Limits of Waiver Rule for Minor Medical Expenses
One of the primary issues in our upcoming minor liability waiver interlocutory appeal is whether a parent can waive their right to recover a minor's medical expenses after the parent has signed a waiver. We recently found a case, Grant v. Kia Motors Corp., ___ F.Supp.3d ___, 2016 WL 6247319 (E.D. Tenn. May 10, 2016), which provides an excellent analysis of the so-called waiver rule in Tennessee and, perhaps more importantly, the limits of the same. Here is the pertinent discussion:
In the alternative, Plaintiff Grant argues that even if her individual claims are barred by the statute of repose, she “can still recover medical expenses through the minor children's claims.” (Doc. 78 at 5). Relying primarily on the Tennessee Court of Appeals decision in Palanki ex rel. Palanki v. Vanderbilt Univ., 215 S.W.3d 380 (Tenn. Ct. App. 2006), Plaintiff Grant claims that Tennessee has adopted the “waiver rule” whereby a parent can recover a child's pre-majority medical expenses in a civil action brought on behalf of the minor child by and through the parent as next friend. Indeed, the Palanki court expressly recognized that in a previous case, the Tennessee Court of Appeals “adopted the waiver rule and held that ‘a child under circumstances where the parent has acted as next friend may maintain an action for his medical expenses provided that [the parent] has paid for them ... or is legally obligated to pay them.”10 Id. at 394 (quoting11 Smith v. King, 1984 WL 586817 at *2 (Tenn. Ct. App. Sept. 21, 1984)). This “waiver rule” has been cited approvingly, albeit in dictum, by the Tennessee Court of Appeals as recently as 2015. See Neale v. United Way of Greater Kingsport, 2015 WL 4537119 at *7 (Tenn. Ct. App. July 28, 2015) (“Under the waiver rule, ‘a child under the circumstances where the parent has acted as next friend may maintain an action for his medical expenses provided that [the parent] has paid for them ... or is legally obligated to pay them.’ ”) (quoting Palanki, 215 S.W.3d at 394)). The Tennessee Court of Appeals, therefore, would likely permit the minor Plaintiffs in this action to bring claims for their pre-majority medical expenses through their mother, Plaintiff Grant, as next friend.
[u]pon considering the foregoing cases and particularly Wolfe, we are persuaded that Tennessee has adopted the waiver rule and that a child under circumstances where the parent has acted as next friend may maintain an action for his medical expenses provided that he has paid them, as suggested in Burke, or is legally obligated to pay them.12
It will be seen that the trial judge gives the following elements as entering into the estimate of damages: (1) Sufferings; (2) loss of time; (3) medical expenses incurred; (4) permanent injuries. It is not alleged or shown that the boy incurred any expenses for medical services. It is alleged these were incurred by the father. Such an element was not proper in estimating the damages in a case brought like this, by next friend, for the minor; and, while there is no proof that the child paid any expenses for medical treatment, there is a statement that such expenses were incurred and paid by the father, and the charge was calculated to lead the jury to believe or infer that these expenses incurred and paid by the father might be taken into the estimate in fixing the damages. This was error ... Whether the jury, in finding a round amount of damages, gave any part of it for medical attention and loss of time, we cannot know, but they were warranted by the charge in doing so. This was error.
[i]n the case at bar it is not clear from the record whether the child could bring herself within the exception to the general rule above declared. At the hearing on the motion in limine it appears that the doctor's deposition which showed that the father was billed for the treatment was the only evidence introduced. A subsequent motion to reconsider was overruled. While in the ordinary case it is incumbent upon a plaintiff to present such proof to sustain his position at the time the motion was heard, because we are dealing with a minor we believe it in order that the case be remanded for the child to introduce such proof as she may to enable her to recover on the basis of the rule herein enunciated.