Still by Erlandson v. Baptist Hosp., Inc.

• Decision Date: 20 May 1988
• Docket Number: No. 87-381-II,87-381-II
• Citation: 755 S.W.2d 807
• Parties: Erica Mae STILL, by her next friend and grandmother, Florence Faye ERLANDSON, Plaintiff-Appellant, v. BAPTIST HOSPITAL, INC. and James W. Johnson, M.D., Defendants-Appellees. 755 S.W.2d 807
• Court: Tennessee Court of Appeals

Page 807

755 S.W.2d 807

Erica Mae STILL, by her next friend and grandmother, Florence Faye ERLANDSON, Plaintiff-Appellant, v. BAPTIST HOSPITAL, INC. and James W. Johnson, M.D.,

Defendants-Appellees.

No. 87-381-II.

755 S.W.2d 807

Court of Appeals of Tennessee,

Middle Section, at Nashville.

May 20, 1988.

Published in Accordance with Rule 11 of

the Rules of the

Court of Appeals.

John T. Conners, Jr., William D. Leader, Jr., Boult, Cummings, Conners & Berry, Nashville, for plaintiff-appellant.

Gayle Malone, Jr., Jeffrey Zager, Trabue, Sturdivant & DeWitt, Nashville, for defendant-appellee Baptist Hosp., Inc.

W.W. McNeilly, Jr., John B. Carlson, Watkins, McGugin, McNeilly & Rowan, Nashville, for defendant-appellee James W. Johnson, M.D.

OPINION

CANTRELL, Judge.

The plaintiff, Erica Mae Still, a minor, brought suit by her next friend and grandmother Florence Faye Erlandson to recover damages "for the loss of services, care, society, companionship, love, and support" her mother, who the complaint alleges was permanently mentally and physically disabled through the negligence of the defendants, would otherwise have given her. The defendants moved to dismiss the claim under Tenn.R.Civ.Proc. 12.02(6) for failure to state a claim upon which relief can be granted. The trial judge dismissed the complaint, and the plaintiff appeals.

The facts alleged in the complaint are as follows: The plaintiff was born on October 2, 1986 at the Baptist Hospital in Nashville. She is the only child of Pamela Still. Defendant Johnson was the attending obstetrician. Pamela and Erica were discharged on October 5, but about a week later Pamela was readmitted to the hospital suffering from post-partum bleeding. Dr. Johnson operated on Pamela on October 15 to stop the bleeding. On the evening of October 16, Pamela had a "brain seizure" which resulted in permanent mental and physical disability. The complaint alleges that Dr. Johnson negligently failed to diagnose and treat Pamela, and, somewhat inconsistently, that the employees of Baptist Hospital failed to follow properly Dr. Johnson's instructions to treat Pamela, resulting in the seizure.

The plaintiff and the defendants agree that a cause of action for loss of parental consortium has not heretofore been recognized in Tennessee. Such an action was unknown at common law and unanimously rejected by courts until recent years. See Annot., 11 A.L.R. 4th 549 (1982). Beginning with a 1980 decision of the Supreme Judicial Court of Massachusetts, Ferriter v. Daniel O'Connell's Sons, 381 Mass. 507, 413 N.E.2d 690 (1980), appellate courts in several states have stated that a child has the same interest in the consortium of a parent as spouses have in each other, ¹ and have permitted recovery for its loss.

The plaintiff's position is summarized by the following quote:

"A child has an interest in the society and affection of his parent. Furthermore, the society, education, protection and love of a parent is necessary for the child's welfare and development.... When the child is deprived of his parents' society, care, protection and affection he suffers a real injury.... Similarly, the child's loss of his parents' love, society and protection deprives him of the essentials for a healthy development and thus results in a real injury to the child.

Protection of the child against this type of injury to the family relationship is equally important to the state. Since the character of the child has an impact on society 'it is of the highest importance to the child and society that its rights to receive the benefits derived from its mother [or father] be protected.' "

Comment, The Child's Claim for Loss of Consortium Damages: A Logical and Sympathetic Appeal, 13 San Diego L.Rev. 231, 237-8 (1975) (footnotes omitted).

