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

Here is a list of things you should do (or should not do) after a automobile or truck accident:

1)  You should call the police.  Ignore any request by the other driver to "let the insurance companies handle it" or "keep the police out of it - I can't afford a ticket."

2)  Tell the police officer(s) the truth about what occurred.  Do not guess or try to fill in facts.

3)  Be careful what you say to the other driver.  Be polite, but not chatty.

4)  If you have a camera in your car, photograph the accident scene and damage to both vehicles (or as soon as practically possible).  Include photos of any skidmarks, yaw marks, gouge marks, etc.  

5)  If you believe your are injured, obtain medical treatment as soon as possible.

6)  Contact your insurance company immediately to report the accident.

7)  DO NOT talk with anyone who calls you from the other driver's insurance company.

8)  Do not panic if the police report is inaccurate as to how the accident occurred.  The police report is not admissible in evidence in Tennessee.  However, if the police report is inaccurate, it is important that you talk with a lawyer quickly. 

9)  Employ an attorney promptly if you received any injuries in the accident.

10) Keep a list of the doctors and other health care providers you have seen.

11)  Do not write about your accident or medical treatment on Facebook, Twitter, or any other social media.

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John Day represents personal injury victims and families of wrongful death victims.  He is board-certified as a civil trial specialist by the National Board of Trial Advocacy and, in fact, served as President of the organization. He is an elected member of the prestigious American College of Trial Lawyers.  His book, "Day on Torts:   Leading Cases in Tennessee Tort Law," is used by judges and lawyers across Tennessee to further their understanding of personal injury and wrongful death law in Tennessee.  In 2009, Best Lawyers named John "Best Personal Injury Lawyer" for Nashville; he was the first recipient of that award. Best Lawyers also  named John as "Best Medical Malpractice Lawyer in Nashville" for 2010.   John does not charge for an initial consultation and accepts personal injury and wrongful death cases on a contingent  fee basis.  You can reach him by telephone at 615.742.4880 or by email by clicking here.

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I came back to my car and found out it was being towed.  I asked the tow truck driver why and he said that it was illegally parked.  I told him it was not and we got into an argument.  He then hit me, breaking my jaw.  Can I sue the tow truck company for this injury? 

Perhaps.  The tow truck company is not responsible for the intentional acts of a tow truck driver, and from the description of the incident it sounds like this was an intentional rather than a negligent injury.

However, an employer can be held to bear some level of responsibility when its employees intentionally cause harm if the employer negligently hired, trained or supervised the employees or negligently failed to fire them if the employer knew or reasonably should have known that the employee presented a risk of injury to members of the public.

Thus, the potential liability of the employer is a very fact-specific question.  An experienced personal injury lawyer can guide you through the process of determining if you have a claim against the tow truck driver's employer.

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Is there a deadline to file a lawsuit for truck wreck cases in Tennessee?

Yes.  Statutes of limitation passed by our legislature limit the time to file a lawsuit in all types of cases.  The length of time varies depending on the type of case.  In most instances you have one year from the date of the incident causing injury to bring a lawsuit, although shorter time limitations apply in some types of cases.  In cases involving truck accidents, any lawsuit must be filed within one year of the date of the accident.  Failure to file suit on time will result in a loss of your rights.

 Given the many factors that must be considered in determining your specific deadline to file a lawsuit, the best course of action if you believe you have a potential legal action is to contact a lawyer immediately. Our firm will meet with you at no charge to help you determine if you have a claim and help you understand what deadline for taking action actually applies in your case. 

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I think my brother killed our mother.  She was living alone in the family home and was found murdered.  Because of a history of trouble between our mother and my brother, both my sister and I think he killed her.  Can we sue him?

Under Tennessee law, your brother could be sued for wrongful death even if he has not yet been charged, tried, or convicted of the crime of murder. Murder in criminal law would be “battery” under the civil law, and a civil law suit for battery can be filed even if the criminal charges have not been filed.  Damages that can be sought  for battery include compensatory damages and punitive damages.

