ESTATE OF JANE DOE and JOHN DOE,            )
                                            )
          Plaintiffs/Appellants,            )       Appeal No.
                                            )       01-A-01-9609-CV-00429
v.                                          )
                                            )       Davidson Circuit
VANDERBILT UNIVERSITY, INC.                 )       No.   90C-4158
dba VANDERBILT UNIVERSITY                   )
MEDICAL CENTER,                             )
                                            )
                                                                        FILED
          Defendant/Appellee.               )
                                                                            May 30, 1997

                                                                        Cecil W. Crowson
                                                                       Appellate Court Clerk
                          COURT OF APPEALS OF TENNESSEE

                            MIDDLE SECTION AT NASHVILLE


           APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

                                 AT NASHVILLE, TENNESSEE


                THE HONORABLE HAMILTON V. GAYDEN, JR., JUDGE




ABBY R. RUBENFELD
Rubenfeld & Associates
2505 Hillsboro Road, Suite 201
Nashville, Tennessee 37212

A. BRUCE JONES
PATRICIA DEAN
Holland & Hart
555 17th Street, Suite 3200
P. O. Box 8749
Denver, Colorado 80201
           ATTORNEYS FOR PLAINTIFFS/APPELLANTS


JOHN S. BRYANT
Bass Berry & Sims
2700 First American Center
Nashville, Tennessee 37238-2700
           ATTORNEY FOR DEFENDANT/APPELLEE



                                 REVERSED AND REMANDED



                                                           SAMUEL L. LEWIS, JUDGE
                                                    OPINION

              In August of 1984, Jane Doe was transfused with blood contaminated with human

immunodeficiency virus (HIV) at Vanderbilt University Medical Center. Years later, she and her

husband John Doe sued Vanderbilt University d/b/a Vanderbilt University Medical Center

(Vanderbilt) for its failure in 1987 and 1988 to individually notify former patients who had received

blood transfusions prior to March 1985 that the blood they received was not tested for the HIV virus.

Finding this case to be governed by the provisions of the Tennessee Medical Malpractice Act,

Tennessee Code Annotated § 29-26-1151, the Davidson County Circuit Court concluded that, absent

expert testimony that Defendant deviated from the recognized standard of acceptable professional

practice for hospitals in Nashville or similar communities, there existed no genuine issue of material

fact. The court thus determined that the defendant was entitled to summary judgment.



              The sole issue in this appeal is whether Vanderbilt's failure to notify these patients was

a medical decision subject to the provisions of the Tennessee Medical Malpractice Act. We find that

it was not. Accordingly, we reverse the decision of the trial court and remand this case to the trial

court for consideration of its merits.



              The facts surrounding this case are not in dispute. Following the elective jaw surgery

during which Jane Doe received the contaminated blood, she was never informed that she had

undergone a blood transfusion. Nor was she later informed that she was at risk of having been

infected by HIV. Subsequently, while unaware of these facts or of her condition, Ms. Doe became

romantically involved and eventually married plaintiff John Doe in February of 1989. It was only


         1
          Tennessee Code Annotated section 29-26-115 (a)(1) provides that medical malpractice claimants prove
the defendant failed to act with ordinary and reasonable care in accordance with "[t]he recognized standard of
acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the
community in which he practices or in a similar community at the time the alleged injury or wrongful action
occurred." Furthermore, a medical malpractice plaintiff's expert proof is subject to the following restriction:
                  No perso n in a health care p rofession requ iring lice nsure un der th e law s of this
                  state sha ll be co mp etent to testify in a ny court of law to estab lish the facts
                  requ ired to be established by sub section (a) un less he was license d to p ractice in
                  the state or a contig uou s borderin g state a profession or specialty wh ich w ould
                  make his expert testimony relevant to the issues in the case and had practiced
                  this profession or specialty in one of these states during the year preceding the
                  date th at the alleged injury or w rongful act occurred. T his rule shall apply to
                   expert witnesses testifying for the defendan t as rebuttal witnesses. The court
                  may w aive this subsection when it determines that the appropriate witnesses
                   otherwise would not be available.
Id. § 29-26-11 5 (b).

                                                           -2-
later that year after giving birth to a daughter who had been infected with the virus in utero that Ms.

