In Re Estate of Charles B. Lehman

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
January 26, 2012 Session

IN RE ESTATE OF CHARLES B. LEHMAN

Appeal from the Tennessee Claims Commission
No. T20050805 Stephanie Reevers, Commissioner

No. M2011-01586-COA-R3-CV - Filed May 25, 2012

Claimant filed a claim with the Tennessee Claims Commission to recover for the
wrongful death of his father, a resident of Middle Tennessee Mental Health Institute; the
Commission awarded damages for loss of consortium, pain and suffering, and medical and
funeral expenses. Claimant appeals the amount of damages awarded for loss of consortium
and pain and suffering. We affirm the damages awarded for loss of consortium and modify
the award of damages for pain and suffering.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Tennessee Claims
Commission Affirmed in Part and Modified in Part

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R. and A NDY D. B ENNETT, JJ., joined.

James S. Higgins, Nashville, Tennessee, for the Appellant, Herschel Charles Lehman.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
and Heather C. Ross, Senior Counsel, for the Appellee, State of Tennessee.

OPINION

B ACKGROUND

Charles Lehman, who suffered from brain damage, complications arising from
encephalitis, and other psychiatric problems, was a patient and long-term resident at Middle
Tennessee Mental Health Institute (“MTMHI”). On March 19, 2004, he ingested aftershave
and suffered acute alcohol poisoning; he was transported to Summit Medical Center for
emergency treatment and remained hospitalized until his death on March 30.
 Mr. Lehman’s son, Herschel Lehman (“Claimant”), filed a claim with the Tennessee
Claims Commission, asserting that MTMHI was negligent for failing to provide a safe
environment for Mr. Lehman, failing to protect him from a dangerous substance, and
allowing him to ingest a dangerous substance. Claimant sought damages for Mr. Lehman’s
pain and suffering, medical and funeral expenses, and loss of consortium. The State admitted
liability and the matter was tried on the issue of damages. On May 26, 2011, judgment was
entered awarding $15,000 for loss of consortium, $20,000 for pain and suffering, $69,964.17
in medical expenses, and $6,568.03 in funeral expenses.

Claimant appeals, asserting that the award of damages for pain and suffering and for
loss of consortium are inadequate.

S TANDARD OF R EVIEW

Because the Claims Commission hears cases without a jury, we review the
Commission’s factual findings and legal conclusions using the standard in Tenn. R. App. P.
13(d). Bowman v. State, 206 S.W.3d 467, 472 (Tenn. Ct. App. 2006). Therefore, the
Commission’s factual findings are reviewed de novo with a presumption of correctness
unless the evidence preponderates otherwise; legal conclusions are reviewed de novo and are
not entitled to a presumption of correctness. Id. (citing Beare Co. v. State, 814 S.W.2d 715,
717 (Tenn. 1991); Dobson v. State, 23 S.W.3d 324, 328–29 (Tenn. Ct. App. 1999); Sanders
v. State, 783 S.W.2d 948, 951 (Tenn. Ct. App. 1989); Turner v. State, 184 S.W.3d 701 (Tenn.
Ct. App. 2005); Crew One Productions, Inc. v. State, 149 S.W.3d 89, 92 (Tenn. Ct. App.
2004); Belcher v. State, No. E2003-00642-COA-R3-CV, 2003 WL 22794479, at *4 (Tenn.
Ct. App. Nov. 25, 2003)).

The right of recovery for wrongful death is strictly a creation of statute. Jordan v.
Baptist Three Rivers Hosp., 984 S.W.2d 593, 597 (Tenn. 1999). Tenn. Code Ann. §
20-5-113 provides that where a “wrongful act, fault or omission” causes death, the party
suing shall have the right to recover “for the mental and physical suffering, loss of time and
necessary expenses resulting to the deceased from the personal injuries, and also the damages
resulting to the parties for whose use and benefit the right of action survives from the death
consequent upon the injuries received.” Tenn. Code Ann. § 20-5-110 provides that “a suit
for the wrongful killing of the spouse may be brought in the name of the surviving spouse
for the benefit of the surviving spouse and the children of the deceased.” Our Supreme Court
has held that Tenn. Code Ann. § 20-5-110 also permits a child to recover damages for loss
of parental consortium. Jordan, 984 S.W.2d at 601.

