Tennessee Injury Law Center : Lawyers for Personal Injury and Wrongful Death : Serving Memphis, Nashville, Knoxville

We just reached a settlement of my truck wreck case.  Medicare is going to get a check for over $20,000?  My lawyer says we have to pay Medicare  this money because Medicare paid most of my medical bills.  Is that right?

Yes.   Medicare has a legal right to be re-paid from the money you receive.   Medicare reduces the amount of money it is owed by a pro rata share of the attorneys fees and expenses incurred in obtaining the settlement.  Under extraordinary circumstances Medicare will reduce the amount it is owed by an even greater amount..

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 I was hurt in a car wreck and hurt my back.  The insurance adjuster for  the other driver wants to know if I ever had any back pain in my life before the wreck.   I don't think this is any of her business.  Can the insurance find out this information about my medical history?

No, she cannot, unless you tell her or you sign a medical authorization which gives her the right to look at your medical and pharmacy records.  

However, your prior medical history that is related to the injuries you claim in the wreck is relevant in resolving your claim, and if you don't give the insurance company the right to see your medical records you will have difficulty getting your bills paid and getting the other compensation the law permits you to recover.   The insurance company wants to determine whether you had any prior complaint or injury to the same body part.   It also wants to see if you have any other medical condition that it can argued contributed to the accident or can otherwise be used to diminish the value of your case.

An experienced personal injury lawyer can guide you through this process.  He or she can tell you whether you should sign a medical records release and can help you give truthful answers to questions asked by the insurance company.    

I would advise you not to give the insurance adjuster a right to receive your medical records without consulting with an attorney first.  

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My child has been injured. How long do I have to bring a lawsuit on behalf of my child?

Under the law in Tennessee, there are time limits on which any person can bring a lawsuit against another. The general rule is that a child has until one year after his or her eighteenth birthday to bring a lawsuit to recover for a personal injury. Some people argue, however, that a parent’s claim for medical expenses incurred on behalf of the child must be filed by the parent within one year of the incident causing the injury, and thus it makes sense to consult with a lawyer promptly about any injury to your child that you believe was caused by someone else’s negligence.

If the child was injured as a result of medical malpractice, different rules apply. Medical malpractice claims are subject to a statute of repose. A statute of repose imposes an absolute time limit for bringing a claim regardless of the age of the injured person. The statute of repose for bringing a medical malpractice claim is three years. This means that a medical malpractice claim must be initiated within three years of the date of the malpractice regardless of the age of the injured person. Therefore, for example, a medical malpractice claim for a child injured during birth must be initiated within three years of the date of the birth of the child. There are certain other types of lawsuits where a minor must take legal action before his or her 19th birthday.

A new Tennessee law requires that medical providers be given 60 days advance, formal notice before being sued for medical malpractice. The notice must be given before the expiration of the time limit for initiating the claim. If proper notice is given, the deadline for filing the lawsuit is then automatically extended by 120 days.

Determining the deadline for filing suit in a particular case is very complicated. The consequence of a late filing – even by one day – is the loss of your legal rights. Therefore, the safest course of action is to contact an experienced attorney as soon as possible if you believe your child may have a claim. Most lawyers do not charge for this type of consultation

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My car was t-boned at a local intersection.  The guy that hit me ran the red light - and admitted that he did so - but he police officer didn't even give him a ticket!  Why was the guy not given a ticket?  Did the other driver pay the police officer off?   

No, the other driver did not pay off the police officer.  Police officers have discretion about when they write a ticket, and sometimes they simply choose not to do so.  I must confess that I don't always understand why tickets are issued in some cases and not in others, but I think it highly, highly unlikely that a police officer would take money not to write a ticket.

The fact that no ticket was written will almost certainly not hurt your case, especially if the police report indicates that the other driver admitted fault.   A statement by a police officer in a police report that the other driver admitted fault will carry a lot of weight with his insurance company as it decides whether or not to promptly resolve the claim.

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I am in the process of trying to hire a personal injury lawyer.  In doing my research I find that some lawyers describe various cases on their website but state that the amounts of the settlements are confidential.  Why do they do that?

