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

I am disabled and can no longer work.  I have been receiving long-term disability benefits for over five years and now the insurance company has decided to cut me off.  Can I sue them?

You may be able to file a lawsuit against your insurance company, but the exact nature of your rights depends in part on the law applicable to your insurance policy.  It is possible that your insurance policy is governed under a federal law known as "ERISA," a law which greatly restricts what type of damages you can recover in a lawsuit and permits the insurance company to erect certain procedural hurdles before you even file suit.

Your insurance policy may be governed by state law and, if it is, the law of your state will govern what rights you have.  (You will still have to comply with the lawful terms of the policy.)  State law often permits a judge or jury to award damages that may not be awarded if the policy is governed by ERISA.

An experienced long-term disability insurance lawyer can help you determine what law governs your insurance policy and this what your legal rights are under the circumstances.

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I believe that I am a victim of malpractice by a doctor, but no lawyer will take my case.  Why not? 

There are several possibilities.

First, there are relatively few lawyers in the state that represent medical malpractice victims.  In fact, my guess is that far less than one percent of lawyers regularly handle medical malpractice cases for patients.  Therefore, you may be asking the wrong lawyers.

Second, you may not have a valid case.  The mere fact that a person is injured during medical care or has an undesirable outcome does not mean that malpractice has been committed.  Experienced medical malpractice lawyers do a good job evaluating cases without doing a full investigation of those cases.

Third, your case may have merit but you may not have sufficient losses such that a lawyer can afford to represent you on a contingent fee basis.  The time and expense of handling medical malpractice cases is so substantial that, as a practical matter, only those people who have suffered very serious injuries or death can be helped by a lawyer.  This is a tragedy but it is also an economic reality.    Tennessee imposes a heavier burden on people who sue health care providers than is imposed on any other type of litigation.

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I have long-term disability insurance through work.  I have been suffering from a  illness and I am afraid I will never be able to return to work.   How do I seek payments from my long-term disability insurance policy?

To recover long-term disability insurance benefits you will be required to fill out an application for benefits.  You will also be asked to sign a medical release that will permit the disability insurance company the right to received your medical records.  

The insurance company will review your application and your medical records to determine if you quality for benefits.  The insurance company may want to have you examined by doctor.    It is possible that the insurance company may hire a private investigator to learn more about your activities and may even videotape some of your daily activities to document what you can do and what you cannot do.

It is very important that you be 100% truthful and 100% accurate when filing out the disability insurance benefits application.  Any mistakes - even innocent ones - will come back to haunt you and may result in a delay or outright denial of the benefits you are entitled to receive.  You may wish to contact a lawyer to assist you in this effort.

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I have a pending personal injury claim from a wreck with a truck.  I think someone is following me around and photographing or videoing my activities.  Can insurance companies do that?

Yes, within certain limits.  It is not uncommon for insurance companies to use surveillance to determine what task you can perform.  The private investigators look to "catch" you performing sports activities, yard work and other physical labor that they say is inconsistent with the limitations and physical injuries you are claiming in litigation.

This is something that you need to discuss with your lawyer as soon as possible.

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 I was in a car wreck yesterday.  It was probably my fault.  I looked at my automobile liability insurance policy and it says that I have liability limits of $25,000 / $50,000. What does that mean?

It means that for any one car wreck that is your fault your insurance company will pay a person injured in the wreck up to $25,000 in losses and damages they suffer.   If more than one person is injured in the wreck, the company will pay, on your behalf, up to $50,000 but no more than $25,000 for any one person. 

So, if one person was hurt in the wreck, the insurer will pay no more than $25,000 in damages.  If two people were hurt, the insurer will pay up to $50,000, but no more than $25,000 per person.  If three people were hurt, the insurer will pay up to $50,000, but no more than $25,000 per person. Note that each person who is injured does not automatically get $25,000 - they must demonstrate amount of their damages and can recover up to $25,000 each.

To the extent that a person injured in the wreck has claim worth more than $25,000 you are personally responsible for the amount of damages over $25,000 if the wreck was your fault.

Your policy also has a separate provision for paying property damage to the other driver's car if it is determined that the wreck was your fault.

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What are the eligibility requirements for long-term disability insurance?

To qualify to receive benefits under a long-term disability insurance policy, the insured must meet the requirements of the policy itself.  The policy will have a definition of the word "disabled" or "disability" and your mental or physical condition must meet that definition.  In addition, there is almost always a waiting period.  That is, you must meet have had the disabling condition for a long enough period that you qualify for long-term benefits under the plan.  Finally, the disabling condition must affect your income or some portion of your income.

Of course, it is often difficult to understand the terms of disability policies.  The policies are written in language that is unfamiliar to most people.

It is wise to seek the services of a experienced long-term disability insurance lawyer to help you understand and seek benefits under your policy.

