Tennessee Injury Law Center

May 17, 2011

Deadline for Filing A Medical Malpractice Claim in Tennessee

What is the deadline for filing a medical malpractice case in Tennessee?

The short answer to this question is one year plus one hundred-twenty days. But the issue is really more complicated than that.

Generally, medical malpractice cases must be initiated within one year of the incident which causes the injury. For example, if a doctor performs surgery on the wrong arm of the patient, the patient will have one year from the date of the surgery to initiate a claim. A new Tennessee law requires that medical providers be given 60 days advance notice in the proper form before being sued for medical malpractice. The notice must be given before the expiration of the time limit for initiating the claim, so generally within one year. If proper notice is given, the deadline for filing the lawsuit is then automatically extended by 120 days.

May 16, 2011

Can The Person I Am Suing See My Medical Records?

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

If I file a personal injury lawsuit will the person I am suing be able to see my medical records?

Your medical history is important in any case in which you are claiming to have suffered a physical or psychological injury as a result of someone else’s negligent or intentional act. Your medical history establishes the baseline of your physical or psychological well being before the injury. You can only recover in the lawsuit for the injury caused by the act or omission of the responsible person. You may not recover damages for physical and mental suffering or medical care necessitated by preexisting conditions. When a preexisting condition is made worse you can recover damages for the worsening of the condition. Your medical history will be important to proving this claim.

In Tennessee, most judges will permit your opponent to see your medical records if the the request "is reasonably calculated to lead to the discovery of admissible evidence." Thus, if you injured your leg in the incident giving rise to the litigation, the records for prior medical treatment at an OB-GYN may be able to be kept private.

May 16, 2011

Are There Caps on Damages in Personal Injury Cases in Tennessee?

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

I have a personal injury case that must be filed in Tennessee. Are there any caps on damages in these cases?

Not under current law. However, the Tennessee General Assembly has recently passed a law that the Governor is expected to sign that will cap non-economic losses in most cases at $750,000. In a few cases the cap is raised to $1,000,000.

Non-economic damages are damages for pain, suffering, disfigurement, disability, and loss of enjoyment of life.

May 13, 2011

Medical Error – Claim Against the VA Hospital

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

I am a veteran and receive my care at the local VA hospital. They made an error and injured me for life. Can I assert a medical malpractice claim against them, or are they protected from lawsuits because they are a government agency?

The VA can be sued for medical negligence, but certain special rules apply and the failure to follow them can have very serious consequences. Claims like yours are governed by the Federal Tort Claims Act.

As but one example, a special form must be filled out and filed to initiate the claim. This form gives the government formal notice of the claim and suit cannot be filed until six months after proper notice has been given. The completion of this notice form can materially affect the right of the claimant, and therefore it is recommended that a lawyer be consulted before notice is given.

May 13, 2011

Sexual Relationship With Therapist

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

I have been seeing a social worker for martial problems. The therapist asked me all sorts of questions about my sexual history and found out that I had been raped when I was in college and that I have had a bunch of issues with sex since then. He came on to me and we have had a sexual relationship for the past four months. My husband just found out about it and is furious. I am now seeing a psychologist and having a bad time. The psychologist has said that it was professionally inappropriate for the social worker to have a sexual relationship with me. What are my legal rights?

Tennessee law would permit you to bring a malpractice case against the therapist for his conduct. You would have to prove that it was inappropriate for the therapist to have a sexual relationship with you, and would need the testimony of another therapist to establish that (unless the therapist admitted was he did was wrong).

The issues in these cases can become very complex. If you want to pursue this matter, contact an experienced lawyer as soon as possible. Tennessee has deadlines for taking legal action in this type of case.

May 12, 2011

Can I Sue The Man That Raped Me?

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

I was raped. The police found the rapist and he is in jail. Can I sue him?

Rape is a crime that will result in prison time but it is also what is known as a "tort." There are many different types of torts, but rape would be the civil tort of battery. Battery is the unlawful touching of another person. Thus, a rapist can be sued and imprisoned for the same conduct.

The problem with suing rapists is that they may not have money and therefore it will be very difficult to collect the damages you win. Hopefully, the person who did this to you will be going to prison and therefore will not be earning any real income, but that of course has the practical effect of making it difficult to collect damages from him.

May 11, 2011

Can I Recover Lost Wages When I Failed to File My Tax Returns?

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

I haven’t filed tax returns in over filed years – I have been working and making money but I just didn’t get around to filing the returns. I was hurt in a wreck and missed four weeks of work.

You might, but if you push too hard you may find yourself in the situation where the IRS finds out that you have not filed tax returns and you may face criminal and civil penalties. Also, if the jury finds out that you have not been filing tax returns and paying taxes as you should it may hurt your case.

Defendants in cases frequently ask for income tax returns to prove loss of earnings claims, and it your income is not reported it makes it very difficult to recover it. This is often a problem in cases involving small business owners, who all too often understate their income and overstate their expenses in an effort to reduce their taxes. Doing so is not only illegal but also hurts your ability to prove your true damages in a personal injury or wrongful death case.

May 10, 2011

Lack of Sufficient Liability Insurance. Now What?

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

I was in a bad car wreck. I had $100,000 in medical bills and missed fifteen weeks of work (I make $1200 per week as a plumber). I am probably going to have to have another surgery. My doctor also says I will have arthritis in my left leg for the rest of my life. I just found out that the person who hit me only has $100,000 of liability insurance. That is not enough for what she did to me. Can I force the person who caused the wreck to pay me out of his pocket?

A person or company is always liable for all of the harm they negligently cause. A person purchases insurance to reduce his or her own risk of coming out of pocket to pay for that harm, but if the harm caused exceeds the amount of insurance purchased she is liable for the rest.

The problem, of course, is collecting from a person who causes harm. To make a payment to the injured person over and above the amount of insurance the person who causes harm must have assets, income, or both. Many people have very few assets and insufficient income to make a payment to the person who they hurt. If pressed, these people will often just file bankruptcy and the bankruptcy court will discharge the obligation. (There are some exceptions to this. For example, the bankruptcy court will not discharge the lawsuit-related obligation of a drunk driver or a person who intentionally harms another.)

May 9, 2011

Will the At-Fault Driver’s Insurance Company Pay My Medical Bills for Life?

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

I was hurt in a car wreck. My left arm 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’s insurance company will pay my future medical bills if I have any?

You can try, but in 29 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.

May 7, 2011

How Do I Know Which Personal Injury Lawyer to Hire?

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

I was involved in a wreck with a big truck. I know I need a lawyer but I don’t know what lawyer to hire. What are the factors I should consider in hiring a personal injury lawyer?

I suggest that you look our Legal Guide titled "How To Hire A Personal Injury or Wrongful Death Lawyer."

This Legal Guide is a very comprehensive list of factors that lawyers consider in determining which lawyers they should seek out when they need assistance with a complex personal injury or wrongful death case. We think that you will find this Legal Guide very helpful.