                                                           FILED
ESTATE OF JULIE AMOS and               )
RONALD AMOS,                           )                       March 31, 2000
                                       )
                                                          Cecil Crowson, Jr.
       Plaintiffs/Appellees,           )                 Appellate Court Clerk
                                       )    Appeal No.
v.                                     )    M1999-00998-COA-R3-CV
                                       )
VANDERBILT UNIVERSITY, INC.            )
d/b/a VANDERBILT UNIVERSITY            )
MEDICAL CENTER,                        )    Davidson Circuit
                                       )    No. 90C-4158
       Defendant/Appellant.            )


                      COURT OF APPEALS OF TENNESSEE


      APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

                           AT NASHVILLE, TENNESSEE


             THE HONORABLE HAMILTON Y. GAYDEN, JUDGE


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

A. BRUCE JONES
PATRICIA DEAN
Holland & Hart
555 Seventeenth Street, Suite 3200
Post Office Box 8749
Denver, Colorado 80201-8749
       ATTORNEYS FOR PLAINTIFFS/APPELLEES



E. CLIFTON KNOWLES
JOHN S. BRYANT
STEVEN E. ANDERSON
Bass, Berry & Sims
2700 First American Center
Nashville, Tennessee 37238-2700
       ATTORNEYS FOR DEFENDANT/APPELLANT


                                 AFFIRMED IN PART
                                REVERSED IN PART
                            AND REMANDED AS MODIFIED




                                                 WILLIAM B. CAIN, JUDGE
                                  OPINION

           This case represents another chapter in a protracted suit filed by a father and
mother against a healthcare provider for the alleged wrongful birth of their daughter.
The child, Alison Amos, was born in September of 1989, having been infected with
the Human Immunodeficiency Virus (HIV) in utero through her mother Julie.1 In
1989 an HIV positive diagnosis brought with it a myriad of possible infections, such
as pneumocystis carinii. As mild as these infections might be to a healthy immune
system, in an immuno-deficient environment, especially that of an infant, just one
such infection could spell disaster. Two months after her birth, Alison developed
pneumocystis pneumonia, a common AIDS related infection, and died four days later.


           Julie Story Amos1, Alison’s mother, was infected with HIV when she was
transfused with four units of blood during a cosmetic operation performed at
Vanderbilt University Medical Center (hereinafter Vanderbilt) in August of 1984.
Vanderbilt received those units from the regional blood blank of the American Red
Cross. At the time of the operation, the HIV virus had not been isolated, therefore no
test was available to screen blood prior to transfusion. At that time Vanderbilt had
no procedure for informing transfused patients that they had received blood during
surgery.


           By the Spring of 1985 the HIV virus had been isolated, and Vanderbilt, as
well as many other medical facilities across the country, was actively screening the
blood given to current transfusion recipients. However, many of these facilities,
including Vanderbilt, elected not to identify or warn former prior transfusion
recipients that they could have been exposed to the HIV virus. As a result, some of
these former patients led their lives infected and unaware. Julie Story lived thus for
five years. In that time she met and married Ronald Amos. Together they built a
family with her two children from a previous marriage. In addition and most
importantly, she gave birth to daughter Alison. Julie did not know her HIV status




      1
      Julie Story Amos died from complications related to AIDS in April of 1992.
The case at bar concerns no claim for the wrongful death of Julie Amos.

                                            2
until after Alison was hospitalized.


I.       PROCEDURAL HISTORY AND POSTURE
         Alison died on Monday, November 28, 1989. Ron and Julie Amos, as
Plaintiffs “Doe,” filed suit in Davidson County Circuit Court against Vanderbilt and
the American Red Cross in March of 1991. The complaint alleged, inter alia, the
following:
         19. At no time from March of 1985 until the present did [the
         Defendants] inform Plaintiff JANE DOE that she had received a
         transfusion of blood or that she was at risk for HIV-infection.

                                       ***
                                  (Wrongful Birth)
                                       ***

         26. As a direct and proximate result of the grossly negligent,
         careless and reckless acts and omissions of the Defendants and
         their agents, to wit, the failure of Defendants to notify Plaintiff
         JANE DOE that she had received a transfusion of blood and/or
         HIV-infected blood in 1984 and was at risk for HIV-infection,
         Plaintiffs Jane and John Doe failed to take precautions to prevent
         the birth of an HIV-infected infant.

         27. As a direct and proximate result of the grossly negligent,
         careless and reckless conduct of Defendants, Plaintiffs JANE
         DOE and JOHN DOE have suffered and will continue to suffer
         additional medical expenses, pain and suffering, disability,
         emotional distress, anguish, humiliation and other forms of
         emotional and psychological injury.


         In April of 1991 the Red Cross removed the case to federal court. For
reasons not germane to the issues before us, the case was remanded back to state
court and again removed to federal court. After this second removal the Plaintiffs
settled with the American Red Cross. The federal district court declined to exercise
further jurisdiction over the case, and the cause was thus returned to state court.


