Tennessee Attorney General Addresses Two Issues Arising in the Tennessee Civil Justice Act of 2011

The Tennessee Attorney General has weighed in on the "Restrict the Civil Justice Rights of Tennesseans In Exchange for the False Promise of Low Paying, Unspecified Jobs Without Benefits Act of 2011," more commonly known as the Tennessee Civil Justice Act of 2011.

Senator Jim Kyle made these inquiries?

 

  • 1. Do the limitations on damage awards in Tenn. Code Ann. §§ 29-39-101 to -104 apply to health care liability actions? 
  • 2. Do the limitations on damage awards in Tenn. Code Ann. §§ 29-39-101 to -104 apply to physicians and nurses employed by a local governmental entity who are litigants in a health care liability action? 
The Attorney General responded as follows in Opinion 12-58:
 
  • 1. The limitations on damage awards in Tenn. Code Ann. §§ 29-39-101 to -104 apply to all civil actions, including health care liability actions, with the exception of claims against the State of Tennessee, local governmental entities and the employees of local governmental entities.  With respect to such claims, Tenn. Code Ann. §§ 29-39-101 to -104 would not apply to the extent those code sections are inconsistent with or conflict with the provisions of the Tennessee Claims Commission Act or the Tennessee Governmental Tort Liability Act (“GTLA”).   
  • 2. The limitations on noneconomic damages awards in Tenn. Code Ann. §§ 29-39-101 to -104 apply to physicians and nurses employed by a local governmental entity.   The limitations on punitive damages are inapplicable  to the extent that the GTLA completely excludes these physicians and nurses from liability for punitive damages. 
I agree with these general answers to the questions posed, but disagree with one portion of the explanation given by the Attorney General’s Office.  
 
The Opinion says as follows:
 
The GTLA however provides that the total damages (economic and noneconomic) that can be awarded against the governmental entity is limited to $300,000 for each injured plaintiff pursuant to Tenn. Code Ann. §§ 29-20-311, 29-20-403(b)(4).  Since here the GTLA damage limits may conflict with the damage limits in Tenn. Code Ann. §  29-39-102(b), on this point the GTLA controls with regard to the governmental entity given the express recognition by Tenn. Code Ann.§ 29-39-102(1) that any conflict between the Tennessee Civil Justice Act and the GTLA is resolved in favor of the GTLA.  With respect to the physicians and nurses sued in this situation, their liability for noneconomic damages would be limited to no more than $750,000, unless the injury was catastrophic, less any amount for which the governmental entity is found liable.  [Italics mine.]
 
My disagreement is with the language in italics.  The physician or nurse does not necessarily get credit for the amount assessed against the governmental entity.  First, whether or not the doctor or nurse gets a credit depends on the contract, if any, between the doctor or nurse and the governmental entity.  Whether or not a credit is given may also depend on "Other Insurance" provisions in the applicable insurance policies.
 
Second, the opinion mistakenly assumes that the governmental entity was held liable for the error of the doctor or nurse who was sued.  It is entirely possible that the governmental entity was held liable for the negligent act or omission of another employee.  If this is correct, what amount the governmental entity must pay is once again dependent on other factors not identified in the Opinion.
 
Of course, there remains the issues of whether the damage caps will survive a constitutional challenge.