Rodney And Tammy Henderson v. The Vanderbilt University

05/31/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 22, 2017 Session
RODNEY AND TAMMY HENDERSON, ET AL v. THE VANDERBILT
UNIVERSITY
Appeal from the Circuit Court for Davidson County
No. 14C2903 Joseph P. Binkley, Jr., Judge
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No. M2016-01876-COA-R9-CV
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The trial court granted partial summary judgment to the defendant hospital on the ground
that the plaintiffs could not establish that they witnessed or perceived an injury-producing
event for purposes of their negligent infliction of emotional distress claims. We hold that
the alleged failure of the defendant hospital to provide care to the plaintiffs’ daughter,
despite repeated assurances from the hospital that it would occur, constitutes an injury-
producing event that was witnessed by plaintiffs. Accordingly, the trial court erred in
dismissing plaintiffs’ negligent infliction of emotional distress claims on this basis.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded
J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which KENNY
ARMSTRONG, J., joined, BRANDON O. GIBSON J., dissenting.
Gary K. Smith v. Karen M. Campbell, Memphis, Tennessee, for the appellants, Rodney
Henderson, and Tammy Henderson.
Thomas A. Wiseman and Kimberly G. Silvus, Nashville, Tennessee, for the appellee, The
Vanderbilt University.
OPINION
Background
Plaintiffs/Appellants Rodney and Tammy Henderson, individually and on behalf
of their deceased minor daughter (“Appellants”), filed a complaint against
Defendant/Appellee The Vanderbilt University (“Vanderbilt”) on July 7, 2014. Therein,
Appellants alleged that their ten-year old daughter, Halle, was admitted to the Vanderbilt
Pediatric Intensive Care Unit (“PICU”) for septic shock related to the flu on March 23,
2013. Although the child was given fluids and other medicines, “[n]o central line was
placed, no echocardiogram was performed; no one called for a cardiology consult.” In the
evening of March 24, the child’s care was transferred from the attending physician to a
resident. The complaint alleged that after that time, the attending physician did not see
the child. In the morning of March 25, Appellants alleged that they witnessed their
daughter go into cardiac arrest. After two hours of CPR, the child was placed on
extracorporeal membrane oxygenation.1 Appellants alleged that after the arrest, the
child’s condition continued to deteriorate. During a procedure on April 4, 2013, the child
suffered a stroke and was ultimately diagnosed with brain death. Accordingly, Appellants
stated that “a decision was made to withdraw care.” As a result, the child passed away on
April 5, 2013.
The complaint alleged various forms of negligence against Vanderbilt, all
generally relating to Vanderbilt’s failure “to provide reasonable medical care and
treatment and services” to the child. In addition to a wrongful death claim, Appellants
also included a claim for negligent infliction of emotional distress (“NIED”). Only
Appellants’ NIED claim is at issue in this appeal.
Vanderbilt filed an answer on September 12, 2014. Relevant to this appeal,
Vanderbilt denied that it, its employees, or its agents committed any negligence and
averred that Appellants failed to state a claim upon which relief could be granted with
regard to their NIED claim. Mr. Henderson’s deposition was taken on August 28, 2015.
Therein, Mr. Henderson detailed the medical treatment provided to his daughter leading
up to her cardiac arrest on the morning of March 24, 2013, and her eventual death on
April 5, 2013. According to Mr. Henderson, he and his wife repeatedly asked that the
child receive additional care during the approximately twelve hours between her
admittance to Vanderbilt and her arrest. Specifically, Mr. Henderson testified that he
spoke with Vanderbilt staff about the child receiving a cardiology consult at 1:00 a.m.,
2:00 a.m., 3:00 a.m., and 4:15 a.m. At around 5:00 a.m., Mr. Henderson was in the
hallway speaking with a doctor again about the promised cardiology consult, while Mrs.
Henderson was in the child’s room. At this time, the child went into cardiac arrest. Mr.
Henderson testified that although he was in the hallway, he heard his wife screaming and
the child’s machines sounding. Mr. Henderson further testified that he saw the child
“arch[] up” and urinate during the cardiac arrest. Mr. Henderson and his wife stayed in
the room for a few minutes while doctors and nurses rushed in but were soon ushered into
the hallway. Mr. Henderson testified that they later learned that Vanderbilt staff
1
Extracorporeal membrane oxygenation is defined as “a device that oxygenates a patient’s blood
outside the body and returns the blood to the patient’s circulatory system.” Mosby’s Dictionary of
Medicine, Nursing & Health Professions 664 (9th ed. 2013).
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performed CPR on the child for over an hour. Mr. Henderson described the child’s
cardiac arrest as “a shock.”
Mr. Henderson testified that the trauma from the ordeal and the child’s death has
been devastating for his family. Mr. Henderson takes medication for depression and
anxiety but was eventually able to return to work after several months. The same was not
true for Mrs. Henderson. According to Mr. Henderson, Mrs. Henderson takes up to four
Xanax per day to cope with her depression and anxiety, which prevents her from taking
care of Appellants’ other child. In addition, Mr. Henderson testified that Mrs. Henderson
twice attempted to end her life, resulting in in-patient psychiatric treatment. Mr.
Henderson explained that Mrs. Henderson now reads her Bible and goes to church but
otherwise does not participate in the daily activities of life.
On July 6, 2016, Vanderbilt filed a motion for partial summary judgment, arguing
that Appellants’ NIED claim should be dismissed because Appellants had not witnessed
an injury-producing event necessary to sustain their NIED claim. Specifically, Vanderbilt
asserted that the only “event” that formed the basis of the NIED claim was
“complications,” which is insufficient to serve as the factual predicate for an NIED claim.
Vanderbilt also asserted that Appellants did not witness the actual event that caused the
child’s death—her stroke—nor did Appellants witness the efforts to resuscitate the child
after her cardiac arrest. Attached to Vanderbilt’s motion was a statement of undisputed
material facts. Therein, Vanderbilt admitted that Appellants were with the child “nearly
the entire time that she was in the PICU,” and that Appellants “were present when their
daughter arrested, but they were ushered out of their daughter’s room when the
physicians and nurses responded to that event.”
Appellants responded in opposition, arguing that Vanderbilt incorrectly
characterized the child’s stroke as the sole cause of her death. Rather, Appellants alleged
that Vanderbilt’s failure to appropriately treat the child’s shock caused a chain reaction
that ultimately led to the child’s stroke and death. According to Appellants, had the
child’s shock been appropriately managed, the child would not have gone into cardiac
arrest, would not have had a stroke, and would not have died. As such, Appellants
asserted that they had witnessed the injury-producing event, which Appellants defined as
“multiple care failures,” and the deterioration and suffering of the child, while Mr.
Henderson repeatedly requested a cardiology consult.
In support, Appellants submitted the affidavit of an expert who opined that the
child’s death was caused by Vanderbilt’s failure to appropriately manage the child’s
shock. According to the expert, had Vanderbilt appropriately managed the shock, “it is
more probable than not that the child would not have reached the point of suffering a
cardiac arrest or any of the other complications that resulted in her death.” Appellants
also submitted the affidavits of three experts to support their claims of severe emotional
injuries. A psychiatrist who had performed consultations on Appellants stated that Ms.
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Henderson specifically cited “March 24, 2013” as her “chief complaint” and the cause of
her severe depression and anxiety. Likewise, a licensed psychiatric nurse practitioner
who was providing treatment for Appellants detailed their severe emotional injuries and
opined that these injuries resulted from the events of “what transpired at Vanderbilt”
leading to the child’s cardiac arrest and eventual death.
Although Appellants generally agreed with Vanderbilt’s statement of undisputed
material facts for purposes of summary judgment, Appellants submitted their own
statement of facts, which they argued were undisputed. This statement detailed the
suffering of the child leading up to her death, Mr. Henderson’s multiple requests for a
cardiology consult, Appellants’ medical expert’s opinion that the child’s death was a
result of untreated shock, and Appellants’ experts’ opinions regarding the resulting severe
emotional harm to Appellants. Specifically, Appellants alleged that in the hours prior to
her cardiac arrest, the child was complaining that her chest was hurting and that she was
having difficulty breathing. At one point, the child informed Mrs. Henderson that she was
“scared.” According to Appellants, the child was also “panting like an animal” and out of
breath. Appellants further alleged that they witnessed the child’s distress, understood that
her heart rate was abnormal, and repeatedly questioned Vanderbilt’s staff about her not
receiving any treatment or testing. Appellants also asserted that Vanderbilt staff
repeatedly assured Mr. Henderson that a cardiology consultation had been ordered.
Nevertheless, no cardiology consultation occurred prior to the child’s cardiac arrest. As a
result, Mr. Henderson alleged that he was “quite upset” even before the child went into
cardiac arrest.
With regard to Appellants’ emotional injuries, Appellants’ statement of undisputed
material facts contained the opinions of three qualified experts, a licensed social worker,
a psychiatrist, and a psychiatric mental health nurse practitioner. The experts were in
agreement that Appellants both suffered severe or serious emotional injuries. As to the
cause of these injuries, the experts generally pointed to “the events of March 23, 2013
and March 24, 2013 in which [the child] suffered from shock and ultimately went into
cardiac arrest.” In reaching this conclusion, both the psychiatrist and the licensed social
worker noted that parents were present when the child’s condition deteriorated and that
Appellants “were expressing great worry and asking health care providers for additional
care measures.” Vanderbilt later admitted all of Appellants’ undisputed material facts for
purposes of the motion for partial summary judgment.
The trial court held a hearing on the motion for partial summary judgment on
August 16, 2016. At the conclusion of the hearing, the trial court orally ruled that it was
granting Vanderbilt’s partial motion for summary judgment. A written order was entered
incorporating the trial court’s oral ruling on September 2, 2016. In granting partial
summary judgment to Vanderbilt on Appellants’ NIED claim, the trial court ruled that
Appellants “were not in sufficient proximity to the injury-producing event and did not
meaningfully comprehend the injury producing event.” Specifically, the trial court ruled
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that because Appellants did not observe or comprehend the injury-producing event,
which the trial court characterized as Vanderbilt’s “inadequate medical care over a period
of approximately [twelve] hours leading up to the seizure and cardiac arrest,” their claim
for NIED could not lie. In reaching this result, the trial court relied on a California
Supreme Court case, Bird v. Saenz, 51 P.3d 324 (Cal. 2002), which held that in order to
sustain an NIED claim, the plaintiff must have been aware of the defendant’s negligence
at the time of the injury-producing event. On the same day, the trial court granted
Appellants’ request for an interlocutory appeal. This Court likewise granted Appellants’
request for an interlocutory appeal on September 28, 2016.
