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

The February 24, 2012 Tennessean contains this article about lawsuits against those who illegally serve alcohol to an obviously intoxicated person. The article found its way to Page One mainly because of this horrific accident just a few days earlier, when a person who was allegedly intoxicated drove the wrong way on the Interstate and hit and killed a person.

To suggest that bars and restaurants should not be held responsible for violating the law is ridiculous. As I explained in a comment to the article (hit the “comment” on the website and you will see all of the comments, including mine), the notion of “personal responsibility” doesn’t stop with the drunk driver – it also applies to those who illegally serve obviously intoxicated persons.

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Medical malpractice insurance rates for doctors have dropped substantially in Tennessee in the last few years, and now doctors pay far less for insurance that they did five years ago.

For example, 5 years ago an OB/GYN paid $59,572 for $1,000,000 / $3,000,000 in professional liability insurance.  Today, that same doctor woul;d pay almost 40% less for the same amount of insurance coverage - $37,255.  In fact, today an OB/GYN can buy over $10,000,000 of professional liability insurance coverage for less money than he or she would have paid for $1,000,000 in coverage just 5 years ago.

Why the decrease?  The health care lobby got various laws passed which makes it harder for patients to bring lawsuits against doctors.  The law has worked - it has put more money in the pockets of doctors and their insurance companies.

The question remains, however, about the impact on patients.  Our office turns down hundreds of medical malpractice cases per year because the cost of bringing the case is so great that the case cannot be economically handled.  Thus, the patients bear the brunt of the legal reforms that were enacted to protect health care providers from lawsuits. 

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In 2010 over 100 wrecks occurred on Tennessee interstates because a driver was operating down the wrong side of the roadway. 

There are several reasons this can occur.  First, the driver of the vehicle going down the interstate the wrong way can be intoxicated by alcohol or operating under the influence of another drug. Liability may be imposed on the driver and, if the excessive consumption of alcohol contributed to the problem, those who illegally served an obviously intoxicated person may bear some responsibility.

Second, the signage at the entry point of interstate can be absent or misleading.  It is not uncommon for people in road construction areas to be lead astray by poor signage or signs that are just plain wrong.  Under these circumstances, those involved in the road construction project may have some responsibility for what occurred.

Third, the wrong-way driver may have been distracted for some other reason.

In each of these circumstances, it is important to promptly do an investigation to determine what caused the at-fault driver to end up on the wrong side of the highway and document the results of that investigation.

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 Do attorneys in Tennessee have to have  legal malpractice insurance?

No.  There is no requirement that attorneys in Tennessee have legal malpractice insurance.

However, responsible lawyers purchase malpractice insurance to protect their clients from losing money in the event that the lawyer makes an error.  Lawyers, like anyone else, can  make errors in the work they do for clients.  Most of those errors do not result in any demonstrable loss to their clients, but from time to time errors that cause losses occur.  In those cases, malpractice insurance is there to protect the client from financial harm.

Feel free to ask any lawyer that you intend to hire whether they carry malpractice insurance.  If the lawyer tells you that  he or she does not have insurance, you should give that answer serious consideration before hiring that lawyer.  A lawyer who does not have insurance is still responsible for the financial consequences of any negligent act, but the lack of insurance is a red flag that should cause you to be concerned.

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I have a car accident case but am in desperate need of money right now.   Can I borrow money from  my attorney and pay her back out of the settlement I know I am going to receive?

It is not uncommon for people who have been injured to have financial difficulties, but in Tennessee it is unethical for an attorney to loan you money while he or she is representing you in a case.   This is true even if the attorney does not  charge interest.  (It is appropriate for the attorney to advance money for case-related expenses to help prepare your case.)

Rumor has it that some attorneys will promise potential clients that they will help them with living expenses and that some attorneys actually do it.    However, this is  wrong, and an attorney who promises to do so or actually does so should be reported to the Tennessee Board of Professional Responsibility at 800.486.5714.    Loaning or giving money to clients or potential clients can result in discipline against the attorney, including the loss of his or her law license.

There are certain things that an experienced Tennessee automobile accident attorney can ethically do to help you when you are experiencing financial difficulties.  For instance, some health care providers will stop bill collection efforts if you will promise (in writing) that they will get paid out of any settlement.  

