Tennessee Injury Law Center

August 5, 2010

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

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."

August 4, 2010

What Are Requests for Production of Documents?

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

I am in a lawsuit and the other side wants me to give them documents. I don’t want to share my evidence with them. Can they make me turn over my documents before trial?

Yes. The Tennessee Rules of Civil Procedure have a special rule (Rule 34) that permits one side in litigation to ask the other side for documents that are "reasonably calculated to lead to the discovery of admissible evidence." Practically, this means that one side to a lawsuit can ask the other side for anything reasonably related to the case.

If you don’t turn over requested information, you risk being sanctioned by the court. If you fail to turn over information that is helpful to you and you later try to use that document at trial, the judge can exclude it from evidence as if it never existed. Finally, it is possible that for a judge to dismiss your lawsuit (or order that the other side wins) if he or she finds that your failure to produce requested documents was willful.

August 3, 2010

Why Do I Have to Repay My Health Insurance Company Out of My Personal Injury Settlement?

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

I just settled my personal injury case and my lawyer tells me I have to repay my health insurance company for paying my medical bills. I have paid health insurance premiums for 25 years and was never in the hospital one time before my wreck! Why do they have the right to get repaid?

Because the insurance policy you have almost certainly says that they have the right to be repaid. That is part of the bargain you struck with them – even though you never read your policy and no agent or representative of your employer mentioned it to you.

Depending on the type of health insurance you have there are several arguments that can be made to secure a reduction in the amount that must be paid back to the insurer. An experienced personal injury attorney will know this area of the law and will work with you to secure a reduction in possible.

July 31, 2010

Death of Brother

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

My brother died in a wreck after his car was hit by a tractor-trailer. He is unmarried and has no children. Can I file a lawsuit?

Yes, if you are named the executor in his will or you apply to the court and get named as the administrator of his estate.

The damages you recover in the case will go to your parents if they are still alive. If they are not alive, the damages would be divided equally between your siblings.

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 28, 2010

Pharmacy Mis-Fills

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

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.

July 27, 2010

Why Can’t I Find Out How Much Insurance The Other Driver Has?

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

I was in a car wreck several weeks ago. The other driver’s insurance company called me and asked me some questions. I then asked him how much insurance his driver had, but he refused to tell me. He said that in Tennessee I could not find out how much insurance the other driver had, even if I filed a lawsuit. Is that true?

Yes. Tennessee is the only state in the nation that does not require an insurance company to disclose the amount of liability insurance in place for an accident. This is a result of a powerful lobbying effort in the Legislature, led by Tennessee Farmers Mutual Insurance Company.

Sometimes an insurance company will voluntarily disclose the amount of coverage it has. However, in the ordinary situation, the only way you can discover how much insurance the other driver has is to win a lawsuit and start the process to collect the money you are due.

July 23, 2010

Why Won’t My Doctor Come to Court to Testify?

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

I was hurt in a truck wreck and my case is coming to trial. My lawyer says that my doctor will not come to court to testify about her treatment of me. I think she would make a good witness and I want her there. Can’t she be subpoenaed to trial?

Not in Tennessee. Tennessee has a special law that provides that doctors, psychologists, lawyers, and certain other people do not have to obey a subpoena to trial unless the judge specially orders them to court. People who are exempt from subpoena often give their testimony by a deposition that is read to the jury. Sometime, the testimony of these witnesses will be videoed and the video will be shown to the jury.

Why does this law exist? The Legislature determined that the professional schedules of these people made it very difficult for them to go to court and testify in person. It is difficult to predict exactly when a witness at trial, and having a doctor sit and wait for the opportunity to testify may cost as much as $1000 per hour. Thus, this law saves litigants money as well as permitting the professionals covered under the law to avoid testimony in court.

July 22, 2010

Who Receives the Damages in a Tennessee Wrongful Death Lawsuit?

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

My dad was killed in a truck accident. My mother filed a lawsuit and recovered a large amount of money. What happens to that money?

Generally speaking, damages for the personal injury claim (the claim that arises from the period of time between the injury and the death) are distributed under the will of the decedent and, if there is no will, under the law of intestate succession. The law of intestate succession is described below.

Funeral expenses are re-paid to the person who paid the funeral bills.

July 21, 2010

What Damages Are Recoverable in A Tennessee Wrongful Death Trial?

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

My husband was killed in a car wreck. What damages am I entitled to receive from the person who caused the wreck?

These are the types of damages that can be recovered in Tennessee : (a) medical expenses for treatment of the injuries that resulted in death; (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.

In all cases, the pecuniary value of life includes the present value of the decedent’s lost future earning capacity less those living expenses necessary to maintain the decedent’s person so that they can work. In cases involving the death of a spouse, the surviving spouse can recover damages for the loss of consortium 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.”