Discussion
This case presents a single issue: whether the trial court erred in granting
Vanderbilt’s motion for partial summary judgment with regard to Appellants’ NIED
claims.2 Summary judgment is appropriate where: (1) there is no genuine issue with
2
The dissent disputes that this is an appropriate issue for review. Rather, my learned colleague
posits that this Court must address this case only as specifically and expressly framed by Appellants in
their Rule 9 application and addressed by the trial court. Our scope of review in a Rule 9 appeal is
generally defined by both the trial court’s order and this Court’s order granting the Rule 9 application, not
merely the Rule 9 application. See Culbertson v. Culbertson, 455 S.W.3d 107, 156 (Tenn. Ct. App. 2014)
(citing In re S.L.M., 207 S.W.3d 288, 294 n. 15 (Tenn. Ct. App. 2006) (declining to address issues
beyond scope of issues defined in appellate court order granting Rule 9 interlocutory appeal)). Here, both
the trial court and the Court of Appeals failed to designate a specific issue in granting Appellants’ Rule 9
application. In the absence of specific issues being designated in the orders granting a Rule 9 application,
however, Tennessee courts have often reframed issues, regardless of the actual language used by the
appellant. See, e.g., Jenkins v. Yellow Transp., Inc., No. M2009-02471-WC-R3-WC, 2011 WL 1418546,
at *3 (Tenn. Workers Comp. Panel Apr. 13, 2011) (“YRC raises several issues for our review; however,
the issue of whether . . . .”); Hadjopoulos v. Sponcia, No. E2015-00793-COA-R3-CV, 2016 WL
1728250, at *4 (Tenn. Ct. App. Apr. 28, 2016) (“Our review of the record on appeal convinces us that the
dispositive issue is not that raised by Parents, but rather whether the Trial Court’s order is sufficient for
this Court to conduct an effective appellate review. We find that it is not.”); Town of Middleton v. City of
Bolivar, No. W2011-01592-COA-R3-CV, 2012 WL 2865960, at *8 (Tenn. Ct. App. July 13, 2012)
(“Bolivar raises five issues for review as stated in its brief; however, we perceive that there are three
dispositive issues, which we state as follows: . . . .”). Accordingly, it does not appear to be error to re-
frame the issue raised by Appellants.
In addition, although this portion of the trial court’s order is omitted from the dissent’s recitation,
the trial court clearly relied on the California Supreme Court’s holding in Bird, which adopts a narrow
rule for NIED cases involving medical negligence. As such, the trial court’s ruling that Appellants could
not “comprehend the alleged acts of negligence (the injury-producing event) that led to the seizure and
cardiac arrest,” relates directly to the trial court’s adoption of the rule in Bird that “a [medical]
misdiagnosis is beyond the awareness of lay bystanders.” See Bird, 51 P.3d at 328–29 (discussed in
detail, infra). Indeed, both parties expend considerable effort in their respective briefs on the issue of
whether medical negligence may serve as the predicate tort for a bystander NIED claim under the facts of
this case. As such, the question of whether a similar rule should be adopted in Tennessee is, respectfully,
squarely at issue in this appeal.
Finally, as discussed in detail infra, the dissent asserts that this Court should adopt a rule
disallowing bystander NIED claim unless the injury-producing event alleged is a “sudden, traumatic
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regard to the material facts relevant to the claim or defense contained in the motion; and
(2) the moving party is entitled to judgment as a matter of law on the undisputed facts.
Tenn. R. Civ. P. 56.04. Our Supreme Court in Rye v. Women’s Care Center of
Memphis, MPLLC recently explained the burden-shifting analysis to be employed by
courts tasked with deciding a motion for summary judgment:
[I]n Tennessee, as in the federal system, when the moving party does not
bear the burden of proof at trial, the moving party may satisfy its burden of
production either (1) by affirmatively negating an essential element of the
nonmoving party’s claim or (2) by demonstrating that the nonmoving
party’s evidence at the summary judgment stage is insufficient to establish
the nonmoving party’s claim or defense. We reiterate that a moving party
seeking summary judgment by attacking the nonmoving party’s evidence
must do more than make a conclusory assertion that summary judgment is
appropriate on this basis. Rather, Tennessee Rule 56.03 requires the
moving party to support its motion with “a separate concise statement of
material facts as to which the moving party contends there is no genuine
issue for trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a
separate, numbered paragraph and supported by a specific citation to the
record.” Id. When such a motion is made, any party opposing summary
judgment must file a response to each fact set forth by the movant in the
manner provided in Tennessee Rule 56.03. “[W]hen a motion for summary
judgment is made [and] . . . supported as provided in [Tennessee Rule 56],”
to survive summary judgment, the nonmoving party “may not rest upon the
mere allegations or denials of [its] pleading,” but must respond, and by
affidavits or one of the other means provided in Tennessee Rule 56, “set
forth specific facts” at the summary judgment stage “showing that there is a
genuine issue for trial.” Tenn. R. Civ. P. 56.06.
Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264–65 (Tenn. 2015)
(judicially adopting a summary judgment parallel to the statutory version contained in
Tenn. Code Ann. § 20-16-101); see also Tenn. Code Ann. § 20-16-101 (applying to cases
filed after July 1, 2011).
event[.]” In support, the dissent cites cases from other jurisdictions. See Castillo v. City of Las Vegas, 195
P.3d 870, 876 (N.M. Ct. App. 2008); Fernandez v. Walgreen Hastings Co., 968 P.2d 774, 777 (N.M.
1998) (discussed in detail, infra). Neither case was cited by the parties in this appeal. Indeed, rather than
argue that this Court should adopt a rule requiring a sudden, traumatic event, Appellees argue the very
issue addressed by this Opinion: that this Court should limit bystander NIED claims in the medical
negligence context. Moreover, in granting partial summary judgment, the trial court did not rule that
Appellant's NIED claim failed for lack of a sudden event. Accordingly, we are unable to discern how in
addressing the arguments raised both in the trial court and throughout the parties’ briefs, this Court is
impermissibly expanding the scope of this Rule 9 appeal, while the analysis of the dissent does not.
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Additionally, on appeal, this Court reviews a trial court’s grant of summary
judgment de novo with no presumption of correctness. See City of Tullahoma v. Bedford
Cnty., 938 S.W.2d 408, 412 (Tenn. 1997). In reviewing the trial court’s decision, we
must view all of the evidence in the light most favorable to the nonmoving party and
resolve all factual inferences in the nonmoving party’s favor. Luther v. Compton, 5
S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox. Cnty. Bd. of Educ., 2 S.W.3d 927,
929 (Tenn. 1999). If the undisputed facts support only one conclusion, then the court’s
summary judgment will be upheld because the moving party was entitled to judgment as
a matter of law. See White v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998); McCall v.
Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).
I.
Simply put, an NIED claim is an avenue for a plaintiff to recover for emotional
injuries that result from another’s negligence. See generally Marla H. v. Knox Cty., 361
S.W.3d 518, 528–29 (Tenn. Ct. App. 2011); Negligent conduct causing emotional
injury—In general, 4 Modern Tort Law: Liability and Litigation § 32:13 (2d ed.). Despite
this seemingly simple explanation, Tennessee courts have often remarked that the law
surrounding NIED claims is murky and difficult. See Ramsey v. Beavers, 931 S.W.2d
527, 530 (Tenn. 1996) (describing NIED as an “interesting, but difficult, area of the
law”); Camper v. Minor, 915 S.W.2d 437, 440 (Tenn. 1996) (describing NIED law at the
time as “inconsisten[t] and incoheren[t]”). From 1996 to 2008, the Tennessee Supreme
Court addressed the substantive merits of NIED claims on seven occasions. See generally
Flax v. DaimlerChrysler Corp., 272 S.W.3d 521 (Tenn. 2008); Eskin v. Bartee, 262
S.W.3d 727 (Tenn. 2008); Lourcey v. Estate of Scarlett, 146 S.W.3d 48 (Tenn. 2004);
Estate of Amos v. Vanderbilt Univ., 62 S.W.3d 133 (Tenn. 2001); Bain v. Wells, 936
S.W.2d 618 (Tenn. 1997); Ramsey, 931 S.W.2d 527; Camper, 915 S.W.2d 437.
Vanderbilt argues that Appellants now desire to “change[]” Tennessee law by
“[e]xpanding the application of [the NIED] tort claim[.]” To allow the claim in this case,
Vanderbilt contends, would “undo twenty years of precedent” and inject uncertainty into
NIED law. In contrast, Appellants assert that Vanderbilt seeks to impose a new limitation
on NIED claims that has never before been recognized by Tennessee courts. In support,
Appellants note that the main support for Vanderbilt’s argument comes from outside our
jurisdiction. Accordingly, Appellants ask this court to reject Vanderbilt’s effort to place
new limitations on otherwise meritorious NIED claims in furtherance of the Tennessee
Supreme Court’s clear effort to “expand[] the ability of bystanders to recover damages”
for emotional injuries. Eskin, 262 S.W.3d at 735. In order to determine this question, a
review of NIED jurisprudence is helpful.
The Tennessee Supreme Court’s first expansion of the NIED tort occurred in
Camper v. Minor. In Camper, the Tennessee Supreme Court rejected Tennessee’s
previously adopted “physical impact rule” as “seriously flawed.” Camper, 915 S.W.2d at
441. Accordingly, rather than requiring that the plaintiff suffer a physical injury in
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addition to emotional damages as a result of the defendant’s conduct, the Camper court
recognized for the first time that emotional injuries could be serious and yet not
accompanied by physical injuries. Id. at 446. In order to balance the need to compensate
those who have sustained emotional injuries as a result of the negligence of others with
the need to “winnow out” frivolous claims at the summary judgment stage, the Camper
court considered several other methods of delineating meritorious claims from those not
allowed under Tennessee law, such as the physical manifestation rule, the zone of danger
rule, the foreseeability approach, and the general negligence approach. Id. at 440–443.
Ultimately, the Camper court adopted the general negligence test, coupled with a
requirement that the plaintiff’s emotional injuries be serious or severe. Accordingly, the
Camper court adopted the following rule:
[T]he 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. . . 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. . . . 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.” . . . Finally, we conclude that the claimed
injury or impairment must be supported by expert medical or scientific
proof. . . .
Camper, 915 S.W.2d at 446 (citations omitted). Thus, a plaintiff raising an NIED claim
must present evidence regarding the essential elements of negligence, as well as a severe
or serious emotional injury. The injury element is subject to a heightened standard of
proof requiring expert medical or scientific evidence to support the injury. Id.
In reaching this result, the Camper Court noted the policy that would guide the
Tennessee Supreme Court and this Court for the next thirty years: to avoid arbitrary rules
that eliminate otherwise meritorious NIED claims. Indeed, the Tennessee Supreme Court
specifically noted it was rejecting the physical impact rule as “an arbitrary and inadequate
means of reconciling the competing concerns of the law.” Camper, 915 S.W.2d at 442.
