Tennessee Injury Law Center

November 27, 2010

What is the Statute of Repose in Medical Malpractice Cases?

I gave birth to my son two and one-half years ago in a Tennessee hospital. The delivery was very traumatic. My son was blue when he was born. He was resuscitated but spent months in NICU. He is very far behind developmentally and now I have been told that he suffered a brain injury during delivery from lack of oxygen. Is it too late to have a lawyer investigate to see whether my son has a malpractice case?

No, but your son’s deadline is approaching very fast. Under current law if your son was injured by negligence during his birth appropriate legal action against the health care providers who caused the injury within three years of the date of the negligence. The first step in this process is giving formal notice of the claim to the responsible health care providers. Do not attempt to do this on your own – it is more complicated than sending a letter or calling the providers on the phone. You will need the help of a lawyer to get this done.

More importantly, you need the help of a lawyer to investigate this matter. Investigating birth-injury cases is a time-consuming effort, and thus I urge you to contact a competent lawyer as soon as possible.

November 26, 2010

Will My Case Settle?

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

I was hurt in a car wreck and have filed a lawsuit. I am scared to death about going to trial. Will there be a trial or will my case be settled?

Now days, most cases do not go to trial.

These statistics will give you an idea of how many cases are actually tried. In the one-year period ending June 30, 2009, there were about 11,000 lawsuits filed involving all types of personal injury and wrongful death in the state of Tennessee. (Many other cases were settled before a lawsuit was even filed; those numbers are not publicly available.) However, there were only 260 jury trials and 348 non-jury trials in personal injury and wrongful death cases during that same period. These statistics are about the same from year to year, and thus it is fair to say that only about 5% percent of personal injury and wrongful death cases in which lawsuits are filed actually go to trial.

November 24, 2010

What Does It Mean When You Have Liability Insurance Policy Limits of $100,000 / $300,000

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

I was in a car wreck yesterday. It was probably my fault. I looked at my automobile liability insurance policy and it says that I have liability limits of $100,000 / $300,000. What does that mean?

It means that for any one car wreck that is your fault your insurance company will pay a person injured in the wreck up to $100,000 in losses and damages they suffer. If more than one person is injured in the wreck, the company will pay, on your behalf, up to $300,000 but no more than $100,000 for any one person.

So, if one person was hurt in the wreck, the insurer will pay no more than $100,000 in damages. If two people were hurt, the insurer will pay up to $200,000, but no more than $100,000 per person. If three people were hurt, the insurer will pay up to $300,000, but no more than $100,000 per person. Note that each person who is injured does not automatically get $100,000 – they must demonstrate amount of their damages and can recover up to $100,000 each.

November 24, 2010

Thanksgiving Day Car and Truck Wrecks

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

Be especially careful when you drive this holiday weekend. People will be rushing from house to house to participate in Thanksgiving activities and all too many of them will be under the influence of alcohol. The cars will be filled with children, which increases the likelihood that the driver of the car can be distracted.

Have safe travels during this Thanksgiving holiday.

November 23, 2010

Can A Medical Malpractice Plaintiff Recover Attorney’s Fees From The Health Care Provider?

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

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.