Because an agreement has been made with the insurance company that paid the money that the amount of the settlement is confidential.  In my experience, defendants and insurance companies who settle a case for significant money often demand that the settlement be kept confidential - they simply don't want anyone to know how much they paid.   

A lawyer whose client has a confidential settlement is duty-bound not to disclose the amount of the settlement to anyone.  Thus, the lawyer will who wants potential clients to know what type of experience he or she has will do a brief summary of the case and simply state that the amount of the settlement was confidential.  

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I believe I was injured as a result of gross negligence at a local hospital.  What they did to me was outrageous - the media will have a field day with it.   In fact, it may force the hospital out of business.   Doesn't this mean I will get a quick settlement?

Perhaps.  It is true that some cases are settled to avoid publicity.  But these cases are relatively rare and in my opinion many people over-estimate the impact of the threat of a public airing of a situation will have on the ability to resolve the case.   Most (not all, but most) of the time those who are sued or who are at risk of a lawsuit place more importance on the merits of the case and the provable damages than they do on the threat of publicity.

An experienced personal injury lawyer can help you determine whether and when to bring the treatment you received to the public eye.  I recommend that you not seek media attention or even speak with the media until you discuss the matter with an experienced lawyer.

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I have a personal injury trial is three weeks.  My lawyer says she has to go to a "pretrial conference" next week.  What is that?  Do I need to be there?

Generally, conferences are held prior to a trial so that the Judge and lawyers can resolve disputes about the admissibility of evidence, the timing of witness testimony, and other logistical matters. Pre-trial conferences can greatly streamline the progression of a trial thereby minimizing the financial cost on the parties, witnesses, jurors and the Court.

You need to ask your lawyer whether you should attend.  It is rare that clients attend a pretrial conference, but that is question that you need to address with your lawyer.

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My car wreck case has not been settled and now my lawyer says we have to take depositions.  What are depositions and what do they cost? 

 A deposition is testimony given by a plaintiff, a defendant or witness in a lawsuit before the case actually goes to trial. The person giving the statement is called the deponent. At the beginning of the deposition the deponent is asked to swear or affirm that the statement will be truthful.   The deposition is taken by a lawyer asking questions of the deponent.   Usually, the lawyer for the plaintiff will take the deposition of the defendant and the lawyer for the defendant will take the deposition of the plaintiff.   Either lawyer may take the deposition of other people who have knowledge about facts important in the case.

The deposition is recorded and transcribed by a court reporter.  The cost of a deposition depends on whether you are buying the "original" or a "copy."   The person who takes the deposition buys the "original" and other parties each buy a "copy."

The cost of an "original" deposition runs about $2000 for a full day of testimony.   A copy is about $500.   Court reporters charge a flat fee called a per diem and make an additional charge for each page of the transcript.

To learn more about what happens during the case preparation process, read our Legal Guide called "Understanding the Steps in the Litigation Process."

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I am a college student who was run off the road by a tractor trailer.   I was badly hurt and had to miss a semester of college.  It looks like I will have permanent injuries as a result of the wreck.  What damages can I recover?

At the outset, let me remind you that no damages can be recovered unless you can prove that the truck driver negligently caused your injury.  The case you describe can be difficult, particularly if there was no impact between your vehicle and the truck and if there are no witnesses to the event. An experienced personal injury lawyer can help you determine the likelihood of success of your case.

Now, back to your question.  In a personal injury cases arising from accidents with trucks, you can recover monetary damages for past and future medical bills incurred because of the injuries, past and future physical pain and suffering, past and future mental or emotional pain and suffering, loss of earning capacity, disability, lost capacity for the enjoyment of life, and disfigurement.

A significant part of many personal injury claims in the recovery of the reasonable medical bills necessarily incurred as a result of the incident. To the extent that the injuries likely require on-going medical bills in the future, those future medical expenses can also be recovered.

Physical pain and suffering is physical discomfort caused by an injury. In the event you suffer an injury that will cause pain in the months and years after a settlement or trial, you can recover damages for that as well.

Mental or emotion pain and suffering includes anguish, distress, fear, humiliation, grief, shame, or worry.

