Damages - Personal Injury Category Archives — Day on Torts Published by Day on Torts — Tennessee Personal Injury Attorney

September 7, 2023

Medical bills excluded from trial due to lack of expert testimony that they were necessary.

Plaintiffs seeking to introduce medical bills for the purpose of showing damages must present expert proof that that the medical expenses were necessary.

In Holzmer v. Estate of Walsh, No. M2022-00616-COA-R3-CV (Tenn. Ct. App. July 28, 2023), plaintiff sought to introduce her medical bills in support of claimed damages related to a car accident. Defendant admitted liability, and a jury trial was held to determine damages. At trial, plaintiff’s expert physician testified that the treatment plaintiff received was reasonable and necessary, but the physician had not reviewed the bills and did not testify as to their reasonableness and necessity.

Plaintiff had received treatment at three different facilities, and she had witnesses from those facilities testify as to the reasonableness of the bills, including a nurse auditor, an accounts receivable biller, and a senior director of revenue cycle. These witnesses, however, did not testify as to necessity. The trial court excluded the medical bills due to plaintiff’s failure to present expert testimony regarding their necessity, and that ruling was affirmed on appeal.

January 26, 2023

Apartment that failed to maintain wooden bridge liable to tenant in premises liability suit.

by The Law Offices of John Day, P.C.

A premises liability judgment for plaintiff was affirmed where plaintiff slipped and fell on a wooden bridge at defendant apartment complex, representatives of defendant had stated that the standard of care required that the bridge be power washed at least annually, and the evidence showed that the bridge had not been power washed in at least several years.

In Trentham v. Mid-America Apartments, LP, No. M2021-01511-COA-R3-CV, 2023 WL 163547 (Tenn. Ct. App. Jan. 12, 2023), plaintiff was a tenant in defendant’s apartment building. Plaintiff’s building was connected to the clubhouse fitness facility by a wooden bridge. On the day of plaintiff’s injury, it had rained the night before and was possibly still drizzling. Plaintiff used the bridge to access the fitness room, and when walking back across the bridge after his workout, plaintiff slipped on what he described as a clear, slippery substance that was “obviously not just water.” Plaintiff could not get his footing to stand up, and an employee of defendant could not get plaintiff back to his feet, so an ambulance was called.

Plaintiff’s fall caused severe injury to his left quadriceps tendon, requiring surgery. The first surgery was unsuccessful, and plaintiff underwent a second revision surgery. That surgery was also unsuccessful, and at the time of the trial plaintiff was left with permanent disability from the incident.

June 14, 2021

Noneconomic damages cap applied to injured plaintiff and loss of consortium plaintiff jointly.

by The Law Offices of John Day, P.C.

When an injured plaintiff’s spouse asserts a loss of consortium claim, the noneconomic damages cap found in Tenn. Code Ann. § 29-39-102 “allows both plaintiffs to recover only $750,000 in the aggregate for noneconomic damages.” In Yebuah v. Center for Urological Treatment, PLC, No. M2018-01652-SC-R11-CV (Tenn. June 2, 2021), plaintiffs filed an HCLA claim after plaintiff wife’s surgeon left a medical device in her abdominal cavity while removing her kidney, causing her pain and chronic inflammation until the device was discovered during an unrelated procedure eight years later. The jury had awarded plaintiff wife $4,000,000 in pain and suffering and loss of enjoyment of life damages, and awarded $500,000 in damages to plaintiff husband for loss of consortium. The trial court originally ruled that the damages in total would be reduced to $750,000 pursuant to the damages cap, but then amended the ruling and held that the cap should be applied to each plaintiff separately, meaning that the wife would receive $750,000 and husband would receive $500,000. The Court of Appeals affirmed this application of the damages cap.

During this appeal to the Supreme Court, the facts of the case were not at issue. The only issue here was how Tennessee’s cap on noneconomic damages should be applied when the injured plaintiff is seeking noneconomic damages and his or her spouse is also pursuing a loss of consortium claim (but not a claim for personal injuries).

November 23, 2020

Prejudgment interest included in “all damages” language in uninsured motorist insurance policy.

by The Law Offices of John Day, P.C.

Where plaintiff’s uninsured motorist insurance policy stated that it covered “all damages” and prejudgment interest was not listed as a specific exception to coverage, the Court of Appeals ruled that the policy language was “sufficiently broad to include prejudgment interest.”

In Lewis v. State Farm, No. W2019-01493-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2020), plaintiff was in an accident caused by an unknown driver who left the scene. Plaintiff was driving his brother’s car, and the company insuring the car settled with plaintiff. Plaintiff was also personally insured by defendant State Farm, with uninsured motorist coverage of up to $500,000 per accident.

Plaintiff filed this suit pursuant to Tenn. Code Ann. § 56-7-1206. After both settlement negotiations and mediation failed to produce a resolution, the case was tried in front of a jury, and the jury found the unknown motorist 100% at fault, awarding $275,000 in damages to plaintiff. Plaintiff filed a post-trial motion seeking prejudgment interest, which the trial court denied, finding that the insurance policy did not include prejudgment interest. This appeal followed, and the trial court was reversed.

June 9, 2020

Minimal damages affirmed where plaintiff offered no expert testimony on medical expenses

by The Law Offices of John Day, P.C.