Doe learned of her condition. The Does' infant daughter died of Acquired Immune Deficiency

Syndrome (AIDS) shortly after her birth in 1989. Subsequent to the initiation of this law suit, Ms.

Doe also died of AIDS.



           As stated, the plaintiffs' claim arises out of Vanderbilt's failure in 1987 and 1988 to

individually notify patients who had received blood transfusions prior to March 1985 that the blood

they received had not been tested for the HIV virus. Vanderbilt admits that it did not search its

records to provide notice to these transfusion recipients. Vanderbilt presented the affidavits of

several medical experts who were licensed to practice in Tennessee or a contiguous state and who

all opined that Vanderbilt acted with ordinary and reasonable care in accordance with the recognized

standard of acceptable professional practice in the profession. See Tenn. Code Ann. § 29-26-115

(1980).



           Experts for the defense stated that Vanderbilt participated in the "Look-Back Program"

instituted by the American Red Cross in the summer of 1986--a program developed to identify,

locate, and notify any patient who had received blood from a donor later found to have HIV. In

addition, in 1987, Vanderbilt established a telephone bank to receive calls from concerned patients.

Further, Vanderbilt established procedures for contacting physicians of patients who called, and it

offered free HIV testing to any caller who had been transfused at the Hospital from 1978 to spring

1985. In so doing, it was the opinion of these experts that Vanderbilt made a reasonable effort to

notify patients who might have received HIV-infected blood prior to 1985 of the risks of possible

HIV-infection, and that these measures equaled or exceeded those undertaken by other reputable

hospitals in Nashville or similar communities under similar circumstances.



           The plaintiffs designated certain experts on their behalf, one of whom was Dr. Marcus

Conant, a California physician who had treated more than 5,000 patients with AIDS and who had

chaired the California State Department of Health Services Task Force on AIDS from 1983 to 1988.

In Dr. Conant's affidavit, he asserted that "testing was critical for those transfusion recipients who

were sexually active and/or contemplating a change in their lifestyle, such as becoming pregnant or

                                                 -3-
acquiring a new sexual partner." In the fall of 1987, various California hospital decided to notify

prior transfusion recipients about the risk of AIDS. He stated that relying on general publicity was

ineffective as some did not see the news reports and others were unaware that they had been

transfused. He opined that the growth of transfusion-associated AIDS in Tennessee made it

imperative that transfusion recipients consider HIV testing and that the failure to implement a policy

for the notification of these recipients was unreasonable. In addition to Dr. Conant's testimony,

Plaintiffs presented a signed statement of Roger Williams, the Chief of Pediatric Pathology at

Children's Hospital in Oakland, California. Dr. Williams stated that Children's Hospital had adopted

a notification policy pursuant to his recommendation. He added that "[t]he decision to implement

a notification program did not require the exercise of specialized knowledge or the practice of

medicine.    Ultimately, the decision at Children's Hospital was made by a member of the

administration who is not a physician. This was appropriate since the notification program was, in

essence, an administrative policy."



            The record contains evidence concerning the manner in which Vanderbilt arrived at the

decision not to implement a policy of notification. To determine whether Vanderbilt needed to adopt

the "Look-Back" program, it had formed an ad hoc committee to consider the issue. The committee

was made up of representatives from several different departments including pediatrics, hematology,

hospital administration, as well as the legal department. The next issue to arise was whether to

notify every person who had received blood prior to the advent of the HIV antibody test about the

need to consider testing, regardless of whether an HIV positive donor had been identified. Sometime

between 1987 and 1989,2 several informal meetings were held between Dr. Charles Wallas, the

hospital blood bank director, along with Dr. William Schaffner, a professor and Chairman of the

Department of Preventive Medicine, and Dr. Allen Kaiser, also of the Vanderbilt Medical School.

These doctors discussed the issue of notification in order to make a recommendation regarding the

implementation of a policy. The doctors could not remember who initiated these meetings or to

whom they reported their recommendation. Dr. Schaffner recalled that an attorney from Vanderbilt

was also present during some of the discussions.



