                      IN THE COURT OF APPEALS OF TENNESSEE
                                   AT JACKSON



LARRY AUBREY HENSON,                          )
                                                                                     FILED
                                              )
       Plaintiff/Appellant,                   )         Shelby Circuit No. 79501      January 8, 1999
                                              )
v.                                            )                                     Cecil Crowson, Jr.
                                                                                     Appellate C ourt Clerk
                                              )
ELIZABETH ELLEN SORRELL,                      )         Appeal No. 02A01-9711-CV-00291
                                              )
       Defendant/Appellee.                    )


                        SEPARATE CONCURRENCE AND DISSENT


       I write separately only to indicate disagreement with an inference that may be drawn from

the majority opinion. The last sentence in the opinion states that a party such as Henson may recover

damages immediately flowing from the wrongful conduct, as in Smith v. Gore, 728 S.W.2d 738

(Tenn. 1987). As noted in the majority opinion, the plaintiff mother in Smith was permitted to

recover in a medical malpractice action for damages immediately related to pregnancy and childbirth.

       To the extent that it may be inferred from this that Henson could recover from Sorrell

damages for any payments Hanson made related to Sorrell’s pregnancy and childbirth, based on

common law tort claims, I disagree. Smith, of course, was a medical malpractice action against a

physician and a hospital. The case at bar is a claim by one parent against the other. Payment of

expenses for pregnancy and childbirth are addressed in Tennessee Code Annotated § 36-2-

311(a)(13), which provides:

       (a) Upon establishing parentage, the court shall make an order declaring the father
       of the child. This order shall include the following:

                                                  ***

       (13) Determination of liability for a mother’s reasonable expenses for her pregnancy,
       confinement and recovery to either or both parties. . . .

Tenn. Code Ann. § 36-2-311(a)(13) (Supp. 1998) (emphasis added). In an action between the

mother and father, as opposed to a medical malpractice action such as Smith, the comprehensive

statutory scheme specifically addresses the liability of the parents for these expenses, and

“[a]pplication of general common law principles of tort recovery is not appropriate . . . .” Smith,

728 S.W.2d at 751.
       The majority opinion distinguishes between the parents’ obligation of child support and the

assessment of medical expenses associated with pregnancy and childbirth, noting that child support

is “an obligation owed to the child” and characterizing medical expenses for pregnancy and

childbirth as “obligations incurred, not by the child, but by the party involved, “namely, the mother.

However, medical treatment associated with pregnancy and childbirth is treatment of the child as

well as the mother. Medical treatment of the child in utero and in childbirth, while critical to the

child’s health and well-being, is not covered by the statutory requirement of child support.

Undoubtedly this is the reason the Legislature mandated that parentage orders include a

determination of the parents’ respective liability for these expenses. Since the Legislature requires

the court to allocate liability for these expenses pursuant to Section 36-2-311(a)(13), I believe that

this would supplant one parent’s common law tort claim against the other parent for payment of such

expenses.

       Therefore, to the extent that it may be inferred from the majority opinion that Henson could

state a claim under common law tort theories to recover from Sorrell any payments he was required

to make related to Sorrell’s pregnancy and childbirth, I dissent. I fully concur with the remainder

of the majority opinion.




                                       HOLLY KIRBY LILLARD, J.




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