Tennessee Injury Attorney Blog

December 27, 2019

Alleged Nursing Home Arbitration Agreement Held Invalid by Tennessee Court of Appeals

Doctors, nurses, hospitals, and nursing homes have a strong aversion to being sued. Of course, no one wants to be accused of carelessness or wrongdoing, and defendants facing claims of nursing home negligence or patient abuse are no different.

However, as compared to many other defendants, the medical establishment goes above and beyond in their efforts to dissuade injured individuals from seeking justice. Sometimes, such efforts begin very early in the process – with a requirement that a patient agree to arbitrate, rather than litigate, any possible claims as a condition to admission into a treatment facility. Fortunately, not all such attempts to deprive an injured person or his or her family of their day in court are successful. A Knoxville nursing home negligence lawyer may be able to challenge the validity of the agreement.

Facts of the Case

In a case filed in the Circuit Court for Shelby County, the plaintiff was a woman whose mother suffered a fractured tibia and fibula in a fall while she was a resident at the defendant nursing home. The plaintiff, acting as her mother’s next friend, filed suit against the defendant, asserting claims of ordinary negligence and violations of the Tennessee Healthcare Liability Act, codified at Tennessee Code Annotated §§ 29-26-101, et seq. In response, the defendant filed a motion to compel arbitration and to stay the proceedings, relying upon a 2013 agreement signed by the plaintiff on her mother’s behalf when the mother entered the defendant’s facility.

December 16, 2019

Distracted Driving – a Huge Problem on Tennessee Roadways

by Mark Hartsoe

We’re all busy these days. It isn’t surprising that many drivers attempt to “multi-task” by making phone calls or texting while driving. However, any time that a driver focuses his or her attention on something other than the road, he or she increases the chances of being in a Tennessee car accident.

Statistically speaking, about three people lose their lives in car crashes in Tennessee each day. Far too many of these accidents are caused by distracted driving, including cell phone and smart phone usage. The problem isn’t just in Tennessee, of course. Nationally, the National Highway Traffic Safety Administration estimates that over 3000 lives are lost annually in the United States because of distracted driving.

Distracted Driving is Extremely Dangerous

A driver can be distracted by many different things – carrying on a heated conversation with a passenger, eating or drinking, and applying cosmetics or engaging in other grooming (such as shaving) are all considered to be forms of distracted driving. However, the usage of electronic devices – especially smart phones, but also navigation systems, radios, and the like – is especially problematic.

November 20, 2019

Tennessee Court of Appeals Reverses Summary Judgment Granted to Insurance Agent and Agency in Insureds’ Failure-to-Procure Excess Uninsured Motorist Coverage Case

by Mark Hartsoe

Uninsured motorist insurance coverage is very important because it can be the only protection available to a person who is involved in an east Tennessee car accident with an uninsured driver (similarly, underinsured motorist coverage protects against situations in which the at-fault driver has some, but not enough, liability insurance. In cases in which coverage is triggered due to a defendant’s lack of coverage (or lack of sufficient coverage, as the case may be), the insurance company essentially “stands in the shoes” of the negligent driver. This means that the insurance company can offer defenses to liability, just as the driver would do under the same circumstances. An insurance company is an insurance company, after all, and the fact that its insured is on the other side of the suit does not change the insurer’s desire to limit the payout on the claim.

This can be very upsetting to policyholders who have been loyal customers, always paying their premiums on time and being careful drivers. What can come as an even worse surprise, however, is a customer thinking that he or she has uninsured motorist insurance coverage in place and then finding out – after an accident caused by another motorist – that he or she does not have such coverage.

Facts of the Case

In a recent case, the plaintiffs were a husband and wife who had previously lived in Georgia. When they lived in that state, they had $2,000,000 worth of excess uninsured motorist coverage, and their policy included a separate “line item premium” for the excess uninsured motorist coverage. After they moved to Tennessee in 2013, the plaintiff husband approached the defendant insurance broker and insurance agency about obtaining a personal umbrella insurance policy with the same coverage that the couple had in Georgia. According to the husband, he provided a copy of the Georgia policy so that the agent could help him obtain similar coverage in Tennessee.

