Fox & Farley, Attorneys at Law

Can I Recover Damages for a Speculative Injury?

In any type of personal injury litigation, such as health care liability or product liability, it is not enough for a plaintiff to establish the defendant was negligent. There must also be proof the defendant’s “act or omission” resulted in some measurable damage to the plaintiff. Tennessee courts may dismiss a plaintiff’s lawsuit if it alleges only a speculative or hypothetical injury.

Supreme Court Rejects Mother’s Lawsuit Against Negligent Clinic

The Tennessee Supreme Court recently addressed such a case. The plaintiff is a mother of three who suffered a complication during her most recent pregnancy. The plaintiff has an Rh-negative blood type, while her child’s blood was an Rh-positive type. When Rh-negative blood mixes with Rh-positive blood, the immune system produces antibodies harmful to the positive blood. If the mother and child’s blood mixes during delivery, the mother develops what is known as Rh-sensitization. This is not harmful to the mother or child, but if the mother subsequently carries another child with Rh-positive blood, her antibodies may cross the placenta and attack that child’s blood cells, which can lead to anemia, jaundice, or more serious birth defects.

Rh-sensitization is preventable through an injection of a medicine known as RhoGAM. Health care providers normally provide this injection before the 28th week of pregnancy. In this case, the plaintiff did not receive such an injection. She subsequently developed Rh-sensitization during the delivery of her third child.

The plaintiff sued the health care clinic and doctor which treated her during her pregnancy. She alleged their negligence in failing to administer RhoGAM injured her in several respects, including the “disruption” of her family planning and ability to “conceive unimpaired, healthy children, free from an abnormally high risk of birth defects or premature fetal death.” The plaintiff said she was entitled to compensation for her “emotional distress” as well as for any “medical expenses that may become necessary in the future to treat complications” arising from her Rh-sensitization.

While expressing “sympathy” for the plaintiff’s situation, the Supreme Court ultimately affirmed a trial judge’s decision to dismiss her complaint. Although the defendants clearly deviated “from the recognized standard of acceptable professional practice,” the plaintiff could not prove she “sustained any damages related to this injury” or that “such damages are reasonably certain to occur” in the future. As the Court explained, at least two contingencies must happen before the plaintiff suffers any legal damages: the plaintiff has to become pregnant again and her hypothetical unborn child has Rh-positive blood. Even then, the Court emphasized there was only a “risk” of injury to the hypothetical child.

Need Help From a Personal Injury Lawyer?

Cases like this do not mean medical providers cannot be held accountable for negligent care, only that courts require proof of something more than a speculative injury to the victim. That is why if you have been injured due to someone else’s negligence, it is important you seek legal advice from an experienced Tennessee personal injury lawyer. Contact the offices of Fox & Farley, Attorneys at Law, in Clinton or Knoxville today if you need to speak with someone right away.

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