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I got hurt in an automobile accident.  I have talked to two different lawyers.  The first lawyer listened to what I had to say, explained the law and the legal process to me, and answered all of my questions but one: he said he could not tell me his opinion of the value of my case.  He said that he would not be able to do so until after I finished medical treatment and he had a better understanding of what long-term consequences I would have from my injuries.  He also said more investigation was needed on the facts of the accident and the resources of the person who caused my wreck.  The second lawyer told me that he thought he could get me $1,000,000 and maybe even more.  I sure like what the second lawyer said and it seems to me that if he can get me that amount of money he is the right person to hire.  Am I missing something?

You should not hire any lawyer who tries to tell you that he or she knows the value of your case the very first time you meet with them. Never. Under any circumstances.

Why? Because experienced lawyers know that a detailed investigation must be undertaken before a value can be put on a case. Lots and lots of factors impact the value of a case, and no lawyer can honestly, accurately evaluate a case the first time they meet a client, particularly if they have not done any investigation of the case before meeting the client.

So why do some lawyers do so? These lawyers want you to hire them and they think that if they tell you the value of the case and the dollar value meets or exceeds your expectations you will hire them.  Stay away from these lawyers. They are too eager for your case.

One way to test the answer given by such a lawyer is to ask the lawyer this question: Are you willing to guarantee in writing that the settlement or judgment in my case will be $X (the amount they suggested earlier)? Almost all of them will quickly back off their previous number, and will quickly say that there are lots of different factors that can impact the value of the case. (If that is so, why didn’t they just say that earlier rather than give you a number?)

I repeat: do not hire a lawyer who tries to tell you that he or she knows the value of your case the first time you meet with them.  Instead, look at the factors listed in our Legal Guide:   Understanding How to Hire a Lawyer in Personal Injury and Wrongful Death Cases.

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My boyfriend had a wreck on his motorcycle a few weeks ago after a car illegally turned in front of him and he hit the side of it.  I was a passenger on the motorcycle and received a badly broken arm and severe road rash as a result of the wreck.  I talked to the insurance adjuster for the driver of the car and she told me it was my boyfriend's fault and I need to sue him.  I saw the whole thing - my boyfriend did nothing wrong and the car turned right in front of us when just as we entered the intersection.  Do I have to sue my boyfriend to get my bills paid?

You have asked a complicated question, the answer to which can only be given after facts in addition to those stated in your question have been uncovered.

Generally speaking, the answer to your question is "no," you do not have to sue your boyfriend.  If you believe that the driver of the car is at fault, then you need only sue the driver (and perhaps the owner) of the car.

It is possible, however, that if a lawsuit is filed the other driver will blame your boyfriend.  It this happens, then you will have to decide whether or not to sue him.  If you do not, then a jury can assign some percentage of the responsibility for the accident to your boyfriend if the driver proves that the accident was partially or completely your boyfriend's fault.

A finding of fault on your boyfriend has consequences for you.  If, for example, your boyfriend is determined to be 50% at fault in the crash, the amount of  damages you can recover will be reduced by 50%.  Why?   Because you choose not to sue your boyfriend and it was later determined that he was partially at fault for the wreck and your injuries.  

Let me hasten to add that the mere fact that this can occur does not mean that you must or even should sue your boyfriend.  There are many things that must be taken into consideration before making such a decision.  An experienced motorcycle accident attorney can gather the information that is necessary to help you make an appropriate decision.

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Liability insurance is insurance that protects you from loss in the event you are alleged to have negligently caused harm or damage to another  or are determined to have negligently caused harm or damage to another.

Liability insurance offers two important components.  First, liability insurance pays for a lawyer to represent you in the event you get sued for negligently causing someone harm or damage.  This is known as the "duty to defend."  Second, liability insurance pays any judgment entered against you for negligently causing harm or damage to someone else.  This is known as the "duty to indemnify."  The amount the insurance company will pay is capped at the amount of liability insurance you have.  

There is a liability insurance component in almost every motor vehicle insurance policy.  There is also a liability insurance component in your homeowner's insurance policy.  If you run a business, you may have (and should have) a "general liability" insurance policy that protects you for negligent acts and omissions by you or your employees as part of your business operations.

