Wrongful Death

Published on: May 21, 2021

Tennessee Court of Appeals Sides with Parents with Regard to State’s Motion for Summary Judgment in Healthcare Liability Case

The requirements involved in filing an east Tennessee medical malpractice lawsuit can be very complex. It is, thus, extremely important for a would-be plaintiff in such a case to retain an attorney experienced in these matters as soon as possible after realizing that a medical error may have occurred.

There is a limited time for filing a healthcare liability action, and much is to be done in anticipation of the filing of the actual complaint. Seeking legal counsel sooner rather than later can help ensure that all of the necessary steps are completed in a timely fashion.

Facts of the Case

In a recent healthcare liability and wrongful death case originating in the Tennessee Claims Commission, the plaintiffs were the parents of a stillborn infant who was delivered in December 2017 when the mother was at about 29 weeks’ gestation. The delivery occurred at a hospital owed by the defendant state. The plaintiffs’ suit sought to assert claims for negligence and medical malpractice against several resident physicians and physicians who were employed by the defendant state at the time of the delivery. No claim was presented for damages to the plaintiff mother.

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Published on: March 23, 2021

Tennessee Law Precluded Summary Judgment to Insurance Company with Regard to Wrongful Death Claim Brought Against Insured for Swimming Pool Drownings

By Mark Hartsoe

No east Tennessee wrongful death lawsuit will be successful unless the plaintiff can prove, by a preponderance of the evidence, that the defendant breached at least one duty of care that was owed to him or her and that this breach of duty was the proximate cause of the damages for which the plaintiff seeks compensation. However, proving the essential elements of negligence is just one step in the process of asserting one’s legal rights following a loved one’s death caused by another individual, a business, or a governmental entity.

The reality is that, regardless of how strong the plaintiff’s case might be, recovering fair compensation in a personal injury or wrongful death case depends heavily on whether or not the negligent party was insured. Technically, the plaintiff can pursue collection on a judgment by attaching the defendant’s assets, garnishing his or her wages, and the like, but this is usually a very slow process and one that, at best, typically yields only a fraction of the amount of money to which the plaintiff was entitled.

Because of the power of the insurance company lobbyists, jurors rarely hear a word about insurance. The insurance company would much rather jurors believe that every penny of a judgment was coming out of the defendant’s pocket – the idea being that a lower judgment will result when a person, not a big insurance company, is paying the plaintiff what he or she is due. Sometimes, however, there are cases in which the insurance company is front and center in a lawsuit.

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Published on: November 6, 2020

Federal District Court in Tennessee Denies Nursing Home’s Motion to Arbitrate, Citing Physician’s Illegible Dating of Signature

By Mark Hartsoe

More and more frequently, health care providers such as hospitals and nursing homes are seeking to prevent those whom they injure via negligence, abuse, and malpractice from having their day in court. They often do this in a very surreptitious way, such that many litigants are not even aware that they may have jeopardized their right to a trial by jury until it is too late.

It happens under the guise of “signing some papers” during admission into a Knoxville nursing home, convalescent center, hospital, or other medical center. The patient or his or her family member often has no idea of the ramifications of signing the pile of complex documents that are shoved in front of them during what is probably one of the most difficult days of their life.

Fortunately, not all such attempts to thwart the legal process are successful. In some cases, the court system refuses to grant the health care provider’s request to send the case to an arbitrator rather than have it rightfully proceed through the litigation process.

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Published on: October 9, 2020

Appellate Court Says That a Tennessee Trial Court Was Correct in Ordering New Trial After Doctor Tried to Shift Blame for Alleged Negligence

By Mark Hartsoe

Doctors and nurses spend many years learning the professions. This does not mean, however, that they never make mistakes. They do, much more often that the general public would like to believe.

When someone is hurt or passes away because of a healthcare practitioner’s mistake, the individual or the family of a deceased patient may be able to seek monetary compensation via an east Tennessee medical malpractice lawsuit. Time of the essence in a medical negligence case, as there are strict deadlines for filing a claim.