The Court specifically held that it and other similar requirements were “underinclusive”
in that they “unfairly and arbitrarily exclude[] plaintiffs with meritorious claims of
serious emotional injury.” Id. With Camper, the Tennessee Supreme Court’s first
expansion of the tort of NIED was complete.
The doorway nudged open by the Camper court was soon enlarged. Less than a
year after issuing its decision in Camper, the Tennessee Supreme Court authored a
second opinion regarding NIED claims. See Ramsey v. Beavers, 931 S.W.2d 527, 530
(Tenn. 1996). In Ramsey, the Tennessee Supreme Court expressly recognized a new class
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of NIED claims—bystander claims. The plaintiff in Ramsey witnessed the death of his
mother in an automobile accident. Unlike the plaintiff in Camper, however, the Ramsey
plaintiff was not involved in the accident and therefore was not a victim of the
defendant’s negligence except to the extent of his emotional injuries resulting from
witnessing his mother’s death. Id. The Tennessee Supreme Court again applied the
general negligence test, reaffirming that such a test is intended to “dissolve rigid, often
nonsensical . . . requirements.” Id. at 531.
The Ramsey court therefore held that, in a bystander case, the plaintiff must
establish, in addition to the essential elements of negligence, that the defendant’s
negligence was the cause in fact and proximate cause of the third party’s death or serious
injury “as well as plaintiff’s emotional injury.” Id. In this regard, both the third party’s
injury and the plaintiff’s emotional injury must be the “proximate and foreseeable results
of [the] [tortfeasor’s] negligence.” Id. Particularly instructive was the Ramsey court’s
discussion of the foreseeability prong of the general negligence test:
Establishing foreseeability, and therefore a duty of care to plaintiff, requires
consideration of a number of relevant factors. The plaintiff’s physical
location at the time of the event or accident and awareness of the accident
are essential factors. Obviously, it is more foreseeable that one witnessing
or having a sensory observation of the event will suffer effects from it. As
has been explained:
The impact of personally observing the injury-producing
event in most, although concededly not all, cases
distinguishes the plaintiff’s resultant emotional distress from
the emotion felt when one learns of the injury or death of a
loved one from another, or observes pain and suffering but
not the traumatic cause of the injury.
Thing v. La Chusa, 48 Cal. 3d 644, 257 Cal. Rptr. 865, 879, 771 P.2d 814,
828 ([Cal.] 1989). Thus, plaintiff must establish sufficient proximity to the
injury-producing event to allow sensory observation by plaintiff.
Ramsey, 931 S.W.2d at 531 (footnote omitted). In determining the foreseeability of the
plaintiff’s emotional injuries, the Tennessee Supreme Court also directed that courts
should consider the degree of injury to the third person and noted that a compensable
emotional injury most likely occurs “‘[w]hen confronted with accidental death[.]’” Id.
(quoting Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521, 528 (N.J. 1980)). Finally, the
Ramsey court indicated that another significant factor was the “plaintiff’s relationship to
the injured third party.” Ramsey, 931 S.W.2d at 531.
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The next NIED case considered by the Tennessee Supreme Court was Bain v.
Wells, 936 S.W.2d 618 (Tenn. 1997). In Bain, a patient sued the defendant medical
providers for NIED alleging that he was emotionally injured when he was placed in the
same hospital room with another patient infected with human immunodeficiency virus
(“HIV”) without giving warning or obtaining consent. Id. at 620. The defendant medical
providers filed a motion for summary judgment, arguing, inter alia, that the plaintiff
patient was not actually exposed to HIV and should have had no reasonable fear of
contracting the virus. Id. at 621. The trial court denied the motion for summary judgment
but allowed the defendant to seek an interlocutory appeal. Id. The Court of Appeals
granted the interlocutory appeal but affirmed the trial court’s judgment. Id. The
Tennessee Supreme Court disagreed, reaffirming a 1993 case in which it had held that in
order to recover for emotional damages resulting from negligent exposure to HIV, the
plaintiff must show “actual exposure to HIV.” Id. at 624 (citing Carroll v. Sisters of
Saint Francis, 868 S.W.2d 585 (Tenn. 1993)). In reaching this result, the Tennessee
Supreme Court held that an individual’s fear of contracting HIV is not reasonable “unless
the plaintiff actually has been exposed to HIV.” Bain, 936 S.W.2d at 624 (footnote
omitted). The Court noted that its rule was based upon the public policy consideration
that to allow NIED claims even where an individual “may have been exposed to HIV”
would be to “open a Pandora’s Box of ‘AIDS-phobia’ claims by individuals whose
ignorance, unreasonable suspicion or general paranoia cause them apprehension over the
slightest of contact with HIV-infected individuals or objects.” Id. at 624 (quoting
Brzoska v. Olson, 668 A.2d 1355, 1363 (Del. 1995)). Because of the undisputed medical
evidence that the plaintiff patient was not actually at risk of contracting HIV during his
stay in the hospital, the Tennessee Supreme Court concluded that the plaintiff failed to
establish the essential element of proximate cause to support his NIED claim. Bain, 936
S.W.2d at 625–26.
The Tennessee Supreme Court was again called upon to clarify the law concerning
NIED in 2001 in Estate of Amos v. Vanderbilt University, 62 S.W.3d 133 (Tenn. 2001).
In Estate of Amos, a patient sued the defendant hospital for NIED based upon emotional
damages she suffered after being infected with HIV during a blood transfusion in 1984
and never informed about the possible infection. Id. at 135. Years after her exposure, the
patient learned of her infection when her child contracted HIV in utero and died as a
result. Id. The patient and her husband sued the defendant hospital for wrongful birth,
failure to warn, and NIED. Ultimately, a jury awarded the plaintiffs substantial damages.
Id. at 136. The Court of Appeals, however, reversed, holding that the NIED claim failed
as a matter of law due to plaintiffs’ failure to present expert medical proof of serious or
severe emotional injury, i.e., the plaintiffs’ failure to meet the heightened proof standard
outlined in Camper. Id. Ultimately, the Tennessee Supreme Court reversed the Court of
Appeals and held that, where a plaintiff raises other claims that include requests for
damages for emotional injuries, such as the failure to warn claim averred by the plaintiffs
in Estate of Amos, the plaintiff’s NIED claim is parasitic to his or her other claims and
need not be supported by expert proof. Id. at 137. As such, only “standalone” NIED
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claims need be supported by expert proof on the issue of the plaintiff’s severe or serious
emotional injury.
Another NIED case was heard by the Tennessee Supreme Court in 2004. See
Lourcey v. Estate of Scarlett, 146 S.W.3d 48 (Tenn. 2004). In Lourcey, the plaintiff mail
carrier witnessed a man shoot his wife and then commit suicide. Id. at 50. The plaintiff
then sued the estate of the perpetrator for intentional and negligent infliction of emotional
distress. The trial court dismissed the NIED claim because the plaintiff was not closely
associated with the victim or perpetrator. Id. The Tennessee Supreme Court, however,
reversed the judgment of the trial court, holding that “the element of foreseeability does
not require a plaintiff to establish a relationship to the injured third party.” Id. at 53
(citing Thurmon v. Sellers, 62 S.W.3d 145, 163 (Tenn. Ct. App. 2001)). Instead, the key
factors in establishing the foreseeability of the plaintiff’s emotional injuries “are whether
a plaintiff’s proximity to the injury-causing event allowed for ‘sensory observation’ and
whether the injury ‘was, or was reasonably perceived to be, serious or fatal.’” Lourcey,
146 S.W.3d at 53 (quoting Thurmon, 62 S.W.3d at 163). Accordingly, the Tennessee
Supreme Court concluded that the plaintiff’s NIED claim could proceed even in the
absence of a close relationship between the plaintiff and the victim, where the plaintiff
directly observed the death of the victim and the perpetrator “knew that [the plaintiff] was
in close physical proximity[.]” Lourcey, 146 S.W.3d at 53.
Several years passed until another NIED case was considered by the Tennessee
Supreme Court. In 2008, however, the Tennessee Supreme Court again took up the
question of the appropriate parameters of NIED claims in Eskin v. Bartee, 262 S.W.3d
727 (Tenn. 2008). In Eskin, the plaintiffs alleged that they suffered severe emotional
injuries after they observed a close family member “lying in a pool of blood” and
“lifeless” after an automobile accident. The injured child suffered permanent injuries as a
result of the accident. Eventually, the plaintiffs sued, and the defendant insurance
company filed a motion for partial summary judgment seeking to dismiss the plaintiffs’
NIED claims. The trial court granted the motion for partial summary judgment because it
was undisputed that the plaintiffs were not present when the accident occurred and
therefore “did not ‘observe the accident occur through one of . . . [their] senses.’” Id. at
731 (quoting the trial court’s order). The Court of Appeals reversed, holding that sensory
observation of the injury producing event was not an absolute prerequisite to an NIED
claim. Id. (citing Eskin v. Bartee, No. W2006-01336-COA-R3-CV, 2006 WL 3787823
(Tenn. Ct. App. Dec. 27, 2006)).
In determining the issue before it, the Tennessee Supreme Court first considered
the increasing recognition of the tort of NIED not only in Tennessee, but elsewhere
across the country. In Tennessee particularly, the Eskin court characterized the trend with
regard to NIED claims as a “dilution” of the harsh requirements previously imposed in
favor of permitting recovery in increasingly broad circumstances. Eskin, 262 S.W.3d at
734–35 (noting that “the direction of the development of the law . . . relating to negligent
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infliction of emotional distress claims has been to enlarge rather than to restrict the
circumstances amenable to the filing of a negligent infliction of emotional distress
claim”). As the Tennessee Supreme Court noted: “The courts have not hesitated to permit
the recovery of damages for negligent infliction of emotional distress when justice and
fairness require it.” Id. at 738. The Court noted, however, the overarching “‘desire to
separate, at the prima facie stage and in a meaningful and rational manner, the
meritorious cases from the nonmeritorious ones.’” Id. at 734 (quoting Camper, 915
S.W.2d at 445). The Eskin court therefore distilled the holding in Ramsey to four
“objective standards” to be utilized by courts in determining whether to allow NIED
claims to proceed beyond summary judgment, namely: (1) the “‘plaintiff’s physical
location at the time of the . . . accident’”; (2) the plaintiff’s “‘awareness of the accident’”;
(3) “the apparent seriousness of the victim’s injuries”; and (4) “[t]he closeness of the
relationship between the plaintiff and the victim.” Eskin, 262 S.W.3d at 736 (quoting
Ramsey, 931 S.W.2d at 531).
