plaintiffs also argue that the instant case is distinguishable from Hill and McCracken
in that those cases were filed and tried before Jordan was decided while the instant case was filed,
but not yet tried at the time the Jordan decision was released.3 The plaintiffs emphasize the portion
of the Hill and McCracken opinions stating that “we must review the ruling of the trial court under
the law in existence at the time of trial.” Hill, 1999 WL 142386 at *11; McCracken, 1999 WL
142391 at *17.

        We are of the opinion that this distinction is without significance. The critical date in the
current analysis is the date on which the cause of action accrued. Midland Bank & Trust Co. v.
Olsen, 717 S.W.2d 580, 584 (Tenn. 1986); see also Nutt v. Champion Int’l Corp., 980 S.W.2d 365,
368 (Tenn. 1998) (in discussing the retroactivity of a workers’ compensation statute, the Supreme
Court stated that “the statute in effect at the date of the worker’s injury governs the rights of the
parties under workers’ compensation law absent an indication of the legislature’s contrary intent.”).
The cause of action in the instant case accrued no later than January 20, 1994, the date that the
plaintiffs’ daughter died. See, e.g., Craig v. R.R. Street & Co., 794 S.W.2d 351, 355 (Tenn. Ct. App.
1990) (“A cause of action for wrongful death accrues as of the date a cause of action accrues for the
injury which resulted in the death.”). Jordan was not decided until January 25, 1999, some five
years after the plaintiffs’ cause of action accrued. Therefore, in order for Jordan to apply to the
instant case, it would have to apply retrospectively. The fact that this case will be tried after the
release of the Jordan decision does not make the instant case eligible for the “prospective”
application of Jordan.

        The plaintiffs next challenge the holding of Hill and McCracken to the effect that, of several
litigants simultaneously arguing for the change in the construction of the wrongful death statutes
ultimately adopted by the Supreme Court in Jordan, only the first to the Supreme Court realizes the
benefit of his or her effort. This, according to the plaintiffs, is not fair.

        We do not consider this to be a sufficient reason to find that the trial court erred in dismissing
the amendments. As we stated previously, the rule is that Jordan is not to be applied retrospectively.
That the Jordan plaintiffs receive the benefit of the change in the construction of the wrongful death
statute while others, who are similarly situated -- those whose causes of action also accrued prior to
the date of Jordan -- do not, is more of a necessary exception to the rule of non-retroactivity than
an endorsement of a rule of retroactivity. As Justice Henry explained in Cumberland Capital Corp.
v. Patty, 556 S.W.2d 516, 542 (Tenn. 1977), “the party who brings about the change in law may not
properly be deprived of the fruits of his victory.” (Citations omitted). Justice Henry also quoted


           3
           W e note that R oth ste in w a s i n t h e s a m e p o s t u r e a s w e r e H ill a n d M cC racken , i .e ., it wa s tri e d be f o r e t h e
J ordan d e c i s io n w a s r e l ea s e d .


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Stovall v. Denno, 388 U.S. 293, 301, 87 S. Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967), which
said:

                 Inequity arguably results from according the benefit of a new rule to
                 the parties in the case in which it is announced but not to other
                 litigants similarly situated in the trial or appellate process who have
                 raised the same issue. But we regard the fact that the parties involved
                 are chance beneficiaries as an insignificant cost for adherence to
                 sound principles of decision-making.

Therefore, we do not find this argument sufficient to compel a finding that the trial court erred in its
application of the law.

         The plaintiffs’ final argument builds on the general rule that “[a] change in the judicial
construction of a statute becomes a part of the statute itself and thus has the same effect as a change
in the law by legislation.” Hill, 1999 WL 142386 at *10; McCracken, 1999 WL 142391 at *16; see
also Blank, 662 S.W.2d at 325; Rothstein, 2000 WL 682648 at *2. With this general rule in mind,
the plaintiffs argue that because Jordan overruled a prior judicial construction of the wrongful death
statute, not only do the rules relating to legislative changes in the law apply, but so too must the
exceptions to those rules.

        The general rule relating to statutes is that they “are presumed to operate prospectively unless
the legislature clearly indicates otherwise.” Nutt v. Champion Int’l Corp., 980 S.W.2d 365, 368
(Tenn. 1998). An exception to the general rule, however, is that “remedial” or “procedural” statutes
may apply retrospectively. Id. A procedural statute is one that defines the manner by which a party
may enforce a legal right. Doe v. Sundquist, 2 S.W.3d 919, 923 (Tenn. 1999). A remedial statute
is one that “provides the means by which a cause of action may be effectuated, wrongs addressed,
and relief obtained.” Id. However, “[s]tatutes that create a new right of recovery or change the
amount of damages recoverable are...deemed to have altered the parties’ vested rights and thus are
not considered remedial.” Shell v. State, 893 S.W.2d 416, 420 (Tenn. 1995). (Emphasis added).

        The plaintiffs’ rights in this case arose, at the latest, on the date of their daughter’s death.4
Cf. Crismon v. Curtiss, 785 S.W.2d 353, 354 (Tenn. 1990) (stating that an automobile accident
victim’s rights arose on the date of the accident). On that date, the state of the law was such that the
plaintiffs could not claim loss of consortium as a compensable injury under the wrongful death
statutes. The Jordan decision changed this rule some five years later and, in effect, altered the types
of damages that are recoverable in a wrongful death action. Thus, this change must be deemed to
have altered a vested right and cannot be considered remedial. It follows that the exception to the
general rule of non-retroactivity cannot apply, and that therefore, Jordan cannot be retrospectively
applied to the facts of the instant case.

        4
         It is not clear from the pleadings whether the death of the deceased occurred on the same day as the alleged
negligence.


                                                        -6-
        Therefore, we find and hold that the trial court did not err in dismissing the plaintiffs’
amendment on the ground that Jordan does not apply retrospectively. Because our decision on the
retroactivity issue is dispositive of this appeal, the remaining issues are pretermitted.

                                         IV. Conclusion

       The judgment of the trial court is affirmed. This case is remanded for further proceedings
consistent with this opinion. Costs on appeal are taxed to the appellants.




                                                     ___________________________________
                                                     CHARLES D. SUSANO, JR., JUDGE




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