Disfigurement is a permanent injury that impairs a person’s appearance. This includes permanent scars and lost limbs.

Lost capacity for the enjoyment of life compensates the injured person for limitations put on the ability to enjoy the pleasures of life as a result of an injury. This includes the inability to engage in activities you once enjoyed.

Disability is the loss of your ability to do the same physical things that you did before you were injured.

Loss of earning capacity is the loss of your ability to work and earn money. It may be an amount equal to your lost wages as a result of the injuries you received in the incident. If you have suffered permanent injuries that affect your ability to work and earn money, it includes those monies you are likely to lose in the future because of your injuries.

The reason loss of earning capacity may exceed lost wages is because sometimes it can be shown that a person is earning a particular wage only temporarily and will be progressing up the income ladder. For example, if a college student is injured and can never work again, it would be unfair to say that the student’s earning capacity is what he or she was making at a part-time job at McDonald’s. Instead, expert witnesses are employed to demonstrate the likely earnings of the student over his or her work-life expectancy if the injury had not occurred.

As indicated above, an experienced personal injury lawyer can help you determine the value of your case.

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I was hit by a tractor trailer and my car was totaled.  I spent 4 days in the hospital and it looks like I am going to miss several weeks of work.   What do you charge for meeting with me to see if I want to hire you as my lawyer?

There is no charge whatsoever.   I have never charged for an initial meeting with potential personal injury clients.   I meet with personal injury clients wherever is convenient for them.  For example, last week I met with one potential client in Kentucky and another in Sparta, Tennessee.  

I understand that people who have been injured have difficulty coming to meet in my office and the financial pressure caused by the injury makes it difficult to afford gasoline for the trip.   Thus, I am happy to meet with any potential client at a place and time convenient to them, including nights and weekends.

You may find our Legal Guide, "Understanding Attorney's Fee and Expenses in Personal Injury and Wrongful Death Litigation," helpful to you.

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The law I am thinking about hiring for my personal injury case advertises in the Yellow Pages that she is a member of the American Bar Association.   That sure seems impressive, especially since the ads of other lawyers don't mention that qualification.  What does it mean?

Many lawyers advertise that they are members of the Tennessee Bar Association, the American Bar Association, and / or their local bar association. Mere membership in these organizations tells consumers virtually nothing about a lawyer’s competence – all one needs to join these organizations is a law license and the money to pay the dues.

However, active membership in a bar association tends to indicate that the lawyer is interested in advancement of his or her profession. This is a relevant factor to be weighed by consumers because it indicates a passion for the law. A lawyer who has been active in bar associations will list those activities on his or her website. Those that do not list activities probably have not been active and are probably just dues-paying members.

Membership, particularly active membership in certain other types of bar associations is an important consideration for those who seek to hire a personal injury or wrongful death lawyer. A lawyer who does personal injury or wrongful death litigation on behalf of consumers should be a member of the Tennessee Association of Justice and the American Association of Justice. Once again, these associations have no entrance qualifications other than a law license and the ability to pay dues, but a lawyer who says he or she does personal injury and wrongful death work and does not belong to these organizations is, in our opinion, either not truly committed to protecting the rights of personal injury victims and their families or is too cheap to support the efforts of these organizations.

Both of these organizations work with legislators to help keep the courthouse doors open for ordinary people and work to educate their members. If a lawyer who seeks your case does not belong to these groups (both of them, not just one or the other), I respectfully suggest that you not even consider he or she to be your lawyer. If the lawyer is a member of both groups, then look to see how active he or she is in the organizations.

Those lawyers that are or have been committee chairs or members of the executive committee of these organizations have demonstrated that they are willing to volunteer their time to preserve the right of citizens to access the court system. Those who are merely members are at least saying that they will pay dues to support the organizations, but are unwilling or unable to make the sacrifice necessary to advance the goals of the groups.

Membership in any bar association is a very small part of determining who to hire as a lawyer.  To read more about what factors to consider in hiring a lawyer to help you in a personal injury or wrongful death case, click here.

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I had a surgery recently.  The doctor made an error and I also died.  I spent two extra days in the hospital.   I am fine now but I want to sue him.