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I live in the country in Tennessee.  My dog runs loose.   The dog bit a neighbor kid over at his house about 700 feet down the road.  The dog never bit anyone before.  Am I responsible for what my dog did?  I thought every dog got one free bite?

A dog's owner used to be able to avoid responsibility for a dog bite if he did not know the dangerous propensities of the dog, but that is no longer the law if the bite occurs off the dog owner's property. Subject to several exceptions, if you let your dog run at large, you are responsible for injuries caused by your dog even if you had no reason to believe the dog was dangerous.

You report the bite to your homeowner's insurance as soon as possible.  Your homeowner's insurance policy may provide you with some protection in the event you are asked to pay medical bills or get sued  by the neighbor.

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My 22-year old son was hurt in a car wreck.  Can I file a lawsuit for him? 

No, unless he is so severely injured or suffers from some type of disability that he is deemed incompetent.  If he is incompetent, there are formal proceedings which must be filed to have him declared incompetent in the eyes of the law.  If that happens, a conservator will be appointed and he or she will have the power to file or defend a lawsuit.  If you are appointed the conservator, you would have that right.

However, if your son is competent, he is the only one who can file suit on his behalf.  You can help him find a lawyer and can give him assistance in preparing the case, but the decision to file and the right to file is his and his alone.

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My son was bit by a neighbor's dog.  What rights do I have in a lawsuit against the dog owner? 

You have the right to recover medical expenses that you paid or were paid by your insurance company.  (You almost certainly have to repay your health insurance company out of the settlement or judgment.)  You can also recover damages for loss of services of your child.

Under Tennessee law, you cannot recover damages loss of the relationship between you and your child because of the injuries or for your emotional distress at seeing your child deal with his injuries.  

However, you may be able to recover damages for emotional distress if you saw or heard the dog attack your son or came up on the scene of the event shortly after the dog attack occurred.    An experienced personal injury lawyer can tell you whether you qualify for recovery of this type of damages - they are dependent of the details of your case and your emotional injuries, if any.

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My 10-year old daughter was hurt in a car wreck.  Her dad and I are divorced.  Can I file a lawsuit on her behalf?

Yes, if you are the custodial parent you are permitted to bring a lawsuit on your daughter's behalf.  If you are not the custodial parent the appropriate person to bring the lawsuit is your daughter's father ( I assume that he is the custodial parent).  

Even if you are the custodial parent and have the right to file suit, you should work with the child's father and try to maintain a united front in the litigation.

If a custodial parent refuses to file a lawsuit for a child and the non-custodial parent believes that a lawsuit should be filed, an experienced personal injury  lawyer can explain the steps you must take to assert the claim.

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 I was in a car wreck yesterday.  It was probably my fault.  I looked at my automobile liability insurance policy and it says that I have liability limits of $50,000 / $100,000. What does that mean?

It means that for any one car wreck that is your fault your insurance company will pay a person injured in the wreck up to $50,000 in losses and damages they suffer.   If more than one person is injured in the wreck, the company will pay, on your behalf, up to $100,000 but no more than $50,000 for any one person. 

So, if one person was hurt in the wreck, the insurer will pay no more than $50,000 in damages.  If two people were hurt, the insurer will pay up to $100,000, but no more than $50,000 per person.  If three people were hurt, the insurer will pay up to $100,000, but no more than $50,000 per person. Note that each person who is injured does not automatically get $50,000 - they must demonstrate amount of their damages and can recover up to $50,000 each.

To the extent that a person injured in the wreck has claim worth more than $50,000 you are personally responsible for the amount of damages over $50,000 if the wreck was your fault.

Your policy also has a separate provision for paying property damage to the other driver's car if it is determined that the wreck was your fault.

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 I was hurt in a wreck with a big truck in Tennessee?  What damages are available in a trucking accident claim?

Answer: 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.

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I was hurt in a car wreck.  I used to live in Kentucky and we had PIP coverage.  Is there PIP coverage in Tennessee?

Answer: No. Tennessee does not have a no-fault system and therefore does not have PIP (Personal Injury Protection) coverage as a part of automobile or truck liability insurance policies issued in Tennessee.   So, if your bought your auto insurance coverage after you moved to Tennessee you do not have PIP coverage.

Note to those people who  live in a state that has no-fault and PIP coverage and who are injured in a wreck in Tennessee:  your insurance policy may give you benefits not available to Tennessee residents. If you are from out-of-state but were injury in a car or truck wreck in Tennessee, the attorneys at Law Offices of John Day P.C. will be happy to review your insurance policy and determine what benefits it provides under the circumstances. 

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I am thinking about filing a personal injury case.  I think I have a solid case that the insurance company will be afraid to try in front of a jury.  Are insurance companies afraid to try cases?

