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Law Blog by Wiseman Bray - Memphis Probate & Injury Attorneys

Law FAQ: What is medical malpractice?

Law FAQ: What is medical malpractice?

What is medical malpractice?

Medical malpractice occurs when a patient is injured as a result of medical treatment that falls below the acceptable standard of care within the medical community. Medical Negligence is another term for medical malpractice. Most medical malpractice claims result from one of the following:

  • Failure to properly diagnose an injury or condition in a timely manner.
  • Failure to provide proper treatment once a diagnosis is made.
  • Failure to obtain informed consent prior to a medical procedure.

Who can commit medical malpractice?

Medical negligence claims can be asserted against a doctor, hospital, nurse, clinic, chiropractor, dentist, pharmacist, nursing home, or other health care provider.

What must be proved in a medical negligence case?

To prevail in a medical malpractice suit, a patient must prove:

  • The recognized and accepted standard of care in the local medical community, or in a similar medical community.
  • That the healthcare provider failed to act in accordance with the applicable standard of care (referred to as a violation or “breach” of the standard of care).
  • That as a result of the breach of care, the patient suffered an injury or damage that would not have otherwise occurred.

The applicable standard of care, and the breach of that standard, must be proved by expert testimony from a qualified healthcare professional in the same field who has practiced in Tennessee or in a contiguous state within 1 year immediately preceding the injury. As one might imagine, it can be very difficult to find a competent and credible doctor who is willing to testify against another doctor. And securing such an expert can be very expensive. Consequently, substantial claims and injuries are often required to make a case economically feasible and worthwhile to pursue.

Our lawyers have access to a wide network of doctors and professionals willing to review cases to determine their merit, and we have experience handling substantial medical malpractice claims.  To learn more about our firm’s approach to medical malpractice cases, click on How We Handle Medical Malpractice Cases.

Law FAQ: How long do I have to file a legal claim?

Law FAQ: How long do I have to file a legal claim?

The deadline for filing a lawsuit is referred to as the statute of limitation.  The length of time you have to file a lawsuit under Tennessee law depends on the nature of the underlying claim:

Personal Injury — Under Tennessee law, a personal injury claim must generally be filed within 1 year from the date of injury.  Personal injury claims include things like car wrecks, slip and falls, and medical malpractice.  There are some situations where the 1 year deadline can be extended — for example, where an injury cannot reasonably be discovered within the statute of limitation, or where the injury occurs to a minor — however, such exceptions are rare and can be very tricky.  The determination of the precise time period can be complicated, and therefore you should contact a lawyer if you you have a personal injury claim to avoid the risk that you miss an important deadline.  (Other claims that are likewise subject to a 1 year statute of limitation include many state and federal civil rights claims, claims for legal malpractice, violation of the Tennessee Consumer Protection Act, and claims for breach of fiduciary duty by a corporate officer.)

Important Note: the “date of injury” for purposes of calculating the 1 year is the date of the incident leading to the injury — not necessarily the date the injury blossoms into it full consequence.  Example: a car wreck occurs and the victim initially survives but eventually dies in the hospital 5 days later.  The date the statute of limitation begins to run on the wrongful death claim is NOT the date of the death, but rather the date of the auto accident.

Defective/Dangerous Product — Under Tennessee law, a products liability claim must generally be filed within 1 year from the date of injury, but in no event can it be later than 10 years from the date of the first purchase of the product for use or consumption. Determination of the exact time period can be confusing, and you should contact a lawyer immediately if you believe you have been the victim of a defective or dangerous product, or you may risk forfeiting your legal rights.

Property Loss — Generally speaking, a claim for property-related losses must be filed within 3 years.   This would include, for example, not only physical damage to property (damage to vehicle, house fire, etc.) but also the loss of property or funds as the result of fraud, misrepresentation, conversion, or unlawful interference with contract.

Breach of Contract — Under Tennessee law, a breach of contract claim must be filed within 6 years, unless the contracting parties have agreed in their contract to a shorter deadline.   Breach of contract claims would include, for example, failure to perform agreed-upon services, failure to deliver goods purchased, or failure to make payment.  One notable exception to this rule, however, are breach of contract claims as they relate to the improvement of property (e.g. claims against building or home improvement contractors).  The statute of limitation for such claims is only 4 years from the date of substantial completion of the improvements.

Please note that these deadlines are the generally applicable deadlines for garden variety-type claims.  It would be virtually impossible to attempt to catalog each and every type of claim, and one should be mindful that there are specific statutes of limitation (and potential exceptions) that may apply to particular circumstances and claims.  The most prudent course of action is to contact a lawyer immediately if you think you have a claim that requires investigation and/or legal action.

Stay tuned for more updates/FAQs.

Law FAQ: I was injured in an accident. What amount of damages can I expect to recover?

Law FAQ: I was injured in an accident. What amount of damages can I expect to recover?

Based on some of the TV commercials and urban myths out there, people are led to believe that if they or a loved one has been injured in an accident that they can expect an easy road to a big, fat check.    Don’t believe everything you hear, though, because that simply is not the case.

If you are injured as the result of the negligence of another person or company, you ARE indeed entitled to a fair recovery for your losses — both economic and non-economic losses.  However, insurance companies and adjusters aren’t in the business of just giving away money willy-nilly.  And neither are juries.

If you have a serious injury, there’s nothing that’s “easy” about the process at all.

Unless you want a quick-and-dirty, low-ball settlement you hear about on TV, then you should consult an experienced attorney who will evaluate the facts, determine the strength of your claim, and then actually do the hard work that it takes to secure a favorable and fair outcome, including negotiating with your health insurance carrier for the inevitable subrogation claim against your recovery.

