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

 I was in a car wreck last week.  It was not my fault.  I  spent five days in the hospital and am now recovering at home.  I am getting a couple calls a day from the insurance adjuster for the driver that hit me but I know I should not talk to him.  Now my insurance company is calling me and they want to take a statement from me about how the wreck happened.   Is there anything wrong with me giving a statement to my insurance company before I talk to a lawyer?

We do not recommend that our clients give a statement to either the other driver's insurance company or their own insurance company without adequate preparation for the interview.  Under most auto insurance policies in Tennessee, you have a duty to give your insurance company a statement, but you need to be adequately prepared first.

We do not prepare our clients by telling them what to say or encouraging them to lie.  In fact, just the opposite is true:  we encourage our clients to tell the truth about the circumstances giving rise to the wreck, the nature and extent of their injuries, and everything else.   Preparation is necessary because insurance adjusters are trained in asking questions, and may ask questions in such a way that the unprepared witness will make mistakes.   These statements are almost always tape-recorded and can be used against the person in court.

Why would your insurance company use your statement against you?  Because the driver that hit you may have insufficient insurance to pay your damages and you may have to make a claim against your own company under you uninsured / under-insured motorist coverage.  If that happens, your insurance company will be adverse to you, and your statement can be used against you.

Thus, I recommend that you talk to an experienced personal injury lawyer before giving a statement to any insurance company about your wreck.   Click here to learn how to identify such a lawyer.

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I was hurt in a car wreck in Tennessee.  What is the deadline for filing a personal injury lawsuit?

One year.   You have one year from the date of the car wreck to file a lawsuit against the responsible parties.  Failure to file a lawsuit on time against those who caused the wreck will result in a loss of rights.

There are a couple exceptions to this rule, but they are so fact dependent that I will not list them here out of fear that they might lull someone into thinking that they have more time than they might actually have.  So, assume that the one year deadline applies to you unless an experienced personal injury  lawyer familiar with all of the facts advises you that you have more time.

You should not wait a year to see a lawyer.  If you have injuries that require medical treatment, you should consult a lawyer as soon as possible.  You certainly should consult a lawyer before you give a statement to an insurance company, even your insurance company.

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I have a personal injury case pending in state court in Tennessee. I just had to file bankruptcy.  I listed my personal injury case as an asset on my bankruptcy filing.  My bankruptcy lawyer says that the bankruptcy trustee will now control my case.  Will my personal injury lawyer still get paid?

Your personal injury lawyer will have to file a motion with the bankruptcy court asking for permission to continue to represent you in the state court action.  He or she will also have to seek permission to charge the fee (probably contingent fee) that you agreed to pay.  If the bankruptcy court approves these requests, the case will continue and if it is successful your lawyer will be paid.  Any settlement of the case will have to receive approval of the bankruptcy court.

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I have a truck wreck case pending in Tennessee and the trucking company has subpoenaed my doctor for a deposition.  Can they do that?

Yes, if the doctor gave you treatment for injuries that arose out of the accident he or she can be required to give testimony about their treatment for those injuries.  That deposition can be taken by your lawyer or the trucking company's lawyer.  Your lawyer (and you) have the right to be present at the deposition.

If the doctor gave you treatment for a unrelated condition, the question is more difficult to answer.  If your lawyer believes that the inquiry into treatment by this provider is wholly unrelated to the wreck and an invasion of your privacy, he or she can ask the court to stop the deposition.  The court will let the deposition proceed if it determines that doctor has information that is admissible at trial or is likely to lead to the discovery of admissible evidence.

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My brother was killed in a wreck with a big truck.  I am named in the will as the executor of his estate and the court has appointed me as the executor.    I want to file a lawsuit against the truck driver and trucking company that caused the wreck, but my brother's wife says she is going to file it.  I don't think my brother's wife should be permitted to file the case because they were not living together at the time of the wreck because she had filed divorce proceedings against him six months earlier.

In Tennessee, both you and your sister-in-law have the right to file suit and if you cannot decide between yourselves who should control the litigation a judge will decide who the best person is to handle the case.   A lawyer who is experienced in wrongful death cases can guide you through this process, help you try to work this matter out with your sister-in-law, and help you persuade the court that you should take the lead on this case.

