Tennessee Injury Law Center

February 9, 2011

Placing Caps On Damages in Medical Malpractice Cases Will Lower Doctor Malpractice Insurance Rates, Right?

I keep hearing that Tennessee doctors pay a lot of money for malpractice insurance and that if we limit the right of patients to bring lawsuits doctors will save money on insurance. Is that right?

There is no reason to believe that malpractice rates will be dramatically or even materially reduced if the Tennessee Legislature caps damages in medical malpractice cases.

Here are a few statistics that address the issue. In 2010 an internist in Tennessee paid $7076 for $1,000,000 worth of medical malpractice insurance. This provided the doctor for up to $1,000,000 for any single act of malpractice and total payments for three or more claims of $3,000,000 in any year. The rate for this insurance was 23.11% less than it was in 2009.

February 8, 2011

Can My Personal Injury Lawyer Increase Her Fee?

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

I hired a Tennessee personal injury lawyer to represent me in a car wreck. She said she was going to charge a one-third contingent fee and the fee agreement says just that. The case did not settle and she says she wants to charge forty percent of the recovery since she has to prepare for trial. Can she do that?

No, not unless the contingency fee agreement says that she can charge more in the event the case goes to trial. If the agreement is silent on this issue, she can charge you more than one-third only if you agree to revise the contract.

If the contract does give her the right to charge more if the case is tried but the higher amount is not specified she can only charge a reasonable fee. Whether forty percent is a reasonable fee depends on the circumstances.

February 8, 2011

Status of DePuy ASR Hip Implant Litigation

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

I live in Tennessee and have a DePuy ASR hip implant that has been recalled. What is the status of the litigation?

If you have not filed a case the status of the litigation is irrelevant to you. By that I mean that if you live in Tennessee and had your surgery in Tennessee and you don’t have a lawsuit filed within one year of the time you knew or should have known that the implant was defective you will lose your legal rights under Tennessee law. If you have not hired a lawyer you need to hire one as soon as possible.

We have a significant number of these cases pending. We have some of our cases filed in federal court and will probably file the rest of our cases there. The federal court cases have been consolidated for pretrial purposes before a federal judge in Ohio. That judge has just appointed the lawyers who will be managing the litigation for DePuy and for the persons who have filed a lawsuit claiming the ASR product is defective and caused them an injury. The litigation is just getting underway. In fact, there was a hearing yesterday in West Palm Beach that addressed several case management issues.

February 4, 2011

Can I Make My Lawyer Try My Case and Get More Money than the Settlement Offer?

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

I was hurt in a car accident that wasn’t my fault. I filed a lawsuit with the help of a lawyer. We have a trial in two weeks. I was offered some money but I don’t think it is enough. My lawyer thinks it is and he has advised me to settle the case. Can I make him go to trial and get more money?

Yes, you can reject the settlement and say that you want a trial. However, just because you go to trial you will not necessary get more money and your lawyer will not be able to promise you that you will get more. In fact, it is always possible that you could get less.

I obviously don’t know whether the amount of money you have been offered is a fair amount or not. I do know if you hirer the right lawyer, that is, if you did the work necessary to identify the right lawyer to handle your case, you should have confidence in his or her judgment about what is in your best interest. You have the right to reject that lawyer’s advice, just like you have the right to reject the advice of a doctor or any other professional, but when you do so you are substituting your judgment as a person unexperienced in the legal process for that of someone who is experienced in the process.

February 2, 2011

How Much Work Does It Take To Prepare for Trial?

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

I have a medical malpractice case. There are two doctors and a hospital that have been sued. My lawyer says the case won’t be tried for two years. Why is that? How much work is involved?

It doesn’t surprise me that it would take two years to get your case to trial in Tennessee and, depending on where you live in the state, that may be a relatively quick amount of time to get to trial.

Your question requires much more information to give a more accurate answer, but let me say this generally. The main factors that affect how quickly a case gets to trial are the diligence, expertise, and experience of the lawyers involved, the number of parties to the case (more parties = more lawyers = more scheduling difficulties), the nature of the dispute (more complicated = more time), the ability of the trial judge to control the lawyers, the amount of cases pending before the trial judge (more cases increases the time to get to trial because more cases are contributing for the same trial dates), and whether the county where the case is pending is urban or rural (in rural areas judges sit in multiple counties and may hold trials in a small county only a couple times per year).