In applying these factors, the Tennessee Supreme Court concluded that the
plaintiff parent in Eskin should be permitted to pursue her claim for NIED. In reaching
this result, the Court noted that, unlike in Camper or Lourcey, the plaintiff had a close
familial relationship with the victim. Eskin, 262 S.W.3d at 738. While this factor strongly
militated in favor of allowing the plaintiff to pursue her claim, another factor militated
against that result: the fact that the plaintiff “did not see or hear the automobile strike her
son.” Id. Nevertheless, the Tennessee Supreme Court concluded that the plaintiff’s
proximity to the “injury-producing incident” was sufficient under Ramsey’s objective
standards because the plaintiff was “able to arrive at the accident scene quickly before it
had significantly changed and before the injured person had been moved.” Id. As the
Court explained:
In other words, while the bystanders did not have a sensory perception of
the accident as it occurred, they had a direct sensory perception of the
accident scene and the results of the accident soon after the accident
occurred. In this circumstance, we have determined that it is appropriate
and fair to permit recovery of damages for the negligent infliction of
emotional distress by plaintiffs who have a close personal relationship with
an injured party and who arrive at the scene of the accident while the scene
is in essentially the same condition it was in immediately after the accident.
Id.
The Eskin court specifically noted two important considerations that led to this
conclusion. First, the Court noted that it has been “historically recognized” that severe
emotional injuries to individuals are “easily foreseeable” where the plaintiff has a “close
personal relationship with an injured party.” Id. (citing Portee v. Jaffee, 84 N.J. 88, 417
A.2d 521, 526 (N.J. 1980) (“The law should find more than pity for one who is stricken
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by seeing that a loved one has been critically injured or killed.”). Second, the Court noted
“the lack of a principled basis to differentiate between a parent who sees or hears the
accident that seriously injures or kills his or her child and a parent who sees his or her
injured or dead child at the scene shortly after the accident.” Eskin, 262 S.W.3d at 739.
Indeed, the Court recognized that “other courts” have likewise failed to make a
distinction under similar circumstances. Id. at 739 n.29 (citing cases).
Finally, in Flax v. DaimlerChrysler Corp., 272 S.W.3d 521 (Tenn. 2008), the
Tennessee Supreme Court again considered the requirement of expert proof to support
“standalone” NIED claims. In Flax, the plaintiff mother filed an NIED claim in
conjunction with the wrongful death lawsuit filed on behalf of her son, who allegedly
died due to the defendant’s defective product. Id. at 526. The mother argued that she was
not required to support their NIED claims with expert proof of severe or serious
emotional injuries because their NIED claims were parasitic to the wrongful death claim.
Id. at 529. The Tennessee Supreme Court disagreed, holding that because a wrongful
death claim “belong[s] to the decedent, not the decedent’s beneficiaries,” the wrongful
death claim could not be considered a personal claim of the mother. Id. at 530. Because
the only personal claim raised by the mother was her NIED claim, the Tennessee
Supreme Court concluded that the NIED claim was a standalone claim subject to the
heightened proof requirements of Camper. See also Rogers v. Louisville Land Co., 367
S.W.3d 196, 207–08 (Tenn. 2012) (providing guidance as to what constitutes a severe
mental injury for purposes of both intentional and negligent infliction of emotional
distress, but only addressing the plaintiff’s intentional infliction of emotional distress
claim as it was the only emotional injury claim at issue).
Based on more than a decade of NIED jurisprudence, legal scholars have
delineated two types of NIED claims recognized in Tennessee. See John A. Day, NIED
Claims After Flax and Eskin, Tenn. B.J., Jan. 2009, at 33. The first type of NIED claim
involves situations in which “the plaintiff suffers emotional injury because of the
negligence of another.” Id. Of the above cases, whether successful or not, Camper and
Bain most likely fall into the first category. The second type of NIED claim addresses
situations where “the plaintiff suffers emotional injury because the negligence of another
caused an injury or death to a third person and that in turn caused emotional injury to the
plaintiff.” Id. The situations in Ramsey, Loucey, Eskin, and Flax, regardless of their
ultimate outcome, fall within this second category. Estate of Amos appears to fall within
both categories.3 Bystander claims, however, may be further divided into two additional
3
Specifically, as to the plaintiff patient, she was both infected with HIV and witnessed her infant
daughter die of a complication from the virus. Estate of Amos, 62 S.W.3d at 135. Likewise, although not
ultimately infected, the plaintiff husband in Amos was also exposed to HIV and witnessed the death of his
child. Id. During trial, the plaintiffs submitted evidence specifically concerning “the emotional impact of
an AIDS diagnosis connected with the death of a child infected in utero.” Estate of Amos v. Vanderbilt
Univ., Inc., No. M1999-00998-COA-R3-CV, 2000 WL 336733, at *3 (Tenn. Ct. App. Mar. 31, 2000),
rev’d sub nom. Estate of Amos v. Vanderbilt Univ., 62 S.W.3d 133 (Tenn. 2001). Both the patient’s
- 13 -
categories: (1) the Ramsey-type claims, in which the bystander witnesses the injury-
producing event as it occurs; and (2) the Eskin-type claims, in which the bystander
witnesses the aftermath of the scene within a very short period of time after the injury-
producing event had already occurred, and during which time the scene was not
materially changed.
In this case, Appellants raise the first type of bystander claim—that they, as close
relatives of their injured daughter, witnessed an injury-producing event that was the
cause-in-fact and proximate cause of their daughter’s serious injury and ultimate death.
For purposes of summary judgment, there is no dispute that Appellants suffered a severe
or serious injury, supported by expert proof. Here, Appellants’ experts opined: (1) that
the child’s serious injury and death was the result of Vanderbilt’s failure to provide
appropriate care to the child; and (2) that the Appellants’ injuries resulted from “the
events at the hospital in March of 2013 leading up to [the child’s] death.”4 Accordingly,
as required by Ramsey, Appellants have presented prima facie evidence that Vanderbilt’s
negligence was the proximate and legal cause of both the child’s injuries and death and
Appellants’ severe or serious emotional injuries.5 See Ramsey, 931 S.W.2d at 531.
Vanderbilt argues, however, that despite the above expert proof, Appellants have
failed to show that they witnessed an injury-producing event for purposes of serving as
the predicate for their bystander NIED claim. Specifically, Vanderbilt argues that
Appellants did not witness an injury-producing event “because there was no observable
injury producing event during the medical care of [Appellants’] daughter.” In support,
Vanderbilt cites Ramsey, which favorably quoted a California case that stated a plaintiff
must observe “the traumatic cause of the injury,” rather than merely the “pain and
suffering” resulting therefrom. Id. (quoting Thing v. La Chusa, 771 P.2d 814, 828 (Ca.
1988)).
We cannot agree, however, that this statement from Ramsey ends the inquiry in
this case. For one, it must be noted that the “sensory observation” requirement relied
upon by Vanderbilt from Ramsey was significantly relaxed in Eskin. See generally
Eskin, 262 S.W.3d at 738. As previously discussed, the Eskin court held that a plaintiff
need not actually observe the injury-producing event, so long as the plaintiff and the
victim had a close relationship and the plaintiff came upon the scene of the accident
before it was materially altered. Id. Moreover, the specific language cited by the Ramsey
estate and her husband were awarded substantial damages, presumably as a result of damages due to both
the child’s exposure, as well as their own exposure, to the virus.
4
There is no dispute that Appellants’ NIED claims are “stand-alone” claims requiring the support
of expert medical or scientific testimony on the issue of Appellants’ serious or severe emotional injuries.
5
At points, Vanderbilt’s brief suggests that Appellants cannot meet this requirement. From our
review, however, Vanderbilt’s motion for partial summary judgment focused only on the issue of whether
Appellants could show an injury-producing event. Accordingly, we will only focus on the causation
requirement as it relates to this argument.
- 14 -
court is derived from a California case involving highly analogous facts to Eskin; it is
significant to note, however, that rather than adopting the rule embraced by the California
Supreme Court, the Eskin court came to the opposite conclusion. Compare Thing, 771
P.2d at 828 (holding that an NIED claim cannot lie where the plaintiff bystander comes
upon the scene of an accident after the injury-producing event has concluded),6 with
Eskin, 262 S.W.3d at 738 (“[I]t is appropriate and fair to permit recovery of damages for
[NIED] by plaintiffs who have a close personal relationship with an injured party and
who arrive at the scene of the accident while the scene is in essentially the same condition
it was in immediately after the accident.”).
Even more importantly, however, Appellants assert that they did in fact witness an
injury-producing event in this case—Vanderbilt’s alleged negligence in failing to provide
medical care to the child in the hours leading up to her cardiac arrest on March 24, 2013,
or in Appellants’ words, Vanderbilt’s “multiple care failures.” Vanderbilt disagrees,
however, that the “inadequate medical care over a period of approximately [twelve]
hours” is an injury-producing event for purposes of Appellants’ NIED claim. Instead,
Vanderbilt asserts that, to qualify as an injury-producing event, the event must be “a
specific, identifiable injury-producing event or injury-causing event” rather than “a
constellation of care.” As we comprehend it, Vanderbilt essentially asserts that an injury-
producing event cannot be a drawn-out series of failures but must essentially result from
a sudden accident.
As an initial matter, we note that Vanderbilt cites no specific Tennessee law to
support its view that alleged negligence over a period of time in the healthcare context
cannot constitute an injury-producing event for purposes of an NIED claim. Indeed, from
our research, no Tennessee cases have ever placed limitations on what constitutes an
injury-producing event or ever adopted a broad rule disallowing NIED claims where the
injury-producing event was alleged medical negligence. As such, we agree with
Appellants that Vanderbilt asks this Court to impose new limitations on what constitutes
an injury-producing event for purposes of an NIED claim.
6
In Thing, the plaintiff mother arrived at the scene of an accident where she saw her “bloody and
unconscious child, whom she believed was dead, lying in the roadway.” Id. at 815. The mother, however,
did not witness the accident that caused her child’s injuries. The mother sued the driver for NIED. The
California Supreme Court held, however, that to support a bystander NIED claim, the plaintiff must show
as absolute prerequisites that the plaintiff: “(1) is closely related to the injury victim; (2) is present at the
scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the
victim; and (3) as a result suffers serious emotional distress[.]” Id. at 829–30. Because the plaintiff
mother did not witness the accident that caused her son’s injuries, her NIED claim could not lie. Id. at
830. Accordingly, the holding in Thing directly contradicts more expansive rules adopted by the
Tennessee Supreme Court in both Eskin and Lourcey. See Lourcey, 146 S.W.3d at 153 (allowing an
NIED claim to proceed even though the plaintiff bystander did not have a relationship of any kind with
the victim).
- 15 -
Somewhat in line with Vanderbilt’s argument, the dissent contends that this Court
should adopt a rule disallowing bystander NIED claim unless the injury-producing event
is “sudden [and] traumatic” in accordance with the rule adopted by the New Mexico
Supreme Court in Fernandez v. Walgreen Hastings Co., 968 P.2d 774, 777 (N.M. 1998).
See also Castillo v. City of Las Vegas, 195 P.3d 870, 876 (N.M. Ct. App. 2008) (noting
the rule in Fernandez, but holding that the plaintiff did not allege an NIED claim).