          Post discovery Vanderbilt successfully argued its pretrial motion for
summary judgment on the ground that Plaintiffs failed to show a violation of the
applicable standard of care consistent with Tennessee’s Medical Malpractice Act.
See Tenn. Code Ann.§29-26-115. The Plaintiffs appealed to this Court, and on May
30, 1997, we released our opinion holding expert opinion unnecessary to establish

                                          3
Plaintiffs’ prima facie case. This Court stated the following:

         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 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., 88 N.Y.2d 784, 650 N.Y.S.2d 629,
         632, 673 N.E.2d 914, 917 (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.

Estate of Doe v. Vanderbilt University, Inc., 958 S.W.2d 117, 122-23 (Tenn. Ct. App.
1997).


         No additional discovery was taken, and the case proceeded to trial. The
plaintiffs presented proof regarding the alleged duty to warn Julie Amos of the
possibility that she had been infected with HIV in 1984 and of the need to be tested
for the virus. In addition, proof was taken concerning the manner in which Ron and
Julie Amos were informed about Alison’s and Julie’s HIV status. The medical and
funeral expenses associated with Alison’s birth and death were shown to be
$32,884.07.


         Plaintiffs attempted to prove the emotional damage associated with Alison’s
birth and death, using their own testimony and the testimony of their relatives.   In
addition, two of Plaintiffs’ expert witnesses testified in general terms regarding the
emotional impact of an AIDS diagnosis connected with the death of a child infected


                                          4
in utero. While these experts testified in generalities, neither testified as to the
severity of the emotional distress suffered by either Ron or Julie Amos.


         Both at the close of Plaintiffs’ proof and at the close of all the proof,
Defendant Vanderbilt moved for a directed verdict on the emotional damages portion
of the plaintiffs’ claims. The court denied those motions, finding the emotional
damages to be “parasitic” to the cause of action for negligence, finding direct lay
testimony as to the emotional injury suffered by the plaintiffs, and taking judicial
notice of the devastating emotional effect of an AIDS diagnosis on the plaintiffs. The
case was thus submitted to the jury. After consideration, the jury found the following
as evidenced in its verdict form:

         1. Do you find the defendant Vanderbilt University negligent?
            Yes: X      No:

         2. Do you find the defendant’s negligence to be the legal cause
            of any injury to:
            a. The estate of Julie Amos?
                    Yes: X      No:
            b. Ronald Amos?
                    Yes: X      No:
                                      ***
         3. Decide the total amount of damages sustained by each
         plaintiff:
            Estate of Julie Amos: $2,722,500
            Ronald Amos:           $1,639,200



         Defendant Vanderbilt, now seeks relief from the jury verdict below, raising
several issues on appeal. Of these issues, the Court finds the following dispositive:

         1. Whether Plaintiffs Amos properly proved entitlement to
         damages for their emotional injury?

         2. Whether Vanderbilt owed a duty to Ronald Amos to warn Julie
         Amos of the possibility that she had been exposed to HIV in
         1984?



II.      THE DUTY OWED TO RONALD AMOS
         In the interest of clarity, we address Vanderbilt’s second issue first. It is
argued that Vanderbilt owed no duty to Mr. Amos. Absent proof of this duty, there

                                          5
is no negligence claim on his behalf. It is well to note that were Tennessee to
recognize “wrongful birth” as a separate cause of action from one for negligence, the
resolution of this issue might be different. See Andalon v. Superior Court, 208 Cal.
Rptr. 899, 905 (Call. App. 1984). However, Tennessee does not recognize “wrongful
birth” as anything other than a claim for ordinary negligence. See Owens v. Foote,
773 S.W.2d 911, 913 (Tenn. 1989). The same elements must be made out in Mr.
Amos’ cause as are to be made out for the estate of Julie Amos. The most troubling
of these elements is duty.


         Although the jury awarded Mr. Amos over a million dollars in damages, the
plaintiffs failed to show that Vanderbilt owed any duty to Mr. Amos. It also bears
noting that Julie Story and Ronald Amos began a romantic relationship four years
after Ms. Story was infected via transfusion. The plaintiffs assert that damages to
Ronald Amos flow as a direct consequence from Vanderbilt’s failure to warn Julie
Story of her HIV status. While this assertion addresses the factual causal connection
between Vanderbilt and Ronald Amos, it fails to address a bigger issue.


         The existence of duty is as much a question of public policy as it is a
question of law for the court. See Bain v. Wells 936 S.W.2d 618, at 625 (Tenn. 1997)
(citing Bradshaw, 854 S.W.2d 865, at 870 (Tenn. 1993)). The Tennessee Supreme
Court has “specifically recognized that a physician may owe a duty to a non-patient
third party for injuries caused by the physician’s negligence.” Bradshaw v. Daniel,
854 S.W.2d 865,at 870 (Tenn. 1993) (citing Wharton Transport Corp. v. Bridges, 606
S.W.2d 521, 526(Tenn. 1980)). However, that third party must be an identifiable
plaintiff, and the imposition of liability must not expose the defendant to “liability
indeterminate as to amount, time, class, or number.” See Wharton Transport Corp.
v. Bridges, 606 S.W.2d 521, 526(Tenn. 1980)(citing Ultramares Corp. v. Touche, 255
N.Y.170, 174 N.E. 441 (1931)). The plaintiffs would argue that Vanderbilt owed a
duty to Ron Amos as a foreseeable husband to Julie and father to Alison. Following
this reasoning, any other party who would run the risk of emotional injury via
intimate contact with Julie Story during the time that Vanderbilt chose not to warn her
of her possible HIV status would enjoy the benefit of a duty on Vanderbilt’s part.




