I Only Have Five Days To Bring My Medical Malpractice Claim and No Lawyer Will Help Me!

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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Certificate of Good Faith In Tennessee Medical Malpractice Cases

I have heard that a "certificate of good faith" must be filed with a medical malpractice lawsuit in Tennessee.  What is that?
 
A "certificate of good faith" is a written promise signed the attorney representing the patient that he or she has consulted with appropriate experts who are qualified to testify under Tennessee law and that there is a good faith basis for a lawsuit.  The certificate must be filed with each medical malpractice lawsuit in which expert testimony is required.
 

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. 

Notice of Potential Lawsuit in Tennessee Medical Malpractice Cases

 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?

 
Usually, a lawsuit is started with the filing of a summons and a complaint.  A summons is issued by the court and orders the defendant (the person sued) to respond to the lawsuit.  A complaint is a document in which the plaintiff (the person filing the suit) sets of the basic facts and legal theories giving rise to a lawsuit against the defendant.
 
The health care lobby got a special law enacted that adds a special step to bringing a lawsuit against a health care provider.  The law requires that notice must be given to the person who is to be sued.  The requirement for giving notice is very strict and I would not recommend that any non-lawyer attempt it on his or her own.  
 
Once the pre-suit notice is given the plaintiff must wait at least 60 days before filing the lawsuit.
 
Once again, you are urged not to attempt to give notice of a potential health care liability lawsuit on your own.  This is a complicated area of the law and requires the help of an experienced Tennessee medical malpractice attorney.

Another Operating Room Fire

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.

Fire in the Operating Room Results in Burn Injury

My neighbor was burned when she being operated on in a hospital.   How did that happen?  Can these type of fires be prevented?

Approximately 600 - 650  people are injured each year in operating room fires.  Consequences of a surgical fire can be deadly or leave people with horrible pain and disfiguring scars. Fires can occur in any setting where invasive surgical procedures are performed. Experts indicate that the basic principle to remember is that people start most fires, and people can prevent them.

This has been a problem for many years.  This article from a 1994 edition of Today's OR Nurse tells us that (1) Every operating room has the elements necessary to start a fire: oxidants (O2, N2O), ignition sources, and fuel;  (2) A team approach, including nursing, anesthesia and surgery members, should be used in assessing fire safety in the operating room; (3) Staff knowledge of fire safety can be assessed by written tests. An appropriate fire safety program can be developed based on the test results; (4) Fire evacuation drills and hands-on use of fire extinguishers should be included in any OR fire safety program.  Now, almost 20 years later, fires continue to occur.

In October 2011  the FDA launched a new initiative to prevent surgical fires, noting that though these are rare events, they are also highly preventable. The agency convened a special workshop to look for ways to stop fires from ever happening and to give medical personnel the tools and knowledge needed to deal with a fire if one occurs.

The FDA reports that

The Anesthesia Patient Safety Foundation (APSF) says the vast majority of these fires are preventable. With the assistance of ECRI Institute, APSF recently produced a video about why operating room fires occur and the "best practices" to keep them from happening. The video describes the "Surgical Fire Triangle", when an ignition source, a fuel, and oxygen come together.

APSF says that the majority of OR fires occur when high oxygen concentrations are present, particularly in procedures involving the head, neck and upper chest.
An enriched oxygen environment occurs when the concentration of oxygen exceeds that of ordinary room air. APSF says that it is vital for OR personnel to consider whether supplemental oxygen is really necessary for each patient, and describes precautions to take if it is. For example, avoid using an open delivery source such as a nasal cannula.

Ignition sources, like electrosurgical pencils and lasers, form another leg of the "Surgical Fire Triangle". Fuel sources, such as drapes and alcohol-based prep solutions, complete the triangle.

The Anesthesia Patient Safety Foundation (ANSF) has produced an 18-minute long video, Prevention and Management of Operating Room Fires, which was released in February 2010.  Watch the video here.

The ANSF says as follows:

The most notable finding when cases of operating room fires are reviewed is that most if not all are preventable! This video is intended to promote the best practices known to prevent the potentially devastating complication of a fire in the operating room. Each member of the operating room care team has a role to play in preventing operating room fires. The following commentaries are intended to put the recommendations in the video into the context of current practice.

The ANSF tells anesthesia professionals that:

Minimizing or eliminating enriched oxygen delivery is fundamental to preventing operating room fires. An increased oxygen concentration in the surgical field is either a direct cause or a significant factor in many operating room fires - particularly procedures involving the head, neck, and upper chest.

