Tennessee Injury Law Center

January 26, 2011

Can the Executor of an Estate File a Wrongful Death Lawsuit in Tennessee?

My brother was killed in a wreck with a big truck. I am named in the will as the executor of his estate and the court has appointed me as the executor. I want to file a lawsuit against the truck driver and trucking company that caused the wreck, but my brother’s wife says she is going to file it. I don’t think my brother’s wife should be permitted to file the case because they were not living together at the time of the wreck because she had filed divorce proceedings against him six months earlier.

In Tennessee, both you and your sister-in-law have the right to file suit and if you cannot decide between yourselves who should control the litigation a judge will decide who the best person is to handle the case. A lawyer who is experienced in wrongful death cases can guide you through this process, help you try to work this matter out with your sister-in-law, and help you persuade the court that you should take the lead on this case.

January 25, 2011

The Interrogatory Answers Are Lies!

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

I have a personal injury lawsuit. My lawyer sent the driver who caused the wreck interrogatories. We just got back the answers and some of those answers are bald-faced lies. Why does he get to lie? How can we make him tell the truth?

Interrogatories are written questions sent from one party in a lawsuit to an opposing party about issues related to the lawsuit. For example, in a lawsuit arising from a motor vehicle collision, each driver may send interrogatories to the other ask for driving histories, including whether the opposing driver has ever received a driving citation. The party responding to interrogatories must sign a statement swearing or affirming that the responses to the interrogatories are true.

If a person does not tell the truth in response to an interrogatory, the untruth will hurt that person at trial. The degree of harm a person does to his case when he does not tell the truth depends on many factors. For instance, was the untruth intentional or just careless? Was the untruth about a relatively minor thing or a major thing? Is there a single untruth or are there multiple untruths? When confronted with the untruth, did the person admit it or deny it? There are other factors as well, but you get the point: the circumstances control how much harm a mistake or lie in answers to interrogatories (or in oral testimony at a deposition or trial for that matter) will hurt one’s case or help the opponent’s case.

January 24, 2011

How Many Personal Injury Cases Go to Trial In Tennessee Each Year?

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

I have a personal injury lawsuit. What is the likelihood that it will go to trial?

Statistically, it is very unlikely your case will go to trial. Personal injury cases are a type of tort (civil wrong) case. In Tennessee for the year ended June 30, 2010, there were 10,469 tort cases filed in the entire state. This may seem like a lot of cases, but remember that there are over 6,000,000 Tennesseans, millions of cars on the road driven by Tennesseans and citizens of other states, etc.

During the same period, the court system resolved 10,872 cases. The vast majority of those cases were settled or dismissed by the court. There were only 588 trials. Of the 588 trials, only 283 were jury trials. The other 305 trials were non-jury trials (cases decided by a judge without the help of a jury).

January 24, 2011

Why Do Some Lawyers Have Malpractice Insurance?

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

I was talking to a lawyer about my potential case the other day and he mentioned that he had malpractice insurance. What does that mean?

That means that the lawyer has purchased insurance that protects his clients from financial loss in the event that he commits an error that causes a loss. If the lawyer is alleged to have made an error that hurts a client and gets sued as a result, the lawyer’s malpractice insurer company will hire a lawyer to defend its insured and pay any judgment against the insured up to the amount of the insurance.

Responsible lawyers carry malpractice insurance even though there is no law or court rule in Tennessee that requires lawyers to purchase such insurance. Indeed, I would be very wary of hiring a lawyer who did not carry malpractice insurance. The fact that a lawyer has insurance means he cares enough about his clients to try to protect them from the consequences of an error.

January 21, 2011

What Damages Are Recoverable in a Trucking Accident Claim?

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

My husband was badly hurt in an accident with a tractor-trailer inTennessee. What damages are available in a trucking accident claim?

Your husband has what is known as a personal injury claim. In a personal injury cases, you can recover monetary damages for past and future medical bills incurred because of the injuries, past and future physical pain and suffering, past and future mental or emotional pain and suffering, loss of earning capacity, disability, lost capacity for the enjoyment of life, and disfigurement.

A significant part of many personal injury claims in the recovery of the reasonable medical bills necessarily incurred as a result of the incident. To the extent that the injuries likely require on-going medical bills in the future, those future medical expenses can also be recovered.

January 20, 2011

What is the Deadline for Filing a Medical Malpractice Case in Tennessee?

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

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.

January 19, 2011

What Percentage of Medical Malpractice Cases that Go to Trial Are Won by the Patient?

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

What percentage of medical malpractice cases that go to trial in Tennessee are won by the patient?

About eighteen to twenty percent of cases that are tried are won by the patient. The rest are won by the health care provider.

This makes it sounds like the rest of the cases are frivolous. They are not. In the other cases there can be a legitimate basis for disagreeing on the issues in the case, and in our society those disagreements are resolved by juries. In the cases that are lost there is always at least one licensed health care professional who has testified that the defendant health care professional committed one or more negligent acts. To be sure, the defendant and his or her experts disagree with that, but it is that disagreement that is resolved by a jury.

January 18, 2011

What Happens After Depositions Are Taken In a Personal Injury Case?

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

I was hurt in a car wreck case and filed a lawsuit. My deposition was taken two months ago and I haven’t heard anything about my case since then. What’s going on?

You should call your lawyer and ask. What is probably going on is that the lawyer is gathering other information to prepare your case for trial or make a settlement demand. But, feel free to call or email your lawyer and ask (a) what has happened in the last two months and (b) what is the plan for moving the case toward settlement or trial.

January 17, 2011

What Happens If I Lose An Amount at Trial Greater Than My Insurance Coverage?

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

I caused a car wreck and the other party was hurt. I really don’t know how badly she was hurt but her medical bills are $40,000. The case goes to trial in about 3 weeks. My lawyer, who was hired by my insurance company, says that the case will probably go to trial because the person who got hurt wants $125,000 to settle the case and the insurance company has only offered $80,000. I only have $100,000 of insurance for this wreck. What happens if the case goes to trial and the jury awards the lady who got hurt more than $100,000?

If the jury awards, say, $120,000 your insurance company will have to pay $100,000 and you will have the responsibility of paying the last $20,000.

When you are sued for more than your insurance policy limits you should typically seek the input of a private lawyer to help you make sure that your insurance company is treating you fairly. Your company has a duty to fairly evaluate claims against you to protect you from an excess judgment. I do not have enough information to say if your insurance company is treating you fairly in this case but I would suggest that you seek the advice of a competent lawyer as soon as possible.

January 16, 2011

What Is the Status of the DePuy Hip Implant Litigation?

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

I have a DePuy hip implant that has been recalled. What is going on with the litigation?

Our firm is actively involved in these cases. We have filed seven cases and are evaluating several more. Our cases were originally filed in federal court in Nashville. The federal courts have determined that justice is best-served if all cases in the nation that are filed in federal court are temporarily managed in one federal court. Therefore, all of the cases have been transferred to a federal judge in Ohio for pretrial proceedings.

The federal judge is in the process of appointing which lawyers will actively manage all of the cases for the patients. As soon as that decision is made (and that could happen any day now) the litigation will be actively moving forward.