You will have a difficult time finding a lawyer to help you with this case.  Even assuming that you can prove your case it appears your damages are minimal - two extra hospital days, related experiences, and the trauma of the event.  Medical malpractice cases are very expensive to prepare and are very vigorously defended by doctors and their insurance companies.  Thus, most lawyers have been forced to adopt a rather high damages threshold before they will accept any malpractice case.

Of course, you should talk to an experienced medical malpractice lawyer and see if he or she can help you.  Remember that in Tennessee you must take appropriate legal action within one year of the date of the event causing you an injury.  Failure to take timely action will result in a loss of whatever rights you have.

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An idiot in a jet boat hit my jet ski last weekend.  I received a broken leg as a result.  The TWRA officer said that the driver of the jet boat was going to have to submit to a test to see if he was under the influence of alcohol.  Can he be charged with drunk driving a boat?

Yes, if his blood level of alcohol is .08% or more.  Under Tennessee law, blood-alcohol content may be taken from all vessel operators involved in an accident where death or serious injury occurred.  Failure to consent to testing is a separate offense and may result in suspension of vessel operating privileges for six months.

Conviction for operating a vessel  under the influence of alcohol will result in fines of up to $2,500 on the first offense, $2,500 on the second offense and $5,000 for the third offense. A jail sentence of 11 months and 29 days may also be imposed for any conviction and operating privileges may be suspended from one to ten years.

A boat operator who hurts someone while under the influence of alcohol is negligent per se, that is, negligent as a matter of law.   Thus, they can be sued for damages suffered by you because of the incident.

Most boat operators have liability insurance that will be available to pay a settlement or judgment in the boat operator is found to have negligently injured someone while operating a boat.

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I was hurt when I was swimming and got run over by a jet ski.  I have filed a lawsuit but am scared to death about going to trial.  Will there be a trial?

Now days, most cases do not go to trial. 

These statistics will give you an idea of how many cases are actually tried. In the one-year period ending June 30, 2009, there were about 11,000 lawsuits filed involving all types of personal injury and wrongful death in the state of Tennessee. (Many other cases were settled before a lawsuit was even filed; those numbers are not publicly available.) However, there were only 260 jury trials and 348 non-jury trials in personal injury and wrongful death cases during that same period. These statistics are about the same from year to year, and thus it is fair to say that only about 5% percent of personal injury and wrongful death cases in which lawsuits are filed actually go to trial.

It is difficult to predict, however, whether any particular case will settle.  My experience is that a case is more likely to settle at a higher dollar value if the insurance company (a) sees that the case has been prepared for trial and (b) has been appropriately prepared by lawyers who the insurance company  knows are not afraid to go to trial. 

Thus, the lawyers in our firm prepares each case as if it is going to be tried. Quite frankly, this means we invest more time and money into cases than many other lawyers, but we believe that this approach leads to better results for our clients.

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The police accident report says that I was not at fault in my wreck and that the other driver was at fault.  Can I used the police report as evidence at a trial to prove the wreck was not my fault?

Not in Tennessee state court.  A rule of evidence specifically excludes police accident reports from the types of public records that can be admitted into evidence at trial to show how an accident occurred.

Why?  Because unless the officer actually saw the accident the police report is only the officer's opinion about what happened.  That opinion may be based on solely on whether the officer believes one person or the other and may have little value in determining what actually happened.  

A police officer who see a wreck can be asked to testify about what he or she saw.  He or she can also be asked about what the people involved in the lawsuit said after the wreck and about measurements taken at the scene of the wreck.   But the police report cannot be introduced into evidence absent extraordinary circumstances, whether the officer is there or not.

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I have a personal injury case in Tennessee.  The judge has ordered the case  to mediation.  What does that mean?

Mediation is a process where a person who has no stake in the outcome of the case (the "mediator") helps the parties to the litigation try to resolve their differences.  Mediation has increased greatly in Tennessee in the last twenty years.  

I had the honor of being appointed by the Tennessee Supreme Court to a commission that  drafted the original court rule concerning mediation and other forms of alternative dispute resolution.  I served on that commission about twenty years ago.

