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Durbin v. Sumner County Regional Health Systems9/6/2001
igent act by Dr. Caldwell in their Second Amended Complaint. Even though the appellants alleged the infliction of emotional distress, there is no statement in the expert disclosure that states this misdiagnosis on July 26 caused emotional distress. Therefore, evidence of the misdiagnosis is outside the scope of the appellants' complaint. In addition, the doctor's misdiagnosis after the death of the twins is not relevant to Dr. Caldwell's care of Mrs. Durbin's pregnancy. Evidence is relevant if it "ha any tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probable than it would be without the evidence." Tenn. R. Evid. 401.
We also note that appellants' conjecture that Dr. Caldwell purposefully misdiagnosed Mrs. Durbin's condition to "buy himself more time" is completely without support in the record. This unsupported allegation does not make this testimony suddenly relevant.
D. Testimony Regarding Dr. Caldwell's Care of Another Set of Twins
At trial, Mrs. Durbin attempted to testify regarding another set of twins that Dr. Caldwell delivered after the delivery of her twins. She stated that Dr. Caldwell had a conversation with her concerning that delivery. At that point, Dr. Caldwell objected to the testimony. The trial court responded to the objection by stating that the appellants needed to lay the foundation as to the relevance of the other set of twins to the issues at trial. Mrs. Durbin again testified that she had a conversation with Dr. Caldwell, and he told her that he had delivered a set of twins who lived. Dr. Caldwell objected again. The appellants' attorney, Ms. Fernandez, responded that she was trying to lay a foundation for a later action. She then stated that she would move directly to that action.
The appellants now argue that the trial court should have allowed Mrs. Durbin's testimony regarding the other set of twins. The trial court gave appellants the opportunity to lay a foundation in order to bring in the testimony, but appellants chose not to do so. Appellants clearly did not make an offer of proof regarding this testimony and moved on with their direct examination of Mrs. Durbin. Relief shall not be granted "to a party responsible for an error or who failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error." Tenn. R. App. P. 36(a). Clearly, the appellants were given ample opportunity by the trial court to introduce the testimony. Because they did not attempt to lay a foundation, the testimony was not relevant.
E. Pecuniary Value of the Lives of the Twins
The appellants argue that the trial court erred when it did not allow them to enter evidence of their earnings history, present earnings, future earnings and future education of the appellants, as well as their plans, hopes and dreams for the twins. The appellants state in their argument to this court that such evidence "has historically formed the basis for a calculation of the pecuniary value of the life of a minor . . . ." They cite no authority for this proposition. The cases concerning pecuniary value of the life of a minor state that the pecuniary value should "be measured by the experience and judgment of the jury, enlightened by a knowledge of the age, sex and physical and mental characteristics of the child." Strother v. Lane, 554 S.W.2d 631, 636 (Tenn. Ct. App. 1976); Crowe v. Provost, 52 Tenn. App. 397, 417, 374 S.W.2d 645, 654 (Tenn. Ct. App. 1963) (emphasis added). The trial court's ruling excluding the parents' earnings past, present and future, as well as their hopes, dreams and plans for the twins, was proper.
F. Appell
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