A Surgeon Left a Fourteen-Centimeter Ring Inside Cynthia Yebuah for Eight Years. A $4.5 Million Verdict Became $750,000.
After trial: Final. The jury returned $4,500,000 in noneconomic damages in February 2018. The Tennessee Supreme Court fixed the judgment at $750,000 on June 2, 2021, holding that Tenn. Code Ann. 29-39-102 imposes a single aggregate cap covering an injured plaintiff and a spouse's derivative loss-of-consortium claim together. The decision is now the controlling authority on that question statewide, so the reduction here is the rule rather than an outlier.
Won by Kinnard Clayton & Beveridge.
Part of a surgical retractor was left in Cynthia Yebuah's abdomen during a 2005 kidney removal and stayed there for eight years, looping around her small bowel. A Nashville jury awarded her family $4.5 million. Tennessee's cap on noneconomic damages cut it to $750,000, and the Supreme Court held that the cap is one limit shared by an injured patient and her spouse rather than one each.
What happened
In March 2005 Cynthia Yebuah had a kidney removed in a laparoscopic procedure in Nashville. During the operation a portion of a Gelport device, a fourteen-centimeter ring used to hold the incision open, was left inside her abdominal cavity. Nobody noticed. She went home with it.
It stayed there for eight years. Over that time the ring worked its way around her small bowel and the tissue reacted to it, producing chronic inflammation and scar tissue that adhered to the bowel in several places. The object was found only in 2013, and only by accident, when surgeons operating on her gallbladder for an unrelated problem came across it. On November 4, 2013 she had a further operation to take the ring out.
The Yebuahs sued the Center for Urological Treatment, PLC, the practice that employed the operating surgeon, on a vicarious liability theory. The individual physicians were voluntarily dismissed, and the remaining defendants admitted fault, so the February 2018 trial in the Circuit Court for Davidson County was not about whether the practice was responsible. It was about what the eight years had cost her.
The jury awarded $4,000,000 to Cynthia Yebuah, split evenly between pain and suffering and loss of enjoyment of life, and $500,000 to her husband Eric for loss of consortium. All of it was noneconomic, which put all of it inside Tennessee's statutory cap of $750,000 per injured plaintiff.
What followed was a four-year argument about a single phrase. The trial court first applied one $750,000 cap to the family's award as a whole, then reversed itself on a motion to amend and gave each spouse a separate $750,000 cap, for $1,250,000. The Court of Appeals agreed with the separate-cap reading.
On June 2, 2021 the Tennessee Supreme Court reversed. Writing for the Court, Justice Roger A. Page held that "each injured plaintiff" in the statute means the person who was physically injured, and that a spouse's derivative loss-of-consortium claim shares that person's single cap rather than opening a second one. The family's recovery was fixed at $750,000 in total.
Cynthia and Eric Yebuah were represented by Randall L. Kinnard and Mary Ellen Morris of Nashville, with Donald Capparella, Tyler Chance Yarbro and Kimberly Macdonald on the appeal.
Sources
This account is drawn from contemporaneous public reporting and the court record.
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