       2
        The do ctors were not able to agree on the exact time period that they met to consider notification.

                                                        -4-
            It was Dr. Schaffner's testimony that, at their first meeting, they agreed not to consider

the administrative complexities or the costs associated with a notification program as these were

issues outside of their purview. Instead, as Dr. Schaffner testified, the committee examined the issue

from a medical perspective. Dr. Wallas' testimony reveals that they made their decision after a

risk/benefit analyses concluding, as Dr. Wallas stated, "there would likely be very little, if any,

benefit [in that it was unlikely they would identify infected persons] and a lot of potential risk in

terms of the damage we might do by upsetting a large number of patients." A main reason for the

doctors' skepticism about a notification program was that the Nashville community was at a low risk

of acquiring AIDS through blood transfusions and thus notification was not likely to turn up many

cases. They also considered the lack of need for notification given the publicity about AIDS

transfusions. As for the risks, the committee expressed concern that notification would be

emotionally upsetting. The doctors worried about people misinterpreting the significance of

notification and about the number of false positive tests which were common during this time of

testing. Dr. Wallas stated that another basis for the doctors' conclusion was that there was no

consensus in the country for implementing this type of notification program.



           In the defendant's Motion for Summary Judgment and Renewed Motion to Dismiss, it

offered in support of its argument the affidavit of a Dr. Sherman, the former chief of medical

services at the American Red Cross in St. Louis, Missouri. Dr. Sherman stated that a notification

program "would not only be logistically overwhelming but would also be ineffective and would

cause undue hysteria and emotional distress." Also in this motion, the defendant suggested that its

relationship with Jane Doe had terminated in asserting that "plaintiffs do not allege the existence of

a continuing hospital-patient relationship between the defendant and Jane Doe from 1984 to 1989.

. . . Vanderbilt had no contact with its former patient, Jane Doe, following her surgery in 1984, until

her admission in the fall of 1989."



           The outcome of this case hinges upon whether or not the plaintiffs' cause of action should

be characterized as a medical malpractice action. This court has recognized that not every allegation

of negligence against a hospital or a doctor is one for medical malpractice. See, e.g., Pullins v.

Fentress County Gen. Hosp., 594 S.W.2d 663 (Tenn. 1979) (hospital's alleged failure to keep

                                                 -5-
premises free of spiders and other pests judged under ordinary negligence principles); Spivey v. St.

Thomas Hosp., 211 S.W.2d 450 (Tenn. App. 1947) (hospital's liability for patient's fall from a

hospital window treated as an ordinary negligence case). In addition, the Tennessee legislature has

previously recognized that "medical malpractice" does not encompass every negligence action

brought against a health care provider. In the definition section of Tennessee's now-repealed

Medical Malpractice Review Board and Claims Act of 1975, the term "medical malpractice action"

specifically excluded "any action for damages as a result of negligence of a health care provider

when medical care by such provider is not involved in such action." Tenn. Code Ann. §29-26-

102(6) (1980) (repealed 1985) (emphasis added).



           Recent Tennessee case law further clarifies what is the essence of a medical malpractice

action. In Peete v. Shelby County Health Care Corp., 938 S.W.2d 693, 696 (Tenn. App. 1996), the

plaintiff "alleged that she was injured when an employee of Defendant attempted to dismantle an

orthopedic suspension bar, which was not in use at the time, and allowed a portion of that apparatus

to strike her in the head." The court found this alleged act to be a matter of ordinary negligence, not

medical malpractice. Id. Distinguishing the two types of actions, the court stated as follows:

           Medical malpractice cases typically involve a medical diagnosis, treatment
           or other scientific matters. The distinction between ordinary negligence and
           malpractice turns on whether the acts or omissions complained of involve a
           matter of medical science or art requiring specialized skills not ordinarily
           possessed by lay persons or whether the conduct complained of can instead
           be assessed on the basis of common everyday experience of the trier of fact.


Id. (quoting Graniger v. Methodist Hosp. Healthcare Sys., Inc., No. 02A01-9309-CV-00201, 1994

WL 496781 (Tenn. App. Sept. 9, 1994)); see also Harvey v. Wolfer, No. 03A01-9512-CV-00452,

1996 WL 94819, at *2 (Tenn. App. Mar. 6, 1996) (stating that plaintiff's complaint which alleged

that the defendant physician was negligent in the manner in which she moved the plaintiff from the

examination table and then dropped her sounded more in common law negligence than medical

malpractice and finding that the issue of whether plaintiff's injury was sustained as a result of the

ordinary negligence or medical malpractice is a disputed issue of fact for the jury).