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I have a personal injury lawsuit.  My lawyer sent the driver who caused the wreck interrogatories.   We just got back the answers and some of those answers are bald-faced lies. Why does he get to lie?  How can we make him tell the truth? 

Interrogatories are written questions sent from one party in a lawsuit to an opposing party about issues related to the lawsuit.  For example, in a lawsuit arising from a motor vehicle collision, each driver may send interrogatories to the other ask for driving histories, including whether the opposing driver has ever received a driving citation. The party responding to interrogatories must sign a statement swearing or affirming that the responses to the interrogatories are true.

If a person does not tell the truth in response to an interrogatory, the untruth will hurt that person at trial.  The degree of harm a person does to his case when he does not tell the truth depends on many factors.  For instance, was the untruth intentional or just careless?  Was the untruth about a relatively minor thing or a major thing?   Is there a single untruth or are there multiple untruths?  When confronted with the untruth, did the person admit it or deny it?   There are other factors as well, but you get the point:  the circumstances control how much harm a mistake or lie in answers to interrogatories (or in oral testimony at a deposition or trial for that matter) will hurt one's case or help the opponent's case.

Neither you, your lawyer nor the judge can force any witness to tell the truth.  A judge can require a person to answer questions, but cannot require truthful answers.  Judges can punish people for giving untruthful answers when the untruths are exposed, and that punishment can be a minor as imposing certain litigation costs on that party to actually initiating a perjury charge.  Perjury charges almost certainly arise out of untruths in a civil case.

So how do you get the person to stop making false statements in answers to interrogatories?  Share with your lawyer any evidence you have that the other person has lied, and then let  your lawyer do his or her job.  The beauty of cross-examination is that it can expose a liar.   It does not always work, but many a liar has been exposed on cross-examination at a deposition or at trial.  If the liar is exposed it actually will help your case, especially if the lie is about a material fact in your case.  

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I was talking to a lawyer about my potential case the other day and he mentioned that he had malpractice insurance.   What does that mean?

That means that the lawyer has purchased insurance that protects his clients from financial loss in the event that he commits an error that causes a loss.   If the lawyer is alleged to have made an error that hurts a client and gets sued as a result, the lawyer's malpractice insurer company will hire a lawyer to defend its insured and pay any judgment against the insured up to the amount of the insurance.

Responsible lawyers carry malpractice insurance even though there is no law or court rule in Tennessee that requires lawyers to purchase such insurance.  Indeed, I would be very wary of hiring a lawyer who did not carry malpractice insurance.  The fact that a lawyer has insurance means he cares enough about his clients to try to protect them from the consequences of an error.

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I have a personal injury lawsuit.  What is the likelihood that it will go to trial?

Statistically, it is very unlikely your case will go to trial.  Personal injury cases are a type of tort (civil wrong) case.  In Tennessee for the year ended June 30, 2010, there were 10,469 tort cases filed in the entire state.  This may seem like a lot of cases, but remember that there are over 6,000,000 Tennesseans, millions of cars on the road driven by Tennesseans and citizens of other states, etc.

During the same period, the court system resolved 10,872 cases.  The vast majority of those cases were settled or dismissed by the court.  There were only 588 trials.  Of the 588 trials, only 283 were jury trials.  The other 305 trials were non-jury trials (cases decided by a judge without the help of a jury).

Of the 588 cases that went to trial, the claimant (known as the plaintiff) recovered money in only 229 cases.  Why?  Tennessee judges and juries are conservative and do not award damages in cases without solid evidence supporting the justness of the claim.

Thus, the odds are that your case will not go to trial.  However, whether any particular case actually goes to trial is dependent on many different factors.

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My husband was badly hurt in an accident with a tractor-trailer inTennessee.  What damages are available in a trucking accident claim?

Your husband has what is known as a personal injury claim.  In a personal injury cases, 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.

You also have a claim for the impact of the wreck on the relationship between you and husband and for his loss of services.  In Tennessee, this is known as a "loss of consortium" claim.

