Personal Injury

May 13, 2019

Tennessee Court of Appeals Affirms $105,000 in Motor Vehicle Accident Case

In an east Tennessee automobile accident case, an injured party may receive compensation for his or her medical expenses, lost earnings, pain and suffering, and other damages caused by a negligent driver.

If the plaintiff is found to be partially at fault in the accident, his or her judgment for compensation will be reduced in proportion to his or her fault. For example, if the court finds that the plaintiff’s total damages are $100,000 but he or she was 10% at fault, the net judgment will be $90,000.

It is important to note that this rule only applies to cases in which the plaintiff is found to have been less than 50% at fault; if the plaintiff is 50% or more to blame for an accident, he or she will not recover any compensation.

April 27, 2019

Federal Court Rules that Most of Army’s Report Concerning Accident is Subject to Military Safety Privilege

by Mark Hartsoe

In a Knoxville personal injury lawsuit arising from a car accident or other vehicular collision, the burden is on the plaintiff to prove, by a preponderance of the evidence, that the defendant is legally liable for his or her medical expenses, lost wages, pain and suffering, and other damages stemming from the accident.

In litigating his or her claim, the plaintiff will likely pursue the discovery of evidence from a variety of sources, including governmental entities. While the law of evidence provides a basic structure for the resolution of these issues, some matters must be decided on a case-by-case basis.

A recent, rather unusual case arising from an accident in military vehicle is illustrative.

April 13, 2019

Federal Case for Negligence and Violation of OSHA Regulations Transferred from Ohio to Tennessee

by Mark Hartsoe

When someone is hurt by the negligence of a corporation, the injured person may have multiple options as to where to file his or her claim. Generally speaking, most such claims are filed in a state court in the county in which the accident occurred.

However, in some cases, the plaintiff may prefer that his or her claim be filed in federal court, providing that there is diversity of citizenship between the parties and that personal jurisdiction exists.

The defendant in a federal case may resist jurisdiction and/or venue for one reason or another. In such an event, the district court in which the action is initially filed must decide whether it does, in fact, have diversity jurisdiction over the case and whether venue is proper in that particular court.

March 13, 2019

Auto Accident Case is Remanded for New Trial on Damages, Following UM Carrier’s Appeal to Tennessee Court of Appeals

by Mark Hartsoe

Many people labor under the mistaken impression that pursuing fair compensation is easier when the defendant in a car accident case is the victim’s own uninsured motorist insurance company. This is simply not true. As the case set forth below illustrates, an insurance company can likely align itself with the negligent motorist that caused the collision – not its own insured – and fight tooth and nail to pay out as little as possible on a claim, even when liability is clear.

Facts of the Case

In a recent case, the plaintiff was a man who was involved in an accident with the defendant driver in Shelby County, Tennessee, in January 2016. The man was joined in the suit by his wife as co-plaintiff. The plaintiff’s uninsured motorist carrier was served with a copy of the complaint pursuant to the Tennessee Uninsured Motorist Act. The defendants did not dispute that the driver was liable for the accident in question; rather, the primary issues before the court were the extent of the plaintiff’s injuries and their impact on the plaintiff’s earning capacity.

January 30, 2019

Massage Therapist’s Intentional Sexual Battery Was Exempt from Certificate of Good Faith Requirement of the Tennessee Health Care Liability Act

by Mark Hartsoe

When a state legislature makes substantial modifications to existing medical malpractice law, the supposed intent is always phrased in terms of “addressing skyrocketing medical malpractice insurance rates.” However, the true reason behind these changes is rarely to save doctors money on their insurance premiums; the real purpose is most likely to increase the profits of the insurance companies who service these types of claims.

In Tennessee, we had a pretty major change in our malpractice laws a few years ago. Whereas before, all it took to file a medical malpractice lawsuit was to type up a basic complaint and file it at the courthouse within the statute of limitations, there are now many more steps to the process – and many more reasons for a medical negligence claim to be dismissed on a technicality before an actual inquiry into whether the medical professional did or did not commit an act of malpractice.

Facts of the Case

In a recent case, the plaintiff was a female customer who filed suit against the defendants, a male massage therapist and his “day spa” employer, seeking compensation for damages associated with the alleged therapist’s sexual assault on her during a massage that she received in April 2014. Included in the plaintiff’s complaint were claims for assault and battery, intentional or reckless infliction of emotional distress, and false imprisonment against the therapist and claims for vicarious liability, negligence, and negligent supervision, retention, and training against the employer.

January 9, 2019

Tennessee Supreme Court Says That Exculpatory Agreement That Transportation Company Required Patient to Sign Was Not Enforceable

by Mark Hartsoe

It seems as though more and more Tennesseans are being hurt by acts of medical negligence in Knoxville and the surrounding area each year. Unfortunately, it seems equally true that medical providers, their insurance companies, and related entitles are forever thinking of new and improved ways to attempt to avoid liability for their actions.

If you or a person close to you has been hurt by a medical provider’s negligence, you can be sure that the defendant will take every possible opportunity to avoid being held liable for your injuries. It is consequently very important that you talk to a Tennessee personal injury lawyer about your case as soon as possible so that you will have the best possible chance for success in your case.

