Understanding Medical Malpractice Cases in Tennessee

1. What is a medical malpractice case?

Answer: Cases for injuries caused by a medical provider during the course of providing medical treatment are called medical malpractice cases. There are many different fact situations which can form the basis of a claim. The injury may be the result of something the medical provider did such as performing surgery on the wrong arm or leg. Or the injury may be caused by the medical provider’s failure to provide appropriate medical care or make a timely diagnosis. Medical malpractice claims may include claims against doctors, nurses, hospitals, nursing homes, pharmacies, home health agencies, and other types of health providers.

2. What is the deadline for filing a medical malpractice case in Tennessee?

Answer: 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.

3. What must be proved to win a medical malpractice case in Tennessee?

Answer: In order to win a medical malpractice case in Tennessee the patient must prove that the medical provider failed to provide the regularly accepted level of care as would have been provided by other similar medical providers in the same or a similar community. The patient must also have suffered an injury (or death) which would not otherwise have occurred in the absence of the malpractice.

4. Are expert witnesses required to prove a medical malpractice case in Tennessee?

Answer: 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; (b) that the appropriate level of care was not provided; and (c) that the inappropriate care caused the injury or death of the patient.

5. Are there any special requirements for expert witnesses in medical malpractice cases in Tennessee?

Answer: Yes, there are many special requirements for expert witnesses. Some of these include: 1) that the expert must practice in a field of medicine that makes his or her testimony pertinent to the case; 2) the expert must have practiced in that field of medicine in Tennessee or a contiguous state in the year preceding the incident; and 3) the expert must be familiar with the regularly accepted level of medical practice in the community where the incident took place or a similar community.

6. What damages may be recovered if medical malpractice causes an injury?

Answer: An injured patient may recover the cost of past and future medical expenses and lost wages. If the patient can no longer work or cannot earn as much money then the patient can recover for the lost capacity to earn money. The patient may recover for pain and suffering, the loss of enjoyment of life, disability and disfigurement.

If the patient is killed then the claim may be filed by a family member on behalf of the patient to recover medical and funeral expenses. The medical provider can be required to pay the family the wages that the patient would have earned in the patient’s lifetime. The medical provider may also be required to pay damages for the lost relationship between the deceased patient and certain family members such as a parent, spouse or child.

7. What is the attorney’s fee in a medical malpractice case?

Answer: Generally, medical malpractice cases are handled on a contingency basis. This means that the lawyer does not receive a fee unless and until the lawyer makes a recovery for the client. The fee is then taken out of the recovery. By Tennessee law an attorney’s fees in medical malpractice cases cannot exceed one-third of the recovery and, in fact, a one-third contingency fee is the standard charge. Attorney’s fees in medical malpractice cases in Tennessee must be approved by the Court.

8. What expenses will be incurred?

Answer: Most lawyers who do 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.

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. In products liability cases expert witness fees may exceed $150,000.

ii. Doctor Fees. In cases involving personal injury and wrongful death, a doctor must usually 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 $750 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 of a wrecked car or an intersection) are inexpensive. Other exhibits (computer animations) 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. 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.

At The Law Offices of John Day, P.C., we typically advance all expenses necessary for the evaluation and trial of a medical malpractice case.

9. How much time is required to investigate a medical negligence case?

Answer: Busy medical malpractice lawyers prefer at least four months to investigate medical malpractice cases. A significant amount of work must be done to determine whether a valid case exists, and that work must be a part of the lawyer’s other obligations to current clients. A lawyer who is presented with the opportunity to investigate a potential case may have to decline the case, not on the merits, but rather because insufficient time is left to investigate it. Thus, we encourage you to contact a lawyer as soon as possible if you believe that you or a loved one has been hurt by a medical error.

10. I think that I suffered an injury due to medical malpractice. What should I do?

Answer: You should contact a lawyer as soon as possible. It is important that evidence be gathered to determine the validity of the claim. The insurance company for the person or company that caused the death will be working hard to gather that evidence, and you should have a lawyer doing the same.

© 2010, The Law Offices of John Day, P.C.