Kelly on Malpractice

There is still some uncertainty among the plaintiff’s bar about whether the patient in a medical malpractice action must plead a specific sum in the ad damnum of his complaint. We are all aware of the rule in Tennessee that a party may not recover money damages in excess of the amount sought in the ad damnum of the complaint. See Banks & Entman, TENNESSEE CIVIL PROCEDURE § 5-4(c) (1999); see also Cross v. City of Morristown, 1996 WL 605248 (Tenn.Ct.App.) (holding “A judgment that exceeds the ad damnum clause is invalid”). The first question addressed in this issue is whether the aforementioned common law rule applies in medical malpractice actions. The answer to that question is “No.”

In Romine v. Fernandez, 124 S.W.3d 599 (Tenn.Ct.App.2003), the plaintiffs sued multiple defendants for medical malpractice. The plaintiffs obtained a judgment in the sum of $100,000. However, the plaintiffs did not state a specific sum in their complaint. In fact, they failed to include a prayer for relief or an ad damnum clause in their complaints. On appeal, the defendants claimed that the judgment was void because it exceeded the relief prayed for in the complaint. The defendants provided the appellate court with multiple cases which stood for the “well-settled” rule that a party is limited to the relief prayed for in his complaint. The defendants pointed out Rule 8.01 and Cross v. City of Morristown on appeal as authority for their argument that the plaintiffs’ judgment was void for want of a specific sum or an ad damnum clause. In response, the plaintiffs argued that the trial court’s award of damages should be affirmed because the express language of TENN. CODE ANN. § 29-26-117 gave the plaintiff in a medical malpractice case “the choice” to pray for relief. The statute states in pertinent part:

[i]n 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.” TENN. CODE ANN. § 29-26-117.

The plaintiffs argued that it was within the discretion of a plaintiff in a medical malpractice case whether or not to pray for a specific amount of money damages because the statute uses the word “may.” The plaintiffs urged the appellate court to find that the “well-settled” rule referenced by the defendants should not be applicable to medical malpractice cases or its application would be contrary to TENN. CODE ANN. § 29-26-117.

The Court of Appeals agreed with the plaintiffs. In TENN. CODE ANN. § 29-26-117, the legislature purposefully used the word “may.” The statute provides that “the pleading filed by the plaintiff may state a demand for a specific sum,” thus making the inclusion of an ad damnum clause permissive in a medical malpractice case. As such, the plaintiffs were not required to state a demand for a specific sum in their pleadings. Thus, the Court of Appeals affirmed the trial court’s award of damages to the plaintiffs.

The import of Romines v. Fernandez is manifest. A patient does not have to plead a specific sum in his complaint for medical malpractice because of TENN. CODE ANN. § 29-26-117. This leads to an equally important question. What happens if you plead a specific sum or ad damnum clause in your medical malpractice complaint and then tell the jury about it at trial. The answer is a mistrial. In Guess v. Maury, 726 S.W.2d 906 (Tenn.Ct.App.1986), the plaintiffs obtained a $950,000 medical malpractice verdict. On appeal, the defendants contended that plaintiffs violated the ruling of the trial court and at the same time influenced and prejudiced the jury by statements made during closing argument. In argument, plaintiffs’ counsel stated that the defendants knew that they were facing possibly “a multi-million-dollar lawsuit….” This was the only time the jury heard any amount of value attached to this case. Defendants contended that this action on the part of plaintiffs’ counsel was in direct contravention of both the trial court’s interpretation of TENN. CODE ANN. § 29-26-117 and its instructions to counsel. The statute provides that:

“[i]n 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….”

Prior to the voir dire of the jury, counsel for defendants advised the court that they were relying upon this particular statute. In response to a question by the court, counsel for plaintiffs stated his understanding to be that while the ad damnum could not be stated to the jury, it did not prohibit plaintiffs’ counsel from stating that “this is a case involving several hundred thousands of dollars.” The trial court advised counsel for plaintiffs not to suggest any amount. Nonetheless, in the face of this, counsel for plaintiffs persisted in doing so. The trial court interpreted the statute. His interpretation was not challenged on appeal and his instructions to plaintiffs’ counsel were clearly violated. At least to some degree the labeling of this litigation as a “multi-million-dollar lawsuit” likely had its effect upon the jury. The Court of Appeals held that this was “yet another collective reason for a new trial.”

In DeMilt v. Moss, 1997 WL 759440 (Tenn.Ct.App.), the plaintiffs obtained a $250,000 medical malpractice verdict. On appeal, the defendant asserted that plaintiff’s counsel committed reversible error in his closing argument to the jury when he referred to the demand.   Specifically, counsel stated:

So then, you have to decide, you have to decide what is something like this worth.   And there is nobody you can go to.
Well, number one, you start out with it has been four years since this happened to her and so you can decide, well for those four years I think she ought to have $50,000.00 a year.   You may pick more, you may pick less….

The lawyer then went on to present the argument cited above which contained the reference to “an award of $50,000 annually.” 

The Court of Appeals revisited Guess v. Maury. As in Guess, the attorney’s reference to a dollar figure in his closing argument in the case likely had its effect upon the jury because the suggestion of “$50,000 annually” in damages for the previous four years was quite close to the $250,000 amount of damages that the jury actually awarded. Obviously, plaintiff’s attorney did not violate the letter of the law by stating the exact figure contained in the ad damnum clause.   However, upon consideration of the foregoing, the Court of Appeals concluded that this was a further reason for a new trial.

I have a simple suggestion. First, do not state a specific sum or ad damnum clause in a medical malpractice complaint as per Romines v. Fernandez. Second, you should approach the trial court in limine to establish the boundaries for arguing damages to the jury. The law allows you propose values for the elements of damages to the jury without presenting a total sum for an ad damnum that does not exist. These measures should avoid a mistrial as well as the capping effect of an ad damnum clause.

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