Practicing Law With a Passion for the Rights of the Individual
Memphis Commercial Appeal
The rights of Tennesseans who are seriously injured by medical doctors and corporations are under attack and likely to be subject to the most sweeping restrictions ever as a result of legislation being pushed in the Tennessee legislature.
The proposals go well beyond severely limiting Tennessee residents' rights to fair and adequate compensation. They are designed to protect large corporations and negligent doctors who cause serious harm.
Under the proposals, if a doctor's or a company's irresponsible conduct causes you to be disabled or reduced to a lifetime of suffering and pain, the maximum amount of noneconomic damages you could win in a lawsuit would be $750,000. Noneconomic damages are intended to compensate a plaintiff for pain and suffering, mental anguish and loss of enjoyment of life; they do not include money awarded to cover medical bills, lost wages and out-of-pocket expenses.
The aim of this legislation is to limit not only what a jury can award you for your injuries, but also to make it more difficult for you to find a lawyer to take your case in such serious matters.
Doctors already have substantial protection under current law because, before you can file a lawsuit, another medical expert must conclude that there was medical negligence.
That means a lawyer has to invest money to hire an expert to evaluate the matter initially. Then, if there is a basis for a lawsuit, it can cost tens of thousands of dollars for an investigation, hiring experts for trial, and paying for the depositions of the defendant's medical witnesses and court fees.
The average person cannot front this type of money for his or her case, so they go to a law firm that will represent them on a contingency fee basis. This means the firm will pay for all of the expenses and the attorney's time up front. If the firm wins the case, the expenses and attorney fees come out of the amount that is awarded to the plaintiff. In medical malpractice cases in Tennessee, the amount a law firm can recover is already limited to one-third of the total judgment.
Supporters of the proposed legislation know that if they can shrink the amount of fees a lawyer can be paid, the lawyer will not be able to risk making an investment in the case. Victims will have nowhere to turn for justice.
The proposed legislation also would limit the amount a jury could award for punitive damages to a maximum of $500,000, no matter how big the corporation or how egregious its conduct.
Under current Tennessee law, when a corporation or business has acted in a manner that is reckless or unconscionable and a person is harmed, the jury can conduct an additional hearing and award punitive damages, in addition to the actual money losses and compensation for pain and suffering. Punitive damages are meant to deter that defendant and others from engaging in the same bad behavior in the future.
For many businesses, a $500,000 punishment is a pittance that can be absorbed as the cost of doing business, especially if they can reap billions in profits for the misconduct.
Because Tennessee jury verdicts have been conservative, corporations have not suffered a spate of outrageous or runaway judgments. Unlike many states, in Tennessee the trial judge must agree with the award of the jury. If the judge, as the "13th juror," believes the jury award is unreasonably high or low, the court is legally obligated to throw out the verdict and order a new trial.
Even Gov. Bill Haslam, who is pushing most of these legislative changes, acknowledges they are unnecessary. "Tennessee has not had a problem with excessive awards in civil cases," he told the Tennessean newspaper in Nashville recently, "but it should act to discourage trial lawyers from shifting their cases to the state in response to clampdowns on damages in other states."
He added, "We don't want to be the state that people flock to for cases."
The governor knows that cases from other states can't "flock" to Tennessee if the plaintiff was not injured in our state. So why would the governor be making such deceptive arguments for legislation we don't need? Could it be that this corporate multimillionaire governor is attempting to remove yet one more layer of restraint on corporate greed and malfeasance in Tennessee?
The legal rights of every Tennessean are in greater danger now than ever before. To protect these rights, citizens from across the state need to tell their state legislators not to vote for caps on punitive damages or other legislation that would restrict their rights to reasonable and just compensation.
D'Army Bailey previously served 19 years as a Tennessee Circuit Court judge.
D'Army Bailey is an attorney with the firm of Wilkes & McHugh, P.A.