                                          6
          The proof in the record shows no continuing relationship between
Vanderbilt and Julie Story following her surgery in 1984. Vanderbilt had no contact
with Julie Story until she and her husband Ronald Amos checked into Vanderbilt
Hospital with Alison. As soon as Alison was diagnosed, each member of Alison’s
immediate family was tested, including Ronald Amos. Yet the plaintiffs argue
Vanderbilt’s duty to warn Julie Story flowed to Mr. Amos long before they even met.
These facts distinguish this case from Bradshaw, supra. That case concerned a family
already in existence at the time the alleged duty arose. The nature of the duty
established in Bradshaw was to advise the existing immediate family members of
risks attendant to a spotted fever diagnosis. See Bradshaw v. Daniel, 854 S.W.2d, at
871.   The Court specifically held 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. See Bradshaw, id., at 872. The physician-patient
relationship must be of such a character, or the plaintiff’s potential harm (not his or
her mere existence), must be so apparent as to impose upon the defendant a duty to
act or refrain. See Turner v. Jordan, 957 S.W.2d 815, at 818 (Tenn. 1997); see also
Bradshaw, supra, at 872; Wharton Transport Corp., v. Bridges, 606 S.W.2d 521, 526
(Tenn. 1980). Even if Vanderbilt was aware of the possibility that Julie Story would
meet a man and have a baby, under the facts as they were shown by the plaintiffs, Mr.
Amos was not identifiable during the period of inaction so as to justify imposing a
duty on Vanderbilt.


          At the time Julie Story received the transfusion in 1984, she was a divorced,
25-year-old-woman, embarking on a brand new future. Five years later, after having
endured the hardship of divorce, she would meet Ronald Amos and begin thinking
again about a family. Her choices, informed or not, would set the course of her life
and have an impact on others. The ever widening arc of cause and effect would
encompass everyone in her life to come. For this Court to impose liability on
Vanderbilt for the emotional injuries to Mr. Amos, we would necessarily have to hold
that, after receiving a warning concerning her HIV status, Julie Story would have
taken one of myriad options available to her; and that Ronald Amos, had he been in
Julie Story’s life, would have taken steps to avoid the birth, and that those steps
would have indeed avoided the pain of watching a child die from HIV.

                                          7
         This Court is unwilling to so hold. Mr. Amos was not an identifiable party
at the time Vanderbilt’s duty arose; nor was injury to Mr. Amos foreseeable at the
time. Inasmuch as we find error in the portion of the trial court’s order imposing a
duty on Vanderbilt with regard to the plaintiff Ronald Amos, we therefore must
vacate the jury award as to Mr. Amos. See Tenn. R. App. P. 13(a); Bradshaw v.
Daniel, 854 S.W.2d 865, at 869 (Tenn. 1993).


III.     EMOTIONAL INJURY AND EMOTIONAL DISTRESS
          Although the case before us on appeal has been described by the parties as
concerning “failure to warn” and “wrongful birth,” there can be no argument that this
case sounds in negligence. The first appeal in this case resolves this much. See
Estate of Doe v. Vanderbilt Univ., Inc. 958 S.W.2d 117 (Tenn. Ct. App. 1997). The
appellees argue that the case at bar is not an action for negligent infliction of
emotional distress. They assert that this claim is for “wrongful birth” and, therefore,
distinct from an action in negligence which results in emotional injury. Their
argument suggests a distinction without a difference.


          While the concept is relatively novel in the legal universe, there have been
several cases concerning the different types of action which form a broad swath of
juridical fabric styled “wrongful birth.” See 83 ALR3d 15§2; see also PRENATAL
INJURIES, 62A Am. Jur. 2d §89 p.454. Specifically our state supreme court has had
this to say about the concept and classifications:
             1. Wrongful pregnancy or conception is an action brought by
          the parents on their own behalf to recover damages resulting from
          a failed pregnancy avoidance technique (e.g., vasectomy, tubal
          ligation, abortion, misfilled birth control prescription, etc.);
          usually the resulting child is healthy. See, e.g., Miller v. Johnson,
          231 Va. 177, 343 S.E.2d 301 (1986); Garrison v. Foy, 486
          N.E.2d 5 (Ind.App.1985); Nanke v. Napier, 346 N.W.2d 520
          (Iowa 1984); Weintraub v. Brown, 98 A.D.2d 339, 470 N.Y.S.2d
          634 (1983); Sherlock v. Stillwater Clinic, 260 N.W.2d 169
          (Minn.1977).

