Day on Torts - New Post: Noneconomic damages cap should be applied to each plaintiff separately in personal injury cases.

Noneconomic damages cap should be applied to each plaintiff separately in personal injury cases.

Posted: 06 Jul 2020 06:01 AM PDT

When an HCLA plaintiff was awarded a verdict for her health care liability claims and her husband was awarded damages for loss of consortium, the trial court correctly considered the plaintiffs separately for the purpose of applying the statutory cap on noneconomic damages.

In Yebuah v. Center for Urological Treatment, No. M2018-01652-COA-R3-CV (Tenn. Ct. App. May 28, 2020), plaintiff had surgery to remove a cancerous kidney in 2005. A CT scan was done four months after surgery, and the radiologist reported no signs of cancer. The radiology report on a subsequent CT scan noted a “tubular structure” within plaintiff’s abdominal cavity, but plaintiff’s treating physician “did not read the reference to the foreign object.” Seven years later, plaintiff required gallbladder surgery due to severe abdominal pain. During that surgery, it was discovered that a “part of a gelport device” had been left inside plaintiff during her 2005 kidney surgery. Plaintiff required another surgery to have the device removed.

Plaintiff and her husband filed suit against the treating doctor, the radiologist who read the first CT scan, and their employers, though the doctors were eventually dismissed from the suit. Defendants admitted fault, so the jury trial focused on causation and damages. The jury returned a verdict of $4 million in noneconomic damages for plaintiff, and $500,000 in noneconomic damages to her husband for loss of consortium.

After the verdict but before entry of the judgment, plaintiffs challenged the constitutionality of Tennessee’s statutory cap on noneconomic damages. The trial court, however, determined that plaintiffs had waived this argument. The trial court first applied the cap and awarded the plaintiffs $750,000 jointly, but after the plaintiffs moved to alter or amend the judgment, the trial court “applied the statutory cap separately to each plaintiff’s award and entered a judgment of $750,000 in favor of [plaintiff patient] and a judgment of $500,000 in favor of [plaintiff’s husband].” On appeal, this ruling on damages was affirmed.

The Court of Appeals first looked at whether plaintiffs had waived their argument that the damages cap was unconstitutional. The Court noted that plaintiffs first raised this issue in a proposed amended complaint, which they served on the Attorney General. Plaintiffs raised the issue again after the jury verdict and requested a hearing. Based on these actions, the Court ruled that the constitutionality argument was not waived. Even though the trial court did not rule on this issue, the Court of Appeals decided to address it in the “interests of judicial economy.” The Court of Appeals ruled that the cap did not violate the Tennessee Constitution. The Court pointed out that most of the arguments raised by plaintiffs were addressed by the Tennessee Supreme Court in McClay v. Airport Management Services, LLC, 596 S.W.3d 686 (Tenn. 2020), where the Supreme Court ruled 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.”

Plaintiffs, however, raised one constitutionality argument not addressed in the McClay opinion—that “the statutory damages 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 Court rejected this argument, finding that because the “statutory cap only applies prospectively to causes of action that accrued on or after the effective date of the statute,” it did not “diminish any vested property rights.” Further, the Court noted that “it is well-settled in Tennessee that no one has a vested right in a particular remedy.” (internal citation omitted).

After ruling that the cap was constitutional, the Court addressed defendants’ argument that the $750,000 noneconomic damages cap should have been applied to the damages in total, meaning the husband and wife should have been limited to $750,000 jointly. The Court looked at Tenn. Code Ann. section 29-39-102(a) and (e) and pointed out that the statute repeatedly uses the phrase “each injured plaintiff,” indicating that the “legislature chose to impose a ‘per plaintiff’ limit on noneconomic damages.” The Court held that “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 Court explained that this included loss of consortium plaintiffs, as “the right to recover for loss of consortium is…independent of the spouse’s right to recover for their own injuries.” (internal citation omitted). The Court also clarified that the language addressing loss of consortium claims in subsection (e) of the statute “addresses the all-too-common scenario in which an injured plaintiff suffers more than one type of noneconomic damages,” such that a plaintiff who “seeks compensation for both personal injuries and loss of consortium” will be limited to “one award of noneconomic damages for all injuries not to exceed $750,000.”

Finally, after rejecting several evidence arguments raised by defendants, the Court also refused to hold that the jury’s $4 million damages award to plaintiff (which included $2 million for pain and suffering and $2 million for loss of enjoyment of life) and $500,000 award to her husband was excessive. The Court noted that the trial court “was satisfied with the amount of the verdict” and ruled that there was material evidence to support the verdict. The Court noted that the device was inside plaintiff for eight years, that she testified about “prickly pain” she experienced during that time, that she and her husband testified that the pain “made marital intimacy uncomfortable,” and that she had to have a surgery that “came with its own set of risks” to remove the device. The Court stated that jury verdicts cited by defendants from 2003, 2008, and 2009 were “simply too far removed in time to yield a useful comparison,” and ruled that the verdict, “while high, [was] within the range of reasonableness.”

Accordingly, the Court of Appeals affirmed the trial court’s application of the damages cap to each plaintiff individually and found that the trial court did not err in refusing to grant defendants a new trial.

This is an important opinion, as it clarifies that the statutory cap on noneconomic damages should be applied separately to each injured plaintiff, including plaintiffs claiming only loss of consortium. It also is an example of a very large noneconomic damages award being affirmed as within the range of reasonableness even in the absence of a catastrophic injury.

Note: this opinion was released almost eleven months after oral argument. However, it is assumed that the opinion was delay pending the Tennessee Supreme Court’s release of the McClay v. Airport Management Services, LLC opinion earlier this year.