Recovery of Future Medical Expenses Under Tennessee Law

An award for future medical expenses in a personal injury claim under Tennessee law may be appropriate even where the plaintiff does not establish with “absolute certainty” that the future treatment will be pursued, as the standard for such an award is “reasonable certainty.”

In Kirby v. Memphis Light Gas & Water, No. W2017-02390-COA-R3-CV (Tenn. Ct. App. April 29, 2019), plaintiff was in a car accident with one of defendant’s drivers. After a bench trial, the judge assigned plaintiff 30% of the fault and awarded him $105,000 in damages, which included an award for future medical expenses to cover a prospective surgery. On appeal, defendant argued that the award for future medical expenses was speculative, and that plaintiff had failed to mitigate his damages by stopping treatment when he did. The Court of Appeals affirmed the damages award.

At trial, plaintiff presented testimony from himself and from an orthopedic surgeon. The evidence showed that plaintiff suffered a herniated disc in the accident, and that after some initial treatment his doctor recommended surgery and/or epidural injections. Plaintiff, however, had previously had back surgery and had taken a year and a half to heal. He had also previously had injections and had found them to be unsuccessful for him. Based on his previous experiences and because his wife had just started nursing school and he was currently the “sole breadwinner for the family,” plaintiff opted not to pursue either treatment at that time. The orthopedic surgeon testified, though, that surgery was the only way to repair plaintiff’s injury, that plaintiff was still a candidate for the surgery, and that plaintiff’s decision to delay the surgery was reasonable at the time. Plaintiff testified that he had not ruled out having surgery in the future.

The first issue on appeal was whether the future medical expenses were too speculative to support the damages award. Defendant argued that the trial court erred in awarding money for a future surgery because plaintiff “repeatedly testified that he elected not to have surgery.” A plaintiff seeking an award for future medical expenses must show “(1) that additional medical treatment is reasonably certain to be required in the future and (2) [proof] that will enable the trier-of-fact to reasonably estimate the cost of the expected treatment.” (internal citation omitted). This standard does not require a showing that the treatment is absolutely certain to occur, but instead uses a “reasonable certainty” standard. (internal citation omitted). A plaintiff must show “that he or she will, more probably than not, need these medical services in the future.” (internal citation omitted).

Here, the Court of Appeals found that the expert witness “established that, more probably than not, [plaintiff] will need surgery in the future to correct his herniated disc because surgery is the only way to relieve the compression on the nerve that is causing [plaintiff] pain.” Further, the Court pointed out that plaintiff specifically testified that he had not ruled out a future surgery. In addition, the Court found plaintiff’s expert sufficiently testified regarding the estimated costs of surgery, and that defendant presented no opposing evidence. The award of future medical damages was thus not speculative.

The second issue on appeal was whether plaintiff failed to properly mitigate his damages by stopping treatment after declining the surgery and injections. While an injured party is required to reasonably mitigate damages, he is not required “to mitigate damages where the duty would impose an undue burden or be impossible under the circumstances.” (internal citation omitted). In this case, plaintiff had to quit his previous job and take a lower paying job after declining surgery due to pain, resulting in lost wages. Based on plaintiff’s history and family situation, however, his expert testified that plaintiff’s course of action was reasonable, specifically noting that plaintiff had been able to continue with his new job since taking it. The expert testified that “a reasonable person can decide to not have surgery based on what they perceive the risks are,” and the Court noted that plaintiff did undergo some treatment, including physical therapy. Because the trial court was “in the best position to assess [plaintiff’s] credibility,” the Court of Appeals ruled that it did not err by assessing damages in this case, despite plaintiff’s decision to not pursue surgery or injections. The trial court’s ruling was affirmed.

The Court was correct to affirm the damages here. Plaintiff presented uncontroverted proof regarding a future surgery that would most likely be needed, as well as proof that his choice to delay surgery was reasonable. The issue of the cost of the surgery was an appropriate issue to be considered by the fact-finder (here a judge because the claim arose under the Governmental Tort Liability Act).