In fact, under Tennessee law a person can be found innocent of murder in a criminal case and still be successfully sued for battery arising out of the same incident. Why? Because in a civil wrongful death case the person bringing the lawsuit must only prove the that the defendant killed the decedent by a preponderance of evidence (that is, more likely than not). In a criminal case the State must prove beyond a reasonable doubt that the defendant murdered the decedent. Thus, the criminal court  jury could conclude that the State did not prove what it needed to send the defendant to prison but the civil court jury could conclude that more likely than not the defendant killed the decedent and award damages. 

Any claim you and your sister want to bring for battery must be filed in court within one year from the date your mother first received the injuries that led to her death.  

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I think my brother killed our mother.  She was living alone in the family home and was found murdered.  Because of a history of trouble between our mother and my brother, both my sister and I think he killed her.  Can we sue him?

Under Tennessee law, your brother could be sued for wrongful death even if he has not yet been charged, tried, or convicted of the crime of murder. Murder in criminal law would be “battery” under the civil law, and a civil law suit for battery can be filed even if the criminal charges have not been filed.  Damages that can be sought  for battery include compensatory damages and punitive damages.

In fact, under Tennessee law a person can be found innocent of murder in a criminal case and still be successfully sued for battery arising out of the same incident. Why? Because in a civil wrongful death case the person bringing the lawsuit must only prove the that the defendant killed the decedent by a preponderance of evidence (that is, more likely than not). In a criminal case the State must prove beyond a reasonable doubt that the defendant murdered the decedent. Thus, the criminal court  jury could conclude that the State did not prove what it needed to send the defendant to prison but the civil court jury could conclude that more likely than not the defendant killed the decedent and award damages. 

Any claim you and your sister want to bring for battery must be filed in court within one year from the date your mother first received the injuries that led to her death.  

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I think my brother killed our mother.  She was living alone in the family home and was found murdered.  Because of a history of trouble between our mother and my brother, both my sister and I think he killed her.  Can we sue him?

Under Tennessee law, your brother could be sued for wrongful death even if he has not yet been charged, tried, or convicted of the crime of murder. Murder in criminal law would be “battery” under the civil law, and a civil law suit for battery can be filed even if the criminal charges have not been filed.  Damages that can be sought  for battery include compensatory damages and punitive damages.

In fact, under Tennessee law a person can be found innocent of murder in a criminal case and still be successfully sued for battery arising out of the same incident. Why? Because in a civil wrongful death case the person bringing the lawsuit must only prove the that the defendant killed the decedent by a preponderance of evidence (that is, more likely than not). In a criminal case the State must prove beyond a reasonable doubt that the defendant murdered the decedent. Thus, the criminal court  jury could conclude that the State did not prove what it needed to send the defendant to prison but the civil court jury could conclude that more likely than not the defendant killed the decedent and award damages. 

Any claim you and your sister want to bring for battery must be filed in court within one year from the date your mother first received the injuries that led to her death.  

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There are several types of damages in wrongful death cases.  If the case is successful, the survivor(s) can recover damages for medical bills, funeral expenses, loss of earning capacity (reduced by personal maintenance expenses) and loss of the loss, society and affection of the decedent.

For cases arising on or after October 1, 2011, damages for the "loss of love, society and affection of the decedent" are limited to $750,000.  The only exception to this rule is if the decedent leaves a minor child. In that situation, the damages for "loss of love, society and affection of the decedent" are limited to $1,000,000.

There is no limit on damages in wrongful death cases in Tennessee for cases that arise before October 1, 2011.

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For Tennessee personal injuries occurring on or after October 1, 2011, damages for pain, suffering, loss of enjoyment of life, disfigurement, and all other intangible losses are limited to $750,000.