Not really.  For the typical insurance company, the analysis is all about money.  

In other words, insurance companies evaluate risk.  At the end of the day, they determine whether they will likely win a case or lose a case.  They look at how much a jury might award, how much a jury is likely to award, and how little a jury might award.  They have lots of statistics from which to make this judgment, and they often have very good lawyers help them evaluate a case.

Sometimes their judgment is right.  Sometimes it is wrong.   But at the end of the day, they know that they can solve their mistake of evaluating a case and not offering enough money to settle it by writing a check for more money than they wanted to pay.  They don't like to write the big check, but they are in the risk business and if they are wrong they get out the pen and write the check (after an appeal, etc.)

The evaluation of a case is very complex, and you need an experienced lawyer to guide you through the litigation process.  One factor the insurance company considers in evaluating risk is the quality of lawyer the adversary has hired.  The fact of the matter is that who you hire as a lawyer almost always makes a difference in the recovery you obtain in a case, whether by settlement or a trial.

If you don't know how to select a lawyer in a personal injury or wrongful death case, read here.

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I keep hearing that Tennessee doctors pay a lot of money for malpractice insurance and that if we limit the right of patients to bring lawsuits doctors will save money on insurance.  Is that right?

There is no reason to believe that malpractice rates will be dramatically or even materially reduced if the Tennessee Legislature caps damages in medical malpractice cases.  

Here are a few statistics that address the issue.  In 2010 an internist in Tennessee paid $7076 for $1,000,000 worth of medical malpractice insurance.  This provided the doctor for up to $1,000,000 for any single act of malpractice and total payments for three or more claims of $3,000,000 in any year.  The rate for this insurance was 23.11% less than it was in 2009.

Texas has capped the damages that can be recovered in medical malpractice cases.  To get the same insurance coverage as a Tennessee internist, a Texas internist would pay between $13,190 and $25, 609 (depending on the county where he or she practiced.

Mississippi has caps on damages in malpractice cases.  The same insurance company who would insure an internist in Tennessee for $7076 would charge a Mississippi doctor $10, 016. That's right - the insurance company protected by damage caps in Mississippi actually charges Mississippi doctors more for the same insurance coverage!!!!

Missouri has caps on damages in medical malpractice cases.  An internist in Missouri pays between $16,553 and $22,212 for the same insurance coverage that a Tennessee internist pays $7076.

The list goes on and on, but you get the point.  Caps on damages don't translate into lower malpractice rates for doctors.

I confess I told a little lie when I told you that a Tennessee internist pays $7076 for insurance. Actually, it is less.  You see, the doctors in Tennessee own their own medical malpractice insurance company.  It is called State Volunteer Insurance Company (SVMIC).   In other words, they sell it insurance to themselves.  Their motto:  "We are physicians taking care of physicians.  We are SVMIC."

In 2009, the company made almost $72,000,000  in profits and gave its doctor-owners a dividend of $20,000,00.  This reduced premiums by about 8%, which means that the internist paid $560 less than the list price for insurance.

But that is still not correct.  You see, if the doctor attends a one-day seminar to learn how to protect patients from injury, they save another 10%.

So, in 2010, Tennessee internists paid about $5800 for medical malpractice insurance.

The numbers for the doctor owned company in Tennessee are not public yet, but when they are reported I predict that they will show profits of over $50,000,000.   I predict another dividend to the doctors of $20,000,000 or more.  And I predict a rate decrease for 2100 of 10% or more.  This will occur even though the damage cap law, if passed, will not be effective until after July 1, 2011.

Call your legislator and urge him or her to oppose restrictions on the right to trial by jury in medical malpractice cases.  Go here to get your legislator's telephone number.

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 I think I have a medical malpractice claim in Tennessee. I live in Tennessee and the malpractice occurred in Tennessee.  Can I hire an out-of-state lawyer to represent me in this case?

Yes, although the out-of-state lawyer must either have a Tennessee law license or must work with a Tennessee lawyer on the case.

The more important question is why would you hire an out-of-state lawyer to represent you?  There is a real advantage to hiring a lawyer who is familiar with Tennessee law (the law of every state is a little different, and Tennessee has some very unusual aspects to its medical malpractice law) and who knows the way our legal system works.   There are some very good medical malpractice lawyers in this state who have experience in a wide variety of medical malpractice cases, and thus it rarely makes sense to go to the trouble of finding an out-of-state lawyer to work on a case.  

If you hire an out-of-state lawyer read the employment agreement carefully and see if you bear the responsibility for travel expenses.  There tends to be a significant number of hearings and depositions in medical malpractice cases, and if you are responsible for those expenses your recovery in the case, if any,  will be decreased.