February 1, 2011

How Much Does A Videotaped Deposition Cost?

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

My deposition was taken today and it lasted all day. There was a court reporter and a videographer there. How much does it cost to have a deposition recorded by the two of them?

In my experience in Tennessee, court reporters have several types of charges. The main charges are the per diem charge, which is the charge for showing up, using billed in full-day or half-day increments, and a per-page charge, which is the cost of each page of transcript. There are two types of per page charges, one for the "original" transcript on and one for each copy. The person taking the deposition pays for the original and the per diem. The person whose deposition is taken pays for the copy.

Videographers typically charge a base fee plus and hourly charge to the person taking the deposition. The person whose deposition was taken pays for a disc containing the deposition.

January 31, 2011

Should I Give A Statement to My Insurance Company About How the Accident Happened When it was the Other Driver’s Fault?

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

I was in a car wreck last week. It was not my fault. I spent five days in the hospital and am now recovering at home. I am getting a couple calls a day from the insurance adjuster for the driver that hit me but I know I should not talk to him. Now my insurance company is calling me and they want to take a statement from me about how the wreck happened. Is there anything wrong with me giving a statement to my insurance company before I talk to a lawyer?

We do not recommend that our clients give a statement to either the other driver’s insurance company or their own insurance company without adequate preparation for the interview. Under most auto insurance policies in Tennessee, you have a duty to give your insurance company a statement, but you need to be adequately prepared first.

We do not prepare our clients by telling them what to say or encouraging them to lie. In fact, just the opposite is true: we encourage our clients to tell the truth about the circumstances giving rise to the wreck, the nature and extent of their injuries, and everything else. Preparation is necessary because insurance adjusters are trained in asking questions, and may ask questions in such a way that the unprepared witness will make mistakes. These statements are almost always tape-recorded and can be used against the person in court.

January 29, 2011

Deadline for Filing Car Wreck Lawsuit in Tennessee

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

I was hurt in a car wreck in Tennessee. What is the deadline for filing a personal injury lawsuit?

One year. You have one year from the date of the car wreck to file a lawsuit against the responsible parties. Failure to file a lawsuit on time against those who caused the wreck will result in a loss of rights.

There are a couple exceptions to this rule, but they are so fact dependent that I will not list them here out of fear that they might lull someone into thinking that they have more time than they might actually have. So, assume that the one year deadline applies to you unless an experienced personal injury lawyer familiar with all of the facts advises you that you have more time.

January 28, 2011

Does My Personal Injury Lawyer Still Get Paid if I File Bankruptcy While My Case is Pending?

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

I have a personal injury case pending in state court in Tennessee. I just had to file bankruptcy. I listed my personal injury case as an asset on my bankruptcy filing. My bankruptcy lawyer says that the bankruptcy trustee will now control my case. Will my personal injury lawyer still get paid?

Your personal injury lawyer will have to file a motion with the bankruptcy court asking for permission to continue to represent you in the state court action. He or she will also have to seek permission to charge the fee (probably contingent fee) that you agreed to pay. If the bankruptcy court approves these requests, the case will continue and if it is successful your lawyer will be paid. Any settlement of the case will have to receive approval of the bankruptcy court.

January 27, 2011

My Doctor Has Been Subpoenaed for a Deposition!

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

I have a truck wreck case pending in Tennessee and the trucking company has subpoenaed my doctor for a deposition. Can they do that?

Yes, if the doctor gave you treatment for injuries that arose out of the accident he or she can be required to give testimony about their treatment for those injuries. That deposition can be taken by your lawyer or the trucking company’s lawyer. Your lawyer (and you) have the right to be present at the deposition.

If the doctor gave you treatment for a unrelated condition, the question is more difficult to answer. If your lawyer believes that the inquiry into treatment by this provider is wholly unrelated to the wreck and an invasion of your privacy, he or she can ask the court to stop the deposition. The court will let the deposition proceed if it determines that doctor has information that is admissible at trial or is likely to lead to the discovery of admissible evidence.