Whether Appellants’ experience was traumatic appears to be without genuine dispute in
this litigation. The term “trauma” is defined as “any emotionally painful experience.”
Webster’s New World College Dictionary 1542 (5th ed. 2014). Taking the facts in the
light most favorable to Appellants, we are simply unable to conclude that the experience
of requesting care over a period of hours for the daughter and witnessing the lack of care
lead to their daughter’s cardiac arrest was not traumatic. See Luther v. Compton, 5
S.W.3d 635, 639 (Tenn. 1999) (discussing the summary judgment standard).
We agree, however, that the alleged negligence that was witnessed by Appellants
was not sudden. We also concede that many of the cases in which NIED claims have
been recognized by the Tennessee Supreme Court involved accidents, often sudden ones.
See Eskin, 262 S.W.3d at 731 (involving an automobile accident); Ramsey, 931 S.W.2d
at 530 (same); Camper, 915 S.W.2d at 446 (same). Indeed, some of these cases refer to
the injury-producing event as an “accident.” See Eskin, 262 S.W.3d at 732 (framing the
issue as “whether persons seeking to recover damages for the negligent infliction of
emotional distress must be in sufficient proximity to the injury-causing accident to
perceive the event with one of their senses”) (emphasis added). But see Ramsey, 931
S.W.2d at 531 (discussing the requirement that the plaintiff witness the “event or
accident”) (emphasis added). We note, however, that the term accident does not denote
only sudden injuries. Instead, the term is defined as “an unpleasant and unintended
happening, sometimes resulting from negligence, that results in injury, loss, [or]
damage[.]” Webster’s New World College Dictionary 8 (5th ed. 2014). Likewise, an
“event” is merely “a happening or occurrence[.]” Webster’s New World College
Dictionary 503 (5th ed. 2014).
As the dissent admits, to adopt a sudden occurrence rule would be to impose a new
limitation on Tennessee NIED jurisprudence that has never before been recognized.
Indeed, Tennessee courts have previously considered NIED claims that were not
predicated on sudden or accidental torts. For example, in Lourcey, the plaintiff’s
emotional injuries were not the result of an accident, but instead were based upon the
perpetrator’s intentional action of committing murder and suicide while the plaintiff was
present. Lourcey, 146 S.W.3d at 153. Likewise in Estate of Amos, the injury-producing
event alleged was the medical provider’s failure to inform the plaintiff patient that she
was exposed to HIV through a blood transfusion and the resulting wrongful birth of the
plaintiffs’ daughter. Estate of Amos, 62 S.W.3d at 137. While the medical provider’s
action can certainly be categorized as negligent, failure to warn over a period of years and
- 16 -
wrongful birth due to HIV exposure years earlier simply does not constitute a sudden
“accident” as Vanderbilt suggests.7
Nevertheless, the dissent suggests that we adopt the rule in Fernandez and hold
that a series of failures over a specific period of time cannot constitute an injury-
producing event for purposes of a bystander NIED claim. Respectfully, we cannot agree.
In the first instance, the Fernandez Court specifically relies on California jurisprudence
as support for its narrow rule. See Fernandez, 968 P.2d at 777 (citing Dillon v. Legg, 68
Cal. 2d 728, 69 Cal. Rptr. 72, 441 P.2d 912, 914 (Cal. 1968)). California, however, does
7
In non-bystander cases, negligence that cannot be categorized as resulting from a
sudden accident, but instead from a series of negligent actions or inactions, has often served as
the predicate tort for an NIED claim. For example in Bain, the plaintiff’s NIED claim arose from
the defendant hospital’s decision to place the plaintiff in a room with an individual infected with
HIV. See Bain, 936 S.W.2d at 624. The Tennessee Supreme Court rejected the NIED claim not
because the plaintiff did not allege a sudden accident as the negligence that led to the plaintiff’s
emotional injuries, but because the plaintiff presented no evidence that he had actually been
exposed to HIV. The Tennessee Supreme Court therefore concluded that a reasonable person
would not suffer severe or serious emotional disturbance in that situation, in part based upon
public policy considerations. Id. At least one case from this Court has recognized a direct NIED
claim where the plaintiff was not the victim of a sudden accident, but a series of negligent
failures on the part of the defendant. See Riley v. Whybrew, 185 S.W.3d 393, 400 (Tenn. Ct.
App. 2005) (reversing the dismissal of plaintiffs’ NIED claim predicated on defendant landlord’s
negligent failure to take action against tenants who harassed plaintiffs over a number of months).
In other cases, this Court has considered similar non-bystander claims based on negligent
series of events, but has ultimately denied those claims based on other deficiencies. See, e.g.,
Bonanno v. Faris, No. 2010-02326-COA-R3CV, 2011 WL 3274121, at *3 (Tenn. Ct. App. Aug.
1, 2011) (involving an NIED claim predicated on a series of calls made by the defendant court
reporter to collect an alleged debt; affirming dismissal of NIED claim based upon failure of
expert medical or scientific proof); Durbin v. Sumner Cty. Reg'l Health Sys., Inc., No. M2000-
02109-COA-R3-CV, 2001 WL 1013071, at *10 (Tenn. Ct. App. Sept. 6, 2001) (involving an
NIED claim based upon the medical provider’s failure to properly diagnose and treat a pregnant
woman over a number of days which allegedly led to the death of her twins in utero; affirming
dismissal of NIED claim based upon failure of expert medical or scientific proof); Miller v.
Willbanks, No. 03A01-9709-CV-00411, 1998 WL 270428, at *4 (Tenn. Ct. App. May 28, 1998),
rev'd on other grounds, 8 S.W.3d 607 (Tenn. 1999) (involving an NIED claim based on the
defendant medical providers repeated questioning of mother regarding drug use during
pregnancy despite negative drug screens having been performed; affirming dismissal of NIED
claim based upon failure of expert medical or scientific proof); Bruce v. Olive, No. 03A01-9509-
CV-00310, 1996 WL 93580, at *5 (Tenn. Ct. App. Mar. 4, 1996) (involving an NIED claim
predicated on the defendant attorney’s failure to act over a period of months; affirming dismissal
of NIED claim based upon lack of causation between attorney’s alleged negligence and
plaintiffs’ emotional injuries). Importantly, neither this Court nor the Tennessee Supreme Court
has ever expressly held only certain types of negligence may sustain bystander NIED claims,
while allowing the negligence that causes a direct NIED claim to run the gamut from sudden
events to nonfeasance over a period of time.
- 17 -
not follow the rule espoused in Fernandez. Instead, the “sudden occurrence” rule was
expressly rejected in Ochoa v. Superior Court, 39 Cal. 3d 159, 703 P.2d 1 (Cal. 1985)
(discussed in detail, infra), as being an arbitrary restriction on otherwise meritorious
NIED claims.8 Id. at 6–7. Although the sudden occurrence rule continues to be viable in
New Mexico, see Castillo, 195 P.3d at 876, it does not appear to be applied in other
jurisdictions. See also Armstrong v. A.I. Dupont Hosp. for Children, 60 A.3d 414, 417
(Del. Super. Ct. 2012) (allowing an NIED claim based upon a series of events that led to
the victim’s injuries).
Most importantly, however, the Tennessee Supreme Court has expressly rejected
other rules that would limit NIED recovery because they were arbitrary restrictions on
otherwise meritorious NIED claims. See Camper, 915 S.W.2d at 442. The same is true of
the sudden occurrence rule as applied to this case. Here, there can be no dispute that
Appellants were present and witnessed a series of events where Vanderbilt promised to
provide specific care to the child, all the while failing to provide the promised care.
Appellants’ experts have opined that Vanderbilt’s failure was negligent and that it led
both to the child’s death and to Appellants’ severe emotional injuries. In fact, these facts
clearly distinguish the case-at-bar from Fernandez, as the alleged negligence in that case
occurred when the defendant pharmacist misfilled the child’s prescription, an event not
witnessed by the plaintiff, as well as the child “going untreated without anyone realizing
it at the time.” Fernandez, 968 P.2d at 780. The New Mexico Supreme Court therefore
held that because the plaintiff could not “point to a moment in time at which the sudden,
traumatic, injury-producing event occurred, then we must assume that [p]laintiff’s shock
and emotional distress resulted instead from witnessing the suffering and death of the
victim, which, although tragic, is not compensable under NIED.” Fernandez, 968 P.2d at
780.
In contrast, the record in this case shows that Appellants were becoming distressed
by what they perceived as Vanderbilt’s failure to care for their daughter over a period of
approximately twelve hours. Accordingly, Appellants did realize at the time that their
daughter was going untreated, unlike in Fernandez. Additionally, we need not make an
assumption as to the cause of Appellants’ emotional injuries because there is expert proof
in the record that Appellants’ emotional injuries resulted not just from the death of their
daughter, but from the events at Vanderbilt on March 23 and March 24, 2013. In reaching
8
For this reason, there are some concerns as to whether the rule pressed by the dissent
was even argued by Vanderbilt in this case. Vanderbilt does not rely on the cases used by the
dissent to support its view. Instead, one of Vanderbilt’s central contentions is that this Court
should adopt a rule in line with the California Supreme Court’s rule in Bird v. Saenz, 51 P.3d
324 (Cal. 2002) (discussed in detail infra). California, however, specifically rejected the rule
adopted by the New Mexico Supreme Court. See Ochoa, 703 P.2d at 6–7. Because Vanderbilt
urges this Court to follow California jurisprudence, it does not specifically argue that this Court
also adopt a rule that is at odds with California law.
- 18 -
this conclusion regarding the cause of Appellants’ injuries, two experts expressly pointed
to the worry caused by Vanderbilt’s failure to provide care to the child.
Given these harrowing facts, the dissent repeatedly notes that it is sympathetic to
Appellants in this case. We certainly do not question our colleague’s genuine sympathy
for Appellants’ plight. The dissent, however, chooses to arbitrarily eliminate Appellants’
NIED claim simply because what Appellants witnessed was apparently not an
identifiable, sudden, traumatic event. Instead, plaintiffs with bystander NIED claims must
not only witness injury-producing events, under the dissent’s proposed rule, the injury-
producing event must ostensibly be singular and occur suddenly. Defendants whose
negligence occurs repeatedly or over a period of time before an injury occurs are
seemingly shielded from liability under the dissent’s suggested rule, even when the
plaintiff is present and witnesses the negligence. Such a rule is clearly contrary to not
only the precedent set by the Tennessee Supreme Court in Estate of Amos, but also our
supreme court’s recognition that negligence occurs not only through misfeasance, but
also nonfeasance when the defendant has an affirmative duty to act. See generally
Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 355–59 (Tenn. 2008) (quoting
W. Page Keeton, Prosser and Keeton on the Law of Torts § 56, at 373 (5th ed.1984))
(defining nonfeasance as “passive inaction or a failure to take steps to protect [a third-
party] from harm”); see also Church v. Perales, 39 S.W.3d 149, 164 (Tenn. Ct. App.
