Articles Posted in Damages in Death Cases

Last week, we told you that the Administrative Office of the Courts had published the Annual Report of the Tennessee Judiciary for the Fiscal Year 2012-2013. The report provides information on the number of tort filings (lawsuits alleging personal injury or wrongful death), the number of trials and verdict information.  

Nashville and Davidson County, Tennessee are in the Twentieth Judicial District. For the year ending June 30, 2013, 1,571 tort cases were filed in the Twentieth Judicial District and 1,441 tort cases were disposed of by either trial, motion, dismissal, etc. Only 66 cases went to trial in Davidson County – 35 were jury trials and 31 were bench or judge trials. Of the 66 cases that went to trial, 43 resulted in a verdict for the injured party. Here is the breakdown of the awards:

·        The vast majority of the cases (34 of them) resulted in verdicts that were less than $100,000.00. 

·        Seven of the cases had verdicts of less than $1,000,000.00 .

·        Two of the cases had verdicts which exceeded $1,000,000.00.

·        While the average verdict was $325,250.00, the average was greatly inflated by one particular verdict in the amount of $13,623,000.00, which happened to be the largest verdict in the State of Tennessee last year. 

Before anyone starts declaring a $13 million dollar verdict excessive, let me tell you the facts of the case. It was a medical malpractice case alleging negligence in the labor and delivery of a baby. Because of the medical malpractice, the baby was born permanently brain damaged and will need ongoing medical care for the rest of his life. In addition, he was permanently impaired from having any sort of normal family, social, recreational or wage-earning activities. 

If you or a loved one has been injured in Nashville and would like to schedule a free, no-obligation consultation with one of our award-winning attorneys to confidentially discuss your case, get your questions answered and have your legal rights explained to you in clear terms, contact us by calling 615-742-4880 or toll-free at 866-812-8787 or simply fill out this online form.

 

A new law in Tennessee limits the amount of damages that can be awarded in a Tennessee wrongful death case.  

Under the new law, the family of a person who has died as a result of the negligent conduct of another person or company is limited to recovery of the following types of damages"

  1. Medical bills caused by the negligence.
  2. Funeral Bills.
  3. Lost earning capacity from the time of injury to death.
  4. Future lost earning capacity reduced by future personal maintenance expense.

There is no limit on the amount of money that can be awarded for these types of  losses.  The actual amount of money that can be recovered will depend on the evidence of the amount of loss for each one of these elements of loss.

In addition, the law permits the recovery of damages for pre-death pain and suffering caused by the negligence, as well as damages for the loss of a spouse and father.  If the decedent is an unmarried child, the parents may seek damages for the loss of a child.  If the decedent is an unmarried, childless  sibling, damages may be sought by the decedent’s siblings for the loss of a brother or sister.

The amount of these later losses ("intangible losses"  or "non-economic losses") is limited to $750,000, except under certain limited circumstances.  For instance, if the decedent left behind minor children, the damage cap increases to $1,000,000.  There are a few other exceptions as well.

The fact that intangible damages are limited to $750,000 (or,in some instances, $1,000,000) does not mean that your case is automatically worth at least that amount.  First, it is necessary to prove that someone negligently caused the death. Second, it is necessary to prove the amount of damages actually lost / suffered.  The damage cap on intangible losses sets a cap, not a floor, on the amount of damages.  

The Tennessee  law on wrongful death cases has changed dramatically in the past few years, and it is essential that you work with an experienced wrongful death lawyer who stays current with the law in this area.   Feel free to contact us for a free consultation about your case.  You may reach us via our toll-free number (866-812-8787 or our Contact Form. 

 

Tennessee law permits the recovery of funeral and burial expenses as part of the damages in a wrongful death lawsuit.

The case law is unclear about whether there is any limit on the amount of funeral and burial expenses that may be recoverable.  Presumably, the law permits only the recovery of a "reasonable" amount of such expenses, but there is no fixed dollar amount or any other guidance on this issue.

Therefore, evidence of the amount of funeral and burial expenses incurred must be gathered and presented as part an effort to settle a wrongful death case.   Appropriate evidence must also be introduced at trial in the event the case cannot be settled.

Tennessee law does not permit the recovery of prejudgment interest in personal injury or wrongful death lawsuits .

However, if you win a case and a judgment is entered by the court you are permitted to recover interest on the amount of the judgment.  Under the law in effect before July 1, 2012, interest accrued at the rate of 10% per year on the amount of the judgment that is unpaid.  Now, the interest rate varies from time to time; the interest rate on judgments as of December 3, 2012 is 5.25%.