In court-ordered mediation the parties can usually agree to who will serve as the mediator.  If they cannot agree the court will appoint a mediator from a list of certified mediators.

Mediation helps the parties to a dispute focus on the strengths and weaknesses of their case.   As you would expect, there are good mediators and mediators who aren't so good.  An experienced personal injury lawyer will be able to give you advice on who should be selected as a mediator.

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We offered to settle my car wreck case for $40,000.  The insurance company for the guy that caused the wreck only offered $22,000.   Will the jury be told about what I was willing to take in settlement before trial?  Will they be told that I was offered $22,000?

No.  Absent extraordinary circumstances, settlement offers from either party are not admissible at a later trial.  The purpose of this rule is to encourage people to engage in settlement discussions, and thus usually the proposals made by one side or the other are not admissible in a later trial.

Of course, there are certain exceptions to this general rule but I must say that they are quite rare.  An experienced personal injury lawyer can explain whether any exception to the rule is applicable in your case.

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I was in a car wreck and it doesn't look like we will be able to reach a settlement - the other driver's insurance company does not want to pay me a fair amount to settle the case.   Will the judge and jury know that the other driver has insurance?

No.  They may assume that the other driver has insurance, but they will not know he or she has insurance.  Absent extraordinary circumstances neither you, your lawyer, nor any of your witnesses can mention that the other driver has insurance.

Why?  Because the presence or absence of insurance should not influence the jury's decision.  A person is responsible for the harm they cause.  Smart people who can afford it buy insurance to protect themselves from the financial consequences of making a error that hurts someone.   But the law does not permit the jury to be told - one way or the other - about insurance because technically it should have no impact on the value of the case.

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I was in a bad car wreck.   I had $50,000 in medical bills and missed eight weeks of work  (I make $800 per week as a mechanic).   I am probably going to have to have another surgery.  My doctor also says I will have arthritis for the rest of my life.   I just found out that the person who hit me only has $100,000 of liability insurance.   That is not enough for what he did to me.   Can I force the person who caused the wreck to pay me out of his pocket?

A person or company is always liable for all of the harm they negligently cause.  A person purchases insurance to reduce his or her own risk of coming out of pocket to pay for that harm, but if the harm caused exceeds the amount of insurance purchased he or she is liable for the rest.  

The problem, of course, is collecting from a person who causes harm.  To make a payment to the injured person over and above the amount of insurance the person who causes harm must have assets, income, or both.   Many people have very few assets and insufficient income to make a payment to the person who they hurt.   If pressed, these people will often just file bankruptcy and the bankruptcy court will discharge the obligation.   (There are some exceptions to this.  For example, the bankruptcy court will not discharge the lawsuit-related obligation of a drunk driver or a person who intentionally harms another.) 

An experienced personal injury lawyer will help you evaluate the factors you should consider in determining how hard to press the defendant to make a personal contribution over and above the liability insurance policy available for the claim.

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My child was killed by a drunk driver.   He was 10 years old. I want to file a lawsuit.  His no-good father, who never paid child support as ordered by the court and did not visit my son for the for the five year period after our divorce, says he is going to file a lawsuit, too.   Can he do that?  Does Tennessee law permit him to get money from the death of our son when he had nothing to do with our son when he was alive?

Unless you have some physical or mental health issue that you have not mentioned, you will have the right to bring the lawsuit. 

Tennessee law provides that a parent who has a parent who has intentionally refused or neglected to pay any support for a child for a two-year period, or for the life of the child, whichever is less, when subject to a court order requiring the payment of child support and who has intentionally refused or neglected to contact the child or exercise visitation during such period is not permitted to recover damages for the death of the child.  Thus, to cut off the father's right to money out of any recovery you make, you will have to demonstrate that (a) there was a child support order; (b) the father intentionally did not pay for at least 2 years; and (c) he intentionally did not visit the child.

At an absolute minimum you will be able to recover your unpaid child support.  Tennessee law provides that parent cannot recover damages from a wrongful death suit  until all child support arrearages have been paid in full to the parent ordered to receive the support (plus interest).    Thus,  if your child's father had visited your child within the last two years or but had not been paying child support he would have to re-pay you out of the any portion of the money he was entitled to receive.

