Tennessee Injury Law Center

June 21, 2011

Will Not Going to Physical Therapy Hurt My Case?

I was hurt in a car wreck., My doctor prescribed physical therapy. I am supposed to go three days per week. The physical therapist is 60 miles away and I simply cannot afford the gas to go back and forth three days per week. If I don’t go to physical therapy will it hurt my case?

It might hurt your case. If you don’t go to physical therapy as prescribed the insurance adjuster and the lawyer for the insurance company will assume that you were not really injured or that you did not do everything you should have done to minimize the impact of the injuries on your life.

More importantly, the failure to get therapy may actually impact your recovery.

June 21, 2011

“My Doctor Operated on the Wrong Ankle!”

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

I was supposed to have an operation on my right ankle. When I woke up I discovered that they operated on my left ankle. Now, I have to wait to recover from the operation to the wrong ankle before they will operate on the ankle they should have operated on (the right ankle). To top it off, I have a hospital-acquired infection in the left ankle and am receiving antibiotics via an IV. Do I have a case?

Yes. There is no excuse for wrong-site surgery. The doctor may blame other operating room staff, and they may blame the doctor, but at the end of the day every person working in the operating room has a responsibility to know what ankle they are operating on. The only exception to this rule is in you are asked, before receiving any type of sedative, to mark what ankle you are having surgery on and you mark the wrong ankle. Then the wrong-site surgery may be considered partially your fault.

Tragically, this is a growing problem. According to the Joint Commission on Accreditation of Hospitals, wrong-site surgery occurs 40 times a week in U.S. hospitals and clinics. This estimate s based on voluntary reporting – one-half of the states do not require reporting. Minnesota had 48 cases last year and Pennsylvania has averaged 64 cases for the past few years.

June 21, 2011

How Quickly Will I Need to Take Action After I File a Lawsuit for My Depuy ASR Hip Implant?

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

I have filed a lawsuit concerning my Depuy ASR hip implant and it is part of the MDL. How soon will additional action be required from me?

I mentioned in an earlier post that the court overseeing the cases for defective Depuy ASR hip implants issued an order requiring claimants to file forms describing when the patient received the implant and providing some medical records from the patient’s treatment. Originally, the judge set a deadline for all claimants to file the form at the same time, but the judge recently changed the order.

Now, all claimants who are already in the combined Depuy cases have one deadline to file the completed form– July 5, 2011. Any claimants who file their lawsuits after June 2, 2011have thirty days from the date they file the lawsuit to file the information form.

June 20, 2011

What is the Minimum You Can Get From A Wrongful Death Lawsuit In Tennessee?

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

My husband was killed in a wreck with a tractor trailer. It was not his fault. What is the minimum amount of money I can recover for his death in a lawsuit?

There is no minimum. The amount of damages that can be recovered depends on a multitude of factors. You can get some idea of the relevant factors by reading our legal guide, "Understanding Wrongful Death Cases in Tennessee."

Remember that under Tennessee law a wrongful death case must be filed in court within one year of the time your husband received injuries that resulted in his later death.

June 20, 2011

Swimming Pool Liability for Drownings or Near-Drownings

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

I live in a neighborhood where one person has a backyard portable pool that is a couple feet deep. However, there are lots of little kids in the neighborhood – one of them is mine. There is no fence around the yard where the pool is located. I am worried sick about a kid falling in the pool and drowning, but when I spoke to the property owner about it he said "if you keep an eye on your kids nothing will happen." What can I do about this?

Recent news articles have demonstrated the risk of such pools, reporting that one child drowns every five days in portable pools. However, unless local zoning rules or homeowner association rules require that the pool be fenced, there is no way you can force your neighbor to fence in the pool or keep it drained when it is not being actively supervised by an adult.

The law requires that the property owner exercises reasonable care for the safety of those who come on his property. In my view, the pool creates what is known as an "attractive nuisance," meaning that it is an instrument of danger that the owner knows that children will want to play in. This puts the property owner at high risk of being sued if a child is injured or dies in his pool.

June 18, 2011

What Should I Do If My Settlement Check Bounces?

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

My lawyer settled my personal injury case. He said that he put the check for $60,000 in his trust account and that I would get my share in 10 days. Ten days later I received a check for $38,500 – the amount I was supposed to receive. However, I deposited the check from my lawyer’s trust account in my checking account and just found out it bounced. What should I do?

This should not happen. Lawyer trust accounts are accounts that are kept separate from a lawyer’s operating account – the account he or she uses for rent, payroll,etc. Trust accounts are a "parking place" for client money. There should never be a bounced check on that account because the account is holding client funds that have already "cleared" the bank – and client funds can only be used for client purposes.

Thus, you need your attorney to explain exactly how this happened. If you do not get an immediate, satisfactory answer, call the Tennessee Board of Professional Responsibility immediately.

June 17, 2011

How Do I Find the Best Lawyer For My Car Accident Case?

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

I was hurt in a car wreck in Tennessee. How do I find the best lawyer to represent me in my case?

We have written a guide that provides an extensive list of factors that you should consider when deciding what lawyer to hire for your personal injury case. We believe that you will find it very helpful in finding a lawyer who help you get the best result for your case.

June 15, 2011

Lawsuit Against Building Inspector

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

I live in a small town in East Tennessee. I just had an addition put on my house. The building inspector from my town came and approved the work done on the house, including the electrical work. Two days later the entire house burned. The cause of the fire was improper wiring work on the new addition. Can I sue the building inspector for failing to discover the bad wiring job?

No. Under Tennessee law a local government cannot be sued for negligent inspection. Thus, even if you could show that the building inspector did a bad job, neither the inspector nor his employer can be sued.

You may have a claim against the electrical contractor and perhaps even the general contractor. An experienced trial lawyer can help you investigate this claim and determine what rights, if any, you have.

June 15, 2011

What Is Going On in the Depuy Defective Hip Implant Litigation?

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

I have a Depuy hip implant that is part of the recall. I understand that the cases are part of an "MDL" and that those cases are being litigated? What does MDL mean? What is going on in the Depuy hip cases?

An MDL is set up when a significant number of cases are filed in federal court and the judicial system determines that judicial economy would be best-served if the cases are consolidated before one judge for pre-trial purposes. In the cases involving the Depuy hip implants, the federal courts decided that consolidation of the cases was appropriate and that the cases should be sent to one judge in Ohio.

MDL cases are usually handled differently from a typical case. The judge who oversees the combined cases creates new rules and systems to more efficiently handle the number of related lawsuits. One way that judges streamline the process is to create unique rules for the parties to exchange information and documents.

June 14, 2011

Will the At-Fault Driver’s Insurance Company Pay My Medical Bills After a Settlement?

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

I was hurt in a car wreck. My back and leg were injuried. I don’t need surgery right now but who knows what will happen 10 years from now. Can I settle my case for my medical bills, my lost wages, and my pain and suffering and an agreement that the at-fault driver will pay my future medical bills if I have any?

You can try, but in 30 years as a lawyer I have never seen the argument work. If the at-fault driver’s insurance company believes that its driver is at fault and they want to settle the case, they want to settle all personal injury-related claims at one time. (They will usually settle property damage claims seperately.) They will not agree to leave open the issue of future medical expenses.

Thus, if a doctor says you will probably need a future surgery because of the injuries you sustained in the wreck, the cost of that surgery and related damages can be part of settlement negotiations. If the doctor says that future surgery is possible, then the amount of the possible surgery cannot be included. If there is a trial, the court will allow testimony only on whether a future surgery is probable and, if a doctor says it is, then the court will allow presentation of evidence on the cost of the surgery and related damages.