Liability insurance policies often have "exclusions," that is, there are certain acts or omissions it does not cover.  For example, liability insurance does not cover the policyholder for intentional acts.

For an example on how automobile liability insurance policies work, read here.

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Tennessee has seen a decline in the number of deaths from car and truck accidents.

Recently released statistics reveal that the number of people killed on Tennessee roads decreased from 1032 in 2010 to 946 in 2011, a drop of almost 9%.

Traffic fatalities were down in most counties in Middle Tennessee.  In fact, the only counties that saw in an increase in the number of deaths in traffic accidents were Williamson County (up 3 from 6  deaths to 9), Wilson County (up 6 deaths from 15 to 21), Rutherford County (an increase in one fatality from 20 to 21), Houston County (a significance increase - from 1 to 3); and Coffee County (deaths doubled from 8 to 16).  Lawrence County reported the biggest increase in traffic deaths in terms of raw numbers, from 4 to 14.   Giles County County increased from 7 deaths to 10 and Maury County increased from 10 to 14 fatalities. 

One reason for the decline in deaths may be a decrease in the number of miles given, a combination of a weak economy and lots of unemployment coupled with relatively high gas prices. Statistics indicating the number of miles driven in 2011 will not be available until a later date.

In any event, we can and should enjoy the good news:  traffic deaths in Tennessee are down and thus the tragedy that comes from each death has been avoided.

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My wife lost her leg is a bus accident last month.  Does Tennessee law impose any limit on the damages she can recover from the negligent party?

There is no limit on the damages can recover for medical expenses or  loss of earning capacity that arise as a result of the loss of the leg.  However, if the wreck occurred on or after October 1, 2011, there is a limit on the damages she can recover for pain, suffering, disfigurement, and loss of enjoyment of life - referred to by the Legislature as "non-economic damages."  That limit is $750,000.

The Legislature has determined that no person can recover non-economic damages in excess of $750,000 unless the injury is "catastrophic" or the falls within a narrow class of exclusions (for example, the defendant was under the influence of alcohol).  The amputation of a single limb is not considered a catastrophic loss by the Tennessee General Assembly.  You have to have at least two amputated limbs for the injury to be determined "catastrophic" and even then  non-economic damages are limited to $1,000,000.

If the accident had occurred before October 1, 2011, there would have been no arbitrary cap on non-economic damages.  The new law applies only to injuries occurring on or after October 1, 2011.

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 I believe that my father victim of malpractice by a nursing home, 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.   I have represented malpractice victims for over thirty years, and have seen the number of lawyers willing to accept these cases dwindle over the years.  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 father's case may have merit but your he 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.  In addition, new laws passed by the Tennessee Legislature limit the amount of damages that can be recovered in such cases.  

Therefore, the combination of difficult legal burdens plus limits on damages means that few lawyers are willing to handle these cases and those that do can no longer accept some cases that have merit but cannot be economically pursued.  This is exactly what the health care lobbyists intended when they pushed for this legislation.  

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I have an automobile accident  case.  My lawyer is often on the phone when I call and my call is forwarded to his paralegal.  What do paralegals 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 every 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 or doing other tasks to  help clients.  That is why our firm and other firms hire and train 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.

One way to understand that relationship between a paralegal and a lawyer is to look at the more common example of a nurse and a doctor.  Doctors do a good surrounding themselves with nurses and other professionals to aid in providing patient care.  Thus, doctors try to limit their activities to those things only a doctor can do, and enlist the help of others to provide a large percentage of patient care.

So it is with paralegals and lawyers.  My guess is that the paralegal you are speaking to has been trained to answer most questions that arise and knows when to bring in the lawyer to answer a question most appropriately addressed to the lawyer.  In our office, paralegals not only assist in client communication but help coordinate communications with liability and health insurers, do initial drafts of typical documents and discovery responses, assist in the preparation of settlement packages, and assist in trial preparation.

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 him in representing you. 

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Child abuse injuries resulted in 4,500 hospitalizations and 300 fatalities in just one year in the United States, researchers from Yale School of Medicine reported in the journal Pediatrics. This is the first study that has quantified abuse severity and how many children ended up in hospital, the authors added. 