November 13, 2019

Federal District Court Denies Defendant’s Motion to Exclude Doctor’s Testimony in Tennessee Tractor-Trailer Accident Case

by Mark Hartsoe

In an east Tennessee truck accident case, the plaintiff has the burden of proof. This means that he or she must provide proof sufficient to convince the jury, by a preponderance of the evidence, that the defendant’s failure to act in a reasonably prudent manner was the proximate cause of his or her injuries. In most cases, this evidence includes the testimony of one or more physicians who are qualified to explain to the jury the nature and extent of the plaintiff’s physical injuries, treatment, and limitations. If the defendant disagrees with the qualifications of the plaintiff’s proposed expert witness(es), a motion to exclude the testimony may be filed. The trial court will then rule upon the motion, and whichever party is aggrieved thereby may eventually seek the review of an appellate court regarding the decision.

Facts of the Case

In a recent federal court case, the plaintiff filed suit against the defendants, seeking compensation for personal injuries he allegedly suffered in a rear-end collision involving his van and their tractor-trailer. The defendants filed a motion to exclude the testimony of the plaintiff’s treating physician and medical expert, arguing that the doctor did not state in his deposition that he was serving as an expert witness, the doctor did not examine any documents other than the plaintiff’s medical records and was not aware of any facts related to the accident, the doctor’s report lacked a method of reasoning as to his conclusion that the accident at issue caused the injuries complained of by the plaintiff, the doctor did not connect his experience to his conclusions, and/or the doctor did not take into account possible causes of the plaintiff’s injuries other than the accident.

The plaintiff responded that, even if the doctor’s report was “technically deficient,” it would not be appropriate for the court to exclude it because any alleged failure to disclose it was harmless in that it did not prejudice the defendants.

October 30, 2019

Tennessee Supreme Court Rules That Claimant Was Not a Necessary Party to Declaratory Judgment Action Between Insurance Company and Insured

by Mark Hartsoe

When someone has automobile accident liability insurance and he or she is sued due to a Tennessee car accident, the insurance company has two responsibilities: to provide a defense for the insured and to indemnify him or her in the event of a judgment. The insured individual also has certain obligations, perhaps the most important of which is the duty to cooperate with the insurance company during the legal proceedings arising from the accident.

When the insured does not cooperate in the way that he or she should, the insurance company may not have a duty to defend or indemnify him or her. Unfortunately, innocent people – namely, those injured by the insured’s negligence – may be negatively affected in such a situation.

Facts of the Case

In a recent case that was heard by the state’s highest court, the plaintiff was an insurance company that filed a declaratory judgment action against the defendant insured, seeking a declaration that it did not have to provide a defense to the insured in a personal injury lawsuit that had been file against him pertaining to an automobile accident or to indemnify him for any damages ultimately awarded to the claimant in that lawsuit. The insured reportedly did not respond, and the trial court entered a default judgment for the insurance company, holding that it did not have a duty to defend or indemnify the insured under the circumstances.

October 16, 2019

Tennessee Appeals Court Reverses Summary Judgment in Medical Malpractice Suit Arising From Woman’s Death Following Emergency Craniotomy

by Mark Hartsoe

Under Tennessee medical malpractice law, an individual who seeks to recover fair compensation (including acts of negligence resulting in a loved one’s alleged wrongful death) must provide pre-suit notice to those against whom the lawsuit will eventually be filed.

Generally speaking, failure to provide this notice can result in dismissal of the plaintiff’s lawsuit based on failure to comply with the state’s health care liability statute. However, there are exceptions to this general rule, as the appellate court held in a recent case.

Facts of the Case

The plaintiff in a recent case was the husband of a woman who died in April 2016, following an emergency craniotomy that was performed due to stroke-like symptoms the woman suffered shortly after being released from a hospital where she had sought medical treatment for an apparent aneurysm. The plaintiff filed suit against the defendant medical providers in the Circuit Court for Hamilton County, alleging that the defendants had failed to adequately and timely treat the decedent, thereby causing her various personal injuries and, ultimately, her death. Pursuant to the requirements of Tenn. Code Ann. § 29-26-121, the plaintiff attempted to provide pre-suit notice of his intent to bring a health care liability action against each defendant named in his complaint and filed his complaint within the 12o-day extension of the statute of limitations provided by the statute.

