Personal Injury Law

Tennessee Law of Negligent Infliction of Emotional Distress

Posted on May 28, 2013
Negligent infliction of emotional distress is a relatively new tort in Tennessee.  True, the tort existed in the early days of Tennessee tort law (not by that name, but the root concept was out there) but the circumstances giving rise to liability were extremely narrow...

Major Changes to Tennessee Wrongful Death Law - Death of a Spouse

Posted on May 23, 2013
Under the law of wrongful death in Tennessee, the spouse of the decedent typically has the principle right to pursue a wrongful death claim.   However, from time to time cases have arisen where the marriage effectively but not legally ended before the death of one spouse, and squabbles arose over who controlled the wrongful death action and whether wrongful death proceeds were recoverable...

Tennessee Medical Malpractice Lawsuits Against Governmental Entities and Their Employees and the Notice Statute

Posted on May 18, 2013
Tennessee law has a one year statute of limitation in a medical malpractice (now called a health care liability) case.  Formal legal notice must be given to health care providers who are going to be sued in the case and this notice must be given before the expiration of the statute of limitations...

Important Medicare Subrogation Decision From the 9th Circuit Court of Appeals

Posted on April 27, 2013
The 9th Circuit Court of Appeals has ruled that a private Medicare Advantage Organization plan cannot sue a plan participant's survivors for reimbursement of medical payments out of the proceeds of an automobile insurance policy. The case is Parra v...

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Claims That Trucking Companies May Have Against Pilot Flying J

Posted on April 22, 2013
The news that Pilot Flying J, a company largely if not exclusively owned by Governor's Haslam's family and run by his brother, is the subject of a criminal investigation has made a lot of news in the last week. Headquartered in Knoxville, Tennessee, Pilot Flying J has over 600 retail locations and is the largest operator of travel centers and travel plazas in North America...

SVMIC - A Prediction on the Future of Defense of Medical Malpractice Cases

Posted on April 17, 2013
My last two posts (here and here) have discussed financial and related information about Tennessee's largest insurer of physicians that I hope is of interest to Tennessee medical malpractice lawyers and patients.  Now I am taking out my crystal ball and looking in the future of SVMIC's defense of medical malpractice cases...

SCOTUS Releases Opinion in ERISA Subrogation Case

Posted on April 16, 2013
The United States Supreme Court has released its opinion in U.S. Airways v. McCutchen, No. 11-1285 (USSC April 16, 2013), a case that raised the issue of whether "equitable doctrines and defenses," such as the "common fund" doctrine and the "made whole" doctrine applied to subrogation interests governed by the Employees Retirement Income and Security Act of 1974 ("ERISA")...

State Volunteer Mutual Insurance Company - 2012 Financial and Claims Data- A Follow-Up Post

Posted on April 13, 2013
Last week I wrote a post titled " State Volunteer Mutual Insurance Company -2012 Financial and Claims Data" that resulted in an unusual number of emails and phone calls.  To those that took the time to reach out and thank me for the information, thank you - I appreciate your efforts...

What Going Down At State Volunteer Mutual Insurance Company?

Posted on April 08, 2013
State Volunteer Mutual Insurance Company (SVMIC), Tennessee's bedpan mutual, has been around almost forty years.  Started by doctors for doctors, it writes more medical malpractice insurance coverage for doctors and their extenders than any other professional liability insurer in Tennessee...

State Volunteer Mutual Insurance Company - 2012 Financial and Claims Data

Posted on April 08, 2013
State Volunteer Mutual Insurance Company (SVMIC), Tennessee's bedpan mutual, has been around almost forty years.  Started by doctors for doctors, it writes more medical malpractice insurance coverage for doctors and their extenders than any other professional liability insurer in Tennessee...

Tennessee Medical Malpractice Report Statistics - Verdicts and Settlements - 2011 - Part 1 of 4

Posted on March 21, 2013
The Tennessee Department of Commerce and Insurance has released its annual statistical report on filings, verdicts and settlements in medical malpractice (now known as health care liability) cases.  The report bears the date "2012" even though the data is from 2011...