The researchers found that 

• 4,569 kids where admitted to hospital in 2006 because of serious abuse
• 300 of them did not survive
• Those at the highest risk of being hospitalized were aged twelve months or less (58.2 per 100,000 kids compared to the average 6.2 per 100,000)

Child abuse can give rise to both criminal and civil liability.  An abuser can be held liable for monetary damages for the harm caused by the abuse, including medical bills, pain and suffering, disability, disfigurement, lost earning capacity, and loss of enjoyment of life.  Abuse so severe that it causes death of the child can also result in liability for damages.

Ordinarily, a child who is abused must file a lawsuit against the responsible party within one year of the date of the child's 18th birthday.  However, because the passage of time often complicates the prosecution of abuse claims, we strongly urge that an experienced child abuse attorney be contacted promptly after the abuse is discovered.

Our firm has represented children who have suffered abuse at the hands of others.  We offer a free consultation in these cases and, in the case has merit, will accept representation on a contingent fee basis.

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I live in Knoxville and I was in a car wreck in Nashville.  The driver of the other car lives in Murfreesboro.  If my case doesn't get settled can I file a lawsuit in Knoxville? 

No.  Under a new Tennessee law that was effective for all lawsuits arising from injuries arising on or after October 1, 2011, this type of case must be filed where the wreck occurred or where the individual defendant resides.  

Therefore, if you must file a lawsuit, you will have to file it in Nashville or in Rutherford County. 

An experienced automobile accident attorney can tell you which place you should file suit if it becomes necessary. 

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The Tennessee Department of Health has posted on its website thousands of pages of inspection reports on Tennessee nursing homes.

The Affordable Care Act passed under President Obama required that the reports be more accessible to consumers. 

The new postings include one year of reports for each licensed facility.  Eventually, four years of reports will be included.

The increased availability of these reports will help Tennesseans make more informed decisions about which nursing home to choose for a loved one and also monitor the quality of care given in the facility.

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The Clerk of the Circuit Courts for Davidson County, Tennessee has released the following statistics for jury trials for 2011:

• There were 10 health care liability (medical malpractice) jury trials.  The health care providers won six of those cases, the patient won two, and the other two cases resulted in a hung jury.
• There were 36 auto liability cases tried, 22 of those to a jury.  The plaintiff won 25 of those cases.  Note, however, that the word "won" means that the plaintiff recovered some amount of money - not that the amount beat the defendant's last offer or was otherwise a reasonable amount.
• There were only two jury trials in December, 2011 one of which was a health care liability case (defense verdict) and one of which was an auto case (case dismissed by judge).

Despite what one reads in the papers or hears on the news, there are relatively few jury trials.  This number has steadily decreased across the entire state for many years.

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Here is a list of 14 things you can do after a car accident:

1. Do your best to remain calm.

2. Assess the scene. Do not get out of your car if it is not safe to do so.

3. Check for injuries, both of yourself and others, rendering aid to others where necessary and appropriate.   

4. Call the police. Tell them where you are, what happened and if there are injuries. 

5. Do not discuss what occurred without anyone but the investigating police officer.

6. If you are able, exchange information with the other drivers. Get the name, address, insurer's name and policy number for all of the drivers involved.

7. Get names and phone numbers of witnesses.

8. Take photos/video of the scene including the damage to all cars. Cell phone photos will work to document initial damage.

9.. If the police respond, find out where to get a copy of the police report for your claim. If the police do not come to the scene, ask police dispatch where you can file an incident report.

10.  Tell the police officer the truth.  Do not give opinions about what you think happened, tell the officer only what you observed and heard.  Be polite and cooperative with the officer.

11.  Promptly seek medical attention.  Tell the health care providers the truth.   Carefully explain your symptoms. Do not magnify or ignore any problem you are having.

12.  If you are told by the emergency room to follow-up with your family doctor, do so.  Do not delay in seeking additional medical treatment in the hope that you will be alright.  

13.  Carefully explain to your subsequent health care provider the medical problems you are having as a result of the injuries.  Once again, do not magnify or ignore any injury.

14.  If the accident was not your fault and you were injured, contact an experienced personal injury lawyer to learn your rights.  At the Law Offices of John Day, P.C., we recommend that you do this promptly, before giving a statement to any insurance company.  At our firm, initial consultations are free.

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