Tennessee Tort Reform – Catastrophic injury impact on damages cap

The standard $750,000.00 cap on noneconomic damages found in the Tennessee tort reform bill (the Tennessee Civil Justice Act of 2011) has a “catastrophic injury or loss” exception.  This statute does not provide a significant monetary increase in damages considering how difficult it is to qualify for a “catastrophic loss or injury”.  T.C.A. § 29-39-102(c) and (d) provides that: 

(c) If an injury or loss is catastrophic in nature, as defined in subsection (d), the seven-hundred-fifty-thousand-dollar amount limiting noneconomic damages, as set forth in subdivision (a)(2) and subsection (b) is increased to, but the amount of damages awarded as noneconomic damages shall not exceed, one million dollars ($1,000,000).

(d) “Catastrophic loss or injury” means one (1) or more of the following:

(1) Spinal cord injury resulting in paraplegia or quadriplegia;

(2) Amputation of two (2) hands, two (2) feet or one (1) of each;

(3) Third degree burns over forty percent (40%) or more of the body as a whole or third degree burns up to forty percent (40%) percent or more of the face; or

(4) Wrongful death of a parent leaving a surviving minor child or children for whom the deceased parent had lawful rights of custody or visitation.

The first three definitions of a “catastrophic loss or injury” are simply based on the severity of the injury.  Only the rarest of tort cases will have an injury that is this significant.  Interestingly, there are some severe injuries not addressed in the "catastrophic loss or injury" definition.  For instance, severe brain injuries or blindness are not addressed in this statute.  Further, the increase in noneconomic damages of $250,000.00 over the $750,000.00 cap is only a minimal increase when compared to the catastrophic nature of the injuries within this narrow exception. 

The fourth exception will likely be used more often than the first three.  This exception provides the cap is increased if there is a wrongful death of a parent who leaves surviving minor children or when that parent had rights of custody or even simply visitation rights with the children.  If this fact is present, then the cap for noneconomic damages will be increased from $750,000.00 to $1,000,000.00.

The $750,000.00 and $1,000,000.00 cap will cause a greater defense focus on limiting the "economic damages" as defined in the statute.  Some of the "economic damages" that could support a rather significant award beyond the medical expenses include "loss of earnings and earning capacity”, “loss of business or employment opportunities” and “custodial care”. 

Interestingly, the definition of "economic damages" has a catch-all provision where it includes "other objectively verifiable monetary losses."  This is very broad language.  It will be interesting to see how this is interpreted by the courts.  Obviously, until we have case law interpreting this provision it is difficult to see what else will be included in this catch-all category.    

Additionally, T.C.A. § 29-39-103(b) provides as follows: 

(b) If the plaintiff claims a catastrophic loss or injury has occurred, and if there is a disputed issue of fact regarding whether such loss or injury has occurred, the trier of fact must make a specific finding of fact, by special verdict, that the loss or injury suffered by the plaintiff is catastrophic as defined in § 29-39-102(d).

As a result, the trier of fact (usually the jury) must make a specific finding of fact as to whether the loss or injury suffered by the plaintiff is catastrophic as defined in T.C.A. § 29-39-102(b).