What Happens If a Minor Dies Before A Court Approves a Settlement of the Minor's Personal Injury Case?

Posted on March 01, 2013
In most if not all states, the settlement of a minor's personal injury claim must be approved by the Court.  This is certainly true in Tennessee - the applicable statute is T.C.A.  Section 29-34-105. The Alabama Supreme Court recently decided a case in which the minor died after a settlement was reached with the defendant's insurer and the plaintiff's uninsured motorist carrier but before state court approval could be obtained...

Debunking Medical Malpractice Myths: Unraveling the False Premises Behind "Tort Reform"

Posted on February 26, 2013
The title of this post is the title of a law review article that appears  in Vol. 5, Issue 1 of the Yale Journal of Health Policy, Law and Ethics:    www.dayontorts.com/uploads/file/Debunking Medical Malpractice Myths(1).pdf. Here is the last paragraph of the article: No one denies that there is a broad array of very serious health care issues facing the United States right now-patient safety, rising costs, availability and affordability of health insurance, and, in some places, rapidly rising malpractice premiums (although they are easing as we enter a soft market)...

Screw Public Health and Safety - We Need Jobs!

Posted on February 26, 2013
Alabama just passed a 12-year statute of repose that protects a new corporate citizen - Airbus. Airbus, not content with $158,000,000 in corporate welfare to put a plant in Alabama, sought and has obtained immunity from suit unless its planes cause harm within twelve years...

2011-12 Damage Awards in Personal Injury and Wrongful Death Cases in Tennessee

Posted on February 25, 2013
As I mentioned in my February 17, 2013 post about Tennessee personal injury and Tennessee wrongful death court filings, the Tennessee Administrative Office of the Court has released statistics about the Tennessee's justice system. Among the data produced is the amount of money awarded in tort trials for the year ended 2011-12...

Statistics on the Number of Personal Injury and Wrongful Death Jury Trials By County - 2011-12 - Part 2 of a Series

Posted on February 18, 2013
As I mentioned in my February 17, 2013 post about Tennessee personal injury and wrongful death court  filings, the Tennessee Administrative Office of the Court has released  statistics about the Tennessee's justice system.   Among the data produced is information about the number of personal injury and wrongful death jury trials in Tennessee counties for the year ended 2011-12...

Tennessee Personal Injury and Wrongful Death Statistics, 2011-12 - Part 1

Posted on February 17, 2013
The Tennessee Supreme Court has released data concerning filings and dispositions on civil and criminal cases for the year ended June 30, 2012, including personal injury and wrongful death cases.  The Annual Report of the Tennessee Judiciary is published every year and contains lots of data not readily available from any other source...

Surgical Errors

Posted on December 29, 2012
It comes as no surprise to those of us who are medical malpractice attorneys in Tennessee or elsewhere around the Nation, but this article, "Surgeons Make Thousands of Errors,"  (subscription required) does a great job of identifying problems that arise in the operating room...

NECC, Compounder Involved in Meningitis Cases, Files Bankruptcy

Posted on December 26, 2012
As predicted, New England Compounding Pharamcy, Inc., the owner of the New England Compounding Center (NECC), filed for bankruptcy last week.  NECC is the company that provided contaminated steriods that killed and hurt hundreds of people, including many in Tennessee and Kentucky...

Sixth Circuit Severely Limits FTCA Claims With Broad Interpretation of Discretionary Function Exception

Posted on November 19, 2012
I am one of the those personal injury lawyers who doesn't win every case.  The  loss in Kohl v. United States of America is particularly difficult.  First, we have a wonderful client who I truly believe has a valid claim.  Second, the opinion in this case makes it very difficult for anyone to establish subject matter jurisdiction in any type of Federal Tort Claims Act (FTCA) case other than those arising from classic motor vehicle crashes...