The recommendation to eliminate open delivery of oxygen when sedating patients is the most striking practice change advocated in the fire prevention video. This is particularly a consideration for anesthesia professionals since they typically control oxygen administration. For most anesthesia professionals, oxygen administration by nasal cannula or mask (open oxygen delivery) is routine when providing sedation, and is a fundamental strategy for preventing hypoxemia. The recommendations in the video can help the anesthesia professional balance the risks and benefits of oxygen delivery for the individual patient. For patients in whom an increased oxygen concentration cannot be avoided, the video describes strategies that can minimize the risk of an operating room fire. 

 

Surgeries performed by ENTS (otolaryngologists) are associated with the greatest risk of fire. Why?  The ANSF says that "[m]ost procedures by otolaryngologists are associated with a fire risk due to the close proximity to the airway where oxygen enriched gases and/or nitrous oxide are often present, and the use of surgical devices which can ignite a fire. Endoscopic airway surgery, oropharyngeal surgery, cutaneous surgery of the head and neck and tracheostomy all present a risk of operating room fire for the Otolaryngologist."  The ANSF has provided ENTS with tips on how to avoid burn  injuries to patients.

It is important for anyone who receives serious burn injuries as a result of a operating room fire to seek the advice of an experience burn injury lawyer as soon as possible.  Our office offers free consultation in burn injury cases (as well as all types of personal injury and wrongful death cases) and will accept cases on a contingent fee basis.  You can contact me at 615.742.4880 or toll-free at 877.812.8787.

Trouble Finding a Lawyer in a Medical Malpractice Case

I was almost given the wrong medicine by a nurse during a recent hospitalization.  Fortunately, my wife was in the room and stopped the nurse before she messed up.  The doctor said that if I had taken the medicine I would have died. I am having trouble finding a lawyer to take my case.  Why?  Like I said, I could have died.

The reason you are having a problem finding a lawyer is that the damage you sustained by reason of the "close call" are so small that it makes no economic sense to bring your case.  Pardon me for being so blunt, but lawyers who accept medical malpractice cases on a contingent fee basis must be able to recover sufficient damages to earn a fair fee on the effort they put into a case.  As you describe your case, the damages are so small that no lawyer can afford to handle the case.

You might be able to find a lawyer to handle your case if you are willing to pay by the hour, but I would caution you against that.  You could easily end up spending thousands of dollars pursing your case and, at the end of the day, have little or nothing to show for it.

 

Army Medical Malpractice

I was a victim of medical malpractice in an Army hospital in Tennessee.  What are my rights?

There is a process established in the law that permits victims of medical malpractice caused by employees of the Army, Air Force, Navy or Veteran's Administration to take legal action.  First, appropriate notice must be given and then, when the claim is denied, suit must be filed in federal court.

Tennessee medical malpractice and damages law will control your case, even though it must be filed under a special federal law.  Here is a summary of Tennessee medical malpractice law.  Please note that federal law generally gives more time to file suit than state law - you need to talk with an experienced medical malpractice lawyer to assist you in determining how much time you have to file suit under the federal statute.  Failure to file suit on time will result in a loss of whatever rights you have, so be sure to contact a lawyer quickly.

 

Loss of Sight Because of Medical Error

 My husband recently lost his vision because of a error by a doctor.  What are his legal rights?

Your husband will have to prove that the doctor who treated him failed to follow acceptable professional practice in the community where the doctor practiced and that the failure caused the loss of his vision.

The proof will require the testimony of a doctor, typically one in the same specialty as the doctor who made the error, that your husband's doctor made an error.   A doctor will also have to testify that the error caused the loss of sight.

If it is determined that your husband has a valid case, the law permits the recovery of certain types of damages.  Those damages are described in our Legal Guide section.

Depending on the age of your husband and other factors, other experts may be needed.  A vocational expert may be required to testify as to the loss of job options for your husband.  An economist may be necessary to quantify the loss of income.  A life care planner may be necessary to describe the additional medical and other costs your family will incur as a result of your husband's blindness.

 

As you can see, there is a lot of work necessary to prove such a case.  You will need the assistance of an experienced Tennessee medical malpractice lawyer to help you.

"My Doctor Operated on the Wrong Ankle!"

I was supposed to have an operation on my right ankle.  When I woke up I discovered that they operated on my left ankle.   Now, I have to wait to recover from the operation to the wrong ankle before they will operate on the ankle they should have operated on (the right ankle).  To top it off, I have a hospital-acquired infection in the left ankle and am receiving antibiotics via an IV.  Do I have a case?

