Tennessee Injury Law Center

December 7, 2010

Suing the State of Tennessee

I was injured by the negligence of a state of Tennessee employee. Can I sue the employee or the State?

The State will be responsible for the employee’s negligence under two conditions. First, the employee must have been acting in the course and scope of his or her employment at the time of the negligent act or omission. Second, the State must have given permission to have been sued in the particular type of circumstance where the negligence has occurred.

That last condition is a little confusing. The State cannot be sued without permission, but it has given permission in advance to be sued for a number of types of cases. For instance, if a state employee runs a red light and causes a traffic wreck while on the business of the State the State has given permission to be sued. There are a laundry-list of other circumstances in which the State has given permission to be sued.

December 7, 2010

What Are The Odds of a Patient Winning A Medical Malpractice Case at Trial?

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

I have a medical malpractice case. The doctor’s insurance company has refused to settle the case. What are the odds that I will prevail at trial?

Health care providers generally win medical malpractice cases that are tried to a jury. That does not mean that your case is likely to be lost – each case depends on its facts and,many other factors.

That being said, for the year ended June 30, 2009 there were 26 medical malpractice cases tried in Tennessee. the data is not available, but based on past experience only 5 or 6 of those cases were won by the patient. Stated differently, the win-rate for patients is less than 25% for cases that go to trial.

December 6, 2010

What Are My Responsibilities As A Personal Injury Plaintiff?

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

I am thinking about filing a personal injury case. What are my responsibilities to my lawyer?

The lawyer / client relationship is a special one and, just like a lawyer has certain obligations to the client, a client must do certain things to assist the lawyer in the representation. We expect the following of our clients:

You have an obligation to tell your lawyer the truth.
You have an obligation to tell your lawyer the truth even if you think it will hurt your case or the truth embarrasses you.
You have an obligation to truthfully testify at trial and in depositions.
You have an obligation to truthfully answer interrogatories.
You have an obligation to produce documents and other items in your possession that your lawyer asks you to produce.
You have an obligation to timely respond to your lawyer’s requests for information.
You have an obligation to let your lawyer know of changes in your medical condition.
You have an obligation to let your lawyer know if you move or you change your phone number.
You have an obligation to tell your lawyer if you are injured in another incident.
You have an obligation to tell your lawyer if you are arrested or get a traffic ticket.
You have an obligation to tell your lawyer if you are contemplating filing for bankruptcy.
You have an obligation to listen to and carefully consider your lawyer’s advice. You are not required to take the advice, but you should listen carefully to the advice and the potential impact to your case if you do not take the advice.

Filing a lawsuit is a serious endeavor and you should not take it lightly. While a lawyer will do the vast, vast majority of the work on your case, there are certain things only you can do and other things that the lawyer (and the legal system) have a right to expect of you.

December 4, 2010

Can I Tell From How Much Insurance Someone Has By Knowing What Type of Car They Have?

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

I was in a car wreck and was hurt bad. The other driver was driving a new car. I have been talking with the insurance company for the other driver. I asked how much insurance was on the car and the insurance adjuster would not tell me. I guess the other driver has lots of insurance because she was driving a new car, right?

Maybe. There is no way to know for sure how much insurance someone has just by looking at the type of car they are driving. It is reasonable to assume that a person who has a new car has enough money to purchase a responsible amount of liability insurance, but some people spend all of their money on their car and buy the minimum insurance they are required to have in Tennessee – $25,000 per person, $50,000 per accident.

Because Tennessee has no formal way of insisting that insurance companies reveal how much insurance coverage they have until after a judgment is obtained, I often look at the type of car, the at-fault driver’s home, the at-fault driver’s job and other factors to make an educated guess about how much insurance is available. Sometimes my guess is right, sometimes my guess is wrong. At the end of the day, however, if my client has a case that is worth more than the offer the insurance company has given and has represented that no more insurance is available, I insist (with my client’s permission) that the insurance company prove that the at-fault driver has no more insurance applicable to the claim. The is accomplished by requiring a copy of the declarations page for the insurance policy and an affidavit from the insured stating that no additional insurance is available.

December 2, 2010

Is There A Cap on Damages In Tennessee?

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

Some states place a cap on damages in personal injury and wrongful death cases. Does Tennessee?