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What is the deadline for filing a medical malpractice case in Tennessee?

The short answer to this question is one year plus one hundred-twenty days. But the issue is really more complicated than that.

Generally, medical malpractice cases must be initiated within one year of the incident which causes the injury. For example, if a doctor performs surgery on the wrong arm of the patient, the patient will have one year from the date of the surgery to initiate a claim. A new Tennessee law requires that medical providers be given 60 days advance notice in the proper form before being sued for medical malpractice. The notice must be given before the expiration of the time limit for initiating the claim, so generally within one year. If proper notice is given, the deadline for filing the lawsuit is then automatically extended by 120 days.

Medical malpractice claims are subject to what is known as 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 or when the person became aware of an injury. The statute of repose for bringing a medical malpractice claim is three years. This means that a medical malpractice lawsuit must be filed within three years of the date of the malpractice, regardless of the age or competency of the injured person or when the injury is discovered.

Certain exceptions apply to these general rules such as instances when an instrument or sponge is left inside the patient and the patient is unaware. In this instance, the time limit for bringing the lawsuit is one year from the date of discovery.

There is lots of room for error here, and all lawyers would tell you that determining the deadline for filing suit in a particular case is very complicated. Therefore, the safest course of action is to contact an attorney as soon as possible if you believe you may have a claim. Unless a lawyer with knowledge of all of the relevant facts advises you to the contrary, you should assume that you have one year from the date of the incident causing you an injury to give the formal notice of medical malpractice claim described above. In the malpractice resulted in the death of the patient, you should assume that proper notice must be given within one year of the injury that later caused the death unless a lawyer with knowledge of all of the relevant facts advises you that you have more time. 

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What percentage of medical malpractice cases that go to trial in Tennessee are won by the patient?

About eighteen to twenty percent of cases that are tried are won by the patient.  The rest are won by the health care provider.

This makes it sounds like the rest of the cases are frivolous.  They are not.  In the other cases there can be a legitimate basis for disagreeing on the issues in the case, and in our society those disagreements are resolved by juries.  In the cases that are lost there is always at least one licensed health care professional who has testified that the defendant health care professional committed one or more negligent acts.  To be sure, the defendant and his or her experts disagree with that, but it is that disagreement that is resolved by a jury.

It is also important to remember that medical malpractice defendants settle cases they believe they are likely to lose if they can settle for an amount of money the patient is willing to accept.  Therefore, the only cases that are tried are those with a legitimate disagreement on liability or the value of the case.  

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I was hurt in a car wreck case and filed a lawsuit.  My deposition was taken two months ago and I haven't heard anything about my case since then.  What's going on?

You should call your lawyer and ask.  What is probably going on is that the lawyer is gathering other information to prepare your case for trial or make a settlement demand.  But, feel free to call or email your lawyer and ask (a) what has happened in the last two months and (b) what is the plan for moving the case toward settlement or trial.

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I caused a car wreck and the other party was hurt.  I really don't know how badly she was hurt but her medical bills are $40,000.  The case goes to trial in about 3 weeks.  My lawyer, who was hired by my insurance company, says that the case will probably go to trial because the person who got hurt wants $125,000 to settle the case and the insurance company has only offered $80,000.  I only have $100,000 of insurance for this wreck.  What happens if the case goes to trial and the jury awards the lady who got hurt more than $100,000?

If the jury awards, say, $120,000 your insurance company will have to pay $100,000 and you will have the responsibility of paying the last $20,000. 

When you are sued for more than your insurance policy limits you should typically seek the input of a private lawyer to help you make sure that your insurance company is treating you fairly.  Your company has a duty to fairly evaluate claims against you to protect you from an excess judgment.   I do not have enough information to say if your insurance company is treating you fairly in this case but I would suggest that you seek the advice of a competent lawyer as soon as possible.

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I have a DePuy hip implant that has been recalled.  What is going on with the litigation?

Our firm is actively involved in these cases.  We have filed seven cases and are evaluating several more.   Our cases were originally filed in federal court in Nashville.  The federal courts have determined that justice is best-served if all cases in the nation that are filed in federal court are temporarily managed in one federal court.  Therefore, all of the cases have been transferred to a federal judge in Ohio for pretrial proceedings.