Damages under Tenn. Code Ann. § 20-5-113 are delineated into two distinct
categories: (1) recovery for injuries sustained by the deceased from the time of injury to the

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time of death, including medical expenses, physical and mental pain and suffering, funeral
expenses, lost wages, and loss of earning capacity; and (2) recovery of incidental, or loss of
consortium, damages suffered by the decedent’s next of kin, including the pecuniary value
of the decedent’s life. Id. Loss of consortium “consists of several elements, encompassing
not only tangible services provided by a family member, but also intangible benefits . . .
includ[ing] attention, guidance, care, protection, training, companionship, cooperation,
affection, [and] love . . . .” Id. at 601. The amount of damages to be awarded is a factual
question. Rinehart v. State, 01A01-9309-BC-00428, 1994 WL 126803, at *3 (Tenn. Ct. App.
Apr. 13, 1994).

Because Claimant challenges the Commission’s award for both categories of damages
defined in Jordan, we will analyze each category separately.

D ISCUSSION

I. Loss of Consortium and Pecuniary Value

The Commission awarded $15,000 for the loss of consortium claim. In its order, the
Claims Commission made extensive factual findings regarding Mr. Lehman’s history of
mental illness and viral encephalitis; the circumstances surrounding his ingestion of the
aftershave and subsequent medical treatment; the medical proof of causation of his death;
and the relationship between Claimant and Mr. Lehman. The Commission set forth its
findings and summarized the testimony relevant to the claim as follows:

[Claimant] was born on October 3, 1977. [He] was about six years old
when his father contracted encephalitis, so most of his memories are after this
illness. He could, however, recall waiting for his father to return home after
he had been on the road.
[Claimant] lived in Clarksville with his grandmother, Loraine Lehman.
When [Claimant] was a child, his grandmother and aunt took him to visit his
father at [Middle Tennessee Mental Health Institute] and at nursing homes
where he resided. Periodically, Lorraine Lehman and [Mr. Lehman’s] sister
Joan Mullins would pick up [Mr. Lehman] from an institution and bring him
to family events like Easter, Thanksgiving, and Christmas. While [Claimant’s]
father was at MTMHI, he typically saw him once or twice every six months
and visited with him in a sitting area. He never went to his room and they
never spoke by phone.
[Claimant] testified that he had a loving relationship with his father,
despite his disability. He conceded, however, that because his father was
confined in a mental institution, medicated, and had encephalitis, their

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 relationship was not typical. He could not look to his father for financial
assistance, help with homework or advice. After becoming an adult,
[Claimant] did not see his father as often as he had as a child.
[Claimant’s aunt], Joan Mullins, called and told [him] about his father’s
accident and hospitalization. He went to Nashville to see him at Summit
[Medical Center] while he was on life support and participated in that decision.
He subsequently returned to Clarksville where he lived, however, and
communicated with his aunt and grandmother concerning his father’s
condition from there. He believed that his father had been getting better when
he learned of his death. He was 25 years old when his father died.

The judgment also cited the testimony of Steven Silas, M.D., who testified, inter alia, that
Mr. Lehman’s life expectancy was approximately two years due to his encephalitis and
dementia.1 The Commission also found that “it is not disputed that Mr. Lehman had no
earning capacity at the time of his death.”

Claimant asserts that the amount of damages awarded for loss of consortium “does
not recognize that [Claimant] had a genuine, valuable relationship with his father.” He
contends that the evidence preponderates in favor of a higher award because he “lost so many
of the intangible benefits of a father son relationship as a result of the wrongful death.”

