Tennessee Injury Law Center

November 20, 2012

Does Your Personal Injury Lawyer Have Malpractice Insurance?

The Law Offices of John Day, P.C. recommends that you never hire a lawyer, much less a personal injury lawyer, that does not have insurance to protect you in case the lawyer makes a mistake that causes you harm.

There is no law that requires that a Tennessee personal injury lawyer (or any other type of lawyer in Tennessee) have malpractice insurance coverage. Some lawyers try to save money and not purchase insurance that would protect their clients from loss in the event of a lawyer error.

This is plain stupid and puts you as a client at risk. Lawyers, like everyone else, can make mistakes. Most of those mistakes can be corrected without causing harm to a client, but it is possible that an error cannot be corrected and will result in harm to a client. A responsible lawyer knows that such errors can occur and protects a client from financial loss through the purchase of malpractice insurance.

November 19, 2012

John Day Selected to Top 100 Lawyer List by Super Lawyers

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

John Day of the Law Offices of John Day, P.C. has been named to the Tennessee Super Lawyers list as one of the top attorneys in Tennessee for 2013, No more than 5 percent of the lawyers in the state are selected by Super Lawyers.

In addition, John was again named to the Top 100 Lawyers in Tennessee, Arkansas and Mississippi in the 2013 Super Lawyers publication.

We are also proud to announce that two of the firm’s other lawyers, Brandon Bass and Laura Baker, were named to Super Lawyer’s Rising Star List.

November 17, 2012

Why Should I Seek Medical Treatment Promptly if I Am Hurt in A Tennessee Automobile or Truck Accident?

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

As lawyers who have represented people in Tennessee truck and car accidents for over thirty years, we cannot over-emphasize the need to seek prompt medical attention for injuries received in auto and truck accidents.

Here is the problem: if you delay seeking medical attention, the at-fault driver’s insurance company will argue that you were not hurt, that your injuries were not serious, or that your complaints are related to something other than the motor vehicle accident.

There is a tendency for good people NOT to seek medical attention promptly, out of fear that they will be deemed whiners. This thought process, while admirable, actually works against a person when they later try to resolve a personal injury claim.

November 15, 2012

How Is the Recovery of Money From A Tennessee Wrongful Death Lawsuit Distributed to Family Members?

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

The distribution of the monies received in a successful Tennessee wrongful death case is described in this post.

Funeral expenses are re-paid to the person who paid the funeral bills. (Note: the actual law on this issue is a little unclear, but this is what generally occurs.)

Medical expense monies generally must re-paid to the person or insurance company (or government entity) that paid the medical bills. (Once again, there are some who take a different position on this issue, depending on who paid the bills, but this is what generally occurs.)

November 13, 2012

Rules For Expert Witnesses in Medical Malpractice (Health Care Liability) Cases in Tennessee

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

There are a unique set of rules applicable to Tennessee medical malpractice cases. (Note: the Tennessee Legislature has decreed that such cases must now be called "health care liability actions.)

In a health care liability action in Tennessee, both the liability of the health care provider and the link between the negligent action or omission ("causation") must be proved by one or more expert witnesses in the vast, vast majority of cases. The liability expert must 1) practice in a field of medicine that makes his or her testimony pertinent to the case; 2) practice in that field of medicine in Tennessee or a contiguous state in the year preceding the incident; and 3) be familiar with the regularly accepted level of medical practice in the community where the incident took place or a similar community.

The causation expert must also meet the geographic requirements mentioned above. However, this expert does not need to know the standard of care in the community where the incident occurred if his or his expert opinion is limited to causation issues.

October 29, 2012

I Lost My Personal Injury Case. Can I Appeal?

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

If a plaintiff or a defendant loses a case in a Tennessee Circuit or Chancery Court and has a complaint about the way the trial was conducted or the end result of the trial or the judge’s ruling on post-trial motions, he or she can appeal.

In Tennessee, the first appeal is to the Tennessee Court of Appeals. An appeal to the Court of Appeals is an appeal as a matter of right. That is, you have the automatic right to this appeal and do not have to have permission of any court to appeal

The Court of Appeals does not hear from witnesses. Rather, it looks at the transcript of the testimony given in the trial court, reviews the exhibits, and determines whether there were any errors than mandate a different result than reached in the trial court. The Court of Appeals can affirm the result reached in the trial court, order a new trial, and sometimes it can outright dismiss a case won by a plaintiff in the trial court.

October 28, 2012

Why Does My Health Insurer Get Paid Out of My Personal Injury Settlement?

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

My lawyer just settled my personal injury case and now tells me I have to repay my health insurance company for paying my medical bills. I have paid health insurance premiums for 15 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 the company have the right to be repaid. That is part of the bargain you struck with the insurer – 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 if possible.

October 16, 2012

Fungal Meningitis Outbreak: Deadlines for Taking Legal Action for Those Receiving Injections in Tennessee

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

Those who have contracted fungal meningitis as a result of an epidural steroid injunction in Tennessee must file a lawsuit against the responsible parties within one year of the time they knew or reasonably should have known that they were injured by the contaminated steroid. ,

Because the "knew or reasonably should have known" language leaves room for interpretation, those harmed by the drug should work on the assumption that the one year deadline began to run on the date the injection that caused the infection unless a fungal meningitis lawyer familiar with all of the facts advises to the contrary.

This one-year deadline includes out-of-state residents who contracted the disease after receiving injections here, although different rules may apply depending on other facts. No state imposes a deadline shorter than Tennessee’s one-year deadline, and therefore this is a conservation assumption to use until a lawyer familiar with all of the facts can tell you if a different deadline applies to you.

October 14, 2012

Fungal Meningitis Outbreak; Will I Get Stuck in A Class Action Lawsuit?

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

Predictably, a fungal meningitis class action lawsuit has been filed against New England Compounding Center. The lawsuit seeks a class of people from Minnesota – not people from other states.

I will not be particularly surprised to see such a lawsuit in Tennessee, but I predict it will not be certified as a class action. You see, the simple filing of a class action lawsuit has little meaning. A class action lawsuit takes on meaning only if a judge agrees that class action certification is appropriate.

To certify a class action under Tennessee law, a judge must determine that "(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interest of the class." This is a very hard burden to meet in personal injury and wrongful death cases. In fact, I don’t know of single class action involving personal injury and wrongful death claims that has ever been certified by a state court in Tennessee. (I am not saying it has never happened, but I certainly do not remember ever hearing about one in the last 30 years.)

October 14, 2012

But I Saw A TV Ad Where Someone Got $500,000 And They Didn’t Look Hurt!

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

Personal injury lawyers hear it all the time.

"What do you mean my case is worth only $X? My injury is real. I got hurt. I saw an ad on TV that said that some other law firm got a client $500,000 and they didn’t even look hurt!" How come you say I should only get $X?

The valuation of a personal injury case is complicated and is case-specific. The value of a case depends on the nature of the case, the identity of the wrongdoer, the type of case (auto, medical malpractice, etc.) the type of injury, the amount of medical bills, the amount of lost wages, the place where the case is pending, the personality of the plaintiff (injured person), whether the injuries are temporary or permanent, the type of medical provider (medical doctor vs. chiropractor), the presence or absence of aggravating factors on liability, the opposing lawyer, the judge, the costs of proceeding through trial, the deposition testimony in the case, the strength of testimony of the treating health care provider, the lawyer for the injured person, the amount of liability insurance and other assets, and many more. There is no formula. There is no rule of thumb. There are only the facts, the law, and the considered knowledge, judgment, dedication, and wherewithal of the lawyer who represents the injured person.