The federal judge is in the process of appointing which lawyers will actively manage all of the cases for the patients.  As soon as that decision is made (and that could happen any day now) the litigation will be actively moving forward.

There is no commonly accepted timeline about when these cases will be settled or tried.  I think it is unlikely that any settlement will be reached in 2011.

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I was hurt in a personal injury case.  I have hired a lawyer and he has filed a lawsuit for me.  How much money can I ask for?

You have asked a question that is impossible to answer with the information you have given.   What were your injuries?  What were your medical bills?  Are you likely to have future medical bills as a result of your injuries?  Did  you lose any income as a result of your injuries?  Do your injuries impact your future earning capacity?  How have the injuries affected your ability to enjoy your life?  

There are many more questions that have to be answered.  Here are just a few.  How old are you?  Do you have any other medical conditions that affect the quality or length of your life?  What was your level of physical activity before you injury?  Where did the injury happen?  Where will your case be tried?  How did you get injured?   Who caused your injuries?  Who is the adverse lawyer?

The answer to these questions, and many more, impact the value of a case and therefore how much money you should originally seek from a jury or in a settlement demand.  The careful consideration of all of these factors is why you should seek the help of an experienced lawyer to help you.  How do you find such a lawyer?  Read here.

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I live in Tennessee and was hurt two weeks ago in a wreck in Murfreesboro, TN.  The wreck was not my fault.  My medical bills are $7000 but I still am being treated by my doctor and may need to have an operation on my shoulder.  I was hurt  in a wreck when I used to live in Wisconsin and sued the insurance company to recover my medical expenses and other damages.  Can I do that in Tennessee?

Not really.  Wisconsin and at least one other state have laws that permit an injured person to directly sue the liability insurance company of the at-fault driver.  Tennessee is not one of those states.

 In Tennessee, if you are unable to reach a settlement in the case you have to sue the at-fault driver.  The at-fault driver's insurance company will hire a lawyer to defend the driver and, if you prove your case, will pay the amount your damages up to the amount of the insurance coverage the driver purchased.

In the event the at-fault driver does not have sufficient insurance coverage to pay all of your damages, you can make a claim against your own automobile insurance coverage under your "uninsured / under-insured motorist coverage (UM / UIM).   You can collect from your own insurance company if your UM / UIM coverage exceeds the amount of liability insurance coverage of the at-fault driver.   Making a claim on your UM / UIM coverage will not affect your insurance rates.  You should make the claim against your UM / UIM insurance at the same time you are making a claim against the at-fault driver.

An experienced lawyer who represents people injured in automobile and truck cases can help guide you through this process and protect your rights.  Click here to learn how to select such a lawyer.

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I live in Tennessee and I understand state law requires that everyone who owns a car or truck have liability insurance coverage on the vehicle.  Why should I spend money to purchase uninsured motorist insurance coverage if everyone already has liabilty insurance?

Because (a) some people don't follow the law; (b) some people buy liability insurance coverage but do not purchase an amount that will protect you from losses you sustain in a car or truck wreck; and (c) you may get hit by a hit-and-run driver (and unisured motorist coverage gives you some protection in such cases).

Despite the law that mandates insurance coverage, 20% of the people in Tennessee have no insurance on their vehicle.  That means that 1/5th of the people you meet on the highway have virtually no way of meeting their financial obligation to you if they cause an accident and you are hurt.  You need uninsured motorist coverage to protect you from that risk.

Second, you need uninsured motorist coverage to protect you from the driver who caused a wreck and has purchased an insufficient amount of insurance.  My guess (and it is only a guess) is that 30 or 40 % of Tennessee drivers have only $25,000 in liability coverage available to a person involved in a wreck.  That sum - $25,000 - will not cover an emergency room visit and three nights in an ICU.   Most of the drivers that have low coverage have poor driving records, and many have a history of past DUIs.   These are exactly the drivers more likely to be involved in accidents, and we have to protect ourselves from them.

