July 12, 2020

The Court of Appeals of Tennessee at Nashville (“Tennessee Appellate Court”) held in its opinion dated May 28, 2020: “we conclude that the trial court erred in refusing to consider the plaintiffs’ constitutional issue. But because we also conclude that the statutory cap on noneconomic damages is constitutional and was applied properly and that the defendant is not entitled to a new trial or a remittitur, we affirm.”

The Underlying Facts

Following surgery to remove a cancerous kidney, part of a gelport device was left inside the patient. The “tubular structure” was observed and reported in a subsequent CT scan but the surgeon failed to advise the patient regarding that finding. Eight years later, during unrelated gallbladder surgery, that surgeon discovered a white cylindrical object inside the patient’s abdominal cavity and her small bowel was looped around the object and multiple adhesions had formed. The surgeon also noted some chronic inflammation around the object. The surgeon ordered another CT scan that showed a 14-centimeter ring inside the patient’s abdomen but no bowel obstruction. The surgeon who had performed the kidney removal surgery eight years earlier subsequently advised the patient and her husband that he believed the ring was part of a gelport device used during the kidney removal surgery that had separated during that surgery.

The patient and her husband brought a Tennessee health care liability action against multiple defendants, including the surgeon who removed the kidney and the radiologist who initially failed to detect the foreign object. The trial focused solely on causation and damages because the defendants admitted fault.

The Tennessee medical malpractice jury returned a verdict in favor of the plaintiffs and awarded $4 million in noneconomic damages to the patient for her pain and suffering and loss of enjoyment of life, and an additional $500,000 in noneconomic damages to her husband for loss of consortium.

The trial court initially applied the statutory cap on noneconomic damages in Tennessee medical malpractice cases to the total damages award and entered a judgment of $750,000 in favor of both plaintiffs. In response to the plaintiffs’ motion to alter or amend, the trial court issued a revised judgment of $750,000 in favor of the patient and $500,000 in favor of the husband. But the court refused to address the plaintiffs’ arguments premised on the constitutionality of the statutory cap, ruling that the issue had been waived. The court also denied the defendant’s motion for a new trial or for a remittitur.

Tennessee Appellate Court Opinion

Compensation for noneconomic damages in civil actions in Tennessee is capped at $750,000 for each injured plaintiff “for all injuries and occurrences that were or could have been asserted, regardless of whether the action is based on a single act or omission or a series of acts or omissions that allegedly caused the injuries or death.” Tenn. Code Ann. § 29-39-102(a)(2). For plaintiffs who experience a “catastrophic loss or injury,” the cap increases to $1,000,000. § 29-39-102(c)-(d). The trial court applies the cap after the jury has assessed damages. § 29-39-102(g). Some exclusions do apply (§ 29-39-102(h)(l)) but none of the exceptions applied in this case on appeal.

While the appeal was pending, the Tennessee Supreme Court ruled, as a matter of law, “that the statutory cap on noneconomic damages in Tennessee Code Annotated section 29-39-102 does not violate the right to trial by jury, the doctrine of separation of powers, or the equal protection provisions of the Tennessee Constitution.” McClay, 596 S.W.3d at 696. The Tennessee Appellate Court stated that it was bound by that decision.

With regard to the plaintiffs’ argument that the statutory cap diminishes the value of a plaintiff’s cause of action without sufficient public purpose, and without compensation, in violation of the takings doctrine, the Tennessee Appellate Court stated: “a property interest in a cause of action cannot vest until the cause of action has accrued … [a]nd the statutory cap only applies prospectively to causes of action that accrued on or after the effective date of the statute … Thus, it does not diminish any vested property rights. Besides, it is well-settled in Tennessee that “no one has a vested right in a particular remedy.””

The Tennessee Appellate Court further held: “Given the legislature’s choice to impose a “per plaintiff” cap, we conclude that, when there are two injured plaintiffs, the cap should be applied separately to the noneconomic damages awarded to each injured plaintiff.”

The Tennessee Appellate Court lastly held: “The damages awarded by the jury are supported by material evidence. And we discern no reversible error in the conduct of the trial. So we also affirm the court’s denial of the motion for a new trial or remittitur.”

Source Yebuah v. Center for Urological Treatment, PLC, No. M2018-01652-COA-R3-CV.

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