No, with a couple of exceptions. At the present time, Tennessee does not cap damages in any type of personal injury or wrongful death cases except cases filed against state and local governmental entites. There are no caps against people or non-governmental entites.

The amount of damages in any case is determined by a judge or, if a jury is requested, a jury. If a jury is requested, the judge reviews the jury’s decision after the trial and can lower or increase the amount of damages. Damages are rarely increased.

December 1, 2010

How Do I Collect Money Against Someone Who Does Not Have Insurance?

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

I was beat-up by a guy and incurred $10,000 in medical bills and missed two weeks from work. I want to sue him but I cannot find a lawyer to help me. They all want to know if the guy that beat me up has any money and when I tell them I don’t think so the lawyers lose interest. How can I get money out of this guy?

You are probably trying to hire a lawyer on a contingent fee. If a contingent-fee lawyer thinks a case is weak or that any damages won are not going to be collected he or she will not take the case because, like everyone else, lawyers like to get paid for their work.

You have two options. You can hire a lawyer by the hour to sue the guy that hurt you. Or, you can find a new lawyer (one recently out of school) who would be more likely to take a case where he or she is not likely to get paid. You may have to front the filing fee and other out-of-pocket expenses.

November 30, 2010

How Does A Case Go on Appeal?

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

I just had a trial in my case and I lost – the jury ruled against me. The jury was wrong and I want to appeal all the way to the United States Supreme Court. I can, right?

If a plaintiff or a defendant 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.

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. It is extremely difficult to convince an appellate court to reverse a jury verdict by arguing only that they jury made the wrong decision. In Tennessee, the appellate court will reach the same result as the jury if there is any material evidence supporting what the jury did. The appellate court will not re-weigh the evidence – it just looks to see if there is any material evidence that supports the verdict. If asked, the appellate court will also look at alleged errors of law.

November 29, 2010

My Lawyer Says I Should Settle My Case. I Don’t Want To.

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

I was in a car wreck case. My lawyer says that I should settle and I don’t want to – I think I should get more money. What should I do?

First, lawyers can’t give legal advice to a person already represented by another lawyer. Therefore, neither I nor any responsible lawyer can give you that kind of advice without getting your lawyer’s written permission to speak with you and without knowing a lot more information.

Second, I assume that you did adequate research before you hired the lawyer you have and considered the type of factors contained in our Legal Guide, "Understanding How to Hire a Lawyer in a Personal Injury and Wrongful Death Cases." Thus, you obviously had trust in this lawyer’s ability and judgment when you hired him or her. Therefore, you have an obligation to listen to and carefully consider your lawyer’s advice. You are not required to take the lawyer’s advice, but you should listen carefully to the advice and the potential impact to your case if you do not take the advice.

November 27, 2010

What is the Statute of Repose in Medical Malpractice Cases?

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

I gave birth to my son two and one-half years ago in a Tennessee hospital. The delivery was very traumatic. My son was blue when he was born. He was resuscitated but spent months in NICU. He is very far behind developmentally and now I have been told that he suffered a brain injury during delivery from lack of oxygen. Is it too late to have a lawyer investigate to see whether my son has a malpractice case?

No, but your son’s deadline is approaching very fast. Under current law if your son was injured by negligence during his birth appropriate legal action against the health care providers who caused the injury within three years of the date of the negligence. The first step in this process is giving formal notice of the claim to the responsible health care providers. Do not attempt to do this on your own – it is more complicated than sending a letter or calling the providers on the phone. You will need the help of a lawyer to get this done.

More importantly, you need the help of a lawyer to investigate this matter. Investigating birth-injury cases is a time-consuming effort, and thus I urge you to contact a competent lawyer as soon as possible.

November 26, 2010

Will My Case Settle?

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

I was hurt in a car wreck and have filed a lawsuit. I am scared to death about going to trial. Will there be a trial or will my case be settled?

Now days, most cases do not go to trial.

These statistics will give you an idea of how many cases are actually tried. In the one-year period ending June 30, 2009, there were about 11,000 lawsuits filed involving all types of personal injury and wrongful death in the state of Tennessee. (Many other cases were settled before a lawsuit was even filed; those numbers are not publicly available.) However, there were only 260 jury trials and 348 non-jury trials in personal injury and wrongful death cases during that same period. These statistics are about the same from year to year, and thus it is fair to say that only about 5% percent of personal injury and wrongful death cases in which lawsuits are filed actually go to trial.