Injury Cases

May 4, 2011

Suing A Tennessee Lawyer for Legal Malpractice

I was hurt in a car wreck in Carthage, Tennessee last year. I hired a lawyer one month after the wreck. She called me last week, and told me she forgot to file my lawsuit on time. She said he filed it late and hopes that the other side won’t say anything but that if they figure it out my case will be dismissed. What do I do now?

Your lawyer did the right thing by telling you that she made an error. The failure to file a lawsuit within the one year period required by Tennessee law is legal negligence absent extraordinary circumstances not apparent from your question.

You need to hire a different lawyer to help you evaluate your case and, if necessary and appropriate, assert a claim against the lawyer. To prove your case, you will need to prove that the lawyer committed malpractice by not filing the case on time. You will also need to prove that more likely than not you would have won the underlying case (the care wreck case). Lawyers refer to this second case as "the case within the case."

February 9, 2011

Can I Hire an Out-of-State Lawyer for a Medical Malpractice Claim?

by The Law Offices of John Day, P.C.

I think I have a medical malpractice claim in Tennessee. I live in Tennessee and the malpractice occurred in Tennessee. Can I hire an out-of-state lawyer to represent me in this case?

Yes, although the out-of-state lawyer must either have a Tennessee law license or must work with a Tennessee lawyer on the case.

The more important question is why would you hire an out-of-state lawyer to represent you? There is a real advantage to hiring a lawyer who is familiar with Tennessee law (the law of every state is a little different, and Tennessee has some very unusual aspects to its medical malpractice law) and who knows the way our legal system works. There are some very good medical malpractice lawyers in this state who have experience in a wide variety of medical malpractice cases, and thus it rarely makes sense to go to the trouble of finding an out-of-state lawyer to work on a case.

November 12, 2010

Can I Require the Insurance Company to Pay Interest on My Personal Injury or Wrongful Death Settlement?

by The Law Offices of John Day, P.C.

I was hurt in a car wreck six months ago. It wasn’t my fault. I have been waiting for over a year for the case to settle. I lost three months of wages and have had to pay some medical bills that were not covered by my health insurance. Can I get the insurance company to pay interest on my settlement? It doesn’t seem fair that they can delay my settlement and not have to pay interest.

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

The only exception to this rule is if you win a case and a judgment is entered by the court you are permitted to recover interest. Interest accrues at the rate of 10% per year on the amount of the judgment that is unpaid.

September 28, 2010

Should I See A Doctor About My Injuries?

by The Law Offices of John Day, P.C.

I was in a car wreck yesterday. I thought I was ok but I woke up this morning and feel absolutely horrible. Should I go to the doctor, or should I just tough it out?

You should see your doctor and accurately report the nature and extent of your concerns. Call and make an appointment to get in and see the doctor as soon as you can.

Why? There are three reasons. First, your doctor may uncover a problem that is more serious than you think it is.

September 1, 2010

Should I Give A Statement to the Insurance Company?

by The Law Offices of John Day, P.C.

I was in a car wreck last week. I spent five days in the hospital and am now recovering at home. I am getting a couple calls a day from the insurance adjuster for the driver that hit me. The message he left for me is that he wants to take a statement from me about how the wreck happened. Should I talk to him and give him a statement?

We do not recommend that our clients give a statement to the other driver’s insurance company. There are several exceptions to this general rule, but even then we do not permit our clients to give a statement without adequate preparation for the interview.

We do not prepare our clients by telling them what to say or encouraging them to lie. In fact, just the opposite is true: we encourage our clients to tell the truth about the circumstances giving rise to the wreck, the nature and extent of their injuries, and everything else. Preparation is necessary because insurance adjusters are trained in asking questions, and may ask questions in such a way that the unprepared witness will make mistakes. These statements are almost always tape-recorded and can be used against the person in court.

August 5, 2010

My Lawyer Missed the Deadline to File My Lawsuit. What Do I Do?

by The Law Offices of John Day, P.C.