Illinois Supreme Court Recognizes Claim For Invasion of Privacy and Holds Employer Responsible For Acts of Non-Employee Private Investigator

Posted on November 15, 2012
The Illinois Supreme Court has issued an opinion in Lawlor v. North American Corporation of Illinois, Case No. 112530 (Oct. 18, 2012), holding that (a)  the tort of intrusion upon seclusion is recognized in Illinois and (b) held that an employer liable for the torts of a non-employee private investigator because the investigator was acting as the employer's agent...

Kidney Transplant Doner Does Not Have Malpractice Claim Against Kidney Donee's Doctor

Posted on October 29, 2012
The Nebraska Supreme Court has held that the doctor for a kidney donee does not owe a duty to the kidney Donor.  Thus, when the Donne's doctor allegedly committed malpractice when treating the do nee, rendering the donor's kidney useless, the donor cannot sue the donor's doctor...

Medical Malpractice Victims: Denied Access to Justice

Posted on October 16, 2012
It happens almost every day.  I receive a call from a person claiming that they have been injured by the act or omission of some health care professional and I have to tell them I can't help them because the damages suffered to not justify the time and expense of a medical malpractice case...

Fungal Meningitis Outbreak: Tort Reform Legislation Sponsor Still Doesn't Get It.

Posted on October 14, 2012
I recently wrote about a few of the ways the tort reform legislation that hit Tennessee effective October 1, 2011 will impact the victims of the fungal meningitis outbreak.   Heidi Hall of the Tennessean talked to one of the sponsors of the tort reform legislation...

Fungal Meningitis Outbreak: Do Those Who Received Contaminated Steroids But Who Do Not Get Fungal Meningitis Have A Claim for Damages Under Tennessee Law?

Posted on October 13, 2012
The fungal meningitis outbreak will result in four different classes of those with claims for damages against those who are responsible for the harm:  (1)those who die; (2) those who contract the disease and are treated with no long-range effects; (3) those who contract the disease, are treated, but are left with long-range effects; and, (4) those who learn they were exposed to the contaminated product but never contracted the disease...

Understanding Basic Medical Tests

Posted on October 11, 2012
Those of us who are medical malpractice lawyers or personal injury lawyers spend some time every day learning some aspect of medicine.  Like most of you, I am always on the lookout  for good websites that will help me learn some aspect of medicine that will help me help my clients...

Fungal Meningitis, Tort Reform, and Damages in Tennessee Personal Injury and Wrongful Death Cases

Posted on October 07, 2012
The fungal meningitis outbreak discovered in Nashville and now spread to other states (Minnesota, Ohio,  Florida, North Carolina, Indiana, Michigan, Virginia and Maryland) will shed new light on compounding pharmacies and epidural steroid injections...

Who Has Legal Liability Arising From the Fungal Meningitis Outbreak?

Posted on October 06, 2012
The fungal meningitis outbreak continues to grow.  Five patients have died and over 40 other patients have contracted fungal meningitis, reportedly after each of them received the steroid  methylprednisolone acetate compounded by the New England Compounding Center ("NECC")...

Plaintiff's Claim of Damages for Pain and Suffering Do Not Open Door to a Rule 35 Psychological Examination

Posted on October 04, 2012
The Montana Supreme Court has ordered that a trial court may not order a Rule 35 psychological examination of a personal injury plaintiff who has asserted a typical pain and suffering claim. In Lewis v. 8th Judicial District,  OP 12-0401 (Mont. S...

SCOTUS Takes Medicaid Subrogation Case

Posted on October 04, 2012
The United States Supreme Court has agreed to consider E.M.A. ex rel. Plyler v. Cansler, 674 F.3d 290 (4th Cir.2012), in which the 4th Circuit Court of Appeals said that North Carolina's one-third cap on the state's recovery against a Medicaid recipient's settlement proceeds as provided in its third-party liability statutes, which inherently raised unrebuttable presumption in favor of the state that allocation of one-third of a lump sum settlement was consistent with federal law, violated anti-lien provision in federal Medicaid law...

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