Yes.  There is no excuse for wrong-site surgery.  The doctor may blame other operating room staff, and they may blame the doctor, but at the end of the day every person working in the operating room has a responsibility to know what ankle they are operating on.   The only exception to this rule is in you are asked, before receiving any type of sedative, to mark what ankle you are having surgery on and you mark the wrong ankle.  Then the wrong-site surgery may be considered partially your fault.

Tragically, this is a growing problem.  According to the Joint Commission on Accreditation of Hospitals, wrong-site surgery occurs 40 times a week in U.S. hospitals and clinics.  This estimate s based on voluntary reporting - one-half of the states do not require reporting.  Minnesota had 48 cases last year and Pennsylvania has averaged 64 cases for the past few years.

So, yes, you do have a case.  You should contact an experienced medical malpractice lawyer to assist you.

What Type of Expenses Are Incurred in the Prosecution of A Medical Malpractice Case in Tennessee?

I believe I have a medical malpractice claim against a Tennessee hospital.  It is my understanding that lawyers who accept representation of patients in medical malpractice cases only get paid if they win the case but that they also charge for the expenses they incur in pursuing the case.  What type of expenses are incurred in the prosecution of a medical malpractice case? 

Most lawyers who represent patients in  medical malpractice litigation ask to be reimbursed for expenses they incur in prosecuting your case. Some lawyers hold the client responsible for those expenses if the case is unsuccessful. Other lawyers will “write-off” some or all of those expenses if the case is unsuccessful. The written fee agreement between you and the lawyer should disclose whether the client will be responsible for expenses if the case is unsuccessful, and therefore you should examine it carefully before agreeing to employ any lawyer.

Here is a list of the types of expenses that may be charged to your case:

i. Expert Witness Fees. Some cases require, and many cases benefit from, the use of one or more expert witnesses. Expert witnesses charge by the hour – some medical experts charge as much as $1500 per hour to consult with a lawyer and give testimony at trial. In some cases there are no expert witnesses and therefore no expert witness fees. In medical malpractice cases expert witness fees frequently exceed $50,000.

ii. Doctor Fees. In cases involving personal injury and wrongful death, including medical malpractice cases, a doctor usually must testify that the incident that is in dispute caused the client’s injury or death. These witnesses also testify about whether the injuries caused pain, suffering and disability and whether there is any permanent pain, suffering or disability caused by the incident. These doctors – usually the doctors who treated you in the hospital or on an out-patient basis – charge $300 to $1000 per hour to testify in your case.

iii. Court reporter Fees. Court reporters transcribe depositions and trial testimony. Court reporter charges vary, but it costs about $2000 per day to have a court reporter present at a deposition or trial and to have a copy of a transcript prepared.

iv. Videographer Fees. Experienced personal injury and wrongful death lawyers know that video-taped depositions are very useful at trial and will ask that depositions of certain witnesses be video-taped if the dollar value of the case justifies the expense. Professional videotaping of a deposition costs about $1000 per day.

v. Demonstrative Aids (Exhibits). Some exhibits (photographs) are inexpensive. Other exhibits (computer animations of medical procedures) are very expensive. Experienced personal injury and wrongful death lawyers take the dollar value of the case into account in determining what exhibits are necessary to maximize the value of the case.

vi. Travel. Sometimes the case involves out-of-town witnesses and thus the lawyer must travel. The expenses attendant to such travel are charged to the client as case expenses. The amounts of those expenses vary from case to case, but these expenses can be significant in medical malpractice cases because expert witnesses frequently reside in another state. Two other points must be mentioned here. If you employ an out-of-town or out-of-state lawyer you may be charged for travel expenses for that lawyer to work on your case in Tennessee. This will decrease your recovery. Make sure you understand if you have to pay the lawyer’s expenses for traveling to see you or to work on your case and weigh that factor in determining whether you should hire that lawyer or a local lawyer. Second, some lawyers use the fact that they have private planes to impress clients. If you hire such a lawyer, make sure you understand how much you will be charged for use of the private plane during your case. Private plane expenses can be much higher than commercial air travel or ground travel, and you need to know how you will be charged. Responsible lawyers who use private planes in their law practice will charge you only the cost of what a commercial airline would charge for a pre-purchased, coach ticket on a commercial airline for the same flight.

viii. Miscellaneous Expenses. Lawyers also include as case costs the out-of-pocket expense incurred for conference calls, long-distance calls, photocopies, postage and express delivery service.

Deadline for Filing A Medical Malpractice Claim in Tennessee

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.

Medical Error - Claim Against the VA Hospital

I am a veteran and receive my care at the local VA hospital.  They made an error and injured me for life.  Can I assert a medical malpractice claim against them, or are they protected from lawsuits because they are a government agency?