2000) (“While the physician-patient relationship exists, the physician has a duty to
continue providing care.”). As such, the sudden occurrence rule constitutes little more
than an attempt to insulate negligent defendants from the foreseeable results of their
negligence. Clearly, to adopt such a rule would be to conflict with the Tennessee
Supreme Court’s clear policy to allow meritorious claims when the other elements of the
NIED tort are met. See Camper, 915 S.W.2d at 442; Ramsey, 931 S.W.2d at 531; Eskin,
262 S.W.3d at 738.
In the absence of any Tennessee decisions providing guidance on what constitutes
an injury-producing event for purposes of a bystander NIED claim, Vanderbilt next urges
this Court to adopt the reasoning and rule espoused by the California Supreme Court in
Bird v. Saenz, 51 P.3d 324 (Cal. 2002). In Bird, the plaintiffs sued the defendant medical
providers for NIED related to healthcare received by the patient, the plaintiffs’ mother.
According to the complaint, one plaintiff accompanied her mother to the hospital for the
insertion of a Port-A-Cath to facilitate intravenous chemotherapy treatments. Id. at 325.
The plaintiff was not present during the procedure, which was expected to take around
twenty minutes. An hour later, the plaintiff heard over the loud speaker that a thoracic
surgeon was needed “stat.” Id. The plaintiff assumed the call was related to her mother
due to her belief that all other surgeries had been completed. Id. More than an hour later,
a physician came to the waiting room to inform the plaintiff that they had trouble
inserting the Port-A-Cath, which may have resulted in a mild stroke. Id. at 325–26.
Eventually, the plaintiff observed medical providers rushing her mother down the hall to
the critical care unit. According to the plaintiff, her mother was “bright blue.” Id. The
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plaintiff’s mother was placed in a closed room while plaintiff remained in the hallway,
where the plaintiff was informed that her mother’s artery had been nicked and where she
observed a doctor running down the hall carrying multiple units of blood. Id. at 926.The
second plaintiff, also the daughter of the patient, arrived in time to observe her mother
again rushed from the room to surgery, still “blue.” Id. According to the California
Supreme Court, the above “are the events on which plaintiffs base their claim for NIED.”
Id.9
The defendant medical providers filed a motion for summary judgment with
regard to plaintiffs’ NIED claims. The defendants argued that the plaintiffs had not been
present in the operating room at the time their mother’s injury occurred but rather had
learned about the alleged negligence only after it had occurred. Id. In response, the
plaintiffs admitted that they had not been present in the operating room but asserted that
the injury-producing event at issue included not only the negligence that occurred during
the operation but also “defendants’ failure immediately to diagnose and treat the damaged
artery.” Plaintiffs also asserted that they “were all aware that [d]efendants . . . were
causing injury to their mother[.]” Id.
The trial court granted the defendants’ motion for summary judgment. Id. at 327.
The California Court of Appeals reversed, concluding that the plaintiffs had presented
evidence sufficient for purposes of summary judgment that they witnessed an injury-
producing event. Id. The California Supreme Court thereafter granted permission to
appeal and began its analysis, like Tennessee courts, by first considering the historical
journey of NIED claims in California jurisprudence. The Court noted that, under
California’s Thing Opinion, the plaintiff’s presence “at the scene of the injury-producing
event at the time it occurs” and the plaintiff’s awareness that “it is causing injury to the
victim” are absolute prerequisites to NIED recovery in bystander cases. Id. (citing
Thing, 771 P.2d at 828).
The defendants in Bird argued that the plaintiffs met neither of these requirements.
The Bird court quickly disposed of any assertion that plaintiffs could prevail as to any
NIED related to the nick of their mother’s artery, as the plaintiffs were not present when
that event occurred. Id. at 328. According to the court, viewing “‘the injurious
consequences of [the defendants’] conduct’ rather than . . . the injury-producing event,
itself,” was simply insufficient to support an NIED bystander claim. Id. (quoting Thing,
771 P.2d at 828). The plaintiffs claimed, however, that they were contemporaneously
aware of defendants’ failure to treat their mother’s injury while it was occurring.
Accordingly, the plaintiff’s argued that the requirements in Thing had been met. Bird, 51
P.3d at 328.
9
The plaintiffs’ mother’s bleeding was stopped during emergency surgery and she was
discharged from the hospital over a month later. Id.
- 20 -
The California Supreme Court disagreed that the requirements set forth in Thing
had been met. As the Court explained:
The problem with defining the injury-producing event as defendants’
failure to diagnose and treat the damaged artery is that plaintiffs could not
meaningfully have perceived any such failure. Except in the most obvious
cases, a misdiagnosis is beyond the awareness of lay bystanders. Here, what
plaintiffs actually saw and heard was a call for a thoracic surgeon, a report
of [the mother] suffering a possible stroke, [the mother] in distress being
rushed by numerous medical personnel to another room, a report of [the
mother] possibly having suffered a nicked artery or vein, a physician
carrying units of blood and, finally, [the mother] still in distress being
rushed to surgery. Even if plaintiffs believed, as they stated in their
declarations, that their mother was bleeding to death, they had no reason to
know that the care she was receiving to diagnose and correct the cause of
the problem was inadequate. While they eventually became aware that one
injury-producing event—the transected artery—had occurred, they had no
basis for believing that another, subtler event was occurring in its wake.
Id. at 328–29. In reaching this decision, the California Supreme Court relied on earlier
California cases where “courts have not found a layperson’s observation of medical
procedures to satisfy the requirement of contemporary awareness of the injury-producing
event.” Id. at 329 (citing Meighan v. Shore, 34 Cal. App. 4th 1025, 40 Cal. Rptr. 2d 744
(Cal. Ct. App. 1995) (holding that wife had no NIED claim where she, as a trained nurse,
witnessed signs of an undiagnosed heart attack in her husband, where initial testing was
to the contrary); Breazeal v. Henry Mayo Newhall Mem’l Hosp., 234 Cal. App. 3d 1329,
286 Cal. Rptr. 207 (Cal. Ct. App. 1991) (holding that the plaintiff’s contemporaneous
awareness of the defendants’ unsuccessful efforts to restore her son’s breathing did not
constitute an injury-producing event because there was no evidence that the physican’s
actions were actually injury-producing, or rather merely attempts to ameliorate an
existing injury); Wright v. City of Los Angeles, 219 Cal. App. 3d 318, 268 Cal. Rptr. 309
(Cal. Ct. App. 1990) (holding that the relative did not witness and comprehend an injury-
producing event when he watched a paramedic examine the patient, but the paramedic
failed to detect signs of sickle cell shock); Golstein v. Superior Court, 223 Cal. App. 3d
1415, 273 Cal. Rptr. 270 (Cal. Ct. App. 1990) (holding that parents could not make out
an NIED claim where they watched their child undergo radiation therapy but only learned
later than he had been lethally overexposed)). Because the rule adopted by the court in
Thing required that the plaintiff “be aware of the connection between the injury-
producing event and the injury,” the Court held that “unperceived medical errors hidden
in a course of treatment” could not serve as an injury-producing event for purposes of the
NIED claims. Bird, 51 P.3d at 331. As such, the California Supreme Court affirmed the
trial court’s decision to grant summary judgment in favor of the defendants on the
plaintiffs’ NIED claims. Id. at 331–32.
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Vanderbilt argues that this Court, like the trial court, should adopt the rule set forth
in Bird and hold, as a matter of law, that the events witnessed by Appellants in this case
do not constitute an injury-producing event for purposes of an NIED claim. In some
respects, we agree with Vanderbilt that the rule espoused in Bird is in accord with
existing Tennessee law. First, we note that Tennessee law generally requires that medical
negligence be proven by experts rather than lay persons. See Osunde v. Delta Med. Ctr.,
505 S.W.3d 875, 880 (Tenn. Ct. App. 2016) (quoting Graniger v. Methodist Hospital
Healthcare Systems, Inc., No. 02A01-9309-CV-00201, 1994 WL 496781, at *3 (Tenn.
Ct. App. Sept. 9, 1994) (discussing the distinction between ordinary negligence and
medical malpractice); see also Tenn. Code Ann. § 29-26-115(b) (requiring that a
competent expert testify as to the standard of care, breach, and causation elements of a
healthcare liability action). Additionally, as previously noted, the Tennessee Supreme
Court in Ramsey required that the defendant’s negligence cause the plaintiff bystander’s
emotional injuries, rather than simply the injury to the victim causing emotional harm to
the plaintiff. Ramsey, 931 S.W.2d at 531. Therefore, Bird’s rule that the plaintiff
understand that the defendant is causing harm to the victim appears to coincide with
Ramsey’s causation requirements, except in those situations where the plaintiff’s claim
falls within the narrow rule recognized in Eskin. See Eskin, 262 S.W.3d at 738 (allowing
an NIED claim to go forward although the plaintiff mother simply could not have been
contemporaneously aware that the defendant’s negligence was causing her daughter’s
injuries because she was not present at the time the injury took place). On the other hand,
however, the decision in Bird is predicated in large part on the California Supreme
Court’s holding in Thing. As previously discussed, however, the Tennessee Supreme
Court has expressly rejected such a narrow view of NIED claims. Id. Moreover,
Tennessee’s NIED jurisprudence is far more relaxed than that adopted by California
courts, as both the need to be present for the injury causing event and the need to be
closely related to the victim have been eased in certain situations. See Lourcey, 146
S.W.3d at 153; Eskin, 262 S.W.3d at 738.
Even if we were to adopt the rule espoused in Bird, however, we conclude that it
would not prove fatal to Appellants’ NIED claim based on the particular facts of this
case. As an initial matter, we note that even the California Supreme Court in Bird
indicated that some forms of medical malpractice may serve as the predicate tort for an
NIED claim. As the Bird court explained:
This is not to say that a layperson can never perceive medical negligence,
or that one who does perceive it cannot assert a valid claim for NIED. To
suggest an extreme example, a layperson who watched as a relative’s sound
limb was amputated by mistake might well have a valid claim for NIED
against the surgeon. Such an accident, and its injury-causing effects, would
not lie beyond the plaintiff’s understanding awareness. But the same cannot
be assumed of medical malpractice generally.
