Tennessee Injury Law Center

November 15, 2012

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

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.

October 13, 2012

Fungal Meningitis Outbreak: Lots Of Questions Remain

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

As news about the fungal meningitis outbreak continues to dribble out, some might assume that we know what we need to know to evaluate commence and evaluate lawsuits against those responsible for causing the break.

We do not.

The fact of the matter is there is still much to be known about the fungal meningitis nightmare before these cases can be fully evaluated. Why? Because facts essential to understanding the liability issues in this case are in possession of people and corporations who have not yet been forced to share that information. Sure, various governmental agencies have got some information from these folks, and some of that information has found its way to the press, but there is lots of information yet to be fully brought to the public eye or confirmed.

October 10, 2012

Fungal Meningitis Outbreak Causes Closer Look at Compounding Pharmacies

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

The fungal meningitis outbreak is bringing the work of compounding pharmacies into the public eye, and many people do not like what they see.

Compounding pharmacies prepare medications that that are not readily available from a true drug manufacturer. The number of such facilities have exploded in the last decade and now some 2000 of these pharmacies exist. Most of them produce a relatively small number of products, but some of them, like the New England Compounding Center (NECC) that compounded the steroid used for epidural injections that gave risk to the outbreak, are quite large.

The Wall Street Journal has an article in today’s paper about how some doctors are thinking the use of such pharmacies.

October 10, 2012

How Do You File a Medical Malpractice Claim in Tennessee?

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

A Tennessee medical malpractice claim, now called a "health care liability action," should only be filed by a lawyer experienced in health care liability litigation. I would never recommend that a non-lawyer file such a case.

There are many, many reasons for this, not the least of which are that way that one files a lawsuit against a health care provider. Health care providers have persuaded the Tennessee General Assembly to erect artificial barriers to lawsuits against them. A couple of those barriers have to do with how the lawsuit is initiated. First, almost always pre-lawsuit notice must be given to the health car provider in a very specific way. Second, when the lawsuit is filed a "certificate of good faith" must be filed. Once again, Tennessee law has very specific requirements for a certificate of good faith.

The failure to strictly comply with Tennessee law on these matters will result in dismissal of the case. Dismissal of the case will result in the imposition of financial sanctions against person who did not comply with the law by initiating the case.