Damages for loss of consortium are classified as incidental damages, and have been
judicially defined to include the pecuniary value of the decedent’s life. Id. at 600 (citing
Spencer v. A-1 Crane Serv., Inc., 880 S.W.2d 938, 943 (Tenn. 1994)). Courts determining
the pecuniary value of a decedent’s life may consider “the expectancy of life, the age,
condition of health and strength, capacity for labor and earning money through skill, any art,
trade, profession and occupation or business, and personal habits as to sobriety and industry.”
Id. at 600. One basis for placing an economic value on parental consortium is that the
education and training which a child may reasonably expect to receive from a parent are of
actual and commercial value to the child; thus, when a defendant tortiously causes the death
of the child’s parent, the child sustains a pecuniary injury for the loss of parental education
and training. Id. at 601. Although an adult child is not automatically precluded from
receiving parental consortium damages, the relationship between an adult child and the
child’s parent may be too attenuated in some cases to proffer sufficient evidence of
consortium losses, and the adult child inquiry shall take into consideration factors such as
closeness of the relationship and dependence. Id.

1
Dr. Silas, a board certified physician who participated in Mr. Lehman’s medical care at Summit
Medical Center, testified by deposition.

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 Mr. Lehman was 56 years old and had no earning capacity at the time of his death.
Uncontroverted testimony was that, due to his deteriorating mental and physical condition,
he likely would have died within two years. Claimant, who was 25 years old at the time of
the hearing, testified that he visited his father once or twice every six months as an adult; that
they had no other interaction or communication; that his father was not able to provide any
financial help or parental advice; that he was not dependent on Mr. Lehman in any way; and
that his relationship with his father was “not typical.”

We are aware that the pecuniary value of the intangible benefits between a father and
son is not easily calculated and cannot be derived by application of a mathematical formula;
Claimant nevertheless bears the burden of showing that the evidence preponderates against
the judgment of the Claims Commission. Coakley v. Daniels, 840 S.W.2d 367, 370 (Tenn.
Ct. App. 1992) (citing Capital City Bank v. Baker, 442 S.W.2d 259, 266 (Tenn. Ct. App.
1969)). Although Claimant testified that he and his father had a loving relationship despite
his father’s history of mental health problems and limited cognition, and that Claimant
suffered the loss of intangible benefits when his father died, that testimony is not sufficient
evidence to conclude that the amount of damages for loss of consortium should have been
higher.

After considering the factors outlined by our Supreme Court in Jordan, we hold that
the evidence does not preponderate against the award of damages for loss of consortium, and
the Commission’s judgment with respect to loss of consortium is affirmed.

II. Pain and Suffering Damages

The Commission awarded Claimant $20,000 as damages for his father’s pain and
suffering. Claimant acknowledges that Mr. Lehman’s pain and suffering was “likely
minimal” while he was in the coma; he asserts that, in light of the fact that Mr. Lehman
awoke from the coma to “multiple new problems, injuries, infections and medical conditions
that he could likely not comprehend,” the award for pain and suffering was inadequate.

Pain and suffering encompasses the physical and mental discomfort caused by an
injury, and includes the “wide array of mental and emotional responses” that accompany the
pain, characterized as suffering, such as anguish, distress, fear, humiliation, grief, shame, or
worry. Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 715 (Tenn. Ct. App. 1999). Damages for
pain and suffering are not easily quantified and do not lend themselves to easy valuation.
Duran v. Hyundai Motor Am., Inc., 271 S.W.3d 178, 210 (Tenn. Ct. App. 2008).
Accordingly, determining the amount of these damages is appropriately left to the sound
discretion of the judicial finder-of-fact, and when reviewing an award of non-economic
damages we do not determine whether the amount of damages awarded strikes us as too high

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or too low. Id. at 210–11. Rather, we review the evidence in the record to determine
whether material evidence supports a finding that the award is within the range of
reasonableness. Id. (quoting Dunn v. Davis, No. W2006-00251-COA-R3-CV, 2007 WL
674652, at *9 (Tenn. Ct. App. Mar. 6, 2007)).