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Bird, 51 P.3d at 329. By way of illustration, the Bird court cited a prior California
Supreme Court case in which the plaintiffs’ NIED claim was allowed to proceed despite
involving medical negligence. See Ochoa v. Superior Court, 39 Cal. 3d 159, 703 P.2d 1
(Cal. 1985). In Ochoa, the plaintiff parents sued the defendant juvenile hall for NIED
after the death of their son. It was undisputed that the mother was present at the juvenile
hall, where she witnessed son’s severe symptoms, including his excruciating pain. Id. at
3–4. Although the mother repeatedly requested that her son receive additional medical
care, including that she be allowed to take him to her personal physician, her requests
were denied, and she was ultimately forced to leave the juvenile hall. Id. at 4. The son
died in the overnight hours. Id. Based upon these facts, the Ochoa Court held that the
mother could make out a bystander NIED claim. In reaching this result, the California
Supreme Court expressly rejected the defendants’ argument that the child’s injuries had
to result from a brief and sudden occurrence. Id. at 6–7 (holding that the “sudden
occurrence” requirement was “an unwarranted restriction” that “arbitrarily limits liability
when there is a high degree of foreseeability of shock to the plaintiff and the shock flows
from an abnormal event, and, as such, unduly frustrates the goal of compensation—the
very purpose which the cause of action was meant to further”). Because the mother “was
aware of and observed conduct by the defendants which produced injury in her child,”
and had knowledge that “the defendants had failed to provide the necessary care,” the
Ochoa Court held that she had sufficiently alleged that she witnessed an injury-producing
event for purposes of her NIED claim. Id. at 7.
The Bird court specifically contrasted the facts before it with Ochoa, describing
the injury producing event in Ochoa as “the failure of custodial authorities to respond
significantly to symptoms obviously requiring immediate medical attention.” Bird, 51
P.3d at 330. The court therefore characterized the holding in Ochoa as allowing the
mother to pursue her NIED claim because she “observed the neglect and recognized it as
harming her son.” Id. In reaching its result, the court distinguished the facts before it, in
which the alleged injury-producing event was the Bird mother’s “misdiagnosis,
unsuccessful treatment, or treatment that turns out to have been inappropriate only in
retrospect,” as opposed to the “failure to provide medical assistance” which form of
negligence “is not necessarily hidden from the understanding awareness of a layperson.”
Id. Accordingly, the Bird court indicated that its holding and the holding in Ochoa were
reconcilable.
More recent caselaw has expressly acknowledged that California does not
“categorically bar plaintiffs who witness acts of medical negligence from pursuing NIED
claims.” Keys v. Alta Bates Summit Medical Center, 235 Cal. App. 4th 484, 489, 185
Cal. Rptr. 3d 313, 318 (2015), reh’g denied (Mar. 11, 2015). In Keys, the plaintiff
daughters were present when their mother experienced difficulty breathing following
thyroid surgery. Id. As the Court explained:
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[Plaintiffs] observed inadequate efforts to assist [their mother’s] breathing,
and called for help from the respiratory therapist, directing him at one point
to suction her throat. They also directed hospital staff to call for the surgeon
to return to [their mother’s] bedside to treat her breathing problems. These
facts could be properly considered by the jury to demonstrate that plaintiffs
were contemporaneously aware of [their mother’s] injury and the
inadequate treatment provided her by defendant.
Id. As such, the California Court of Appeals held that the plaintiffs had contemporaneous
awareness of an injury-producing event sufficient to sustain their NIED claims. Id. (“The
injury-producing event here was defendant’s lack of acuity and response to [their
mother’s] inability to breathe, a condition plaintiffs observed and were aware was
causing her injury.”).
Other courts have likewise held that NIED claims premised on medical negligence
can go forward if: “the victim was (1) a marital or intimate family member of the
claimant, and that the claimant (2) witnessed the malpractice, and (3) immediately
connected or associated the malpractice with the injury, and (4) as a result, suffered
severe emotional distress.” Gendek v. Poblete, 139 N.J. 291, 300, 654 A.2d 970, 974
(1995) (citing Frame v. Kothari, 115 N.J. 638, 560 A.2d 675 (N.J. 1989)) (holding that a
misdiagnosis is insufficient to support a claim for NIED because there was no “close
temporal connection between the misdiagnosis and the injury, as well as the
contemporaneous observation of the injury by the family member”); see also Squeo v.
Norwalk Hosp. Ass’n, 316 Conn. 558, 578, 113 A.3d 932, 945 (Conn. 2015) (allowing
NIED recovery where the plaintiff witnessed “gross misconduct on the part of health care
providers”).
In our view, the facts in this case more closely align with those in Ochoa, rather
than in Bird. Here, as in Ochoa, Appellants have not alleged a misdiagnosis as the cause
of their child’s injuries, but rather Vanderbilt’s failure to treat their daughter. According
to the undisputed facts in this case, Appellants were informed that a cardiology
consultation had been ordered for their daughter. They watched helplessly, however, as
the hours passed without this promised intervention, all the while as their daughter
complained of shortness of breath and pain in her chest. The situation presented in this
case is therefore highly analogous to Keys, where the plaintiff daughters were
contemporaneously aware of their mother’s difficulty breathing, as well as the defendant
medical provider’s failure to take action to treat her condition. Keys, 185 Cal. Rptr. 3d at
318. It is not a misdiagnosis or the failure of specific treatment that Appellants blame for
the death of their child and their resulting emotional distress; rather, Appellants blame
Vanderbilt’s alleged failure to provide their child with medical assistance, which
intervention, in the opinion of a qualified expert, would have saved the child’s life.
Because Appellants undisputedly witnessed this failure of treatment, we cannot conclude,
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at the summary judgment stage, that they did not witness an injury-producing event for
purposes of their NIED claim.
Regardless, Vanderbilt urges this Court to go further than even the Bird court and
adopt a broad rule disallowing NIED claims in the medical negligence context. In
support, Vanderbilt essentially argues that to allow Appellants’ claims would be to open
the flood gates to NIED cases in all healthcare liability cases and to force medical
providers to prohibit family members from visiting hospital patients. In support,
Vanderbilt cites caselaw from other jurisdictions which have adopted a broad rule
disallowing NIED claims that result from alleged medical negligence. For example in
Finnegan ex rel. Skoglind v. Wisconsin Patients Compensation Fund, 2003 WI 98, 263
Wis. 2d 574, 585, 666 N.W.2d 797, 803 (Wis. 2003), the Wisconsin Supreme Court ruled
that NIED claims “premised on medical malpractice” were not recognized by the state’s
medical malpractice statute. Id. ¶ 19.10 In reaching this result, the Wisconsin Supreme
Court noted that the purpose of the medical malpractice statute was “to limit, not expand”
liability for medical malpractice. Id. ¶ 21;11 see also Edinburg Hosp. Auth. v. Trevino,
941 S.W.2d 76 (Tex. 1997) (declining, based on “policy concerns” to allow NIED claims
based upon medical negligence because “[a] bystander may not be able to distinguish
between medical treatment that helps the patient and conduct that is harmful”).
As an initial matter, we note that the courts’ authority to determine Tennessee
public policy is narrow. The Tennessee Supreme Court described its own role as follows:
The law in Tennessee restricts this Court’s role in declaring public policy.
The Court is not free to establish what its members believe to be the best
policy for the State; rather, we must determine where public policy is to be
found, what the specific public policy is, and how it is applicable to the
case at hand. Ordinarily, the Court is not the institution that is called upon
to divine the nature of public policy in its most general terms; this Court
usually decides whether or not any controlling public policy has been
established or declared and then determines how it applies to a particular
case.
10
The argument set forth by the defendants in Finnegan, that the state’s medical malpractice
statute eliminated an NIED claim based on medical negligence, has not been raised in this appeal.
Accordingly, we will not address what effect, if any, Tennessee’s healthcare liability statute has on this
case.
11
Vanderbilt relies heavily on the concurrence in Finnegan. The concurrence disagreed with the
majority’s analysis of the state’s medical malpractice statute but nonetheless would have held that the
plaintiff did not make out an NIED claim because “the failure to make the proper medical diagnosis is not
an event that itself is perceived by a family member.” Id. at ¶ 55. As previously discussed, however, this
case does not involve a misdiagnosis, but the failure to treat, an act which was witnessed by Appellants
and perceived by them to be injuring their daughter.
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Smith v. Gore, 728 S.W.2d 738, 746 (Tenn. 1987). Rather, “[t]he public policy of
Tennessee ‘is to be found in its constitution, statutes, judicial decisions and applicable
rules of common law.’” Id. at 747 (quoting State ex rel. Swann v. Pack, 527 S.W.2d 99,
112 n.17 (Tenn.1975), cert. denied, 424 U.S. 954, 96 S. Ct. 1429, 47 L. Ed. 2d 360
(1976)). Despite settled law that our recognition of public policy must result from current
Tennessee authorities, other than the NIED caselaw thoroughly discussed supra,
Vanderbilt cites only a single Tennessee case in support of its argument that Tennessee
public policy conflicts with the NIED claim in this case, Thurmon v. Sellers, 62 S.W.3d
145 (Tenn. Ct. App. 2001). In Thurmon, the plaintiff mother sued the defendant driver
for wrongful death related to the death of her son in an automobile accident. Among her
claims, the plaintiff mother alleged that she suffered damages from loss of consortium as
well as for her emotional injuries. Id. at 150. The trial court granted a directed verdict on
the mother’s loss of consortium claim. Id. at 151. The Court of Appeals disagreed,
holding that the mother could maintain an action for loss of consortium as part of her
wrongful death claim. Id. at 160–61. The Court noted, however, that the damages
awarded for loss of consortium was limited to pecuniary loss and therefore did not
include damages “for the sorrow and anguish endured as a result of the child’s death.” Id.
at 161 (citing Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118, 123 (1960)).
Respectfully, Thurmon is inapposite to the case-at-bar. First, we note that the
claim by the mother in Thurmon was not an NIED claim.12 The mother in Thurmon
undisputedly did not witness the fatal accident or arrive at the scene shortly thereafter;
instead, the mother’s claim involved only wrongful death. Id. at 149–50. As such, the
limitation of damages for “sorrow and anguish” is applicable only in the context of a loss
of consortium claim. Such a limitation has never been applied in the context of an NIED
claim. Indeed, Vanderbilt cites no law, nor has our research revealed any, in which the
damages for an NIED claim were limited to pecuniary value. Such a limitation directly
conflicts with the purpose of NIED to compensate plaintiffs for emotional, rather than
financial, injuries suffered as the foreseeable result of the defendant’s negligence. See
Ramsey, 931 S.W.2d at 531. Accordingly, we find no public policy expressed in
Thurmon that supports Vanderbilt’s argument in this case.
Although not argued by Vanderbilt, we agree that Tennessee law reflects a public
policy to place limits on claims sounding in medical negligence. Pursuant to the
Tennessee Health Care Liability Act, the Tennessee General Assembly has enacted
procedural and substantive requirements on health care liability actions involving claims
of medical negligence. See Williams v. SMZ Specialists, P.C., No. W2012-00740-COA-
R9-CV, 2013 WL 1701843, at *8 (Tenn. Ct. App. Apr. 19, 2013). The purpose of the
statute was, in part, “‘to reduce the number of frivolous lawsuits filed in Tennessee each
12
Another participant in the accident did file an NIED claim. Thurmon, 62 S.W.3d at 161. The
trial court refused to dismiss this claim, which decision was affirmed by the Court of Appeals. Id. at 163–
164.