An experienced wrongful death lawyer can help you navigate through these issues.

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I am in a car wreck case.  My lawyer says that we need to hire an accident reconstructionist.  What will that cost?

First, most lawyers in personal injury and wrongful death cases will advance the expenses associated with the case, including the cost of hiring expert witnesses.   Usually, those expenses are re-paid by the client after the successful prosecution of the case out of the settlement monies.

Second, the cost of an expert accident reconstructionist can vary substantially, from $100 per hour to $400 or even $500 per hour.  These experts usually charge for travel time.   The expert I frequently use charges about $3000 for the initial work-up at the scene of the accident, and additional monies for what must be done at the office.

Experts also charge for the time preparing for depositions, for giving a deposition, preparing for trial and attending trial.

Some experts charge must more.  For example, some medical doctors charge thousands of dollars per hour to give a deposition.  These charges are obscene, but the fact of the matter is they often must be paid (a patient often has little input into the decision of who her doctor is and no input into the decision of what that doctor charges).

An experienced personal injury lawyer will use qualified, honest experts to assist in proving your case.  Unfortunately, the cost of using these experts can be substantial.

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I had to testify in court recently and there was someone there typing in a little machine, apparently writing everything down.  My lawyer says that he was a court reporter.  That looks like a fun job.  What else do they do?

In Tennessee court reporters record and prepare transcripts of depositions, hearings and trials.  Unlike some states, court reporters in civil cases are hired by the people involved in the litigation, and are not employees of the State of Tennessee or any local government.  

Court reporters also may record and prepare transcripts for witness statements, corporate meetings, and other gatherings of people.

To learn more about court reporters go to this site.

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I was hurt in a car wreck in Nashville  last year.  I hired a lawyer two months after the wreck.  He called me last week, and told me he forgot to file my lawsuit on time.   He said he filed it late and hopes that the other side won't say anything but that if they figure it out my case will be dismissed.  What do I do now?

Your lawyer did the right thing by telling you that he made an error.  The failure to file a lawsuit within the one year period required by Tennessee law is legal negligence absent extraordinary circumstances not apparent from your question.

You need to hire a different lawyer to help you evaluate your case and, if necessary and appropriate, assert a claim against the lawyer.  To prove your case, you will need to prove that the lawyer committed malpractice by not filing the case on time.  You will also need to prove that more likely than not you would have won the underlying case (the care wreck case).  Lawyers refer to this second case as "the case within the case." 

Do not attempt to reach a settlement with the lawyer without seeking independent advice.  You need a different lawyer to help you evaluate the case.

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I am in a lawsuit and the other side wants me to give them documents.  I don't want to share my evidence with them.   Can they make me turn over my documents before trial?

Yes.  The Tennessee Rules of Civil Procedure have a special rule (Rule 34) that permits one side in litigation to ask the other side for documents that are "reasonably calculated to lead to the discovery of admissible evidence."  Practically, this means that one side to a lawsuit can ask the other side for anything reasonably related to the case.  

If you don't turn over requested information, you risk being sanctioned by the court.  If you fail to turn over information that is helpful to you and you later try to use that document at trial, the judge can exclude it from evidence as if it never existed.   Finally, it is possible that for a judge to dismiss your lawsuit (or order that the other side wins) if he or she finds that your failure to produce requested documents was willful.

Therefore, if your opponent asks for information, you should give it to your attorney and let the attorney decide whether the law requires that it be turned over to your opponent.  

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I just settled my personal injury case and my lawyer tells me I have to repay my health insurance company for paying my medical bills.  I have paid health insurance premiums for 25 years and was never in the hospital one time before my wreck!  Why do they have the right to get repaid? 

Because the insurance policy you have almost certainly says that they have the right to be repaid.  That is part of the bargain you struck with them - even though you never read your policy and no agent or representative of your employer mentioned it to you.

Depending on the type of health insurance you have there are several arguments that can be made to secure a reduction in the amount that must be paid back to the insurer.  An experienced personal injury attorney will know this area of the law and will work with you to secure a reduction in possible.

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