The “range of reasonableness” embraces both the upper and lower limits of recovery
and is established by the proof presented at trial. Foster v. Amcon Int’l, Inc., 621 S.W.2d
142, 146 (Tenn. 1981). “The upper and lower limits of [the range of reasonableness] must
be determined by a reasoned examination of the credible proof of damages and all factors
that have bearing upon the amount of recovery.” Smith v. Shelton, 569 S.W.2d 421, 427
(Tenn. 1978). Inasmuch as Claimant is challenging the $20,000 award as inadequate, our
inquiry is focused on whether the evidence supports this amount as being the lower limit of
reasonableness for the pain and suffering shown by the evidence. To guide our analysis, we
consider cases which discuss awards of damages for pain and suffering.

In 2007, a federal district court in Tennessee awarded $75,000 for the pain and
suffering of a fisherman who drowned in a boating accident. Matheny v. Tennessee Valley
Auth., 523 F. Supp. 2d 697, 728 (M.D. Tenn. 2007) modified in part, 247 F.R.D. 541 (M.D.
Tenn. 2007) rev’d in part, 557 F.3d 311 (6th Cir. 2009). The evidence showed that the
fisherman spent approximately ten minutes struggling to stay afloat and breathe before losing
consciousness; in making the award the court stated that the fisherman “undoubtedly
experienced excruciating pain and terror.” Id.2

In 1988, a district court in Tennessee held that a jury’s award of $100,000 for pain and
suffering was excessive and against the weight of the evidence, and suggested a remittitur
of $75,000. Sharpe v. City of Lewisburg, Tenn., 677 F. Supp. 1362, 1365 (M.D. Tenn. 1988).
The decedent in Sharpe had been shot by police; he was conscious when he was placed in
the ambulance and was dead upon arrival at the hospital. The court reasoned that “[h]e could
not have lived more than a few minutes from the time of injury until death.” Id.

In 1983, this Court affirmed a trial court’s decision to increase awards of
compensatory damages to a 21-year-old man and an 8-year-old girl, who sued to recover for
injuries sustained in an automobile collision. Owen by White v. Locke, 650 S.W.2d 51,
52–53 (Tenn. Ct. App. 1983). The trial court increased the award to the man from $26,325
to $40,000, and to the girl from $4,252.37 to $20,000. On appeal, this Court noted the

2
On appeal, the Sixth Circuit Court of Appeals held that the Limitation of Liability Act, 46 U.S.C.
§ 30505(a), limited the defendant’s liability for the fisherman’s death, and remanded to the district court to
apply the limitation of liability under 46 U.S.C. § 30505. The award for pain and suffering was not
challenged.

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evidence that the man’s hospital bills were in excess of $11,000, that he expected to incur
$1,500 more for an additional medical procedure, that he had lost $5,000 in wages, and that
he had sustained a 10% permanent partial impairment. With specific reference to damages
for pain and suffering, the court stated:

Owen sustained a severe, painful and debilitating injury. A competent
orthopedic surgeon testified as to the nature and extent of his injuries as well
as to the expensive, prolonged and painful nature of the treatment. The
extreme discomfort of lying in a hospital bed, enmeshed in a leg traction
device with holes punched into his limbs, warrants, in and of itself, substantial
damages for pain and suffering.

Id. at 52. Similarly, with respect to the award of pain and suffering damages to the girl, we
noted that the amount of medical expenses, which exceeded $11,000, “were quite large” and
“reflect[ed] upon the seriousness of the injury,” and that the nature of her injury—a broken
femur—required “a prolonged and painful treatment” followed by “a rehabilitative process,
all of which is quite painful and discomforting.” Id. at 53.

