Kelly on Malpractice

There is a split among the trial courts about whether TENN. CODE ANN. §29-26-117 allows plaintiffs to argue money damages to the jury in medical malpractice actions. The case that caused major split is Guess v. Maury, 726 S.W.2d 906, 919 (Tenn.Ct.App.1986). You will encounter a motion in limine from a physician or hospital to gag you from arguing money damages to the jury. I am devoting this entire issue to suggestions for defeating this motion in limine so you can convince the trial court to reject their argument and win more money for your client.

The argument starts at TENN. CODE ANN. §29-26-117, which provides in pertinent part that:

In a medical malpractice action the pleading filed by the plaintiff may state a demand for a specific sum, but such demand shall not be disclosed to the jury during a trial of the case; notwithstanding the provisions of § 20-9-302 to the contrary.

The ordinary meaning of this statute seems clear: in a medical malpractice action, the plaintiff cannot disclose her ad damnum to the jury. The legislature clearly does not want the ad damnum read to the jury in medical malpractice actions. It appears that simple. Yet, as Lee Corso likes to say on ESPN college football today “Not so fast my friend!” Defendants will go one step further and contend that there is a prohibition in §29-26-117 against arguing the monetary value of damages to the jury. Defendants will complicate §29-26-117. They will pull, stretch, and contort the language in §29-26-117 to create a meaning that does not exist. This is why the Defendants argue there is more in §29-26-117 than meets the eye. In response, you should argue that §29-26-117 was enacted to overrule § 20-9-302 to the extent that an attorney may “read the counsel’s entire declaration, including the amount sued for.” The legislature must have been aware of § 20-9-304, which allows the parties to discuss the monetary value of their case. Specifically, § 20-9-304 states as follows:

In the trial of a civil suit for personal injuries, counsel shall be allowed to argue the worth or monetary value of pain and suffering to the jury; provided, that such argument shall conform to the evidence or reasonable deduction from the evidence in such case.

Thus, by enacting § 29-26-117 without mentioning §20-9-304, the legislature chose not to overrule the right of a litigant in a medical malpractice case to discuss the monetary value of her damages so long as the attorney does not read the “amount sued for” in the ad damnum. This is the only reasonable interpretation of §29-26-117. The statute was not enacted to gag litigants in medical malpractice cases by abolishing all discussions of money. When there are related statutes, the legislature is “presumed to know” its prior enactments at the time it passes legislation. Neff v. Cherokee Ins. Co., 704 S.W.2d 1, 4 (Tenn.1986). If the Defendants’ construction of § 29-26-117 were correct, then the legislature would have said any argument about money is prohibited in medical malpractice actions without. exception. In the alternative, the legislature would have abrogated §20-9-304 in medical malpractice actions. It did neither. Instead, the legislature strictly confined its prohibition to the ad damnum.

A statutory construction that places one statute in conflict with another must be avoided. Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn.1995). In fact, courts must resolve any possible conflict between statutes “in favor of each other.” Id. Statutory interpretation should give harmonious effect to all acts where reasonably possible. Equitable Life Assurance Co. v. Odle, 547 S.W.2d 939, 941 (Tenn.1977). Repeal by implication is not favored in the law. Oliver v. King, 612 S.W.2d 152, 154 (Tenn.1981). There must be an irreconcilable conflict or repugnancy between the prior statute and the latter statute that is “plain and unavoidable” for an implied repeal. Id. There is no plain and unavoidable repugnancy to justify the Defendants’ interpretation. You must press the basic rules of statutory construction because they are on your side here and show how the Defendants’ interpretation violates those rules.

The Defendants will rely upon Guess v. Maury, 726 S.W.2d 906, 919 (Tenn.Ct.App.1986) in an effort to misconstrue §29-26-117. Guess case can be easily distinguished from your case. In addition, Guess demonstrates why the Defendants’ interpretation of §29-26-117 is wrong. In Guess, the record abounds with instances where the plaintiff’s attorney violated direct orders of the trial court. The combination of these numerous flagrant violations by plaintiff’s counsel in Guess resulted in a new trial. The trial court ordered plaintiff’s counsel not to “make reference to the amount of money you seek in the lawsuit” based on the court’s own interpretation of §29-26-117. Nevertheless, the trial court stated, “Of course, you may talk about your special damages, what they are.” The Defendants will not highlight this portion of Guess.

The Defendants may also rely on DeMilt v. Moss, 1997 WL 759440 (Tenn.Ct.App.) where the Court of Appeals revisited §29-26-117. As in Guess, there were many errors at trial relating to evidentiary support for damages and a defective jury charge. These errors alone warranted a new trial. The defendant in DeMilt contended that the plaintiff violated §29-26-117 when his counsel suggested that the jury award “$50,000 annually as compensation” in closing argument. The Court of Appeals found that this argument was “not violative of the letter of the statute.” However, the Court also found this argument to be an additional reason for a new trial. There was no more discussion about this issue. You should argue that Demilt is an unreported decision that is not helpful in determining the proper construction of §29-26-117.

Many trial courts have rejected the Defendants’ strained construction of §29-26-117. For instance, in Forrester v. Highland Radiology Assoc., et al., Case No. 06C1485, Judge Thomas Brothers in Davidson Circuit rejected the Defendants’ argument. Similarly, Judge Robert Childers in Shelby Circuit faced the same issue in Couch v. Dorroh, Case No. CT-0000910-03, and rejected it. Most recently, Judge McCarroll in Shelby Circuit faced the same issue in Fason v. Lawrence, Case No. CT-006353-05, and rejected it. Call me if you need these orders in support of your memorandum. You will need them.

I just learned that there is a case with this issue on interlocutory appeal in the Western Section. I will notify immediately when the decision is posted. It is ironic that the Western Section will settle the mess they created in Guess and in DeMilt. Until then, I hope my suggestions will assist you in arguing for money damages. Studies show that juries award more money when plaintiff lawyers can make per diem arguments to the jury.