Yebuah v. Ctr. for Urological Treatment, PLC
| Decision Date | 28 May 2020 |
| Docket Number | No. M2018-01652-COA-R3-CV,M2018-01652-COA-R3-CV |
| Parties | CYNTHIA E. YEBUAH ET AL. v. CENTER FOR UROLOGICAL TREATMENT, PLC |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Davidson County
Following surgery to remove a cancerous kidney, part of a gelport device was left inside the patient. The patient and her husband brought this health care liability action against multiple defendants, including the surgeon who removed the kidney and the radiologist who initially failed to detect the foreign object. The defendants admitted fault, so the trial focused solely on causation and damages. The jury returned a verdict in favor of the plaintiffs and awarded $4 million in noneconomic damages to the patient for pain and suffering and loss of enjoyment of life and $500,000 in noneconomic damages to her husband for loss of consortium. The trial court initially applied the statutory cap on noneconomic damages to the total damages award and entered a judgment of $750,000 in favor of both plaintiffs. In response to the plaintiffs' motion to alter or amend, the trial court issued a revised judgment of $750,000 in favor of the patient and $500,000 in favor of the husband. But the court refused to address the plaintiffs' arguments premised on the constitutionality of the statutory cap, ruling that the issue had been waived. The court also denied the defendant's motion for a new trial or for a remittitur. Upon review, we conclude that the trial court erred in refusing to consider the plaintiffs' constitutional issue. But because we also conclude that the statutory cap on noneconomic damages is constitutional and was applied properly and that the defendant is not entitled to a new trial or a remittitur, we affirm.
Randall L. Kinnard, Mary Ellen Morris, Jessica J. Kinnard, Donald Capparella, and Tyler Chance Yarbro, Nashville, Tennessee, and John Vail, Washington, DC, for the appellants, Cynthia E. Yebuah and Eric N. Yebuah.
Marty R. Phillips, Dale Conder, Jr., and Craig P. Sanders, Jackson, Tennessee, and Wendy L. Longmire and T. William A. Caldwell, Nashville, Tennessee, for the appellee, Center for Urological Treatment, PLC.
Herbert H. Slatery III, Attorney General and Reporter, Andrée Sophia Blumstein, Solicitor General, and Joseph P. Ahillen, Assistant Attorney General, for the appellee, State of Tennessee.
Cary Silverman and Phil Goldberg, Washington, DC, and W. Morris Kizer, Knoxville, Tennessee, for amici curiae, Tennessee Medical Association, American Medical Association, Tennessee Chamber of Commerce and Industry, Chamber of Commerce of the United States of America, American Tort Reform Association, and Coalition for Litigation Justice, Inc.
Luke A. Wake, Washington, DC, and Braden H. Boucek, Nashville, Tennessee, for amici curiae, The Beacon Center of Tennessee and the National Federation of Independent Business Small Business Legal Center.
OPINIONA CT scan revealed a mass on Cynthia Yebuah's left kidney. Her physician referred her to Dr. Frank Lohrasbi, a urologist, for further evaluation. Because there was a high likelihood that the mass was malignant, Dr. Lohrasbi recommended surgery to remove the affected kidney. Mrs. Yebuah agreed. And on March 4, 2005, Dr. Lohrasbi removed her left kidney using a laparoscopic technique. Mrs. Yebuah's recovery from surgery was uneventful.
To guard against the recurrence of cancer, Dr. Lohrasbi recommended a series of CT scans and ultrasounds. Mrs. Yebuah had her first CT scan four months after surgery. On July 6, 2005, Dr. Edward Priest, the radiologist who interpreted the scan, reported no signs of cancer. Dr. Lohrasbi reviewed his report and informed Ms. Yebuah of the good news.
Six months later, on February 10, 2006, Mrs. Yebuah had another CT scan. Again, she was cancer free. But this radiology report also noted a "tubular structure" within her abdominal cavity. Dr. Lohrasbi reviewed the report for signs of cancer but did not read the reference to the foreign object. So again he informed his patient that she hadno signs of cancer. This scenario was repeated with Mrs. Yebuah's next CT scan on February 8, 2007.
Fast forward to 2012. After complaining of severe abdominal pain, Mrs. Yebuah was referred to Dr. Leonardo Espinel for evaluation of suspected gallbladder disease. Dr. Espinel agreed that Mrs. Yebuah exhibited signs of an acute gallbladder attack. He recommended a gallbladder removal, but Mrs. Yebuah declined, hoping lifestyle changes would alleviate her symptoms.