The VA can be sued for medical negligence, but certain special rules apply and the failure to follow them can have very serious consequences.   Claims like yours are governed by the Federal Tort Claims Act.

As but one example, a special form must be filled out and filed to initiate the claim.  This form gives the government formal notice of the claim and suit cannot be filed until six months after proper notice has been given.  The completion of this notice form can materially affect the right of the claimant, and therefore it is recommended that a lawyer be consulted before notice is given.

After suit is filed, a medical malpractice claim against the VA proceeds like most other medical malpractice claims, except that the case is defended by government, not private attorneys.  There is no right to a jury trial. Instead, the case is decided by a federal judge.

Our firm has represented claimants in FTCA claims and, in fact, have a trial against a different federal government agency this summer.  The case will be tried in Federal Court in Nashville in June.

Is There A Time Limit for Filing A Case Against a Tennessee Nursing Home?

My mother was hurt in a nursing home in Chattanooga.  What it the time limit for filing a lawsuit against a nursing home in Tennessee?

You should assume that you must take appropriate legal action within one year of the date of the negligent act unless a lawyer aware of all of the facts advises you that you have more time. 

As you might guess, it is possible that there is an exception to the rule expressed above, but the application of the exception is fact-dependent and the law on the issue is complicated.  Thus,  please contact a qualified lawyer quickly so that an appropriate investigation can be made and the lawyer can determine the validity of the claim.  

The failure to bring suit in the time required by law will result in a loss of your rights.

No Lawyer Will Take My Case

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.

What is the Deadline for Filing a Medical Malpractice Case in Tennessee?

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 Are Won by the Patient?

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.  

 

How Do I Make A Medical Malpractice Claim in Tennessee?

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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What Are The Odds of a Patient Winning A Medical Malpractice Case at Trial?

I have a medical malpractice case.  The doctor's insurance company has refused to settle the case.  What are the odds that I will prevail at trial?

Health care providers generally win medical malpractice cases that are tried to a jury.  That does not mean that your case is likely to be lost - each case depends on its facts and,many other factors.

That being said, for the year ended June 30, 2009 there were 26 medical malpractice cases tried in Tennessee.  the data is not available, but based on past experience only 5 or 6 of those cases were won by the patient.  Stated differently, the win-rate for patients is less than 25% for cases that go to trial.

Tennessee is not an oddity in this regard.  According to Shannon Ragland, editor of the  the 2010 Kentucky Trial Court Review,  there were 47 medical trials in Kentucky in 2010. Only 13 of those cases resulted in a verdict for the patient or, in other words, a 27.6% win percentage for patients. The 13-year win-rate percentage (for 754 medical trials) in Kentucky is 23.2%.

Once again, the fact that more cases are lost than won does not mean anything about the likelihood of winning your case.  In fact, the only thing the loss rate tells us is that when medical malpractice insurance companies talk about all of these crazy jury verdicts in malpractice cases they must be talking about the cases they won.

Can A Medical Malpractice Plaintiff Recover Attorney's Fees From The Health Care Provider?

I am a doctor.  I have been sued in a medical malpractice case.  My patient has asked for payment of her lawyer's fees?  Am I responsible for her lawyer bills?

Under current law you are not liable for the fees of her lawyer absent extremely unusual circumstances, even if you lose the lawsuit.   Similarly, if she loses the lawsuit she is not liable for your lawyer fees.

The only risk you have of paying your adversary's fees in a medical malpractice case is if you assert a frivolous defense or do not  participate in the discovery process in good faith.  The discovery process is  the phase of the litigation during which each side finds out about the other side’s claims and defenses. The various methods of gaining this information are often referred to as tools of discovery or simply “Discovery.” These methods include depositions, interrogatories, requests for production, medical evaluations, requests for admissions, and subpoenas.  Read more here.

The lawyer hired by your medical malpractice insurer can explain all of this to you.  In the unlikely event any fees are awarded against you they are almost certainly covered by your medical malpractice insurance policy unless you engage in intentional or fraudulent conduct.

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Qualifications for Expert Witnesses in Medical Malpractice Cases in Tennessee

What does it take for someone to qualify as an expert witness in a Tennessee medical malpractice trial?

This is a question that is very difficult to answer.  To make this a little easier to follow let's assume that an internist has been sued.

In Tennessee, an expert testifying about whether the internist committed an error must be familiar with good professional practice (the "standard of care") for the internists in the community in which the defendant internist practices or in similar communities and must testify that the internist did not follow that standard of care.  In other words, the witness must be able to say that the internist either did something he or she should not have done or did not do something he or she should have done.  The expert need not necessarily be an internist - depending on the circumstances a family practice doctor or other type of doctor could testify about the standard of care for an internist under a particular set of facts.