Third, uninsured motorist coverage protects you (under some circumstances) from hit-and-run drivers.

Ask your insurance agent to show you exactly what uninsured motorist coverage costs - you will be surprised how inexpensive it is.  Then, buy as much as you can.  This is the least expensive insurance coverage you can buy given the risks you face on Tennessee roads every day.

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My former spouse was driving our child to school, ran a red light, and was in a wreck.  Our child was seriously injured.  Can I help my son file a lawsuit against his father to collect money for the injuries received in the wreck?

Yes, under Tennessee law a child can sue a parent for injuries that arise out of an auto wreck.  You, as a parent, would have to file suit on behalf of your son because a minor cannot bring a lawsuit on his own behalf.  (Alternatively, the court could appoint a guardian to file suit on behalf of your son.)

The problem is that most auto liability insurance policies in Tennessee do not provide insurance coverage for injuries caused to family members.  Thus, if you and your son can prove that his dad caused the wreck you would have to collect any judgment you receive out of the father's assets and future income.  

Obviously, this is going to materially affect family harmony.   You and your son need to think long and hard about taking this type of legal action.  An experienced lawyer can help guide you through all of the factors you should consider before taking this type of action.

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I have a pending personal injury case.  My lawyer is often on the phone when I call and my call is forwarded to her paralegal.  I don't want to talk to the paralegal - I want to talk to my lawyer. The paralegal is helpful and can usually my question, but I would rather speak to the person I hired.  What should I do?

You didn't hire a lawyer, you hired a law firm.  In our firm a team of people works together to help every client.  The paralegal is an important part of the team.

Our law firm's paralegals are very involved in the case.  They help us communicate with clients and do many other important tasks.

Lawyers - especially very good lawyers - tend to be very busy.  Getting a lawyer on the phone is difficult because he or she spends a significant amount of each day on the phone helping clients.  That is why our firm and other firms hire and train good paralegals on how to respond to most client questions - we want our clients to have their concerns addressed promptly and not have to wait for the lawyer to have time to be able to return the call.

My guess is that the paralegal you are speaking to has been trained to seek the knowledge of the lawyer if you ask a question that he or she does not know the answer to.  Thus, I recommend that you continue to talk with the paralegal and appreciate the fact that the lawyer cares enough about her clients that she employs and trains good people to assist her in representing you.

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I believe that I was injured as a result of the negligence of a nurse in a Nashville hospital.  How do I make a medical malpractice claim?

The first thing you do is contact a lawyer who has substantial experience in medical malpractice cases and who represents patients, not health care providers.  Read here for more information about hiring a lawyer.

From the factual summary you give, that lawyer will determine whether he can investigate your case. The investigation has several components, starting with gathering, organizing and reviewing the medical records that are relevant to your claim.

If a careful review of the medical records demonstrates you may have a valid claim the lawyer will then consult with one or more potential experts.  In medical malpractice cases medical experts must testify that an inappropriate error was made and that the error caused an injury (or death) that would not have otherwise occurred.  In Tennessee, these experts must come from Tennessee or a contiguous state and the experts must be familiar with good medical practice in the community where the alleged malpractice occurred or the good medical practice in a similar community.  Not everything that appears to be an error of a health care provider is malpractice and not every injury that occurs in a hospital is caused by medical malpractice.  Experts are necessary to prove what is malpractice and what is not.

If qualified medical experts support the case, the lawyer then takes appropriate steps to file the case.  The law made filing medical malpractice cases more  difficult in recent years - one first must give formal notice of the claim and, when suit is filed (at least 60 days after notice is given) the lawsuit must be filed with a certificate of good faith from appropriate medical experts.

Thus, the key to the whole process is finding a lawyer who understands the law of medical malpractice and has substantial experience in the field.  Do not attempt to do this on your own - these are very difficult cases.

By the way, Tennessee has deadlines for taking legal action in this (and every other) type of case.  In general, you should seek advice from a qualified lawyer as soon as possible if you believe you have been injured by a health care provider.   The investigation process takes several months, so it is important that you get a lawyer involved as quickly as possible.

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