Facts of the Case

In a recent case, the plaintiff had undergone knee replacement surgery and was a patient at a rehabilitation hospital in Memphis. The hospital arranged for the defendant transportation company to drive him to an appointment to see his orthopedic surgeon for followup in December 2014. After the plaintiff was seated in the van, he was asked to sign paperwork that contained exculpatory language purporting to release the transportation company from any and all liability related to its services. After his appointment with the surgeon, the plaintiff fell while attempting to get back into the van.

December 19, 2018

Tennessee Court Holds Failure to Return Service of Process Document Did Not Ipso Facto Result in Dismissal of a Car Accident Lawsuit

by Mark Hartsoe

The plaintiff in a Knoxville car accident case must comply with several important deadlines, if his or her lawsuit against a negligent defendant is to be successful. One of the most important of these deadlines is the statute of limitations – that is, the deadline for filing a claim in a court with appropriate jurisdiction.

However, merely filing a claim is not enough to keep the plaintiff’s case on track for a positive outcome. The plaintiff’s complaint must also be served on the defendant, so that he, she, or it has an opportunity to respond to the plaintiff’s allegations.

Facts of the Case

The plaintiff in a recent appellate court case was a woman whose car was allegedly struck by a vehicle owned by the defendant utility company. The accident happened on March 16, 2009, and the plaintiff’s suit was filed on March 12, 2010. Her suit was in the nature of a civil warrant filed in general sessions court by her then-attorney, who served the complaint on the defendant the next day via certified mail. According to the plaintiff’s then-attorney, he made a return-of-service to the clerk’s office after perfecting service on the defendant. The clerk, however, did not docket the case, and the defendant later claimed that the plaintiff’s then-attorney had failed to make the return-of-service as he alleged.

December 5, 2018

Tennessee Court Finds that Healthcare Liability Act is Not Exclusive Remedy for Resolving Medical Payment Disputes

by Mark Hartsoe

Everyone wants to be paid for his or her work, including medical providers who provide treatment to those who have been injured in an east Tennessee automobile accident. However, there are limitations under the law with regard to what a creditor can and cannot do in his or her collection efforts.

A recent case explored how two Tennessee statutes – the Tennessee Healthcare Liability Act (THL) and Tennessee Consumer Protection Act (TCPA) – applied in a personal injury case in which a healthcare provider attempted to assert a lien.

Facts of the Case

In a recent case, the original plaintiff was a man who was allegedly injured in a car crash in Madison County, Tennessee, and treated for his injuries at a hospital in Dyer County (where the plaintiff resided). After a “professional account services” provider filed a notice of a hospital lien in his lawsuit against the allegedly negligent driver whose actions injured the plaintiff, the plaintiff amended his complaint to add a second plaintiff (who had been injured in an car accident in Obion County, treated at a hospital in Weakly County, and served with a hospital lien by the same account services provider as the original plaintiff) and to name the defendant account services provider as a party defendant.

November 7, 2018

Federal Court in Tennessee Partially Dismisses Hernia Mesh Injury Case as Untimely but Denies Summary Judgment on Several Product Liability Claims

by Mark Hartsoe

One of the most important considerations in a Tennessee personal injury lawsuit is, “When does the statute of limitations run?” While it is sometimes easy to determine this very important date, the issue can be very complicated in some cases.

If the plaintiff’s suit is found to be filed after the expiration of the applicable statute of limitations has expired, his or her claim will be dismissed by the court – even if he or she would have otherwise had a very strong case of liability against the defendant(s). Thus, it is extremely important that anyone has been hurt by the negligence, recklessness, or other wrongful conduct of others consult an experienced personal injury attorney as soon as possible so that the necessary paperwork can be filed in a timely fashion.

Facts of the Case

In a recent federal case, the plaintiff was a woman who alleged that she had suffered numerous personal injuries and complications following a mesh hernia repair surgery that took place in June 2008. In May 2018, She brought a product liability lawsuit against the defendants (the manufacturer of the mesh and the manufacturer’s subsidiary), asserting claims for negligence, strict product liability, negligent infliction of emotional distress, intentional infliction of emotional distress, breach of implied warranty, failure to warn, and fraud. The defendants filed a motion to dismiss the plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on grounds that the plaintiff’s claims were time-barred by the applicable statutes of limitation.

October 17, 2018

Federal Court Remands Car Accident to Tennessee State Court

by Mark Hartsoe

Most east Tennessee car accident lawsuits are filed in state court. There are several procedural and strategic reasons for this. However, when a federal question is involved in the case or when there is diversity of citizenship between the parties, the defendant(s) may remove the case to federal court.

“Making a federal case out of it” tends to result in more costly, complex, and time-consuming litigation, at least from the plaintiff’s point of view. Thus, if there is any possibility of having the case returned to state court after removal, the plaintiff may be wise to consider this option.

Facts of the Case

In a recent case, the plaintiffs were a husband and wife who, along with their minor child, were allegedly injured in an accident in Chattanooga. They filed suit in state court against the driver whose negligence they alleged caused the crash. They also named the driver’s employer as a defendant in suit, asserting a claim for vicarious liability. The employer removed the state court action to federal court, invoking diversity jurisdiction (the plaintiffs were not from Tennessee).