           Other jurisdictions have drawn this distinction between medical malpractice and

negligence under more analogous facts. New York's highest court recently addressed the issue of

                                                 -6-
"whether [a] plaintiff's complaint against a hospital, alleging that the hospital failed to properly

safeguard its blood supply from HIV contamination sounds in medical malpractice or negligence for

purposes of selecting the applicable Statute of Limitations." Weiner v. Lenox Hill Hosp., 673

N.E.2d 914, 915 (N.Y. 1996). The court began by acknowledging that not every act of negligence

toward a patient is medical malpractice. Id. at 916. Seeking to determine whether the challenged

conduct constituted medical treatment, the court concluded that "[t]he core issue in this case--the

adequacy of the Hospital's blood testing and screening procedures--does not implicate questions of

medical competence . . . but instead turns on the Hospital's independent duties as a blood collection

center." Id. The court clarified that "[t]he need for expert testimony signifies only that the technical

and scientific nature of the blood-collection process is beyond the ken of the average juror, not that

the claim sounds in medical malpractice." Id. at 917; see also J.B. v. Sacred Heart Hosp. of

Pensacola, 635 So.2d 945, 949 (Fla. 1994) (finding that medical-malpractice statute of limitations

was not applicable because plaintiff did not allege negligence in "the rendering of . . . medical care

or services" where defendant hospital asked patient's brother (the plaintiff) to transport patient to

another hospital without notifying the brother that patient had AIDS).



            In determining whether Vanderbilt's decision not to implement a policy of notification

was "a matter of medical science or art requiring specialized skills not ordinarily possessed by lay

persons," we examine the nature of this decision. Peete, 938 S.W.2d at 696. As indicated by the

testimony of the three doctors who made the recommendation, they explored the issue from a

medical risk/benefit perspective. They drew their conclusion not by assessing the risks and benefits

to any particular person but by making this assessment with regard to the entire group of those who

had received blood transfusions prior to March of 1985. Because the potential benefit of identifying

persons with AIDS in a community with a low risk of AIDS was minimal and because the potential

risk of emotionally upsetting all those notified was great, the doctors determined that the risks

outweighed the benefit to the group at large. We find that this decision is not a "matter of medical

science." While the doctors based their decision on data compiled by the medical community that

Nashville was a low-risk community for AIDS, this type of information was available and assessable

by any person. As for the emotional effects on one confronted with the fact that he or she has been

exposed to a deadly disease, this is a matter of common sense. Indeed, even if the emotional

                                                  -7-
consequences of such notification were to be medically evaluated, the specialized skills needed

would be those of a psychiatrist or psychologist and not those of doctors from the hospital's blood

bank or preventive medicine department.



            Moreover, by presenting evidence that the administrative complexities and costs

associated with a notification program were outside of the doctors' purview, the defendant admits

that these factors are indeed natural components of such a decision. For regardless of whether these

doctors discussed administrative complexities and costs, they are considerations which would and

should be a part of a decision to or not to implement a notification policy. The defendant indeed

acknowledged this truth when, in its Motion for Summary Judgment and Renewed Motion to

Dismiss, it offered in support of its position the testimony of a Missouri doctor that a notification

program would be logistically overwhelming as well as ineffective.



            It is significant that this was a decision to or not to notify, not to diagnose or to treat. As

stated, this court has noted that "[m]edical malpractice cases typically involve a medical diagnosis,

treatment or other scientific matters." Peete v. Shelby County Health Care Corp., 938 S.W.2d 693,

696 (Tenn. App. 1996). Two recent Tennessee Supreme Court decisions clearly establish that an

action against a health care provider by a non-patient for failing to provide information to safeguard

the non-patient third person is not based on medical malpractice, but rather on simple negligence.

