$4.5 Million Verdict for Surgical Retractor Left in Abdomen Eight Years
After trial: Final. The jury returned $4,500,000 in noneconomic damages in February 2018, and the Tennessee Supreme Court fixed the judgment at $750,000 on June 2, 2021, holding that a single aggregate cap covers the injured plaintiff and a spouse's loss-of-consortium claim together.
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.
More proven verdicts from Kinnard Clayton & Beveridge
All Kinnard Clayton & Beveridge proven verdicts →A Davidson County jury awarded Fox Sports reporter Erin Andrews $55 million after finding that the Nashville Marriott at Vanderbilt negligently disclosed her room location to a stalker who altered a peephole to film her without consent.
A federal jury in Chattanooga awarded $22.2 million to a Franklin County couple after an epidural catheter placed for post-surgical pain control triggered a spinal bleed that left 62-year-old Bette Donathan permanently paralyzed from the waist down.
Related medical malpractice verdicts
A Utah judge entered a $951 million default judgment against Steward Health Care after newly trained nurses, an excessive Pitocin drip, and a delayed C-section at Jordan Valley Medical Center left a newborn permanently brain damaged.
A Gainesville jury awarded $900 million, including $700 million in punitive damages, to stroke survivor Joseph Webb over neglect at the University Place Care and Rehabilitation Center, in a Wilkes & McHugh case tried against defaulted Trans Healthcare entities with no defense present, but Florida's First District Court of Appeal reversed the judgment in 2013 because the trial court had refused to let a defense lawyer appear, and the money was never collected; the estate's claim was later resolved for a small share of a multi-estate bankruptcy settlement.
A Clark County jury ordered Health Plan of Nevada and Sierra Health Services to pay $524 million after finding the UnitedHealth Group subsidiaries negligently credentialed a gastroenterologist whose unsafe injection practices at his Las Vegas endoscopy clinics caused the largest medically caused hepatitis C outbreak in American history.
Georgia Hayes, a Kansas City area ovarian cancer patient, sued pharmacist Robert Courtney after learning he had diluted the chemotherapy drugs used in her treatment. A Jackson County jury found Courtney liable and awarded Hayes $225,571,439 in compensatory damages and $2 billion in punitive damages, the first of hundreds of similar suits against Courtney to reach trial. The trial judge later found the award excessive and cut it by remittitur to $330,071,439, and that reduced judgment stood. Hayes herself and the case reporter covering the verdict both said she was unlikely to ever collect a significant portion of it.