Where a car accident plaintiff was granted summary judgment as to liability but offered no evidence regarding her medical damages beyond her own testimony, including no expert testimony that any of her medical expenses were reasonable and necessary, the trial court did not err by awarding her only $5,000.

In Marsh v. Lowe, No. E2019-00697-COA-R3-CV (Tenn. Ct. App. April 29, 2020), plaintiff was rear-ended on the interstate, and she filed suit against both the driver and the owner of the car. Plaintiff alleged that the driver was negligent by failing to slow appropriately for traffic, and she specifically pointed out that the driver was cited for DUI and for using a cell phone/ distracted driving by the police. Plaintiff alleged that the car owner was negligent by “entrusting [the driver] to operate the vehicle.”

February 27, 2020

Tennessee Supreme Court Upholds Constitutionality of Damage Caps

by The Law Offices of John Day, P.C.

The Tennessee Supreme Court yielded to the Legislature’s decision to impose a cap on the amount of money that can be awarded to people harmed by the carelessness of others. The law was passed in 2011. The law requires judges to reduce jury awards for human losses (called “noneconomic damages by the legislation) to $750,000 in most cases.

The 3-2 decision was authored by Chief Justice Bivins. There was one concurring opinion and two dissents. Click on the links below to read them.

Majority Opinion by C.J. Bivins

August 23, 2017

Court of Appeals Discusses Tennessee Car Accident Damages

by The Law Offices of John Day, P.C.

Want a primer on the law of compensatory damages in Tennessee? Then look at Hyde v. South Central Tennessee Development District, No. M2015-02466-COA-R3-CV (Tenn. Ct. App. July 14, 2017), defendant admitted liability for a car accident but challenged the damages awarded to plaintiff by the trial court.

On June 14, 2013, defendant’s employee ran a red light and hit the driver’s side of plaintiff’s car. On the day of the accident, plaintiff was taken to a hospital and “was diagnosed with a strain in her thoracic spine and a contusion to her right leg, and discharged with pain medication.” Two days later plaintiff went to a different hospital complaining of head pain and was diagnosed with a headache. Five days after the accident, plaintiff went to a chiropractor “complaining of muscle spasms in her lumbar spine and aches throughout her body.” Plaintiff treated with the chiropractor from June 19 until October 10. In addition to her treatment with the chiropractor, plaintiff went to her primary care doctor on August 20 and November 20, as well as January 27 of the following year.

Defendant admitted liability and a bench trial was held as to damages. The trial court awarded plaintiff $271,378.95 in compensatory damages, and this appeal followed, with defendant challenging the trial court’s damage calculations.

August 10, 2017

Mothers, Minors and Medical Bills

by The Law Offices of John Day, P.C.

Who has the right to recover medical expenses incurred for personal injuries to children in Tennessee? The parents? The minor? Either but not both? Does it make any difference if there is a holder of a subrogation interest which has a right to assert a claim against either the parents or the minor?

My recent article on the subject appears on PDF Page 38 of a recent edition of the Tennessee Bar Journal.

An excerpt:

June 19, 2017

61% Remittitur Affirmed in Tennessee Injury Case

by The Law Offices of John Day, P.C.

In West v. Epiphany Salon & Day Spa, LLC, No. E2016-01860-COA-R3-CV (Tenn. Ct. App. April 25, 2017), the Court of Appeals affirmed a large remittitur in a negligence case, reducing the jury’s award by over 61%.

Plaintiff had gone to defendant salon for a facial treatment in 2012. According to her testimony, her “face began burning upon application of the treatment” and she “rushed home in pain.” She filed this negligence action, alleging that her face never recovered from the treatment.

March 26, 2017

Contractual Waivers and Medical Expense Recovery by Minors

by The Law Offices of John Day, P.C.

In Blackwell v. Sky High Sports Nashville Operations, LLC, No. M2016-00447-COA-R9-CV (Tenn. Ct. App. Jan. 9, 2017), the Court of Appeals addressed the issue of whether parents in Tennessee may “bind their minor children to pre-injury waivers of liability, releases, or indemnity agreements,” affirming the existing common law rule such agreements were not enforceable against a child when signed by a parent. The Court also discussed whether a minor had the right to seek recovery of medical expenses in a personal injury case.

Mother took her son to defendant trampoline park, and on their first visit mother was required to sign a “Customer Release of Liability and Assumption of Risk.” This form purported to waive liability for any injury on behalf of both mother and son, and it contained a choice of law provision naming California law as governing the agreement as well as a forum selection provision stating that litigation would be brought in California. The release stated that it would be effective until the son was eighteen. At a later visit, son was injured, and son and mother both brought this action against defendant trampoline park in the Davidson County Circuit Court.

Defendant filed a motion to enforce the contract in the trial court, arguing that the claims had been waived and that the case had to be brought in California and governed by California law. Mother voluntarily dismissed her claim against defendant, and the trial court subsequently denied defendant’s motion to enforce the contract. The trial court found that “neither the forum selection clause nor the choice of law provision were valid because their enforcement would cause a great hardship for Son to prosecute his action in California and, Tennessee, rather than California, has ‘a more significant relationship to the facts surrounding this case.’” The trial court also held that the liability waiver did not operate to waive son’s claims, as “such a contract is not permissible in Tennessee.” In a lengthy decision, the Court of Appeals ultimately affirmed all three of these holdings.