These cases show that the factors and evidence to be considered in making an award
of damages for pain and suffering include, in addition to the nature of the injury itself, the
amount of medical expenses, the discomfort experienced in being treated and the length of
time between injury and death.

The Commission made the following findings regarding Mr. Lehman’s initial
presentation, course of treatment, and hospitalization:

On March 19, 2004, Mr. Lehman ingested half of a bottle of “Lucky
Tiger” aftershave and was transported from MTMHI to Summit Medical
Center for Emergency Treatment. Mr. Lehman, who was in a coma, presented
with an alcohol level of 560 and aspiration pneumonia. He was placed on a
ventilator to support his lungs. His physicians noted findings indicative of
pneumonia and sepsis.
. . . . Although Mr. Lehman had a [Do Not Resuscitate] order in place
prior to the incident, his family permitted him to be put on life support for a
short period to give him an opportunity to recover. Lehman regained
consciousness and was taken off the ventilator on March 20, 2004.
After Mr. Lehman began choking during efforts to feed him indicating
swallowing difficulty, endoscopic tests were conducted to determine the
feasibility of placement of a feeding tube by percutaneous endoscopic
gastrostomy (“PEG tube”) and balloon dilation. The endoscopy revealed the

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 poor state of Mr. Lehman’s esophagus, which was coated with a white exudate
believed to be candida. Tests also revealed old food and secretions that had
dried up in his airway and that had to be cleaned up. Because his esophagus
could not support a PEG tube, surgery was subsequently performed to place
a gastrostomy tube so that he could be fed.
Sometime after the procedure, Mr. Lehman went into respiratory
distress. After discussion with his family, a new DNR order was put in place.
Mr. Lehman’s condition deteriorated and he was pronounced dead on May 30,
2004.
During his hospitalization, Mr. Lehman was confined to his bed in soft
wrist restraints because of his confusion, disorientation and attempts to grab
at his tubes or dressings. He was catheterized. His records do not reflect that
he was in pain, although several notes reflect periods of agitation, particularly
as his condition deteriorated. On one occasion, nurses noted that “[h]e is
getting agitated again, slamming hands against the bed, loosening his wrist
restraints and getting hold of his foley.”
Mr. Lehman had to be repeatedly suctioned to clear his airway. On one
occasion, his sitter reported that he appeared to be uncomfortable. No reports
of hunger or thirst from Mr. Lehman or his family appear in the records,
although on one occasion Lehman, who was a heavy smoker, asked for a
cigarette. He was briefly on a ventilator and required surgery to place the
feeding tube.

Regarding Mr. Lehman’s initial admission in the hospital, Dr. Silas testified:

The diagnosis that I had formed when I first saw him . . . was that he had an
acute, which means sudden, alcohol intoxication, mental status changes,
meaning that the brain function was worse or more towards the comatose side
based on his -- compared to his baseline. I understand that he had some
impairment at baseline. But this had worsened his baseline brain function.
And as a result of that he had aspirated -- aspiration of stomach contents,
meaning he swallowed into his lungs and developed pneumonia, developed a
severe sudden blood poison or a sepsis reaction. And as a result of that he had
other organs that were being affected, such as his heart and his kidneys and his
liver and bone marrow by this infection.

Dr. Silas testified that he treated Mr. Lehman’s “severe aspiration and pneumonia and
respiratory failure and circulatory shock . . . with fluids, antibiotics and support[ed] those
lungs by life support ventilation,” and that “because this was an event that was sudden and
onset and potentially reversible, the family and, I guess, the medical staff ourselves decided

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that it was worth giving him a trial of two or three days of life support.” Dr. Silas testified
that Mr. Lehman was unconscious when he arrived at the hospital on March 19, but that Mr.
Lehman regained consciousness on his second day in the hospital and remained conscious
until his death on March 30. Dr. Silas testified that Mr. Lehman was unable to eat food
without aspirating, and that a feeding tube was surgically inserted through his abdomen into
his stomach, but that he still experienced a second “aspiration event.” Dr. Silas testified that
Mr. Lehman’s pneumonia improved during his hospitalization but that it had not improved
fully, and that his infection worsened when Mr. Lehman continued to aspirate.