Bradshaw v. Daniel, 854 S.W.2d 865 (Tenn. 1993), involved a negligence action against a doctor

for his failure to warn his patient's family about the symptoms and risks associated with the patient's

disease. In addressing the defendant doctor's contention that the absence of a physician-patient

relationship negates the existence of a duty in this case, the court stated that "[w]hile it is true that

a physician-patient relationship is necessary to the maintenance of a medical malpractice action, it

is not necessary for the maintenance of an action based on negligence." Id. at 870 (footnote

omitted). Applying the principles of common law negligence, the court concluded that a duty did

exist. Id. at 872-73. Likewise, in Pittman v. Upjohn Co., 890 S.W.2d 425, 431-44 (Tenn. 1994),

the court utilized principles of common law negligence to analyze the duty of a physician to warn

his patient's grandson of the dangerous properties of a drug prescribed to the patient.



                                                   -8-
             Bradshaw and Pittman support the conclusion that Plaintiffs' cause of action does not

fall within the meaning of medical malpractice. First of all, like these supreme court cases, the case

before us is essentially a failure-to-warn case. Vanderbilt made a decision not to warn Jane Doe and

the others transfusion recipients that there was a possibility they had been exposed to HIV-infected

blood.3 Secondly, both Bradshaw and Pittman state that a physician-patient relationship is a

necessary element of a medical malpractice action. Bradshaw, 854 S.W.2d at 870; Pittman, 890

S.W.2d at 431. As Vanderbilt made clear in its Motion for Summary Judgment and Renewed

Motion to Dismiss which referred to Jane Doe as a "former patient," Ms. Doe had no relationship

with Vanderbilt following her surgery in 1984 until her admission in the fall of 1989. Vanderbilt

now finds itself in a position where it is strategically beneficial to claim Ms. Doe as its patient.

However, the facts are that the physician-patient relationship which existed when Ms. Doe

underwent elective jaw surgery in 1984 had long since ceased by the time that the alleged negligence

occurred. In so stating, we note that it is important that Ms. Doe was at one time in a physician-

patient relationship with one of Defendant's physicians for this relationship is the basis for Plaintiffs'

claims that their injuries were foreseeable to Defendant. See Bradshaw, 854 S.W.2d at 872

(concluding "that the existence of the physician-patient relationship is sufficient to impose upon a

physician an affirmative duty to warn identifiable third persons in the patient's immediate family

against foreseeable risks emanating from a patient's illness").




             Finally, we acknowledge that the court in Peete stated that not only does medical

malpractice typically involve medical diagnosis and treatment but that it also may involve "other

scientific matters." Peete, 938 S.W.2d at 696. We think that our conclusions regarding the nature

of Defendant's decision preclude a finding that Vanderbilt's decision falls within this catchall term

of "other scientific matters." As we have stated, Vanderbilt's decision not to implement a

notification policy was not "a matter of medical science or art requiring specialized skills." In so

holding, we do not dispute that medical expert testimony would be important to assist a jury in


         3
          The facts of this case were that Ms. Doe did not even know she had been transfused. Therefore,
Vande rbilt's decision n ot to w arn enco mp asses its decision not to notify form er transfusion patients of their
transfusions. While this aspect of the decision would be significant in assessing Vanderbilt's duty in a determination
of the merits of this case, it is not important to the issue of whether Vanderbilt's decision was a medical decision
subject to the M edica l Malpractice A ct.

                                                         -9-
determining the notification issue on the merits. However, we agree with New York's supreme court

that the need for expert testimony does not always signify medical malpractice. See Weiner v.

Lenox Hill Hosp., 673 N.E.2d 914, 917 (N.Y. 1996). Under these facts, we do not think that

scientific data and knowledge on which Vanderbilt relied in making the decision indicates that this

case sounds in medical malpractice.



           For the foregoing reasons, we conclude that Vanderbilt was not engaging in the practice

of medicine when it decided in the late 1980's not to implement a policy to notify former patients

who had received blood prior to March of 1985 that they had received blood which was not tested

for the HIV virus. Thus, the trial court erred in requiring the plaintiffs' expert proof to comply with

the Tennessee Medical Malpractice Act and it erred in granting summary judgment to the defendant

when the plaintiffs failed to so comply. In light of this error, we reverse the trial court's grant of

summary judgment and remand this case to the trial court so that it may be considered on the merits.




                                                   ___________________________________
                                                   SAMUEL L. LEWIS, JUDGE


CONCUR:


_____________________________________
HENRY F. TODD, P.J., M.S.


_____________________________________
BEN H. CANTRELL, J.




                                                 -10-