             2. Wrongful birth is an action by the parents on their own
          behalf to recover damages for the birth of an impaired child when
          the impairment results either from an act or omission of the
          defendant or because the defendant failed to diagnose or discover
          a genetic defect (e.g., genetic counsel[l]ing, failure to perform
          readily available diagnostic tests, etc.) in the parents or the infant


                                            8
         in time to obtain a eugenic abortion or to prevent pregnancy
         altogether. See, e.g., James G. v. Caserta, 332 S.E.2d 872
         (W.Va.1985) (Involving two causes of actions); Harbeson v.
         Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483 (1983) (En
         banc ); Naccash v. Burger, 223 Va. 406, 290 S.E.2d 825 (1982);
         Stribling v. deQuevedo, 288 Pa.Super. 436, 432 A.2d 239 (1980);
         Howard v. Lecher, 42 N.Y.2d 109, 397 N.Y.S.2d 363, 366 N.E.2d
         64 (1977); Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689
         (1967).

Smith v. Gore, 728 S.W.2d 738,741 (Tenn. 1987). The Court expanded upon this
discussion in its opinion in Owens v. Foote. The plaintiffs in Owens traveled on the
assertion that the physician defendant had “negligently performed a vasectomy on Mr.
Owens, negligently failed to conduct and interpret post-operative tests, and failed to
advise plaintiffs correctly about the test results.” Owens v. Foote, 773 S.W.2d 911,
911-912 (Tenn. 1989). In noting the procedural posture of the Owens appeal at
Smith’s release, Justice O’Brien wrote:
         [W]hile this case was in the appellate process the decision of this
         Court in Smith v. Gore, 728 S.W.2d 738 (Tenn.1987) was
         released. Many of the questions raised here were answered in the
         Smith decision by Justice Drowota. In passing, the Court noted
         the several cases reported nationally involving actions of this
         nature, including their various denominations. Reference is
         made to p. 741 for the definition of wrongful birth. However,
         medical malpractice suits of this nature, brought by parents,
         alleging birth defects of an infant, are not unknown in this State
         and we see no reason to endeavor to fit them into some specific
         category beyond a suit for ordinary negligence. See, e.g.,
         Schaefer by Schaefer v. Larsen, 688 S.W.2d 430
         (Tenn.App.1984).

Owens v. Foote, 773 S.W.2d 911, 913 (Tenn. 1989). Hence the characterization
“wrongful birth” does nothing to further the discussion of Vanderbilt’s alleged
omission. The key elements of a cause of action sounding in negligence are well
known. To establish a prima facie case, a plaintiff must prove that the defendant
breached an established duty, and that such breach proximately or legally caused
injury to the plaintiff. See Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn.1993);
see also Bradshaw v. Daniel, 854 S.W.2d 865, 873 (Tenn. 1993). For the Estate in the
case at bar, the most difficult of these elements is injury. The vast discrepancy
between the medical damages proven and the general damages awarded, as well as
the statements in the pleadings describing emotional distress allegedly caused by


                                          9
Vanderbilt’s failure to warn Mrs. Amos of her possible HIV status, suggests that the
majority of the $4.3 million dollars of damages was awarded to compensate for the
Amoses’ emotional injury.       It is not surprising, therefore, that upon remand
Vanderbilt’s counsel argued the requirement of expert testimony to prove the
emotional injury suffered by the plaintiffs. This argument was based on our supreme
court’s opinion in the case of Camper v. Minor. In that case, a truck driver, who
suffered no substantial physical injury, sued a negligent motorist’s estate, seeking
damages for post traumatic stress disorder. The Court considered this claim to be one
of negligent infliction of emotional distress. Said the court:
             Any survey of the law in this area must begin with a clear and
         frank recognition that the law of negligent infliction of emotional
         distress, however it is formulated in a specific jurisdiction, is
         fundamentally concerned with striking a balance between two
         opposing objectives: first, promoting the underlying purpose of
         negligence law--that of compensating persons who have sustained
         emotional injuries attributable to the wrongful conduct of others;
         and second, avoiding the trivial or fraudulent claims that have
         been thought to be inevitable due to the subjective nature of these
         injuries. The tension produced by this ongoing attempt to
         winnow out invalid claims at the summary judgment level has
         caused inconsistency and incoherence in the law; indeed, as the
         Washington Supreme Court aptly stated some years ago, "any
         attempt at a consistent exegesis of the authorities is likely to break
         down in embarrassed perplexity." Hunsley v. Giard, 87 Wash.2d
         424, 553 P.2d 1096, 1098 (1976).

Camper v. Minor, 915 S.W.2d 437, 440 (Tenn. 1996).


         The Court went on to discuss the requirement placed upon an individual
seeking compensation for mental injury. The Court in Camper considered the various
attempts taken in Tennessee to weigh the considerations enumerated supra.
Reference is made in Camper to the inconsistent body of law concerning the general
rule limiting remedy for emotional injury absent a “physical manifestation” of that
injury. See Camper, 915 S.W.2d, at 444-46 (quoting Memphis State Ry. Co. v.
Bernstein, 137 Tenn. 637, 194 S.W. 902 (1917)). After exhaustive review the Court
noted the following:
         Tennessee courts have continually found it necessary to deviate
         from the "physical manifestation" rule by either formally creating
         exceptions to the rule or by applying the rule in a nonrigorous
         fashion. This practice of creating ad hoc exceptions has made our
         law of negligent infliction of emotional distress confusing and

                                          10
         unpredictable; indeed, the practice appears to have, as the
         plaintiff here argues, "robbed the law of logic, consistency and
         fairness."