There are a couple of exceptions for certain defined "catastrophic" losses, such as spinal cord injuries resulting in paraplegia and quadriplegia,  significant burn injuries, and two or more limb amputations in a single incident.  In these cases damages for pain, suffering, etc. are limited to $1,000,000.

There is not an arbitrary  limit on such damages for injuries that occurred before October 1, 2011.

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I was injured by a medical error almost a year ago and I have been told that I must bring my claim within the next five days or I will lose my rights.  I have called lots of lawyers and none of them will even look at my case - they say that it is too close to the deadline.  What's going on? 

Medical malpractice cases (indeed, all lawsuits) are serious undertakings.  Medical cases in particular require lots of work.  Many lawyers simply cannot drop their commitments to other clients to do the level of investigation necessary to undertake a medical malpractice case on short notice.

It is important to talk to a lawyer soon after you believe you have been injured as a result of someone else's mistake.  There are lots of reasons for this - witnesses disappear, evidence disappears, legal rights can be lost,  etc. - but in medical malpractice cases it is especially true.  

Many people wait to talk to a lawyer out of the hope that everything will turn out alright or out of fear of incurring  legal fees.  At our office, we do not charge for meeting with a potential client about medical cases or any other type personal injury or wrongful death cases.   Therefore, we recommend that you seek out legal advice from us even if you are unsure if you have a serious or long-term injury.

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Here are the results from the jury trials in Nashville, Davidson County, Tennessee Circuit Court in October 2011:

• Health Care Liability ( Medical Malpractice)   

                      -  3 trials, two defense verdicts, one hung jury

• Slip and Fall  

                         - Settled after 6 days of trial

• Automobile Wreck

                         - 3 trials, two defense verdicts, one verdict for the plaintiff for $5686

• Breach of Contract

                          -  1 trial,  1 defense verdict

Source:  The October 2011 edition of The Rooker Report

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Motions can also used to ask the court to set a case for trial, to dismiss a case, and for a host of other reasons. 

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As a Tennessee medical malpractice attorney for more than 30 years I strongly recommend that you do not attempt to sue any health care provider without the assistance of a lawyer who is experienced in handling health care liability cases.  This is complicated, expensive, time-consuming litigation.  You don't want to do it without a lawyer, and quite frankly you don't want to hire a lawyer who lacks substantial experience in this type of litigation. 

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 I have heard that formal notice must be given to each person who is to be sued in a medical malpractice case.  What is that all about?

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Instant soups are causing serious burn injuries, particularly to children. 

A recent report by NPR reveals that instant soups are dangerous because of the way the cups are designed. The cups are tall, lightweight, and have an unstable base that makes them tip over easily.

NPR "learned that [burns from instant soups" is a common phenomenon, with children being the most frequent victims. Eight of the 12 hospitals said they see the injury several times a week. One hospital located in Washington D.C. says they regularly see 5-6 patients a week with the injury, especially during the colder months."

Soups are particularly dangerous because the noodles hold heat.  Here is the abstract of a study of the issue published in 2007:

During a 10-year period, a high incidence of burns from prepared noodle soup was noticed at the Baltimore Regional Burn Center. Because of the perceived severity of these burns, we took a more systematic look at the burns resulting from this type of soup to determine its effect on patient hospitalization and also examined the properties of the soup itself. All medical records of pediatric patients admitted to the Center between 1989 and 1999 with scald burns from various types of soup were retrospectively reviewed and divided into the Noodle Soup group, and the Other Soup group. The scald burns were compared as well as the physical properties of prepared noodle soup and tap water. Of 27 pediatric admissions for soup burns, 10 were from noodle soup and 17 from other types. Difference in average age and average total percentage of body surface area affected was not significant for the burns from either type of soup. However, the average length of stay for patients with noodle soup burns was significantly longer than for those with other types of soup burns (P < .010). Also, the cooling curve for noodle soup is much slower than for normal tap water. Noodle soup causes a significantly longer hospital stay than other types of soup. Because the boiling temperature of water and noodle soup is about the same, but the cooling curve of noodle soup is much slower, noodle soup may present a greater danger to children than other types of soup.