Mr. Lehman’s sister, Joan Mullins, testified that she visited Mr. Lehman every day
during his hospitalization. She testified that, after he awoke from his comatose state:

He was put in a room and at some point after that, after they
disconnected him from all of that and he was put in a room. And my sister and
I went every day to see him, and [MTMHI] furnished a sitter to sit with him.
And he was on medications and IV’s and he couldn’t -- he choked and
coughed, and choked and he coughed. And they decided one day right after
that, he went into this talking and all day, he talked. He would say this thing
all day, and we would try -- I’d try to figure out what it was. And it was like
something like omni, omni, omni. And finally, at the end of the day, my sister
said, I think I know what he’s saying, are you -- are you saying hungry? He
said, omni, omni. And so, he was hungry.
And -- and I told the nurse. I said, he’s really hungry, is there any way
I can feed him? She said, oh, yes. . . . So, she brought me a tray that had
applesauce on it . . . I tried to feed him and he got choked, and he choked and
coughed and fell over in the bed. I -- I couldn’t -- I said, “Charles, what did
I do? What did I do?” And he finally coughed some of that up. And so then
he pointed, like he wanted some more. So, I tried to feed him again and the
second time was worse. And he got choked and coughed and coughed. . . . So,
[the nurse] fed him the applesauce. And she -- she said, “now, we’re going to
do -- we’re going to do this slow, Charles, and we -- you’re going to swallow
this and it’s going to be okay.” So, she gave him a couple bites and it all -- he
got choked and it came back up. And he -- he just couldn’t get his breath and
she beat him in the back and all of this, you know, saying you got choked.
And so after a couple times of that, she said, “well, no wonder he’s choked,
this is going straight into his lungs.” . . . . So, she took the tray out and from
that point on, he never could drink or eat anything.

Ms. Mullins testified that Mr. Lehman continued to indicate that he was hungry and thirsty
throughout his hospitalization, and when she was asked, “Did he ever stop asking for food

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or drink,” replied, “No, he was always hungry and always wanted to drink.” Ms. Mullins
also testified regarding the throat-suctioning procedures that Mr. Lehman endured:

. . . [T]here was suctioning that went on on a regular basis in his throat.
And at first, they just -- when he got all choked and everything, they took a big
bulb thing with a long thing on it, and went down and suctioned his throat.
And then they came in after that and they hooked up a tube above the head of
his bed and it had a long -- long tube thing on it. And that’s what they used to
suction his throat out.
And he would get to where he would choke, he would be like he was
strangling and couldn’t breathe. And so, they would come in and suction his
throat and she would turn that suction on and run that thing down his throat,
just like this, and suction his throat out. And he would cough and strangle and
choke.
And at one point, he got to where when he would see them coming, he
would just start shaking his head and his eyes would get real -- he was so
scared. He was like a little child and was so scared. So, I would tell him,
“hold my hand and it will be all right, just hold my hand and it will be all right
because it will be -- it will be over in a minute.” So, he would just squeeze my
hand the whole time they were doing it and just choke and cough.

At the conclusion of her testimony, Ms. Mullins was asked whether she “fe[lt] that he
suffered much in the hospital,” and she testified as follows:

He -- like I said, he was so scared. It was one incident that happened that was hard
for him was my sister and I were there, and he came -- they came in to give him a bath
and to change his bed, and they just jerked the covers off of him, and he was a very
modest man. So, he was very embarrassed and he was ashamed, and he kept making
this motion with his hand and saying something. And I realized -- and he didn’t want
my sister and I -- he wanted me to leave the room and turn around, turn around. So,
it was embarrassing for him to be there, being constrained and have somebody have
to change his diapers and all of that, because he -- he would want me to turn around.
He would motion for me to turn around when they would do that. And I would give
him privacy. So, that was embarrassing for him.
It was hard -- it was hard. He couldn’t breath. So, it was hard with the
suctioning and all of the medicals things that went on with him. I would not want to
go through that for ten days, nor anyone else have to go through that.

