Tennessee Injury Law Center

May 2, 2013

The Need To Give Formal Notice Before Filing A Medical Malpractice Claim

Tennessee law requires that formal notice of medical malpractice (now called health care liability) claims must be given before a lawsuit can be filed.

Notice must be given before the one-year statute of limitations (the typical deadline for filing suit in medical malpractice cases) expires. The notice must include certain information and must be given or send in a way required by statute to each health care provider who is going to be sued. Failure to give the right information or to send or deliver the notice in the way required by law will result in a dismissal of any later lawsuit against that health care provider.

(To be 100% accurate, the failure to give notice will result in dismissal of any later case against the health care provider. The Tennessee Supreme Court has not yet decided the impact of the failure to give notice precisely as called for in the statute. However, you should assume that notice must strictly follow the dictates of the statute until the Tennessee Supreme Court decides this issue.)

May 1, 2013

Why Can’t I Sue the Insurance Company of the Person Who Caused My Car Accident?

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

If you are injured in a Tennessee car accident, truck accident or any other type of event, you do not have the right to file suit against the insurance company of the person or company that caused the injury. Instead, if you want to recover damages for what happened you must file suit against the person or company that caused the injury.

Why? Because, like most states, Tennessee does not permit what is called a "direct action" against the insurance company for the person or company that caused the accident. In fact, under Tennessee law, the judge and jury are never even told that the person or company that you filed a lawsuit against has insurance.

What the Legislature is afraid of is that if a jury knows that the person who is being sued has insurance to pay for some or all of the loss the jury might award damages regardless of fault. This is clearly a myth – most jurors rightly assume that the person being sued has insurance and there are plenty of court cases that result in no money or a very low amount being awarded to the injured party. Nevertheless, we continue to hide the fact of insurance coverage from jurors.

April 30, 2013

Lawsuit Against Tennessee City for Bad Driving By City Employee

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

Tennessee law provides that when a city employee negligently causes a car or truck accident while they are working for the city the city is responsible for the harm caused. Thus, the a lawsuit can be filed against the city (not against the driver) and damages for medical expenses, lost wages, pain, suffering and other losses can be recovered. Click on the link for more information on the types of damages that can be recovered in a Tennessee personal injury case. Click on the link for more information about wrongful death cases in Tennessee.

Tragically, the law limits the liability of any Tennessee city to $300,000 for any one person who is injured or killed as a result of the negligent driving by one of its employee’s while he or she is working for the city. Thus, even if your medical expenses are $500,000, the law will not permit you to recover more than $300,000 from the city whose employee caused the accident.

A lawsuit against the city must be filed within one year of the date of the accident causing an injury or death. Failure to file a lawsuit on time will result in the loss of your rights.

April 29, 2013

Deadline for Filing a Personal Injury Lawsuit in Tennessee

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

Tennessee law requires that a personal injury lawsuit be filed within one year of the date causing an accident. Failure to file a lawsuit on time against the person or company responsible for your injuries will result in a loss of your rights.

There are certain exceptions to the one year deadline for filing personal injury lawsuits, but you should not assume that any exception applies to you unless a competent lawyer familiar with all of the facts advises you that you have more than one year to file a lawsuit.

Do not wait until the last few days before the one-year deadline to file a lawsuit expires to hire a lawyer. Delay in seeking a lawyer means that valuable evidence may be lost and it is likely that mistakes have been made that effect the value of the case.

April 28, 2013

What Is A Deposition?

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

A deposition is an out-of-court sworn statement made during a lawsuit. Typically, the lawyer representing the opposing party to a lawsuit will take your deposition to understand information you have about the case. Witnesses to events giving rise to the case may also be asked to give a deposition.

A deposition usually takes place in a conference room at the offices of one of the lawyers that is involved in the case. A person called a "court reporter" is present to administer the oath and to record the testimony. It is possible that the deposition will be recorded by a videographer.

Under Tennessee law, a person who is involved in a lawsuit can be asked to provide information that is "reasonably calculated to lead to admissible evidence in the case." That means that if you file a lawsuit or are sued in a lawsuit you can be asked questions that directly involve the facts of the case and also questions that may lead to information that might find its way to evidence at trial.

April 27, 2013

What Is A Summary Judgment in a Tennessee Auto or Truck Accident Case?