An expert is also necessary to testify that more likely than not  the error caused an injury or death that would not have otherwise occurred.  This may or may not be the same expert who testified about the standard of care.

In Tennessee, expert witnesses in medical malpractice cases must come from Tennessee or states that are contiguous to Tennessee. This goofy rule, unique to Tennessee, was passed by the Legislature at the urging of doctors to make it harder for patients to find experts to testify against Tennessee doctors.  It works.

The qualifications of the expert to testify are determined by the trial judge, who undertakes the effor to see if the witness has sufficient knowledge on a subject matter to testify.  There is often a big fight about the qualifications of expert witnesses to testify in a given case, particularly in medical malpractice trials.  To qualify as an expert the witness in a medical case the expert does not need to be "super doctor."  In fact, one argument often made by doctors who are sued is that the patient's expert is a "super doctor" who practices at a level higher than the standard of care requires.

As suggested above, this is a relatively simple answer to a very complicated question.  An experienced medical malpractice lawyer will be able to answer this question when presented with the circumstances of a particular case.

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How Many Jurors Will There Be in a Tennessee Medical Malpractice Case?

How many jurors will hear a medical malpractice case in Tennessee?

Usually there are twelve.  The parties to the lawsuit can agree on less than twelve, but usually no such agreement is reached.

The jury must reach a unanimous verdict.  That is, all must agree on the decision.  If there is not a unanimous verdict, a mistrial is declared by the judge and there is another trial.

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Deadlines in Tennessee for Filing Medical Malpractice Cases

I believe that my doctor committed medical malpractice on me and injured me for life.  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.

Is Testimony From A Doctor Necessary to Prove a Medical Malpractice Case?

I think I was injured by medical malpractice.  I talked to a lawyer at church and she said that another doctor would have to testify against my doctor.  Is that right?

Generally, yes. In fact, most cases require testimony from more than one expert medical witness. The expert(s) must testify (1) what level or type of care was necessary in the community given the medical issue; (b) that the appropriate level of care was not provided; and (c) that the inappropriate care caused the injury or death of the patient that would not have otherwise occurred.

This is a very complicated area of the lawyer, and I strongly suggest that you consult an experienced medical malpractice lawyer to evaluate your case.

What Happens If the Person That Hurt Me Dies?

I was hurt in a head-on automobile accident.  The driver that crossed the centerline and hit me died in the wreck.   Do I have legal rights against him even if he is dead?

Yes.   Although you can't sue someone who is dead, you can sue his estate.   If an estate is not opened for him, you (through your lawyer) can petition the court to have an estate opened so that you can sue it and collect the monies you are entitled to recover.

The fact that the person who hit you died does not relieve his insurance company of the obligation to defend the case and pay the monies to you that you are entitled to receive under the law (up to the liability insurance policy limits). 

An experienced personal injury lawyer will know how to help you through this process.   Remember that in Tennessee a personal injury claim must be filed against the responsible people within one year of the date of the accident.   Under these circumstances you will need act even more promptly than usual because the lawyer you hire will need to do extra work to get an estate opened for the decedent so that suit can be filed within one year of the date of the accident.

They Have to Settle - They Don't Want the Publicity!

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

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

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

 

A Doctor Made an Error and I Almost Died!

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

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

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

Pharmacy Mis-Fills

My doctor gave me a prescription.  I took it to my local pharmacy and got it filled.  I took the medicine for three days, twice a day, just like the doctor said when I passed out and hit my head on the kitchen table.  I woke up in the hospital two days later with a horrible headache and 15 stitches on my head.  It turns out that rather than give me 50 mg. pills like the doctor ordered the pharmacy gave me 500 mg pills.   My doctor said that this medicine built-up in me and caused me to pass out.   He said that if I would have taken those bigger pills for a couple more days I would have died.   Can I sue the pharmacy?

Yes, if you can prove that the prescription was for 50 mg. and it was filled at 500 mg. the pharmacist committed a clear error.  It will be important to get a copy of the original prescription form and make sure that it clearly called for only 50 mg. pills.

You will also have to prove that taking the extra-high dose caused to you pass-out and hit your head.  A medical doctor will have to testify about this.

An experienced medical malpractice lawyer can help you with this problem.  

Ask A Question Case Evaluation About John A. Day

I am a fifty-three year old lawyer who is fascinated by the law of torts. I have studied the field for over twenty-nine years. I represent plaintiffs in personal injury and wrongful death cases.

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