As for the amount of damages that might be recovered, the components of an injury claim include such things as lost wages, lost future earning capacity, medical expenses (past and future), emotional distress, loss of services or companionship of a loved one,  physical/mental impairment, and pain and suffering.  The actual amount varies from case to case depending primarily on the nature and extent of the injuries and damages, as well as the skill and experience of the attorney who pursues the claim.

There is no exact formula to determine a precise figure, but factors that bear on an award of damages include such things as:  the type of injury, the type of medical treatment, the length of medical treatment, the cost of medical treatment, the part(s) of the body injured, the permanency of the injury, your familial status, your age, your prior medical problems (if any), the egregiousness of the conduct of the offender, any past history of similar incidents, your willingness to take the case to trial, the availability insurance coverage, and the size of awards and settlements in similar cases.

Furthermore, the Tennessee legislature this past session passed caps on the amount of the “non-economic” damage component that can be recovered.  Quality of life damages (i.e. pain and suffering, loss of companionship, etc.)  are limited to $750,000, although the law creates exceptions in cases that involve intentional misconduct, destruction of records or activity under the influence of drugs or alcohol.   The cap  rises to $1 million for catastrophic losses defined as conditions involving paraplegia, quadriplegia, amputation, especially severe burns, or the wrongful death of a parent leaving minor children.  These caps would not apply, however, to economic damages such as lost wages and medical expenses, for example.

Stay tuned for more FAQs.

Patterson Quoted in Memphis Daily News on Court Clerk Positions

Patterson Quoted in Memphis Daily News on Court Clerk Positions

Attorney Chris Patterson was quoted in an article by Bill Dries today in the Memphis Daily News concerning former efforts by the Metro Charter Commission to consolidate and/or streamline the various elected court clerk positions in Shelby County.

“A lot of ideas were kicked around. But then we kind of quickly realized that we were fairly restricted on any proposed changes that could be made, even if there was some opportunity for some greater efficiency,” said Chris Patterson, who headed the group tasked with making recommendations on judicial offices. “Once the charter’s voted down, you never know if you really could have done it or not. Until you try to do it and somebody challenges it, you don’t know if it’s going to hold up. We tried to take the approach … to provide as much certainty as possible.”

The article comes in the wake of the suspension of General Sessions Court Clerk, Otis Jackson, in connection with allegations of improper fundraising.

Wiseman’s Tweet Noted in Article on Memphis Shelby County Sports Authority

Wiseman’s Tweet Noted in Article on Memphis Shelby County Sports Authority

Lang Wiseman is a member of the Memphis Shelby County Sports Authority which met yesterday to go over financial projections for the bond funding for the FedEx Forum, taking into account a sluggish economy and possibly lengthy NBA lockout.  Today’s edition of the Memphis Commercial Appeal included 2 separate articles on the meeting, noting in one article:

Small wonder Lang Wiseman, a member of the authority, offered the following tweet as he walked out the door:

“Just got out of the Board meeting of the Memphis Shelby County Sports Authority. Tough meeting.”

That’s bracing reality in 140 characters or less.

5 Must-Read Google Search Tips (plus one)

5 Must-Read Google Search Tips (plus one)

Some helpful tips I found while reading the June 2011 edition of TRIAL Magazine:

  1. Search only on pages within a specific site:  type your search phrase and at the end include “site:[URL] ” and then insert the URL name to search only within particular site. 
  2. Excluded term searching: include a minus sign (“-“) before a word in a search string to exclude pages that contain that word.
  3. Package tracking info: type in your package tracking number. Google will determine the identity of the carrier and link you to the appropriate site.
  4. Search for words within URL: type “allinurl:______” to find actual site names that include a particular word.
  5. Get weather info:  type “weather: _______” while inserting the zip code to get current weather.

Plus one more:

Website linkage: type “link: _____” and insert a URL to see pages that contain a hyperlink to that site.

Advising Clients about Facebook and Twitter

The Tennessee Bar Journal has an insightful article this month about new challenges for lawyers arising out of technology, and the potential collateral damage to their clients’ cases as result of social media like Facebook and Twitter.  Indeed, litigation has always meant that your clients were going to be under scrutiny from their adversaries; however, the ease and widespread use of Facebook and Twitter has vastly changed the rules of the game.

These days, social media is a virtually free and easy database for investigators and adversaries seeking information about clients.  And the informality and ease with which people interact and share information on Facebook and Twitter can often provide fodder for someone looking for ammunition — possibly even to mislead/distort.

Technology is a challenge, and lawyers must be technically savvy enough to be familiar with how social media works so that they discuss these issue intelligently with their clients in order to provide sound advice.

 

News: Pharmacy Mistakenly Gives Abortion Drug to Pregnant Woman

News: Pharmacy Mistakenly Gives Abortion Drug to Pregnant Woman

News outlets are reporting today that a pharmacy in Denver mistakenly filled a pregnant woman’s prescription with methotrexate, which is a chemotherapy drug that is also used for early-stage pregnancy termination.  There is now a chance that she might lose her unborn child.

Unfortunately, as we’ve blogged about before, pharmacy mix-ups are much more common than you might realize.  In fact, our firm has represented multiple plaintiffs in cases involving serious medication errors by national pharmacy chains.

To be safe, you should always take steps to protect yourself.  Resolve to be a responsible partner in your own healthcare, and communicate with your pharmacist and other healthcare providers. Ask questions if necessary, and stay vigilant about your medications. Know what your pills are supposed to look like, and what your dosage is supposed to be.

For all new medications or medications you are not familiar with, be sure to utilize helpful online “pill identification” tools to confirm that you are taking the right pills.  You can find links on our Blog site by clicking here.