Tennessee Injury Law Center

November 23, 2010

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.

November 22, 2010

Can An Attorney Charge For Travel Time?

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

I have hired a lawyer to represent me in a lawsuit. Can she charge me for time she travels while working on my case?

It depends on the fee agreement the two of you entered when she started working for you.

In personal injury and wrongful death cases, most attorneys work on a contingent fee basis. If you have a lawyer working on a contingent fee, it would be highly unusual for the agreement to provide that the lawyer is paid extra for travel time. Travel expenses are usually provided for in a contingent fee agreement, but travel time is usually part of the contingent fee and no extra charge for traveling is assessed. (Read this post for information on travel expenses.)

November 19, 2010

Qualifications for Expert Witnesses in Medical Malpractice Cases in Tennessee

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

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.

November 18, 2010

I Was Hit By A Police Car!

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

I was driving to work in Franklin, Tennessee. A police car driven by an officer who was on-duty ran a red light and hit my car. I had to go to the hospital in an ambulance and spent three days in the hospital. Can I sue the police officer?

No, you cannot sue the police officer. Tennessee law does not permit you to sue a government employee who negligently caused an automobile wreck while he or she was on-duty.

However, you can sue the governmental entity that employed the police officer, and it is responsible for the harm caused by the police officer if he or she is found to be negligent. There are special laws that limit the liability of governmental entities that cause harm to their citizens in automobile wrecks and other types of personal injury cases, but an experienced personal injury lawyer can guide you through this process.

November 16, 2010

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

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

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.

November 15, 2010

What Happens If I Lose A Trial in a Personal Injury or Wrongful Death Case In Tennessee?

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

I have a jury trial in state court in Nashville in a couple weeks in my car wreck case. Do I have to pay the other side’s attorney’s fees or other costs if the jury rules against me?

Ordinarily, a person who loses a jury trial in personal injury or wrongful death case in state court in Tennessee does not have to pay the winning party’s attorney’s fees. However, the losing party may have to pay certain costs incurred by the winning party, such as costs for expert witnesses to give depositions and appear at trial, costs charged court reporters, etc. These costs are known as "discretionary costs" because a trial judge has the discretion to order that the loser pay some or all of certain costs incurred by loser. Your lawyer should be able to estimate what those costs would be.

The only time you would have to pay the winning party’s attorney’s fees after a loss in a personal injury or wrongful death case is if the trial judge determined that your lawsuit was "frivolous." The mere fact that a case is lost does not mean it is frivolous. You should ask your lawyer whether there is any risk that your case could be determined frivolous by the trial judge, but my experience is that it would be very uncommon for a judge to declare that a car wreck claim or defense was "frivolous." The only exceptions I can think would arise in situations where it was determined that a person faked (not just exaggerated, but truly faked) an injury, encouraged or paid others to give patently false testimony in support of the case, and other situations that are extremely rare.

November 15, 2010

Deadline for DePuy Hip Litigation

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

I have a DePuy hip implant that has been recalled. What is my deadline for taking legal action?

Under Tennessee law you have one year from the date you knew or should have known that your hip problems were related to a problem with the implant itself. For people who are currently symptom-free it is safe to assume that the one year started on the day you received the recall letter. If you did not receive a letter you should assume that the one-year period for action started on the date you first heard about the recall on the news (or otherwise) and knew that it applied to the hip implant that you had inserted.

If you had hip problems before the recall the exact legal deadline will depend on what you knew about the nature of the problem and when you knew it. An experienced product liability lawyer will help you ascertain the date but immediate action is suggested.

November 14, 2010

Big Verdicts Posted on Lawyer Blogs

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

I am looking for a personal injury lawyer and have noticed that many personal injury law firms have blogs that report big verdicts. They must be pretty good lawyers to get such good results. Do you think they will take my case?

Be careful. Read the blog post over very carefully. Many of these posts are written by lawyers who had absolutely nothing to do with the case. Instead, they are simply writing about cases handled by other lawyers. The purpose of these posts is to make you think that they handled the case and that they have the ability to get significant jury verdicts or settlements for you.

This is a disgusting practice that I find to be misleading. Lawyers who have to blog about the results obtained by other lawyers without making it clear that they had nothing to do with the case are not the type of lawyer you should hire. Although their behavior is not as scummy as lawyers that call accident victims they don’t know and solicit cases, their behavior is beneath that which we have a right to expect of lawyers.

November 13, 2010

What Does It Mean When A Lawyer Says He Will Work on A “Contingent Fee?”

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

I hear personal injury lawyers advertise that they will work on a "contingent fee." What does that mean?

A contingent fee is a fee that is payable only in the event the case is successful. No fee is owed if the case is not successful.

In personal injury and wrongful death cases some lawyers will accept the case for a percentage of the recovery. For example, if a lawyer agrees to accept representation in a case on a one-third contingent fee, that means that the lawyer will not charge any money if the case is lost. If the case is successful the lawyer will be paid one-third of the total recovery. For example, if the recovery is $60,000, the lawyer’s fee is $20,000. If the case is lost, the lawyer charges no fee for the work performed on the case.

November 12, 2010

What is a “Complaint?”

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

I am getting ready to sue someone over a car wreck. My lawyer says that she is going to file a "complaint." What is that?

A lawsuit is initiated by the filing of a “complaint.” A complaint identifies the persons or entities being sued. It includes a short and plain statement of the pertinent facts, outlines the legal claims, and states the types of damages that resulted from the negligence of another person. The person who files a lawsuit is called a “plaintiff.”

The complaint is delivered to the person who is sued (the "defendant") with a court order to respond to the lawsuit (a "summons"). In Tennessee, a complaint must be responded to by a defendant within thirty days after it was received by the defendant.