Mr. Lehman’s medical records, consisting of more than 450 pages, included
numerous “Routine Assessment/Reassessment” forms which described in detail Mr.

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Lehman’s physical and mental health, including his neurological, cardiovascular, respiratory,
and gastrointestinal condition. The forms were filled out twice during each day of his
hospitalization. The forms state that, throughout his hospitalization, Mr. Lehman’s breathing
was “labored,” “coarse,” or “shallow,” and that he experienced “frequent” or “occasional”
coughing. From March 21 until his death, the forms indicate that he was confined to his bed
with wrist restraints and that his mobility was “very limited” or that he was “completely
immobile.” The forms also state that Mr. Lehman’s throat was suctioned on March 21, 22,
25, 26, 27, and 28.3 Throughout his treatment, the forms consistently state that his bowel
pattern was “incontinent” and that he had secretions in his throat and lungs. The assessment
forms also included a section indicating whether Mr. Lehman was in pain; this entry was
filled out with an “N” on every form. On a few of the forms entries are made describing Mr.
Lehman’s psychosocial state. The first entry appears on the form for March 23 and states
that his mood was “agitated;” the next entries describing his mood appeared on March 28 and
29, and state that Mr. Lehman was “agitated” and “gets angry and agitated at times.” The
record also contains documents entitled “Additional Clinical Documentation,” which state
that Mr. Lehman was “confused,” “disoriented,” and “agitated/hostile” throughout his
treatment.

The record shows that Mr. Lehman incurred nearly $70,000 in medical expenses
during his 10 day stay in the hospital. His medical records, as well as the testimony of Ms.
Mullins and Dr. Silas, demonstrate that throughout his treatment Mr. Lehman was enduring
fear, agitation, difficulty breathing, confusion, disorientation, incontinence, repeated throat-
suctioning procedures, aspiration, hunger and thirst, and was confined to his bed with wrist
restraints. All of these experiences are properly considered “pain and suffering” as defined
in Overstreet, as physical and mental discomfort, and which includes a “wide array of mental
and emotional responses.” Overstreet, 4 S.W.3d at 715. While portions of Mr. Lehman’s
medical records indicate that he was not in pain and was, at times, comfortable, the
preponderance of the evidence shows that he struggled to survive for nearly all of the 10 days
of his hospitalization. The evidence also shows that Mr. Lehman’s dementia and other
mental health problems made it difficult, if not impossible, for him to comprehend why he
was hospitalized and undergoing medical treatment, thereby exacerbating his confusion,
agitation, and disorientation. A tortfeasor “must accept the person as he finds him,” and Mr.
Lehman is entitled to recover for all of the pain and suffering he experienced, including the
suffering that was increased by his previous medical conditions. See Haws v. Bullock, 592
S.W.2d 588, 591 (Tenn. Ct. App. 1979). The evidence preponderates against the
Commission’s award for his pain and suffering and the award is beneath the lower limit of

3
It is not clear if whether his throat was suctioned on the other days or if the forms merely do not
mention that it occurred.

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the range of reasonableness established by the record in this case, giving due consideration
to the factors identified in the cases mentioned previously.

C ONCLUSION

For the foregoing reasons, the judgment of the Tennessee Claims Commission is
affirmed in part and modified in part. Pursuant to our authority to modify the Commission’s
award, see Rinehart v. State, 1994 WL 126803 (Tenn. Ct. App. April 13, 1994), we modify
the award of pain and suffering by increasing it to $50,000.00; in all other respects, the
judgment is affirmed.

___________________________________
RICHARD H. DINKINS, JUDGE

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