But Mrs. Yehuah's lifestyle changes proved ineffective. On July 31, 2013, Dr. Espinel removed Mrs. Yebuah's gallbladder in another laparoscopic procedure. During the gallbladder surgery, Dr. Espinel discovered a white cylindrical object inside Mrs. Yebuah's abdominal cavity. Her small bowel was looped around the object and multiple adhesions had formed. Dr. Espinel also noted some chronic inflammation around the object.
After the surgery, Dr. Espinel told Mrs. Yebuah what he had seen. And he ordered another CT scan. The CT scan showed a 14-centimeter ring inside Mrs. Yebuah's abdomen, but no bowel obstruction. Dr. Espinel suspected that the ring had been left inside Mrs. Yebuah during her kidney surgery in 2005. So he also informed Dr. Lohrasbi.
Shocked by the discovery, Mrs. Yebuah and her husband, Eric Yebuah, met with Dr. Lohrasbi in early August to discuss the situation. Dr. Lohrasbi told the couple that he believed the ring was part of a gelport device used during her previous surgery. Unbeknownst to him, part of the device had separated during the procedure. Luckily, the ring was made of an inert material and appeared not to have caused Mrs. Yebuah any problems. In his medical opinion, Mrs. Yebuah could safely leave the ring in place.
But after consultation with another urologist, Mrs. Yebuah chose to have Dr. Espinel remove the ring. In November 2013, Mrs. Yebuah underwent yet another surgery. During this surgery, Dr. Espinal noticed an increased amount of inflammation, but still no bowel obstruction. Safely removing the multiple adhesions around the ring turned out to be a tedious and time-consuming process. He ultimately removed the ring in pieces. Mrs. Yebuah tolerated the procedure well and returned to work in just a few days.
The Yebuahs filed this healthcare liability action against Dr. Lohrasbi and Dr. Priest and their respective employers, the Center for Urological Treatment, PLC (the"Center") and Radiology Alliance, P.C.1 Among other things, the complaint alleged that Dr. Lohrasbi was negligent in leaving the ring in Mrs. Yebuah's abdomen after kidney surgery and in not removing the ring after it was noted on her subsequent CT scans. The complaint also alleged that Dr. Priest was negligent in failing to mention the ring in the initial radiology report. The Yebuahs eventually dismissed the doctors, electing to pursue vicarious liability claims against their employers.
In early 2018, the Yebuahs moved to amend their complaint. Among other things, the proposed amended complaint alleged for the first time that the statutory cap on noneconomic damages in Tennessee Code Annotated § 29-39-102(a)(2) was unconstitutional. The Center and Radiology Alliance opposed the motion to amend, arguing that the motion was untimely as it was only one month before trial. They also objected to including a constitutional challenge in the complaint, particularly when the jury was precluded from knowing about the existence of the statutory cap. See Tenn. Code Ann. § 29-39-102(g) (2012).
The Yebuahs served a copy of the proposed amended complaint on the Tennessee Attorney General as notice of their constitutional challenge. See Tenn. R. Civ. P. 24.04. The Attorney General notified the court that he was aware of the Yebuahs' constitutional challenge. But he would not move to intervene unless the jury rendered a verdict in excess of the statutory cap.
At the pretrial conference, the Yebuahs' counsel announced that he would submit a new proposed amended complaint without the constitutional challenge. With the court's permission, an amended complaint was filed shortly before trial.
Both the Center and Radiology Alliance admitted fault. So the trial focused solely on causation and damages. At the conclusion of the proof, the court directed a verdict in favor of Radiology Alliance. But the case against the Center went to the jury. The jury returned a verdict in favor of the Yebuahs. And they awarded $4 million in noneconomic damages to Mrs. Yebuah for pain and suffering and loss of enjoyment of life and $500,000 in noneconomic damages to Mr. Yebuah for loss of consortium.
The Yebuahs' proposed judgment order did not reduce the jury's award of noneconomic damages as required by Tennessee Code Annotated § 29-39-102(a)(2). Rather, they proposed entering a total judgment of $4.5 million. The Center submitted a competing order that applied the statutory cap and reduced the damage award to $750,000.
After notifying the Attorney General that the jury's verdict had exceeded the statutory cap,2 the Yebuahs asked the court for a hearing on the language of the final judgment. They contended a hearing was necessary to resolve the pending constitutional issue. The Center objected and urged the court to apply the statutory cap. According to the Center, "the plaintiffs can raise all arguments against the constitutionality of the noneconomic limits once an order of judgment has been entered."
Rather than granting a hearing, the court adopted the Center's proposed order without comment and entered a judgment in favor of the Yebuahs in the amount of $750,000. The Yebuahs moved to alter or amend the judgment. They argued that the statutory cap was unconstitutional, and...
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