Legal Update

LEGAL UPDATE By: Hannah S. Lowe

Fields Howell LLP

TENNESSEE’S NONECONOMIC DAMAGES CAP DOES NOT APPLY SEPARATELY TO A SPOUSE’S LOSS OF CONSORTIUM CLAIM

In Yebuah v. Center for Urological Treatment, PLC, the Tennessee Supreme Court addressed for the first time the application of Tennessee’s statutory cap on noneconomic damages to loss of consortium claims.1

The case arose out of a March 2005 surgical procedure performed by Dr. Frank Lohrasbi to remove Mrs. Yebuah’s left kidney after a CT scan revealed a potentially malignant mass.2 Mrs. Yebuah recovered, and radiology reports in 2005, 2006, and 2007 indicated no sign of cancer, although the 2006 and 2007 reports both noted a “tubular structure” in her abdominal cavity.3 Dr. Lohrasbi reported the radiology results to Mrs. Yebuah but did not mention the tubular structure.4 In 2012, during an unrelated procedure to remove her gallbladder, the tubular structure was found and determined to be a portion of a Gellport device left inside after the 2005 surgery.5 It was eventually removed in November 2013.6

Mrs. Yebuah and her husband filed suit against Dr. Lohrasbi and his employer, the Center for Urological Treatment, PLC (“the Center”), along with the radiologists and their employer, Radiology Alliance, P.C., for negligence for leaving the device inside her abdomen and failing to discover it during the follow up CT scans.7 Mrs. Yebuah had no permanent injury but sought recovery for noneconomic damages.8 Her husband claimed loss of consortium.9

At trial, the jury awarded Mrs. Yebuah $2,000,000 for pain and suffering, $2,000,000 for loss of enjoyment of life, and $500,000 for Mr. Yebuah’s loss of consortium claim.10 The trial court applied the statutory noneconomic damages cap, T.C.A. § 29-39-102, to reduce the total damage award to $750,000.11 The Yebuahs filed a motion to alter or amend, arguing the cap was unconstitutional and, alternatively, incorrectly applied.12 The trial court found they had waived their constitutional challenge but agreed the cap should apply separately to each plaintiff’s damages award and amended the judgment to $750,000 for Mrs. Yebuah and $500,000 for Mr. Yebuah.13

The defendant appealed, and the Court of Appeals and affirmed the trial court.14 The Supreme Court granted cert. and, in an opinion authored by Justice Roger Page, reversed the lower courts, finding the statute is a single cap on noneconomic damages that includes those awarded to the primary injured spouse as well as those awarded to the other spouse for a derivative loss of consortium claim.15

The statute states as follows: (e) All noneconomic damages awarded to each injured plaintiff, including damages for pain and suffering, as well as any claims of a spouse or children for loss of consortium or any derivative claim for noneconomic damages, shall not exceed in the aggregate a total of [… $750,000], unless subsection (c) applies, in which case the aggregate amount shall not exceed [… $1,000,000].16

In reaching its decision, the Supreme Court noted the phrase “each injured plaintiff” is not synonymous with “each plaintiff,” as such an interpretation would render the word “injured” unnecessary, which would be improper statutory construction, as “a legislature is presumed to have used no superfluous words.”17 The Court noted several examples in Tennessee law of the distinction between an “injured plaintiff” and a spouse with a loss of consortium claim,18 and reasoned that while a loss of consortium claim is clearly a separate injury and cause of action, it is helpful to distinguish between a plaintiff who suffered medical negligence and their spouse who did not by using the word “injured” to modify “plaintiff” when discussing the party with the primary cause of action.19 The Court further reasoned that as a loss of consortium claim is a derivative claim with recovery dependent on the spouse’s recovery, the consortium spouse does not “lose” his or her claim by application of the statutory cap but “[t]heir damages are simply limited”.20

The Supreme Court further reasoned that “[t]he Yebuahs and the Court of Appeals interpretation also render[ed] subsection (e) superfluous,” and as the legislature defined the phrase “noneconomic damages” to include “loss of society, companionship, and consortium,”21 the legislature’s use of the words “in the aggregate” meant all noneconomic damages as a whole must be subject to the single cap of $750,000.22 The Court also disagreed with the Yebuahs’ contentions the Tennessee GTLA supported their reading of the statute, and that allowing one cap on noneconomic damages between spouses had the potential to create marital discord between spouses, as “a loss of consortium claim presupposes the existence of an intact marital relationship.”23 The Court also noted that other states have similarly concluded a single cap applies under similarly worded statutes.24 Finally, the Court found the Yebuahs had waived their constitutionality arguments, which had in any event been properly determined by the Court of Appeals as resolved by the Supreme Court’s decision in McClay v. Airport Management Services, LLC.

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Justice Lee authored a dissent, in which the late Justice Cornelia Clark joined. In line with her dissent in McClay, 26 Justice Lee would find the statute unconstitutional as a violation of the right to trial by jury, and as such any application of the cap cannot withstand constitutional scrutiny.27

1 624 S.W.3d 481 (Tenn. 2021). 2 624 S.W.3d at 484. 3 Id. 4 Id. 5 Id. 6 Id. 7 Id. The individual doctors were dismissed before trial, and Radiology Alliance PC was granted a directed verdict, so the case went to the jury against the Center only. 8 Id. 9 Id. 10 Id. at 485. 11 Id. 12 Id. 13 Id. 14 No. M2018-01652-COA-R3-CV, 2020 WL 2781586, *4 (Tenn. Ct. App. 2020). The Court of Appeals also found the trial court erred in determining the Yebuahs waived their constitutional challenge, but that the Supreme Court’s decision in McClay v.

Airport Management Services, LLC, 596 S.W.3d 686 (Tenn. 2020) had resolved the constitutional issue. 15 624 S.W.3d at 491.