              Although there is some truth to this charge, the Tennessee
          cases in this area do contain a common thread: the courts' desire
          to separate, at the prima facie stage and in a meaningful and
          rational manner, the meritorious cases from the nonmeritorious
          ones.

915 S.W.2d 437, at 445-46. It was against this backdrop that the Court adopted the
most recent rule concerning claims for negligent infliction of emotional distress. Said
the Court:
          Although our seemingly disparate cases in this area are thus
          reconcilable on a functional level, we nevertheless agree with the
          plaintiff here and with many other jurisdictions that the time has
          come to abandon the rigid and overly formulaic "physical
          manifestation" or "injury" rule. This rule has proved to be
          inflexible and inadequate in practice; and, as noted in the
          preceding section, it completely ignores the fact that some valid
          emotional injuries simply may not be accompanied by a
          contemporaneous physical injury or have physical consequences.
          Therefore, in accordance with our statement in Carroll that "[we
          have] realized that in some situations, whether the plaintiff has
          incurred a literal physical injury has little to do with whether the
          emotional damages complained of are reasonable," id. at 594, we
          conclude that the rule shall no longer be used to test the validity
          of a prima facie case of negligent infliction of emotional distress.

              This negative conclusion logically raises its positive
          counterpart: what is required to make out a prima facie case?
          After considering the strengths and weaknesses of the options
          used in other jurisdictions, we conclude that these cases should be
          analyzed under the general negligence approach discussed above.
          In other words, the 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, Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn.1993);
          Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.1993)--in order
          to avoid summary judgment. Furthermore, we agree that in order
          to guard against trivial or fraudulent actions, the law ought to
          provide a recovery only for "serious" or "severe" emotional
          injury. Burgess v. Superior Court (Gupta), 2 Cal.4th 1064, 9
          Cal.Rptr.2d 615, 618, 831 P.2d 1197, 1200 (1992); St. Elizabeth
          Hosp. v. Garrard, 730 S.W.2d 649, 653 (Tex.1987). A "serious"
          or "severe" emotional injury occurs "where a reasonable person,
          normally constituted, would be unable to adequately cope with
          the mental stress engendered by the circumstances of the case."


                                          11
          Rodrigues v. State, 52 Haw. 156, 283, 472 P.2d 509, 520 (1970);
          Paugh v. Hanks, 6 Ohio St.3d 72, 77-78, 451 N.E.2d 759, 765
          (1983); Plaisance v. Texaco, Inc., 937 F.2d 1004, 1010 (5th
          Cir.1991); Prosser and Keeton on the Law of Torts, § 54, at
          364-65, n. 60. Finally, we conclude that the claimed injury or
          impairment must be supported by expert medical or scientific
          proof. See Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758,
          766-67 (1974) ("the plaintiff should be permitted to prove
          medically the damages occasioned by his mental responses to
          defendant's negligent act").

Id. at 446. Appellees defend the finding of the trial court that Camper is to be
distinguished from the case at bar. Their argument is that a distinction must be made
between negligence resulting in “wrongful birth” and from “failure to warn” on the
one hand and negligent infliction of emotional distress on the other hand. However,
the language quoted above clearly suggests that when, as here, the injury to be
compensated is of primarily of an emotional nature, no such distinction exists. The
damages recoverable for negligence of this nature have been clearly defined. If
liability is established, all damages foreseeably proceeding from the birth and
proximately caused by the act or omission of the defendant shall be recoverable,
“including damages for emotional distress.” Owens v. Foote, 773 S.W.2d 911, at 913
(Tenn. 1989) (citing Smith v. Gore, 728 S.W.2d 738, 751 (1987)).


IV.       THE NEED FOR EXPERT TESTIMONY
          It is difficult to imagine a more tragic and heart-wrenching fate than that
which has befallen the Amos family. Yet, adequate consideration on appeal requires
delineation of what this case is and what it is not. It is a suit for negligence alleging
failure to warn and wrongful birth.


          It is not a suit for wrongful death of Julie Amos. It is not a suit by Ronald
Amos for loss of consortium of Julie Amos. It is not a suit for the wrongful death of
Alison Amos. It is not a suit for physical injury to Ronald Amos, Julie Amos or
Alison Amos.


          The seeds of this tragedy were planted in 1984 in the introduction by
transfusion into the blood of Julie Amos of the HIV virus. It is neither alleged in the
complaint nor established by the proof that Vanderbilt was at fault in the introduction


                                           12
of the HIV virus in the bloodstream of Mrs. Amos. Her subsequent death resulted
from the inexorable progression of the HIV virus into Acquired Immune Deficiency
Syndrome.      The minor child, Alison Amos, died because of the inter uteral
transmission of the HIV virus into her blood by her innocent and unknowing mother.
This death resulted from the complications of AIDS.