The first step in a malpractice case is usually to retain a qualified medical expert to examine the patient’s medical records. If that professional is of the opinion that the would-be defendant breached the applicable standard of care, the next step is filing suit in the appropriate court. Continue reading →

Published on: September 23, 2020

Tennessee Court of Appeals Holds that Wrongful Death Litigant Was Not Bound by Arbitration Agreement Proffered by Nursing Home

By Mark Hartsoe

For several years now, there has been a concerted effort to limit the legal rights of those who might seek to file a Knoxville nursing home abuse lawsuit. Typically, a representative of the nursing home begins this process by asking the patient or someone in his or her family to sign “routine paperwork” that includes an agreement to arbitrate, rather than litigate, any potential claims that may arise during the patient’s care.

The patient or family member often has no idea that, by signing these admission papers, he or she is giving up the right to have a future personal injury or wrongful death case decided by a judge or jury. Instead, if a claim arises, the case will proceed in front of an arbitrator.

Arbitrators tend to be much more conservative in their awards – if they even agree that there was negligent or wrongful conduct on behalf of the nursing home or its employees – thus potentially saving the potential defendant and its insurance company a considerable amount of money in some cases. Fortunately, not every such “agreement” to arbitration is upheld in court.

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Published on: August 22, 2020

Tennessee Appeals Court Rules that Dismissal for Failure to Perfect Timely Service of Process in Death Case Was in Error

By Mark Hartsoe

Most everyone has heard the term “file a lawsuit,” but those outside the legal profession may not fully understand what that process entails. For starters, the plaintiff must prepare a formal, written complaint setting forth the basic factual allegations, legal claims, and relief sought.

In addition to the filing of the complaint with the clerk of the court in the county in which jurisdiction is pled, the plaintiff must also file serve a copy of the complaint on the defendant(s) in the case. Generally speaking, this can be done one of two ways: by local sheriff deputies or by a private process server.

There are procedural rules, applicable in East Tennessee personal injury and other civil cases, including time limitations on both the filing of the complaint and the perfecting of service of process, that must be followed. Failure to follow these rules or meet these deadlines can be very detrimental to the plaintiff’s legal rights.

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Published on: August 9, 2020

Tennessee Appellate Court Addresses Application of Non-Economic Damages Cap in Mesothelioma Wrongful Death Case

By Mark Hartsoe

In a Knoxville personal injury or wrongful death lawsuit, several elements of damages are possible. Some of these are “economic damages,” such as medical costs and lost wages. Others are referred to as “non-economic damages.”

Non-economic damages include such things as compensation for physical and emotional pain and suffering, loss of the ability to enjoy life, and loss of spousal consortium. Depending upon the law of the state in which the accident happened – and sometimes the particular claims upon which the plaintiff rests his or her case – there may be a maximum amount of damages available to the plaintiff, regardless of what his or her case would otherwise be worth.

When damages are capped in a case involving multiple defendants, disputes can arise regarding the amount that each defendant ultimately owes if the jury finds in the plaintiff’s favor. This can even be true in cases in which multiple defendants were sued but only a single defendant remained at the time of the trial.

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Published on: June 22, 2020

Tennessee Court of Appeals Reverses Lower Court’s Order That Granted Summary Judgment on Issue of Vicarious Liability in Fatal Car Accident Case

By Mark Hartsoe

In cases in which a negligent driver was acting in the course and scope of his or her employment at the time of a serious East Tennessee car accident or fatal crash, the driver’s employer can be held vicariously liable for the harm that befell the accident victim. This is important because the employer is likely to have more financial resources (including a car accident liability insurance policy with considerably higher limits) than the at-fault motorist.

Obviously, the employer has an incentive to deny that the worker was “on the clock,” so to speak. However, simply denying the obvious will not go very far in avoiding a finding of liability for the employer.

