Kelly on Malpractice 2.0

IX.       Damages

            Your damages assessment is significant.  It may be more significant than any other element.  Tennessee law allows the recovery of loss of consortium as an element of the pecuniary value of the decedent.[i]  In my opinion, Jordantripled the value of wrongful death claims.  Parental, spousal, and filial consortium losses are part of the decedent’s pecuniary value.[ii]  Economists are no longer sine qua nonin wrongful death cases.  To get top dollar in wrongful death cases, you must “resurrect” the decedent.  You need to collect biographical information: school records, extra-curricular activities, work records, hobby interests, church attendance, and so forth.  More important, you need to explore the decedent’s relationship with other family members.  In spousal consortium cases, the possibility of remarriage may be relevant. 

            With regard to personal injury claims, my litmus test is whether the injury is permanent and catastrophic.[iii]  The stakes are higher in these cases.  A serious permanent injury levels the playing field against the health care provider. This is a major reason why malpractice verdicts are substantial.  Claims involving questionable or temporary injuries are difficult to win.  I steer away from aesthetic or cosmetic injuries. Plastic surgeons have an exceptionally high victory rate at trial.  Perhaps aesthetic injuries are judged like beauty itself — in the eye of the beholder. Look for significant, lifelong injuries that will make the jury believe, “This is a big case.”                                                                      

The new tort reform law has changed everything drastically.  Tenn.Code Ann. § 29-39-101 et seq. applies to every civil action including medical malpractice.  Here are the changes:

(a) “Economic damages” means damages, to the extent they are provided by applicable law, for: objectively verifiable pecuniary damages arising from medical expenses and medical care, rehabilitation services, mental health treatment, custodial care, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, repair or replacement of property, obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other objectively verifiable monetary losses.

(b) “Noneconomic damages” means damages, to the extent they are provided by applicable law, for: physical and emotional pain; suffering; inconvenience; physical impairment; disfigurement; mental anguish; emotional distress; loss of society, companionship, and consortium; injury to reputation; humiliation; noneconomic effects of disability, including loss of enjoyment of normal activities, benefits and pleasures of life and loss of mental or physical health, well-being or bodily functions; and all other nonpecuniary losses of any kind or nature.

§ 29-39-102.
(a) In a civil action, each injured plaintiff may be awarded:

(1) Compensation for economic damages suffered by each injured plaintiff; and

(2) Compensation for any noneconomic damages suffered by each injured plaintiff not to exceed seven hundred fifty thousand dollars ($750,000) 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.

(b) If multiple defendants are found liable under the principle of comparative fault, the amount of all noneconomic damages, not to exceed seven hundred fifty thousand dollars ($750,000) for each injured plaintiff, shall be apportioned among the defendants based upon the percentage of fault for each defendant, so long as the plaintiff’s comparative fault (or in a wrongful death action, the fault of the decedent) is not equal to or greater than fifty percent (50%), in which case recovery for any damages is barred.

(c) If an injury or loss is catastrophic in nature, as defined below, the seven hundred fifty thousand dollar ($750,000) amount limiting noneconomic damages, as set forth in subsections (a)(2) through (b) is increased to, but the amount of damages awarded as noneconomic damages shall not exceed, one million dollars ($1,000,000).

(d) “Catastrophic loss or injury” means one or more of the following: (1) Spinal cord injury resulting in paraplegia or quadriplegia; (2) Amputation of two hands, two feet or one of each;

(3) Third degree burns over forty percent (40%) or more of the body as a whole or third degree burns up to forty percent (40%) percent or more of the face; or

(4) Wrongful death of a parent leaving a surviving minor child or children for whom the deceased parent had lawful rights of custody or visitation.

(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 seven hundred fifty thousand dollars ($750,000), unless subdivision (c) applies, in which case the aggregate amount shall not exceed one million dollars ($1,000,000).

(f) If there is a disputed issue of fact, the trier of fact, by special verdict, shall determine the existence of a catastrophic loss or injury as defined in subsection (d).

(g) The limitation on the amount of noneconomic damages imposed by subsections (a)(2) through (e) shall not be disclosed to the jury, but shall be applied by the court to any award of noneconomic damages.