The inability to collect interest on personal injury and wrongful death lawsuits (unless a judgment is entered) is yet another reason why you want to hire a lawyer who will work to finish your case promptly.  To learn how we can help you with your case, call me at 866.812.8787 for a free consultation.   You may also complete our Contact form and we will get in touch with you.

Check here for the current interest rate on judgments in Tennessee personal injury and wrongful death cases.

In Tennessee personal injury and wrongful death cases there are two new classification of damages that cause some confusion.  The phrases, "economic damages" and "non-economic damages," were added to the law by the Tennessee General Assembly in 2011 and are applicable to all Tennessee personal injury and wrongful death cases that arose on or after October 1, 2011.

"Economic damages" are damages that can be readily measured in money.  They include damages like medical bills and lost income.

‘Non-economic damages" are damages for pain, suffering, loss of the right to enjoy life, disfigurement, and other types of intangible losses that are not readily measurable in money.  In wrongful death cases, this classification of damages includes the loss of a parent, spouse or child.

Under the new statutes passed by the Tennessee General Assembly, jurors continue to have the power to award unlimited damages in whatever amount they find appropriate given the evidence in the case. However, the jury’s right to award non-economic damages have been limited.  Despite the jury’s finding on the proper amount of damages, damages for non-economic losses are limited to $750,000.  (There are a couple of circumstances where the non-economic damages are limited to $1,000,000.)  

From a practical standpoint, what this means is that the jury will announce its decision on the appropriate amount of damages and, if the amount is higher than the damage cap, the judge will reduce it.

Efforts are being made to challenge the constitutionality of this law but it is unlikely that the Tennessee Supreme Court will hear the case for several years.  

John Day and the other lawyers in his firm  represent people who have been injured or lost a loved one due to the negligence of another person or company. John has been listed in Best Lawyers for 20 years, and has the highest legal rating a lawyer can earn by the legal rating services Martindale and AVVO.

An author of three books on personal injury and wrongful death law  and over 50 articles for legal publications, John has given approximately 300 speeches to lawyers in over 15 states on personal injury, wrongful death, and related subjects. He represents people across Tennessee in personal injury, wrongful death, medical malpractice, products liability and other civil cases. To read what John’s  clients have said about him and his law firm, click here

This new video explains the types of damages that can be received in aTennessee wrongful death case. The same types of damages are recoverable in all types of wrongful death cases, whether caused by a truck accident,car accident, medical error, defective product, or any other type of negligent act.

John Day represents people who have been injured or lost a loved one due to the negligence of another person or company. John has been listed in Best Lawyers for 20 years, and has the highest legal rating a lawyer can earn by the legal rating service Martindale and AVVO. An author of two books on law and over 50 articles for legal publications, John has given approximately 300 speeches to lawyers in over 15 states on personal injury, wrongful death, and related subjects. He represents people across Tennessee in personal injury, wrongful death, medical malpractice, products liability and other civil cases. To read what his clients have said about him and his law firm, click here.

You can reach John by email at jday@johndaylegal.com or by phone at 615.742-4880. The toll-free number is 866-812-8787.

A mediation is formal method used to settle disputes of any kinds, including personal injury and wrongful death cases.

Mediation usually consists of each side of the lawsuit sitting down with a person who has no particular interest in the outcome of the case (the mediator) and trying to resolve their dispute.  The mediator may be a judge or a private citizen.  In Tennessee personal injury and wrongful death cases the mediator is a judge (not the judge that will hear the case) or a lawyer with special mediation training.

Mediation can be ordered by the court or it can be agreed to by the parties to the case.

A case does not have to be settled at mediation and the mediator is not empowered to force a settlement.  Nor does the mediator decide the case.  The mediator simply facilitates a resolution of the case by communicating about the strengths and weaknesses of the case.

A non-judge mediator is paid for his or her services.  Typically, each party pays a fair share of the mediation cost.  If there are three parties in the case the costs is divided by three.  It is not uncommon for there to be an agreement reached on how the mediation expenses will be handled before the mediation and for that agreement to be re-negotiated as the parties get closer to an ultimate settlement of the case.

Mediation was not a part of the law practice in Middle Tennessee when I started practicing law here 31 years ago.  Today, many lawsuits that are filed go through the mediation process.  And, in my experience, at least 80 percent of cases in which a lawsuit is filed are settled at mediation or are settled in the weeks following a mediation.

Mediation works the best if you have an experienced injury lawyer prepare your case for trial and does not prepare it for mediation.  By that I mean that lawyers who prepare a case to settle frequently receive lower settlements than lawyers who prepare a case for trial.  