The design of the soup containers can be changed to greatly reduce the risk of harm, according to this study published in 2006:

Prepackaged soups are a frequent cause of burn injury. We hypothesize that package design increases the risk for burn injury by affecting container stability. All pediatric scald burns caused by soup, between June 1997 and August 2004, were reviewed for burn and patient characteristics. Instant or "ready-to-eat" soups also were purchased. Safety statements and recommendations as to use of the microwave oven were documented. The height and the areas of the base and top were compared to the angle that a container would tip over on to its side. During the study period, 99 admissions and 80 outpatients were treated for burns caused by soup. Although the burn size was small (mean 5% TBSA) 22 patients required grafting. Of 13 different soups, 11 required the addition of hot water, and 2 were prepackaged for eating out of the container. Twelve containers had round bases and were tall and narrow, with one being shorter and rectangular. The measurements that correlated with the ease of tipping over were the base area, top area, and the ratio of height/base area. The most significant contributor to the ease of tipping over was height. Instant soups are packaged in containers that tend to be tall with a narrow base that predisposes them to being knocked over and spilled. Simple redesigning of instant soup packaging with a wider base and shorter height, along with the requirement for warnings about the risks of burns would reduce the frequency of soup burns.

This research tends to indicate that those burned by instant soup may have a products liability claim against the soup manufacturer.  The law requires that products be packaged in such a way to make them reasonably safe for the consumer.  Whether a manufacturer will be held liable for burns caused by the product depends on many factors.

If you or a member of your family have been burned by a instant soup, contact  an experienced Tennessee products liability lawyer for a free consultation.  Our firm will investigate your case at no charge and, if it has merit, will accept representation on a contingent fee basis (which means we only get paid if we are able to make a recovery for you)

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We wrote about fires in the operating room just a few weeks ago.  Now, it has happened again, this time to a woman who has having surgery in a Florida operating room. 

Our earlier post about operating room fires contained lots of information how the 650 or so operating room fires could be avoided.  These incidents are an outrage, and the fact that they continue to occur is an outrage.

If you or a family member are injured in an operating room fire, please contact our office for a free consultation.  John Day has been representing Tennessee medical malpractice victims for over 30 years.

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An experienced Tennessee motorcycle injury lawyer can help you gather evidence and present your case. 

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 My 22 year-old brother died in a car accident in Clarksville, Tennessee after being hit by a drunk driver.  Do I have a right to sue for his death?

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I am about to interview a lawyer about truck accident case.  What role should the personality of the lawyer make in my decision? 

Lawyers are people (really!) and have different personalities. There are some inaccuracies in every generalization, but most lawyers would agree that lawyers who successfully try personal injury and wrongful death cases tend to more aggressive than passive, more self-confident (or perhaps even arrogant) than unusually humble, and better communicators than certain other types of lawyers. Frankly, lawyers who lack self-confidence  or who cannot effectively communicate do not belong in courtrooms.

Thus, before you hire a Tennessee personal injury and wrongful death lawyer you need to meet the lawyer. Do not rely solely on a commercial or a website description of the lawyer or the lawyer’s firm. Sit down and talk with the lawyer, preferably in the lawyer’s office, and try to figure out if (a) the lawyer is the type of person you want to work with during the pendency of your case; and (b) the lawyer is the type of person you want as your advocate before a jury if your case has to be tried.  Use your common sense in making this decision.

Why do we recommend meeting the lawyer in his or her office? It has nothing to do with the convenience of the lawyer. A lawyer’s office may provide valuable information about the lawyer. Does it appear well-organized? Is it clean? Does it present a professional appearance? Are you treated with respect by other employees of the firm? Does the lawyer meet with you at the appointed time? Is he or she prepared for the meeting? Are you given the opportunity to ask questions? Are those questions answered in language you can understand?