(h) The limitation on the amount of noneconomic damages imposed by subsections (a)(2) through (e) shall not apply to personal injury and wrongful death actions:

(1) If the defendant had a specific intent to inflict serious physical injury, and the defendant’s intentional conduct did, in fact, injure the plaintiff;

(2) If the defendant intentionally falsified, destroyed or concealed records containing material evidence with the purpose of wrongfully evading liability in the case at issue, provided, however, that this subsection does not apply to the good faith withholding of records pursuant to privileges and other laws applicable to discovery, nor does it apply to the management of records in the normal course of business or in compliance with the defendant’s document retention policy or state or federal regulations; or

(3) If the defendant was under the influence of alcohol, drugs or any other intoxicant or stimulant, resulting in his or her judgment being substantially impaired, and causing the injuries or death. For purposes of this subsection, a defendant shall not be deemed to be under the influence of drugs or any other intoxicant or stimulant, if the defendant was using lawfully prescribed drugs administered in accordance with a prescription or over-the-counter drugs in accordance with the written instructions of the manufacturer.

(i) If there is a dispute of fact, the trier of fact, by special verdict, shall determine whether the exceptions set forth in subsection (h) apply to the defendant and the cause of action.

(j) The liability of a defendant for noneconomic damages whose liability is alleged to be vicarious shall be determined separately from that of any alleged agent, employee or representative.

(k) Noneconomic damages are not permitted for any claim arising out of harm or loss of property, except as authorized by statute.

(l) No provision in this part shall apply to claims against the state of Tennessee to the extent that such provision is inconsistent with or conflicts with the provision of the Tennessee Claims Commission Act, codified in title 9, chapter 8, part 3. In addition, no provision in this part shall apply to claims against a governmental entity or its employees to the extent that such provision is inconsistent with or conflicts with the Governmental Tort Liability Act, codified in title 29, chapter 20.

(m) Nothing in this Act shall be construed to create or enhance any claim, right of action, civil liability, economic damage or noneconomic damage under Tennessee law.

(n) The limitations on noneconomic damages in § 29-39-102 shall apply to restrict such recoveries in all civil actions notwithstanding conflicting statutes or common law.

Hopefully, our Supreme Court will strike this law down as unconstitutional.  It is ironic that a conservative legislature, which lauds small government, enacted this “big government” legislation. I agree with Fred Thompson when he said, “if we can trust jurors to decide life and death in murder cases, then we can trust them to decide the proper amount of damages in a civil case.”

Pictures are worth a thousand words.  Suppose you have pictures taken at autopsy in a wrongful death case that you want to show the jury.  The defendant wants to exclude those pictures as unduly prejudicial or inflammatory. There is some law in the issue. Whether to admit autopsy photographs is “always an issue of simple fairness.” State v. Price, 46 S.W.3d 785, 815-16 (Tenn.Crim.App.2000). The trial court must consider the probative value versus the potential prejudice of the photographs.  Prejudice becomes unfair when the primary purpose of the photograph is to elicit emotions of “bias, sympathy, hatred, contempt, retribution, or horror.”  

On the other hand, a photograph’s accuracy help prove a disputed issue.  For example, photographs made during an autopsy showing “attack wounds” are relevant when the state has to prove the elements of intent and premeditation.  When photographs demonstrate the manner and extent of the attack on the victim, they have a direct bearing on the elements of intent and premeditation. Moreover, the Pricecourt held that when the medical examiner uses the photographs to illustrate his testimony, the probative value of the photographs is not substantially outweighed by the danger of unfair prejudice.  Just because autopsy photographs are unpleasant does not mean they are unfairly prejudicial.  The trial court can mitigate the most gruesome photographs by reducing the number admitted and excluding the ones that include the victim’s face. 

            In State v. Dubose, 1995 WL 504803 (Tenn.Crim.App.), a sixteen-month-old child was rushed to the hospital by his mother and her boyfriend, the defendant.  Efforts to revive the child were unsuccessful.  The State alleged that the child died from massive injuries to his internal organs.  The child had been in the care of the defendant on the day he died.  The jury convicted the defendant of murder by aggravated child abuse.  The State’s evidence was largely circumstantial.  There was no direct proof that the defendant inflicted any injuries on the child.

On appeal, the defendant assigned error to the trial court’s admission of photographs taken at autopsy.  One photograph in particular showed the child’s internal organs.  The State claimed that the purpose of this photograph was to demonstrate internal injuries from abuse.  The defendant insisted that the photograph was unfairly prejudicial because it was too gruesome or horrifying.

The court of criminal appeals agreed that a photograph of the child’s internal organs was “certainly an unpleasant sight.” However, the photograph had probative value.  It was “clearly helpful” in understanding the testimony of the medical examiner who performed the autopsy.  The medical examiner relied on this photograph to explain the cause of death.  Cause of death was disputed at trial.  Thus, the photograph was crucial to the State’s circumstantial case against the defendant.  The court concluded that the photograph was not so gruesome or horrifying to be unfairly prejudicial.  Never give an inch when it comes to pictures.  They can make the difference between winning with big damages versus losing with small damages.