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year . . . by requiring early evaluation and streamlined disclosure of medical records.’”
Id. (quoting DePue v. Schroeder, No. E2010-00504-COA-R9-CV, 2011 WL 538865, at
*6 (Tenn. Ct. App. Feb. 15, 2011)). Similarly, the Tennessee Supreme Court has
recognized the danger of meritless NIED claims and has adopted explicit rules to address
that danger without sacrificing meritorious claims. See Camper, 915 S.W.2d at 442.
Specifically, the Court recognized that the possibility of trivial or fraudulent lawsuits is
reduced by the requirement that the plaintiff show a serious or severe emotional injury.
Id. at 443 (“[C]oncerns about possible frivolous or fraudulent lawsuits are dealt with by
strengthening the ‘injury’ or ‘loss’ element of the basic negligence framework.”). The
Tennessee Supreme Court has likewise required that the plaintiff show that his or her
emotional injuries were the foreseeable result of the defendant’s negligence, and, in the
case of standalone claims, that the plaintiff supports his or her injury claim with expert
medical or scientific proof. Ramsey, 931 S.W.2d at 531; Camper, 915 S.W.2d at 446.
The Tennessee Supreme Court has never, however, held that eliminating an entire class
of negligence as constituting an injury-producing event was necessary to separate
meritorious from meritless claims.
Vanderbilt’s suggestion that this Court adopt a broad rule prohibiting all bystander
NIED claims based upon medical negligence therefore conflicts with the Tennessee
Supreme Court’s stated desire to eliminate arbitrary rules barring otherwise meritorious
claims. See Camper, 915 S.W.2d at 442. Accordingly, adopting such a broad rule, either
based on California law or public policy considerations, would conflict with the Camper
court’s express desire to balance the recognition that emotional injuries can occur in a
variety of situations with the need to dispose of “trivial or fraudulent claims” by
considering each case on its individual merits and the factors previously set forth by our
courts. See id. at 440. In line with this more relaxed standard for NIED claims in
Tennessee, were this Court to adopt the rule advanced by Vanderbilt, it would be
imposing additional restrictions on NIED claims, contrary to the clear trend to expand the
circumstances under which plaintiffs may recover for NIED. See Eskin, 262 S.W.3d at
735 (noting that Tennessee NIED jurisprudence has been marked by “a thirty-year period
in which this Court has steadily and consistently expanded the ability of bystanders to
recover damages for the negligent infliction of emotional distress”). As such, important
considerations militate against adopting the broad rule championed by Vanderbilt.
Finally, we note that adopting a blanket rule disallowing NIED claims involving
medical negligence, as Vanderbilt suggests, conflicts with prior Tennessee caselaw
wherein medical negligence served as the predicate tort for NIED claims. See Bain, 936
S.W.2d at 623–24 (noting that to defend against the plaintiff’s claims, the defendant
medical providers submitted evidence that the hospital did not violate “the applicable
medical standard of care” or “applicable health care standards,” the standards that are
applicable in cases of medical malpractice or negligence);13 see also Estate of Amos, 62
13
We concede that Bain is a non-bystander case. Bain, 936 S.W.2d at 623–24. Other non-
- 27 -
S.W.3d at 135 (although not involving medical malpractice, the negligence in Estate of
Amos occurred in a health care setting). A Tennessee Court of Appeals case illustrates
this point. In Rothstein v. Orange Grove Center, Inc., No. E1999-00900-COA-R3-CV,
2000 WL 682648 (Tenn. Ct. App. May 25, 2000), aff’d in part, rev’d in part, 60 S.W.3d
807 (Tenn. 2001), the plaintiffs brought an NIED action against a group home and
physician based on emotional injuries suffered after their adult daughter’s death at a
group home. Id. at *1 According to the parents’ complaint, the daughter complained of
headaches to the group house manager and was administered an over-the-counter pain
medication. The house manager later consulted nurses about the daughter’s fever and
ongoing headaches and was told to administer ibuprofen. Id. On the Sunday before her
death, the parents called the group home inquiring about their daughter. Id. On Tuesday,
the daughter was seen by a physician, who ordered testing. That evening, mother called
the group home to inform them of her daughter’s breathing problem, which consisted of
“a honking sound which would cease when people walked away.” Id. The house manager
informed mother that daughter would be taken to the hospital if the noise persisted. The
next morning, however, the daughter was found in her room not breathing and ultimately
died of bacterial meningitis. Id. The parents’ complaint alleged causes of action for
wrongful death, loss of consortium, and NIED. The trial court eventually granted the
defendants’ motion for judgment on the pleadings with regard to the NIED claim.
The Court of Appeals affirmed the trial court’s decision in favor of defendants,
noting that the parents were not placed in distress by the defendants’ care of their
daughter. Id. at *3. Instead, the evidence showed that parents were “reassured” that their
daughter was being treated and would soon recover. Id. Where the plaintiff parents did
not witness or in any way perceive any medical care that could constitute an injury-
producing event, the Court concluded that their claim failed. Id. Moreover, because the
parents did not allege that they were in any way distressed over the medical care being
provided to their daughter, it appears that the plaintiffs could not show that it was the
defendants’ negligence, rather than merely their daughter’s death, that caused their
emotional injuries. Id. Although the Tennessee Supreme Court later granted permission
to appeal a number of issues in Rothstein, the Tennessee Court of Appeals’ holding with
regard to parents’ NIED claims was left undisturbed. See generally Rothstein v. Orange
Grove Ctr., Inc., 60 S.W.3d 807 (Tenn. 2001).
bystander cases have likewise considered NIED claims based upon allegedly negligent medical care. See
Coleman v. Wilwayco, No. M2005-00075-COA-R3-CV, 2006 WL 140390, at *7 (Tenn. Ct. App. Jan. 17,
2006) (involving an NIED claim predicated on the defendant medical provider’s misdiagnosis of the
plaintiff; affirming dismissal of the claim based upon the plaintiff’s failure to timely submit expert
medical or scientific proof of a severe emotional injury); Durbin, 2001 WL 1013071, at *10. Again, we
note that Tennessee courts have never expressly held that the negligence needed to sustain a bystander
NIED claim is narrower than the negligence needed to sustain a direct claim of NIED.
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The Rothstein case is important because it is one of the few cases considered by
Tennessee courts to address a bystander NIED claim predicated on medical negligence.
The Court of Appeals’ decision, however, is not based on any rule disallowing NIED
claims where the predicate tort involves medical negligence. Rather, the Court focuses on
the fact that the parents did not witness or perceive the acts of medical negligence
alleged. Had the parents witnessed the alleged negligence, a claim for NIED may have
been appropriate; in the absence of such perception, however, the parents’ claim failed. In
Rothstein, however, the only involvement that parents had with the defendants was
learning of past and future treatment through phone calls. As such, there was no
contemporaneous awareness of the daughter’s injuries or their cause.
The situation in this case is markedly different. Not only did Appellants witness
the deterioration and suffering of their daughter, they also witnessed Vanderbilt staff’s
repeated promises to provide additional care to their child, which never occurred until the
child’s acute injury. During this period of hours, Mr. Henderson testified that he became
more distressed and angry at Vanderbilt’s failure to provide the promised care.
According to Appellants’ experts, the failure of Vanderbilt to provide timely treatment
resulted in the child’s unfortunate death. In addition, Appellants’ psychiatric expert
testified that Appellants’ severe emotional injuries were the result of the events leading
up to the child’s injuries, i.e., the period of time in which Appellants witnessed
Vanderbilt’s failure to provide promised care for their daughter. Clearly then, unlike the
mother in Rothstein, Appellants witnessed the alleged negligence that purportedly
resulted in the death of their daughter.
Another case bears mentioning. In Estate of Bradley v. Hamilton Cty., No.
E2014-02215-COA-R3-CV, 2015 WL 9946266, at *7 (Tenn. Ct. App. Aug. 21, 2015),
the sister of a jail inmate brought a bystander NIED claim related to the death of her
brother because of inadequate medical care provided to him in the county jail over a
period of months. The trial court dismissed the claim because the sister had not complied
with the pre-suit notice requirements applicable in health care liability actions. Id. (citing
Tenn. Code Ann. § 29-26-101, et seq.). The Court of Appeals affirmed the dismissal
based upon the pre-suit notice requirements. Bradley, 2015 WL 9946266, at *7. In
holding that the health care liability notice requirements were applicable to the sister’s
NIED claim, this Court impliedly recognized the viability of NIED claims predicated on
medical negligence.14
Based on the foregoing, we respectfully decline Vanderbilt’s invitation to adopt a
broad rule in Tennessee disallowing all NIED claims based upon medical negligence. We
also reject the dissent’s sudden occurrence rule. Here, Appellant’s perception of
Vanderbilt’s alleged failure to provide promised care over a period of hours constitutes
14
Here, there is no allegation that Appellants failed to comply with the notice requirements
applicable to claims involving health care liability.
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an injury-producing event for purposes of Appellants’ NIED claim. Like in Ochoa, Keys,
and Gendek, the injury-producing event alleged is not a misdiagnosis invisible to the lay
person, but the complete failure of Vanderbilt to provide care as promised over a period
of hours, while Appellants helplessly watched their daughter suffer, all the while growing
more and more anxious over the lack of care provided to her. See Keys, 185 Cal. Rptr. 3d
at 318; Gendek, 654 A.2d at 975; Ochoa, 703 P.2d at 7. In addition, the child’s injury did
not materialize days or months later, but within hours of Vanderbilt’s alleged ongoing
failure to provide care, while the child was still under Vanderbilt’s care. See Gendek, 654
A.2d at 975; see also Ochoa, 703 P.2d at 7 (allowing a claim even though the child’s
injury occurred hours after mother witnessed the defendant’s negligence). Under these
circumstances, we conclude that, even if the plaintiff is required to show that he or she
could contemplate not only the injury to the victim, but also the connection between the
victim’s injury and the defendant’s negligence, see Bird, 51 P.3d at 331, such
requirement has been met based upon the particular facts of this case.15 Accordingly, the
trial court erred in granting Vanderbilt’s motion for partial summary judgment on the
basis that Appellants had not shown contemporaneous awareness of an injury-producing
event.
The judgment of the Circuit Court of Davidson County is therefore reversed, and
this cause is remanded to the trial court for further proceedings consistent with this
Opinion. Costs of this appeal are taxed to Appellee, The Vanderbilt University, for which
execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
15
Because of the facts of this case, we need not determine whether such a rule is required under
Tennessee law, nor do we express any Opinion as to the viability of NIED claims based upon medical
misdiagnoses.
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