In a recent case, both the employer and the employee (a father and son) denied that the employee was still acting on behalf of the employer when he crashed the employer’s car and killed a woman. Instead, they argued that the employee had planned to stop off and pick up a pizza, thereby deviating from his task and interrupting the chain of events that would have resulted in a finding of vicarious liability. Fortunately for the woman’ surviving spouse, the appellate court reversed the trial court’s summary judgment order and remanded the case for further proceedings.

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Published on: March 10, 2020

Tennessee Court of Appeals Addresses Constitutionality of Statute Providing for Ex Parte Interviews of Non-Party Health Care Providers in Medical Malpractice Lawsuits

By Mark Hartsoe

Discovery is an important part of a Tennessee personal injury lawsuit. During this phase of litigation, the parties exchange certain information, such as the names of factual witnesses and the opinions of potential experts. When conducted appropriately, discovery can lead to a settlement of a case. As the parties learn more about the strengths and weaknesses of their opponents’ cases, there tends to be a “meeting of the minds” as concerns at least some of the issues. However, not all discovery is conducted in a manner that aids the parties in the settlement process – especially if it happens behind closed doors and outside of the presence of the plaintiff and his or her counsel.

Facts of the Case

In a recent case addressing the constitutionality of a statute, the plaintiff was the daughter of a woman who allegedly died as a result of the defendant medical providers’ negligence. The daughter filed a healthcare liability wrongful death lawsuit, asserting that the defendants’ medical treatment of her mother fell below the applicable standard of care and that this breach of duty was the proximate cause of her mother’s death. As the lawsuit progressed, the defendants filed a motion for a qualified protective order pursuant to Tennessee Code Annotated § 29-26-121(f), requesting that they be permitted to conduct interviews of certain healthcare providers who had provided medical treatment to the plaintiff’s mother but had not been named as defendants in the case. These interviews were to take place outside the presence of the attorneys who represented the plaintiff in her lawsuit.

The plaintiff objected to the defendants’ motion for the qualified protective order on the basis that § 29-26-121(f) was unconstitutional. The trial court granted the defendants’ motions for the ex parte interviews, commenting that the legislature had overstepped its bounds in saying that “the court shall do something,” but opining that it was not a trial court judge’s place to declare a statute unconstitutional. The Tennessee Court of Appeals denied the plaintiff’s application for an interlocutory appeal, but the Tennessee Supreme Court granted her permission to seek review of the trial court’s ruling.

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Published on: February 6, 2020

Tennessee Appellate Court Finds Conflict Between City’s On-the-Job-Injury Policy and State Statute Setting Forth Presumption in Firefighter Death Cases

By Mark Hartsoe

Most workers in Tennessee are covered by workers’ compensation laws. However, some are not. For example, some public employees are not entitled to benefits under the same system that a fast food restaurant employee or factory worker would be covered.

In such cases, the employee (or, in a fatal illness or accident case, the worker’s family) may be entitled to some alternative type of benefits following an accident or sickness caused by the worker’s conditions of employment, but such a suit may be pursued more in the nature of a Tennessee personal injury or wrongful death lawsuit than a “regular” worker’s compensation case. Some governmental entities’ work injury coverage is administered through a third-party administrator who makes the initial decision in the case. This may be reviewed by an administrative law judge, a chancellor or circuit court judge, and, eventually, the appellate court.

Facts of the Case

In a recent case, the plaintiff was the widow of a city fireman who passed away in 2015. At the time of his death, the decedent had worked for the city’s fire department for some 20 years. His pre-hire physical examine revealed no signs of hypertension or other heart disease. After having completed a 24-hour workday that required him to manage calls on five separate calls, the decedent passed away within 12 hours of leaving his post. The widow sought on-the-job-injury benefits for the fireman’s death. The defendant’s third-party administrator denied the widow’s claim on the basis that no autopsy had been performed on the decedent as was required under the city’s on-the-job injury policy.

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