            The sole basis upon which Vanderbilt is charged with fault in this case is
in the failure of Vanderbilt, after the development in 1985 of tests that could detect
the HIV virus, to pursue a retroactive process to identify and warn former patients,
such as Julie Amos, of possible exposure to the HIV virus because of prior
transfusions. Inherent in the jury verdict are findings of duty, breach of duty, injury
or loss, causation in fact, and proximate cause. Kilpatrick v. Bryant, 868 S.W.2d 594,
598 (Tenn. 1993). As to the estate of Julie Amos there is substantial and material
evidence to support the jury verdict as to fault and this portion of the jury verdict
cannot be disturbed. Whitaker v. Harmon, 879 S.W.2d 865 (Tenn. Ct. App. 1994).


            Under whatever terminology is used, this case sounds in negligence and
aside from the stipulated birth, medical and funeral expenses of $32,884.07 in the
delivery, treatment and death of Alison Amos, all damages asserted result from
negligent infliction of emotional distress.


            Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996) is a landmark in the efforts
of the Tennessee Supreme Court to come to grips with the almost totally subjective
nature of injuries involving emotional distress. Following a comprehensive review,
the Tennessee Supreme Court held compensable only “severe or serious” emotional
injury shown by an expert to be of such a degree that a reasonable person normally
constituted would be unable to cope with the attendant mental stress. 915 S.W.2d
437, 446.


            Camper was followed the same year by Ramsey v. Beavers, 931 S.W.2d 527
(Tenn. 1996) wherein the Supreme Court integrated the “zone of danger” rule
formulated in Shelton v. Russell Pipe & Foundry Co., 570 S.W.2d 861 (Tenn. 1978)
into the general negligence framework. Said the court:
               We reiterate that plaintiff must establish that defendant’s

                                          13
         negligence factually and legally caused plaintiff to suffer serious
         or severe emotional injuries. As we made clear in Camper, our
         ruling does not provide recovery for “every minor disturbance to
         a person’s mental tranquility.” Barnhill v. Davis, 300 N.W.2d
         104, 107 (Iowa 1981), but only for serious or severe emotional
         injuries. A “ ‘serious’ or ‘severe’ emotional injury occurs where
         a reasonable person, normally constituted, would be unable to
         adequately cope with the mental stress engendered by the
         circumstances of the case.” Camper v. Minor, 915 S.W.2d at 446.

             Our holding in Camper and here should not be construed to
         allow recovery for fright or fear alone. Likewise, hurt feelings,
         trivial upsets, and temporary discomfort would not be sufficient
         for recovery. Only those serious or severe emotional injuries
         which disable a reasonable, normally constituted person from
         coping adequately with the stress are sufficient to form the basis
         for recovery. Additionally, the “claimed injury or impairment
         must be supported by expert medical or scientific proof.” Id.

931 S.W.2d 527, 532 (Tenn. 1996).


         Appellees argue that emotional damages are “parasitic” to their claim of
wrongful birth and thus recoverable. In support they cite Kush v. Lloyd, 616 So.2d
415 (Fla. 1992), wherein the Supreme Court of Florida held:
         [W]e are not certain that the impact doctrine ever was intended to
         be applied to a tort such as wrongful birth. Prosser and Keeton
         state that the impact doctrine should not be applied where
         emotional damages are an additional “parasitic” consequence of
         conduct that itself is a freestanding tort apart from any emotional
         injury. W. Page Keeton et al., Prosser and Keeton on the Law of
         Torts § 54, at 361-65 (5th ed. 1984). The American Law Institute
         is in general accord. Restatement (Second) of Torts § 47 & § 47
         cmt. b (1965). Obviously, the [plaintiffs] have a claim for
         wrongful birth even if no emotional injuries had been alleged.

616 So.2d 415, 422 (Fla. 1992).


         Under Camper and Ramsey, even if one accepts the “parasitic” argument in
Kush, the law of Tennessee would still require that the “parasitic” damages be
established by expert testimony. More clearly analogous to the case at bar is
McCracken, et al. v. City of Millington, NO. 02A01-9707-CV-00165, 1999
WL142391 (Tenn. Ct. App. 1999). In this case, Jona McCracken sought damages as
the result of an automobile accident in which her husband was fatally injured and she


                                         14
was physically injured. She also sought loss of consortium damages for the brief
period that her husband survived the accident. In addition, she sought damages for
the negligent infliction of emotional distress. The trial court found that she had
suffered compensatory damages of $175,000 of which $46,250 was recoverable from
the City of Millington because the City was 25% at fault. It might well be said that
her claim for emotional injury was “parasitic” to her claim for personal physical
injuries and loss of consortium, as the trial court found that $100,000 of her damages
were from emotional injury and remaining $75,000 from the physical injury and loss
of consortium.