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I live in Tennessee and have a DePuy ASR hip implant that has been recalled.  What is the status of the litigation?

If you have not filed a case the status of the litigation is irrelevant to you.  By that I mean that if you live in Tennessee and had your surgery in Tennessee and you don't have a lawsuit filed within one year of the time you knew or should have known that the implant was defective you will lose your legal rights under Tennessee law.  If you have not hired a lawyer you need to hire one as soon as possible.

We have a significant number of these cases pending.  We have some of our cases filed in federal court and will probably file the rest of our cases there.  The federal court cases have been consolidated for pretrial purposes before a federal judge in Ohio.  That judge has just appointed the lawyers who will be managing the litigation for DePuy and for the persons who have filed a lawsuit claiming the ASR product is defective and caused them an injury.  The litigation is just getting underway.  In fact, there was a hearing yesterday in West Palm Beach that addressed several case management issues.

Once again, do not sit on your rights and lose them.  There are real problems with the ASR implants and you need to hire a lawyer to help you as soon as possible if you want to preserve your rights.  This is true even if you are not currently having an unusual amount of pain from the hip.  

The one-year rule applies in Tennessee.  There are different deadlines in other states but if you live here and your ASR hip surgery was here you should assume that the one-year rule applies to you.

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I hired a Tennessee personal injury lawyer to represent me in a car wreck. She said she was going to charge a one-third contingent fee and the fee agreement says just that.  The case did not settle and she says she wants to charge forty percent of the recovery since she has to prepare for trial.  Can she do that?

No, not unless the contingency fee agreement says that she can charge more in the event the case goes to trial.  If the agreement is silent on this issue, she can charge you more than one-third only if you agree to revise the contract.  

If the contract does give her the right to charge more if the case is tried but the higher amount is not specified she can only charge a reasonable fee.  Whether forty percent is a reasonable fee depends on the circumstances.

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I was hurt in a car accident that wasn't my fault.  I filed a lawsuit with the help of a lawyer.  We have a trial in two weeks.  I was offered some money but I don't think it is enough.  My lawyer thinks it is and he has advised me to settle the case.  Can I make him go to trial and get more money?

Yes, you can reject the settlement and say that you want a trial.  However,  just because you go to trial you will not necessary get more money and your lawyer will not be able to promise you that you will get more.  In fact, it is always possible that you could get less.

I obviously don't know whether the amount of money you have been offered is a fair amount or not.  I do know if you hirer the right lawyer, that is, if you did the work necessary to identify the right lawyer to handle your case, you should have confidence in his or her judgment about what is in your best interest.  You have the right to reject that lawyer's advice, just like you have the right to reject the advice of a doctor or any other professional, but when you do so you are substituting your judgment as a person unexperienced in the legal process for that of someone who is experienced in the process.

How do you go about hiring a lawyer whose judgment you can comfortably accept?  Read here.

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 I have a medical malpractice case.  There are two doctors and a hospital that have been sued.  My lawyer says the case won't be tried for two years.  Why is that?  How much work is involved?

It doesn't surprise me that it would take two years to get your case to trial in Tennessee and, depending on where you live in the state, that may be a relatively quick amount of time to get to trial.

Your question requires much more information to give a more accurate answer, but let me say this generally.  The main factors that affect how quickly a case gets to trial are the diligence, expertise, and experience of the lawyers involved, the number of parties to the case (more parties = more lawyers = more scheduling difficulties), the nature of the dispute (more complicated = more time), the ability of the trial judge to control the lawyers,  the amount of cases pending before the trial judge (more cases increases the time to get to trial because more cases are contributing for the same trial dates), and whether the county where the case is pending is urban or rural (in rural areas judges sit in multiple counties and may hold trials in a small county only  a couple times per year).

I have done medical malpractice work on behalf of patients for almost 30 years, and I can say that our office will invest 1000 hours working on almost every case with multiple defendants in which depositions are necessary and more time if expert depositions and trial are necessary.  Most medical malpractice cases are extremely complicated and require a significant investment of time and money.

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My deposition was taken today and it lasted all day.  There was a court reporter and a videographer there.  How much does it cost to have a deposition recorded by the two of them?

In my experience in Tennessee, court reporters have several types of charges.  The main charges are the per diem charge, which is the charge for showing up, using billed in full-day or half-day increments, and a per-page charge, which is the cost of each page of transcript.  There are two types of per page charges, one for the "original" transcript on and one for each copy.  The person taking the deposition pays for the original and the per diem.  The person whose deposition is taken pays for the copy.

Videographers typically charge a base fee plus and hourly charge to the person taking the deposition.  The person whose deposition was taken pays for a disc containing the deposition.

In my experience, the cost of an original transcript and per diem fee for a deposition that takes all day (7 hours or so) is about $2000.  A videographer will add another $1000.    

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