This is not to say that a lawyer needs to have a fancy office in a fancy building to be a good lawyer. Indeed, a fancy office may just be a sign that the lawyer spends money on material things that make it appear that he or she is knowledgeable and successful when the reality is quite different. That being said, the appearance of a lawyer’s office says something about the lawyer that is relevant in your decision of who to hire as your lawyer.

Many lawyers offer to visit with you at your home or even if the hospital if your circumstances are such that you cannot come to their office. This is often an offer made for your convenience, and should be viewed as such. 

You should also pay careful attention to whether and how the lawyer explains the law and what he or she will do to investigate your case. Your lawyer should be able to articulate the law to you in words you understand. If the lawyer cannot do so you will understandably question whether he or she will be able to articulate your position before a jury. You should ask the lawyer questions about anything you do not understand, and if the lawyer will not take the time to answer your questions, or does an inadequate job of answering them, you need to be concerned. Communication is a key part of the attorney client relationship, and a lawyer who cannot communicate effectively at the initial client meeting may have difficulty communicating with you as the case progresses and difficulty communicating with a judge or jury.

You should also be very wary of a lawyer who offers only positive thoughts about your case. This is a difficult thing for some people to understand, but excellent lawyers strive to be objective during their conversations with their clients. That is, these lawyers understand that it is their job to learn, evaluate and communicate the strengths and weaknesses of every case, and not just tell the client or potential client what they want to hear. Almost every case has a weakness, and the lawyer should be able to articulate those the weaknesses in a case very early based on the information that is available. You want to know about both the strengths and weaknesses of your case because both impact the value of your case. A lawyer who does not discuss case weaknesses either does not recognize them or is afraid of hurting the client’s feelings by having an open and honest discussion about the case. Excellent lawyers know that such conversations are an essential part of the attorney-client relationship, and know how to communicate their concerns without offending the client.

In summary, you want a lawyer who will be your effective advocate, but you also want one who can recognize and appropriately handle any negative aspects of your case. You also want a lawyer to tell you the truth about the positive and negative aspects of your case so that you have a full understanding of what is necessary to win your case and how any negative aspects of the case will affect your ability to do so. Finally, you want a lawyer who has compassion for your situation, the ability to communicate the law to you, and a professional appearance.

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I am thinking about hiring a lawyer to help me with a dog-bite case involving injuries to my child. Can I find out if my lawyer has ever been disciplined by the Tennessee Board of Professional Responsibility?

Yes.

Lawyers are regulated by the Tennessee Supreme Court through the Board of Professional Responsibility. The Board of Professional Responsibility investigates lawyers that are accused of violating the ethical standards of the legal profession, which are set forth in Rule 7 of the Rules of the Supreme Court of Tennessee. A lawyer who violates the rules can be sanctioned by the Board of Professional Responsibility. The sanctions can be a private reprimand or as serious as disbarment, which means that the lawyer is prohibited for practicing law for some period of years or even life.

Lawyers and non-lawyers can file complaints with the Board about the conduct of a lawyer. The mere fact that a lawyer has had a complaint does not mean that the lawyer has done anything wrong – anyone can file a complaint about anything. Indeed, the clients of criminal defense lawyers not infrequently file complaints against their own lawyers, and people involved in divorce cases may file complaints against their spouse’s lawyers that have little basis fact. Thus, it is the substance of the complaint, not the facts of it, that is important.

You can look at the Board of Professional Responsibility website and see if a lawyer has received sanctions for violating a disciplinary rule. If you learn that your lawyer has had a disciplinary complaint filed against him or her, ask about it. If they deny it and you know it occurred, the denial says something about their integrity. If they explain what happened, use your common sense to determine whether the lawyer’s error was serious or minor or whether it is likely to happen again.

You should be very concerned with a lawyer who has an extensive history of complaints found to be valid by the Board of Professional Responsibility.

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