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

A "summary judgment" is a decision by a judge that an automobile accident, truck accident, or other type of case should not go to a full trial before a jury. A judge can make a decision not to let a jury decide a case only if the judge determines that there is no dispute about the important facts of the case and that a reasonable jury could arrive at only one result in the case. If that is true, the judge will grant summary judgment (that is, a judgment before trial) to the person who he or she thinks should win the case before permitting a full trial on the case before a jury.

Sometimes a judge will grant a "partial summary judgment." Thus, the judge will determine that a car accident or truck accident was the sole fault of the defendant (the person or company sued in the case) but a jury must determine what damages were caused in the wreck and the monetary value of the damages.

Summary judgments are very rare in auto accident and truck accident cases. They are much more common in medical malpractice cases and in cases where people have been injured by defective or unreasonably dangerous products.

April 23, 2013

Jury Instructions in Tennessee Injury Cases

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

At the end of every Tennessee injury trial heard by jury the judge gives the jury instructions about the law applicable to the case. Some judges prepare their own instructions; other judges ask the lawyers involved in the case to prepare the instructions. Even if the judge does his or her own instructions the lawyers have the right to propose additional or alternative instructions to the judge, who reviews the proposed instructions and determines whether they will be included in the final set of jury instructions.

Jury instructions tell the jury the law applicable to the case. The jury uses the instructions to guide it in finding the facts. Jurors are the "judges" of the facts in a case, and then take those facts and apply it to the law given to them by the judge.

Sometimes judges make mistakes in jury instructions. If a judge makes a mistake, an appeal may result. A mistake in the jury instructions can result in a new trial if the appellate court determines that the mistake affected the outcome of the trial.

April 22, 2013

What Does An Expert Witness Do In a Tennessee Injury Case?

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

An expert witness is a person permitted by a judge to give opinions at trial. Most witnesses are usually only permitted to testify only about facts – what they saw or heard or otherwise have personal knowledge of. (There are certain exceptions to this rule.)

But experts have specialized knowledge, training or experience and thus have the right to give an opinion about some issue in a case. The judge determines whether a person who is offered to give expert testimony has the qualifications to be recognized as an expert, and the jury determines what weight to give to the expert’s testimony.

For example, in a Tennessee medical malpractice case expert testimony is almost always necessary to prove that the health care provider did not comply with the recognized standard of professional practice in the community where the patient was injured (or in similar communities) and that the injury (or death) occurred as a result of that error. The patient’s lawyer has the responsibility to locate and employ a qualified expert and the judge has the responsibility to ensure that the expert is qualified to give an opinion. The failure of a patient to have a proper expert in a medical malpractice case will almost always result in a loss of the case. (There are very rare exceptions to this rule. Only an experienced Tennessee medical malpractice attorney will understand exactly when it is possible to avoid the use of an expert witness on one or more issues in a medical malpractice case.)

April 21, 2013

Obtaining Medical Records in Tennessee Car and Truck Accident Cases – Why Does It Take So Long?

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

It is almost always necessary for an experienced Tennessee injury attorney to obtain an injured person’s medical records before a personal injury claim for a car or truck accident can be fully evaluated, Also, the at-fault driver’s insurance company will also want to see the records before authorizing a settlement of the claim.

Many personal injury clients get frustrated at the delay in obtaining medical records. It can often take a month or more to obtain medical records from doctors, hospitals, and physical therapists, and even more time from certain health care providers. There is no good excuse for these delays – virtually every provider charges for this service and the delays are extremely frustrating, both for the lawyer and the lawyer’s client.

The delays are caused because the health care providers don’t have enough staff on hand to meet the demand for records, and put record requests by attorneys for clients at the bottom of the stack. In other words, these health care providers give a higher preference for record-copying to other health care providers and insurance companies than they do lawyers.

April 20, 2013

Can A Personal Injury Lawyer Charge for Travel Expenses?

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

Most contingent fee contracts between Tennessee injury lawyers and their clients have a provision that provides that the lawyer is reimbursed for travel expenses. Such a clause in a contract is lawful, and will be enforced by a court.

However, if the contract does not have a clause that permits reimbursement for expenses, it would not be appropriate for the lawyer to charge his or her client for these expenses unless he or she gets your express approval, preferably in writing, to incur those expenses that will ultimately charged to the client.

Are there limits to the amount of expenses that a lawyer can charge? Yes, even if the fee contract does not put limits on the amount of travel charges that the lawyer can pass on to a client the law will require that only "reasonable" expenses can be incurred.