         In disallowing damages for negligent infliction of emotional distress the
Western Section of the Court of Appeals held:
             Even assuming that Jona’s emotional injuries were
         foreseeable, however, we would still find that Jona is not entitled
         to recover damages for negligent infliction of emotional distress.
         A plaintiff may recover under this legal theory only if he or she
         has suffered a serious or severe emotional injury. See Ramsey,
         931 S.W.2d at 532; Camper, 915 S.W.2d at 446 (citations
         omitted). Additionally, the plaintiff’s serious or severe injury
         must be supported by expert medical or scientific proof. See
         Ramsey, 931 S.W.2d at 532; Camper, 915 S.W.2d at 446 (citing
         Leong v. Takasaki, 520 P.2d 758, 766-67 (Haw. 1974)). The
         plaintiff’s injury is sufficiently serious or severe if “a reasonable
         person, normally constituted, would be unable to adequately cope
         with the mental stress engendered by the circumstances of the
         case.” Ramsey, 931 S.W.2d at 532 (quoting Camper, 915 S.W.2d
         at 446).
                                          ***
         Additionally, we find that Jona has failed to prove by expert
         medical or scientific proof that her emotional injuries were severe
         or serious. According to Jona’s psychiatrist, her symptoms were
         “within the normal grieving process and may not lead to any
         future long term complications.” Thus, under the definition of
         “severe or serious injury” adopted by our supreme court in
         Camper and Ramsey, we conclude that Jona has failed to carry
         her burden of proof with respect to this issue.
             In light of our discussion above, we find that the requirements
         of Ramsey have not been satisfied in the instant case and
         consequently hold that the trial court erred in its assessment of
         Jona’s damages. On remand, the court should reduce its prior
         assessment of Jona’s damages by $100,000.00, the amount that
         the court assigned as damages for negligent infliction of
         emotional distress.



                                         15
McCracken, et al. v. City of Millington, No. 02A01-9707-CV-00165, 1999
WL142391, ** 11-12 (Tenn. Ct. App. Mar. 17, 1999).


          At the conclusion of all of the proof in this case, Vanderbilt renewed its
motion for a directed verdict as to emotional damages. The trial court held:
              THE COURT: Okay. The issue of emotional distress, the
          Court overrules the defendant’s motion for two reasons. First of
          all, this is a – that’s a good word – parasitic element of damages
          in this case. And, secondly, even if that were not the case, there
          is some proof in this case both by direct testimony as to the
          suffering of persons in a conceptual same situation as the
          plaintiffs, the deceased and the living plaintiff. And thirdly,
          again, you know, the effect and diagnosis of AIDS in this case in
          and of itself would cause any normal person to have immediate
          emotional distress. The Court will make judicial knowledge of
          that.


          Camper and Ramsey, in expanding the right to recover damages for
negligent infliction of emotional distress, struck a balance that does not allow the
court to take judicial notice as a substitute for expert testimony that plaintiff’s injuries
are “severe or serious”. The Supreme Court struck the balance by requiring expert
testimony and thus far has only vitiated the need for expert testimony in cases of
intentional infliction of emotional distress. In the November 15, 1999 decision in
Wayne Miller, et al. v. Wilbanks, et al., 8 S.W.3d 607 (Tenn. 1999), the Supreme
Court held:
             In cases of negligent infliction of emotional distress, however,
          the conduct giving rise to the tort is not marked by extraordinary
          or outrageous elements inherent in intentional conduct. Thus,
          concerns with unwarranted claims are not addressed by the kind
          of conduct that must be proved to obtain damages for emotional
          distress. In the absence of any reliable indicia of a severe mental
          injury suggested by the conduct, some safeguard must be imposed
          to limit frivolous litigation. Accordingly, when the conduct
          complained of is negligent rather than intentional, the plaintiff
          must prove the serious mental injury by expert medical or
          scientific proof. See Camper, 915 S.W.2d at 446.

8 S.W.3d 607, 614-15 (Tenn. 1999).


          If there is to be an “AIDS” exception to the expert testimony requirement
of Camper, Ramsey and Miller, it must come from the Supreme Court of Tennessee.

                                            16
          While the words “trivial” and “fraudulent” have no applicability in the face
of this tragedy, the definition of “serious” or “severe” cannot provide a basis for
judicial notice, but expert testimony is required to carry the plaintiff’s burden of proof
to show that “. . . a reasonable person normally constituted, would be unable to
adequately cope with the mental stress engendered by the circumstances of the case.”
Camper v. Minor, 915 S.W.2d 437, 446 (Tenn. 1996).


          Appellee asserts that Camper should not be given retroactive application
under the facts of this case. While it is true that retroactive application of a statute
affecting vested substantive rights is constitutionally prohibited under Article 1,
Section 20 of the Tennessee Constitution, evolving changes in the common law
pronounced by adjudication are not so inhibited. Dupuis v. Hand, 814 S.W.2d 340,
343 (Tenn. 1991); Davis v. Davis, 657 S.W.2d 753 (Tenn. 1983). Reliance on
Cumberland Capital Corp. v. Patty, 556 S.W.2d 516, 540 (Tenn. 1977) is misplaced.
That case involved not a change in common law, but rather the failure of an existing
statute to pass constitutional muster. We find more persuasive the situation in which
a common law rule is changed or an existing remedy is abolished by common law. In
this regard, the progression of cases dealing with comparative fault are instructive.


          The Supreme Court’s decision in Camper v. Minor expanded a plaintiffs
ability to recover for emotional distress. The Supreme Court’s decision in Macintyre
v. Balentine expanded the ability of a plaintiff to recover for negligence. See
McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). The MacIntyre court abolished
the contributory negligence bar, the last clear chance doctrine, and right to
contribution pro rata among joint tortfeasors as it had existed under prior common
and statutory law. The Camper court “abolished” the exclusivity of the “physical
manifestation” and “zone of danger” doctrines.