I was hurt in a car wreck in Nashville last year. I hired a lawyer two months after the wreck. He called me last week, and told me he forgot to file my lawsuit on time. He said he filed it late and hopes that the other side won’t say anything but that if they figure it out my case will be dismissed. What do I do now?

Your lawyer did the right thing by telling you that he made an error. The failure to file a lawsuit within the one year period required by Tennessee law is legal negligence absent extraordinary circumstances not apparent from your question.

You need to hire a different lawyer to help you evaluate your case and, if necessary and appropriate, assert a claim against the lawyer. To prove your case, you will need to prove that the lawyer committed malpractice by not filing the case on time. You will also need to prove that more likely than not you would have won the underlying case (the care wreck case). Lawyers refer to this second case as "the case within the case."

July 29, 2010

Why Does An Insurance Company Insist on Documentation?

by The Law Offices of John Day, P.C.

I was hurt when I fell in on a slippery floor in a fast food restaurant. I broke my left arm. I missed six weeks of work on my construction job. My lawyer says that we need a statement from my employer stating that I missed six weeks of work and indicating how much money I would have made had I worked. Why is that necessary? I don’t want to hassle my boss with this.

Insurance companies need documentation because some people don’t tell the truth about what happened to them or how the injuries they suffered cost them money. The claims adjuster for the insurance company has to make sure that his or her file demonstrates that they did a good job gathering evidence to properly evaluate the claim. This includes seeking information from other people, like your boss, to back up what you say.

I am sure that you are telling the truth about the time you missed from work. The insurance adjuster may think you are, too. But the adjuster needs to be able to prove to his or her boss that your claim was thoroughly and properly evaluated, and that is why documentation is necessary.

July 9, 2010

How Long Does a Victim of Sexual Abuse Have to File a Lawsuit Against the Abuser?

by The Law Offices of John Day, P.C.

I live in Tennessee. I was sexually abused by a neighbor when I was 15. I am 17 now. Can I still sue him?

Yes. Tennessee law requires that you file suit before your 19th birthday. The failure to file suit by your 19th birthday will result in a loss of your rights.

People sexually abused in Tennessee when they are adults have only one year from the date of the incident to file suit, but special rules apply if the person who was the abuser was a "therapist" within the meaning of T.C.A. Sec. 29-26-203. If you think you have been abused by a therapist (or anyone else for that matter), contact an experienced personal injury lawyer as soon as possible. Make sure you discuss this with your parents as soon as possible if you have not already done so.

May 20, 2010

Can I Be Sued?

by The Law Offices of John Day, P.C.

A neighbor fell off my porch the other day and he had to be taken to the doctor with a broken arm. Can I be held responsible for this?

Only if it is determined that you did not keep the premises in a reasonably safe condition for him and other guests on your property. Therefore, it is important to understand how he came to fall of the porch. Did the railing break? Was it rotten? Did he fall over the rail? Was he sitting on the rail? Was there no rail there at all? Did local building codes require a rail? And so on.

There are all sorts of questions that must be asked to determine whether you can be held responsible for what happened.

April 29, 2010

I Think I Have Food Poisoning. What Should I Do?

by The Law Offices of John Day, P.C.

I ate a local restaurant last night and about three hours later I began developing severe nausea, bad stomach cramps and diarrhea. I was up all night. I don’t feel any better this morning. I think I may have food poisoning. What do I do?

It is possible that you simple case of the flu, and if you have recently come into contact with others in your family or at work who have that condition that may be the explanation for your problems. It is also possible that you have some other medical condition that is causing these problems.

Then again, you may have food poisoning. It is estimated that 76 million foodborne illness cases occur in the United States every year after eating foods contaminated with such pathogens as E. coli O157:H7, Salmonella, Hepatitis A, Campylobacter, Shigella, Norovirus, and Listeria. Each year approximately 325,000 people are hospitalized with a diagnosis of food poisoning, and some 5,000 die.