Tennessee Injury Law Center

October 13, 2010

Why Do I Have to Submit to a Medical Evaluation?

I am in a car wreck lawsuit. I received injuries to my back. Now, the defendant wants to have me evaluated by a doctor that the defendant’s insurance company is going to hire. Can they do that?

Probably. If your medical well being is in question in a case the opposing party may request that you undergo a medical evaluation by a doctor of their choosing. That doctor will offer his or her opinion about the nature and extent of your injuries and the impact of those injuries on your later life. That doctor may disagree with your doctor’s opinion as to the nature and extent of your injuries, and the jury will hear from both doctors at trial.

This type of examination is known as a defense medical examination or a Rule 35 medical examination. (Rule 35 is the rule of court procedures that governs medical examinations.)

October 13, 2010

I Received a Subpoena. Now What?

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

I saw a truck – car wreck a year ago. Now I have been subpoenaed to give a deposition. Do I have to give a deposition? I don’t really want to be involved.

Subpoenas are legal papers issued by a court requiring the appearance or production of a person or thing at a deposition or hearing. A subpoena may be served on a person and require the appearance of that person to give a deposition or appear in open court on a specific date and time. Subpoenas may also be served on a person or business and require that documents or things be produced for inspection and copying on a specific date and time.

You have a duty to obey the subpoena. If the date or time is particularly inconvenient call the lawyer that had the subpoena served on you and explain your problem. Most lawyers are very willing to cooperate with scheduling problems of witnesses.

October 11, 2010

How Quickly Will My Case Settle?

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

I was in a car wreck about 6 months ago. The other driver admitted fault. My medical bills are about $25,000. I have been released by my doctor. My lost wages are $2000. How quickly will my case settle?

At the outset you need to understand that your case may not settle at all. In Tennessee the insurance company does not have a duty to settle your case and in fact does not even owe you a duty to fairly evaluate your case. It can settle a case, or not settle a case, on whatever schedule it wants to put in place.

However, if the insurance company wants to settle the case it needs to have information from your lawyer. At an absolute minimum, the company needs the accident report, your medical records and bills, perhaps some of your previous medical records, proof of lost wages from your employer, and an understanding of how the injuries have impacted your life. To the extent you claim a permanent injury, future medical expenses, future loss of earning capacity, or other damages, the insurance company will need proof of that.

October 6, 2010

Dog Bite Case

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

My child and I were in a public park. A man was there with his dog. He did not have it on a leash. The dog ran over, knocked my child down, and bit her on the face. She has lots of stitches and may have a scar. The dog’s owner said that the dog has never done this before. What are my child’s rights?

In Tennessee a dog owner has the duty to keep a dog under reasonable control at all times and to prevent the dog from running at large. If the dog owner does not do so and the animal injures a person on public property (or on private property of someone other than the dog owner) the dog owner is responsible for the dog’s actions.

Under these circumstances, this is true even though the dog has never bitten anyone else.

October 6, 2010

When Does A Personal Injury Case Become A Wrongful Death Case?

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

My dad was dropped in a nursing home. He broke his hip. He never recovered from it and died two months later. Do we have a wrongful death case or a personal injury case?

First, no one can tell you if you have a case at all without doing an investigation into the circumstances of the fall.

Second, if you do have a case, it will only be a personal injury case unless a doctor will testify that more likely than not the death was a result of the fall. To make this determination, a doctor will need to review your father’s medical records. An autopsy may also be necessary.

October 5, 2010

Should I Hire the Lawyer Who Blogged About My Accident?

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

I was in a tractor-trailer wreck a couple weeks ago and spent five days in the hospital. When I got out of the hospital I went on the Internet to see if there was any news articles about my case. I found that two lawyers had written about my wreck on their law firm blog. Why did they do that?

They wrote the blog post about your wreck in the hope that you would find it and hire them. That is the sole reason that the posts were written – marketing, plain and simple.

There is nothing unethical about this type of blogging. I have never engaged in the practice, even though I have been blogging for over five years and written over 2000 blog posts, because my idea of a blog is that it is a place to share information and help educate people.

October 5, 2010

I Haven’t Heard From My Lawyer in Two Months!

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

I was hurt in a car accident early last year and hired a lawyer to help me with my case against the other driver. The case has been pending for over a year. There doesn’t seem to be anything going on. My lawyer said that there would be depositions but they haven’t occurred yet. We do not have a trial date. I have been calling the lawyer to find out what is going on but despite 5 calls in the last two months I have not gotten a response. What is going on? What should I do?

There may be a legitimate reason why depositions have not been taken if your lawsuit has been pending a year, but absent very unusual circumstances depositions of the plaintiff and defendant in a two-vehicle car wreck case should be taken within six months after the case has been filed unless they have been deliberately put on hold pending settlement discussions. However, if this is your lawyer’s plan, he or she should communicate that plan to you so that you know what is going on.

Likewise, there is no excuse for a lawyer (or someone on the lawyer’s behalf) not to return a phone call within one business day. If a lawyer is out of town or in a trial he or she may not be able to get back with you promptly, but should have an assistant call you and advise you of that fact.

October 5, 2010

How Does A Jury Know What My Future Medical Bills Will Be?

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

I broke my hip in a fall-down accident at a local store. The company wouldn’t settle me so I filed a lawsuit. The doctor said I might need a hip replacement in the future. How will a jury award me damages for this surgery?

Well, first you have to win your case. That is, you will have to prove by a preponderance of the evidence that the store caused the dangerous condition or knew or should have known of the existence of the dangerous condition and failed to rectify it.

If you prove the fault of the store, then you can recover your past and future medical expenses (and other types of damages). However, you can recover future medical expenses only if a doctor says that it is more likely than not that you will need hip replacement surgery. If the doctor says that, the jury can consider the cost of the future surgery, which will come from the testimony of the doctor or another witness.

October 4, 2010

There Was No Guardrail and I Went Off the Mountain!

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

I was driving in East Tennessee. A big truck came over the center-line into my lane and I swerved to avoid it. I lost control and went off the mountain. My friend who was in the car behind me saw the whole thing. He told me that I went through a hole in the guardrail and that the hole had been caused by another wreck nine months earlier that the State of Tennessee had never repaired. What are my rights?

First, if you can identify the trucking company and truck driver you would have a claim against them for crossing the center-line and forcing you off the road.

Second, even if you can’t identify the trucking company, you may have a uninsured motorist claim that you can assert against your own insurance company. Tennessee law permits you to make a claim on your own insurance when an unknown driver (called a "John Doe" driver) negligently causes a wreck. The fact that your friend saw the wreck is critical to being able to prove this claim.

October 1, 2010

My Hip Replacement Manufacturer DePuy Orthopaedics Says They Are Recalling My Hip!

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

I had a hip replacement a couple years ago. I have had some problems with it. Now I have received a letter from DePuy Orthopaedics, which has something to do with Johnson & Johnson, saying that my hip is being recalled. What should I do now?

A total hip replacement replaces the body’s natural joint with an artificial one, usually made out of metal and plastic. A typical total hip replacement system consists of four separate components: (1) a femoral stem (2) a femoral head, (3) a liner, and (4) an acetabular shell. The surgeon hollows out a patient’s femur bone and the femoral stem is implanted. The femoral head is a metal ball that is fixed on top of the femoral stem. The femoral head forms the hip joint when it is placed inside the polyethylene liner and acetabular shell.

The DePuy ASR artificial hip replacement system. The first components of the system was approved for use by the FDA in late 2003. Other components or related systems were approved for use in later years.