Thus, even if you would just as soon avoid a trial and settle your case by mediation or other settlement methods, you will be best served to hire an experienced lawyer to investigate, evaluate and prepare your case.  Read our Legal Guide titled "Understanding How to Hire a Personal Injury and Wrongful Death Attorney" to understand what you should be looking for in a lawyer in your case.

 

 John Day represents people who have been injured or lost a loved one due to the negligence of another person or company.  John has been listed in Best Lawyers for 20 years,  and has the highest legal rating a lawyer can earn by the legal rating service Martindale and AVVO.  An author of two books on law and over 50 articles for legal publications, John has given approximately 300 speeches to lawyers in over 15 states on personal injury, wrongful death, and related subjects.  He represents people across Tennessee in personal injury, wrongful death, medical malpractice, products liability and other civil cases.  To read what his clients have said about him and his law firm, click here.  

You can reach John by email at jday@johndaylegal.com or by phone at 615.742-4880.  The toll-free number is 866-812-8787.

Tennessee wrongful death lawyers can help clients recover the following types of damages in wrongful death lawsuits:(a) medical expenses; (b) funeral bills; (c) conscious pain and suffering from the date of the injury until the date of death; (d) loss of enjoyment of life between the date of injury and death; (e) loss of earning capacity between the date of injury and death; and (f) the pecuniary value of life.

The "pecuniary value of life" includes the present value of the decedent’s lost future earning capacity minus those living expenses necessary to maintain the decedent’s person so that he  or she can work. In cases involving the death of a spouse, the surviving spouse can recover damages for the loss of love, society and affection of the decedent. In cases involving the death of a parent, the children can recover damages for the loss of love, society, affection and guidance of the parent. In cases involving the death of a child, the parents can recover damages for the loss of love, society and affection of their child.  Each of these types of damages are included in the definition of the “pecuniary value of life.” 

 

As Tennessee wrongful death lawyers who represent the families of wrongful death victims, we are occasionally asked whether the fact that victim’s family received life insurance as a result of the death impacts the amount of money that is awarded by a jury in a wrongful death case.  That answer is no – the person or corporation who caused the death does not pay less money in damages because the decedent had life insurance.

There is only one group of people and corporations who argue to the contrary, and that is health care providers.  They argue that a special law passed by the Tennessee General Assembly gives them the right to a "credit" for any life insurance paid as a result of the death.  This argument is made when the life insurance is not paid for out of the decedent’s personal money and instead is provided by an employer or some other person or entity.  We believe this argument is not supported by Tennessee law and, in fact, there is no decision of the Tennessee Supreme Court that has addressed this specific issue.

For more information about Tennessee wrongful death litigation, click on any of the following links:

  1. How did the accident happen and who is to blame?
  2. Who has the right to file a wrongful death suit?
  3. What types of damages are recoverable in a wrongful death suit?
  4. If money is recovered, who gets it?
  5. What is the deadline for bringing a wrongful death suit in Tennessee?

 

Our Nashville wrongful death attorneys have been called upon to represent the families of many people who have died as a result of the mistakes of another.   One question we are frequently asked in these cases is what type of damages may be recovered.

Tennessee law permits the following damages to be recovered in wrongful death cases arising from automobile accidents, truck accidents, medical malpractice, or any other type of event where negligence causes death:

  • medical expenses
  • lost wages from the date of injury to death
  • funeral expenses
  • pain, suffering, disfigurement, disability and loss of enjoyment of life from the date of injury to the date of death

Damages can also be recovered for what is called the "pecuniary value of life."  This includes damages for the present value of future earnings (reduced by the amount of expenses that would have been incurred by decedent to keep the decedent alive so that he or she would have been able to work) plus damages for loss of love, society and affection between the decedent and certain family members.  

The family members to be considered depends on who survives the decedent.  If the decedent dies unmarried and without children, the jury will be told to look at the loss between the decedent and his or her parents.  If the decedent died leaving behind a spouse and children, the jury will look to the loss between the decedent and his or her spouse and children.  Other rules apply depending on the family situation.

if the wrongful act giving rise to the later death arose before October 1, 2011, there is no artificial cap on damages in Tennessee wrongful death cases.  If the injury resulting in death occurred on or after October 1, 2011, Governor Haslam and the Tennessee General Assembly have limited damages (other than medical expenses and loss of earnings) to $750,000.  

There are a couple of exceptions to this rule.  If the decedent left minor children, the artificial damage cap is increased to $1,000,000,  If the death was caused by a drunk or drug-impaired driver, or if the death was intentionally caused, the arbitrary cap is not applicable.  There are  a couple under very limited circumstances when the damage cap will not be applied.