September 23, 2019

Tennessee Court of Appeals Holds that Drug Dealer Liability Act Lawsuit Can Proceed Against Opioid Manufacturers

by Mark Hartsoe

The so-called “Opioid Epidemic” is big news these days, as more and more claims are being filed against the makers of pharmaceutical products like hydrocodone, oxycodone, oxymorphone, OxyContin, Roxicodone, and Opana by both individuals and government officials.

Here in Tennessee, several attorneys general have sought to assert claims against those who make these and other opioid drugs, but of course the manufacturers have done their best to resist these efforts if at all possible.

Earlier this month, the Tennessee Court of Appeals issued a decision in one such matter, holding that a case previously dismissed by a state court judge could go forward against certain pharmaceutical companies under a state statute that provides a civil remedy against those who participate in the illegal drug trade. If you or a loved one is suffering from the use of such medications, a Tennessee personal injury attorney may be able to determine whether you have a claim.

September 16, 2019

Tennessee Court of Appeals Reverses Dismissal of Knoxville Malpractice Lawsuit

by Mark Hartsoe

A Knoxville medical malpractice case is never easy. Doctors and their insurance companies fight incredibly hard against a finding of liability, and, even if a case makes it to a jury trial, jurors can be reluctant to find that a doctor is hospital has been negligent. This much is to be expected.

However, it may come as a surprise to an average Tennessean that many medical malpractice cases are dismissed annually based not on a finding that the plaintiff failed to prove negligence but because of some technicality in the voluminous amount of paperwork that must now accompany a malpractice claim.

This is one of the many reasons that it is critically important to contact an attorney as soon as you suspect you or a family member has suffered from an act of medical malpractice; the sooner you can get started on your case, the more likely you are to be able to jump through the many “hoops” that have become part of our law through the endless lobbying efforts of the medical establishment and their insurers.

August 23, 2019

Tennessee Personal Injury Lawsuit Settles for $2M, Leading Defendants to Ask that their Insurance Company be Substituted as Real Party in Interest

by Mark Hartsoe

A Tennessee personal injury case can involve multiple defendants, some of whom may point to finger of blame at one or more of the others. In some situations, the plaintiff may be able to settle his or her claim(s) against one or more of the defendants, leaving the defendants to continue to fight among themselves about how much each rightfully owes. When this happens, it is not usual for a liability insurance company to be substituted as a real party in interest.

Facts of the Case

In a federal district court case in which a decision was issued earlier this year, the plaintiff was man who was reportedly electrocuted while working at a fair and music festival in Memphis in 2016. The accident happened when a ride that was plugged into the same generator as the ride upon which the plaintiff was working became energized by an overhead powerline, causing electricity to flow through the first ride, through the generator, through the second ride, and into the plaintiff’s body.

The plaintiff brought suit against four different amusement companies in the United States District Court for the Western District of Tennessee. Two of the defendants brought crossclaims against a third defendant, seeking indemnification and a defense. That defendant sought summary judgment on the crossclaims, urging that its contract with one of the two defendants did not obligate it to indemnify the two defendants for their defense costs in the case. The plaintiff and the two defendants filed a joint motion to dismiss the crossclaims based on a settlement agreement. As part of the settlement agreement, the plaintiff had the right to purchase an annuity; the first two defendants paid $2,075,000 to fund the annuity. The other two defendants did not contribute to the settlement payment.

August 8, 2019

Tennessee Court of Appeals Reverses Summary Judgment to Asbestos Manufacturers in Product Liability Lawsuit

by Mark Hartsoe

Generally speaking, a Tennessee personal injury lawsuit must be filed within the one-year statute of limitations for negligence cases if it is to survive a motion for summary judgment. This seems like a straight-forward rule, but this is not always so. For example, in some cases, exposure to a product may cause serious injury or even death, but these effects may take many years to manifest themselves.

Tennessee also has a statute of repose that places additional limitations on the plaintiff in a personal injury or wrongful death case, including one stemming from injuries caused by exposure to asbestos. In some situations, an injured person may have been exposed to multiple sources of asbestos over a multi-year period, creating further issues that must be hashed out during the litigation process.

Facts of the Case

In a recent case, the plaintiff was a man who developed mesothelioma after working at a chemical plant in east Tennessee for approximately 20 years. He (along with his wife) filed multiple product liability claims against the defendants (an asbestos manufacturer and others), asserting claims for the defendants’ respective alleged involvement in the male plaintiff’s exposure to asbestos in the workplace.
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