          According to Plaintiffs the McIntyre decision would not have been
retroactively applied to affect the right of an individual to recover under the Uniform
Contribution Among Tortfeasors Act. The Supreme Court addressed this retroactive
application in Bervoets v. Harde Ralls Olds-Pontiac, Inc. Bervoets concerned a
contribution case brought under the aforementioned act. For various and sundry
reasons the case was tried and twice retried. The second retrial took place after the

                                           17
Supreme Court issued its well-known opinion in McIntyre,supra.


         Bervoets concerned the following statement from McIntyre:

         [B]ecause a particular defendant will henceforth be liable only for
         the percentage of a plaintiff's damages occasioned by that
         defendant's negligence, situations where a defendant has paid
         more than his "share" of a judgment will no longer arise, and
         therefore the Uniform Contribution Among Tortfeasors Act,
         T.C.A. § 29-11-101--106 (1980) will no longer determine the
         apportionment of liability between co-defendants.

833 S.W.2d at 58. Adanac, the defendant in contribution, appealed the trial court’s
denial of its motion to dismiss Safeco’s suit brought under the “abolished” statute.
The Court of Appeals affirmed the trial court, and the Supreme Court granted Rule
11 application to “clarify the situation.” Bervoets v. Harde Ralls Pontiac-Olds, Inc.
et al., 891 S.W.2d 905 (Tenn. 1994, reh. granted 1995). Said the court:
             Although we certainly did not intend in McIntyre to totally
         abolish the remedy of contribution, it is obvious from the
         above-quoted passage that we did intend that the "pro rata share
         of damages" approach of the UCATA, which provides that the
         fault of the parties is not to be considered in determining each
         party's share of damages, should not continue to be utilized after
         the McIntyre decision was released. Because we intended to
         adopt a comprehensive scheme of comparative fault in McIntyre,
         and because the "pro rata share" approach set forth in the UCATA
         is in direct conflict with such a scheme, we felt it necessary to
         explicitly provide such guidance to the trial courts charged with
         the duty of trying tort cases in this state.

             Although Safeco readily admits that the "pro rata share"
         approach to contribution is inconsistent with the principles of
         comparative fault, it contends that our substantial dictum
         regarding contribution in McIntyre should not apply to the retrial
         in this case for two basic reasons. First, Safeco contends that it
         had an expectation that it would be able to pursue a UCATA-type
         contribution claim against Adanac at the time it entered into the
         settlement agreement, that this expectation constituted an accrued
         or vested right, and that it is therefore impermissible to
         retroactively apply the principles of McIntyre so as to deprive it
         of that vested right. We are not convinced, however, that the
         retroactive application of McIntyre in fact serves to deprive
         Safeco of any "right," vested or otherwise. In fact, it is entirely
         possible that Safeco could actually obtain a better result under the
         principles of comparative fault than it could under the UCATA
         approach.


                                         18
Bervoets, 891 S.W.2d, at 907. The well settled point is that there can be no vested
right in an existing law which precludes its orderly change when public policy so
demands. See Cavender v.Hewitt, 145 Tenn 471, 239 S.W. 767, 770 (1922).
Retroactive application of Camper is beneficial to the appellee insofar as Camper
expands the right to recover for emotional injury. It hurts the appellee only because
it “strikes a balance” against such expanded scope of liability by requiring expert
testimony to prove that the emotional injuries claimed were “severe” or “serious”.
This case was in the “pipeline” at the time Camper was decided in 1996. What is
involved in this case is neither constitutional nor statutory but simply evolution of the
common law by common law adjudication. Consistency requires and fairness dictates
that Camper apply to this case. Davis v. Davis, 657 S.W.2d 753 (Tenn. 1983); Luna
v. Clayton, 655 S.W.2d 893 (Tenn. 1983); Lease v. Tipton, 722 S.W.2d 379 (Tenn.
1986).


          There being no competent proof of damages to Mrs. Amos beyond the
medical expenses of Alison’s birth and death, the award of damages will be modified
to reflect the damages shown. Our holding comports with the action of the trial court
in that it found Vanderbilt did not act recklessly or intentionally.


V.        DISPOSITION
          The parties have raised several other issues on appeal. Our resolution of
the two above necessarily pretermits those not mentioned in this opinion. The
verdict of the trial court is modified as follows. Inasmuch as the plaintiffs failed
to present expert testimony of severe emotional injury consistent with the rule in
Camper v. Minor, 915 S.W.2d 437, 440 (Tenn. 1996), the award to Julie Amos is
reduced to reflect the medical damages proven, i.e., the medical expenses of
$32,884.07, associated with Alison’s birth and death. The jury award to Ron
Amos is vacated. The verdict is affirmed as modified. Despite its successful
appeal of the issues, costs on appeal are taxed against Appellant Vanderbilt. The
cause is remanded for such further proceedings as the trial court may deem
necessary. See Tenn. R. App. P. 40.


                                            _________________________________
                                            WILLIAM B. CAIN, JUDGE


                                           19
CONCUR:



___________________________________
BEN H. CANTRELL, P.J., M.S.


___________________________________
WILLIAM C. KOCH, JR., JUDGE




                                20