This view, in addition to being accepted by the courts in the cases cited above, has been supported by eminent text writers. See W. Keeton, Prosser and Keeton on Torts 934-5 (5th ed. 1987); 1 H. Clark, The Law of Domestic Relations 689-92 (2d ed. 1987). The vast majority of courts, however, have refused to recognize the cause of action. ²

Naturally the parties differ sharply on whether a cause of action for loss of parental consortium should be recognized in Tennessee. The defendants maintain that since the cause of action was unknown at common law, a change now would involve policy questions so complex and such conflicting interests that the matter should be left to the General Assembly. The plaintiff argues that since actions for loss of consortium originated with the common law courts, this court would be justified in extending the scope of the action if it sees fit.

The History of Consortium

I.

Holdsworth, in discussing the origins of laws concerning domestic relations, emphasizes that laws concerning wards, infants, wives, and servants were more heavily stressed than today, and that property law and remedies for infringement of proprietary rights were more highly developed than contract law. This has resulted, he said, in the unsatisfactory state of some of the rules in this area down to the present day. 8 W. Holdsworth, A History of English Law 427 (1926). It was well established that a master had a "quasi-proprietary" interest in his servants' services, a holdover from the feudal relationship between a serf and his lord.

Because married women, in the centuries before the Married Women's Property Acts, were considered as one with their husbands, ³ they had no status to sue on their own behalf for wrongs committed against them. The husband would sue for the damages and join his wife in the action. In the early part of the seventeenth century, the courts concluded that a husband's interest in his wife's services was analogous to the interest he had in a servants service's, and he could sue in his own name, without joining his wife, if they were lost. Holdsworth, supra, 429-30.

In Guy v. Livesey, Cro.Jac. 501, 79 Eng.Rep. 423 (1619), the plaintiff sued the defendant for the battery of himself as well as for the battery of his wife

and it was found against [the defendant] in both ... and the damages given, for that the plaintiff's wife went with the defendant and lived with him in a suspicious manner. And it was now moved in arrest of judgment, that the husband ought not to join the battery of his wife with the battery which was done to himself; and he cannot have an action for the battery of his wife ... so the defendant may be twice punished for one and the same battery.... [Emphasis added].

The Court, however, saw the analogy between husband and wife and master and servant:

But all the Court held, that the action was well brought; for the action is not brought in respect of the harm done to the wife, but is brought for the particular loss of the husband, for that he lost the company of his wife, ... for which he shall have this action, as the master shall have for the loss of his servant's service.

Id. at 502, 79 Eng.Rep. at 428. See also Hyde v. Scyssor, Cro.Jac. 538, 79 Eng.Rep. 462 (1620).

II.

Thus was the modern law of consortium created. Over the years it became firmly entrenched in the common law, even as the original reasons for its existence withered away. As Oliver Wendell Holmes, Jr., once noted:

A very common phenomenon, and one very familiar to the student of history, is this. The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adopts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received. The subject under consideration illustrates this course of events very clearly.

O.W. Holmes, The Common Law, 5.

It was very clearly recognized, in the early seventeenth century, that a cause of action per quod consortium amisit ("whereby he lost the company [of his wife]") would permit double recovery for the same tort, as the extract from Guy v. Livesey shows. The analogy between wives and servants, however, appeared to be strong enough to overcome the inequity of double recovery. Yet, despite the fact that no one today would justify recovery on such grounds, the law of consortium, true to Holmes' hypothesis, has been a hardy survivor in the jungle of junked common law rules. Even as the equation of wives with servants was disappearing, actions for consortium survived various challenges to their validity, and seemed, in fact, to take on a new and vigorous lease on life.

The passage of married women's property acts which purported to emancipate married women "from all disability on account of coverture," and abrogate "the common law as to the disabilities of married women" (see 1913 Tenn.Pub. Acts ch. 26, codified at Tenn.Code Ann. Sec. 36-3-504) was held in Tennessee and in most other states not to abolish a husband's right to the services of his wife; and therefore actions per quod consortium amisit could continue to be maintained by husbands, City of Chattanooga v. Carter, 132 Tenn. 609, 611, 179 S.W. 127 (1915), although there were for a time decisions in other states to the contrary. See, e.g., Bolger v. Boston Elevated R.R. Co., 205 Mass. 420, 91 N.E. 389 (1910). The Tennessee Supreme Court in Carter stated that the Act encompassed only a married women's property rights in marriage, not her personal rights, and concluded: "The act does not deprive either the husband or wife of the conjugal relationship, with its duties and rights." 132 Tenn. at 611, 179 S.W. at 127.

Rather than being annihilated by newer views of a woman's place...