Articles Posted in Forms for Tennessee Tort Practice

A plaintiff must prove that all expenses, including medical expenses, are reasonable and necessary in order to recover for them. Without proof of reasonableness and necessity, the plaintiff fails to prove causation between the tort and the medical bill. A plaintiff who provides the defendant with an itemized list of medical expenses at least 90 days before trial gets a rebuttable presumption that the expenses are reasonable. Tenn. Code Ann. sec. 24-5-113(b). In addition to the presumption of reasonableness, a legible itemization of medical expenses is a much cleaner exhibit for trial than a stack of xeroxed carbon copy medical bills. The itemization can be admitted by the court as a summary under Tennessee Rule of Evidence 1006.
Here is a sample itemization. Download file

Tennessee Rules of Civil Procedure 8.02 and 8.03 set out the basic requirements for defenses asserted in an answer. One critical requirement is that a defendant wishing to assert an affirmative defense must state in short and plain terms the facts in support of that defense, “including the identity or description of any other alleged tortfeasors” that the defendant wishes to blame by comparative fault. The Tennessee Supreme Court has made clear that pleading comparative fault requires providing sufficient information in the answer to allow the plaintiff to plead and serve process on the person pursuant to Tenn. Code Ann. sec. 20-1-119. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000).
If a defendant attempts to plead an affirmative defense without providing the information required by Tenn. R. Civ. P. 8.02, a plaintiff should file a motion to strike those portions of the answer. The plaintiff needs to know who the defendant is going to blame before the defendant submits a proposed jury form listing those persons, and needs to know the basis for the comparative fault in order to conduct discovery and decide whether to bring the other party in by 20-1-119. Even if the defendant is blaming the plaintiff, the plaintiff should be informed of the basis for that comparative fault allegation to have the opportunity to rebut the defendant’s argument. This is a standard Memorandum of Law in Support of a Motion to Strike comparative fault defenses that lack sufficient information.
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Note that the Court of Appeals for the Middle Section ruled that the State of Tennessee does not have “discretionary function immunity” in an extremely thoughtful and well-reasoned 2004 opinion, Lucas v. State. The Tennessee Supreme Court also denied the State’s requested appeal and designated the opinion for publication.

Court approval should be sought for settling any case involving a minor (or disabled person), regardless of whether a lawsuit has already been filed or a compromise reached without litigation. T.C.A. sec. 34-1-121 gives the court power to approve the settlement and to waive the usual requirements of guardianship if the court determines it is in the best interests of the minor. The court’s approval binds the minor to the terms of the settlement. Approval is available whether the minor is the injured plaintiff, a defendant promising some performance, or entitled to receive some or all of the proceeds of a wrongful death settlement.

This Order Approving Minor’s Settlement is from a medical malpractice case in which the infant suffered permanent injuries, including cerebral palsy, due to birth trauma. While you may need to incorporate the terms of a trust or other structured settlement (as we did through a separate order in this case), this Order sets forth the basics for a court to approve the terms of the settlement, order the defendants to make the payments outlined in the settlement, approve the attorneys’ fee and expenses, and approve any payments for subrogation interests.

This is an Order entered in Davidson County Circuit Court that effectively shifts the costs of deposing expert witnesses to the defendant if they disclose more than two experts on any subject. The Order requires the defendant pay the court reporter fee, transcript fee, and any expert witness fee associated with the plaintiff’s discovery deposition of the additional expert witnesses. The Order comes from a motion in a medical malpractice case. For a copy of the motion and memorandum of law in support (or for a clearer copy of the signed order that has not been shrunken down to post on the web), email me.

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Medical malpractice cases are expensive propositions for plaintiffs in any case, but when there are a number of defendants involved, the time and costs required can steamroll quickly. More defendants = more defense lawyers = more time and eyes watching the case on the defense side = exponentially more work for the plaintiff’s attorney.

This is a flow sheet for plaintiff’s lawyers to use in personal injury cases, starting with the first client interview and moving all the way up to the pre-trial brief. This is mainly a big picture view to keep you from missing the forest for the trees in litigation. It reminds you to check the answer to see if the defendant has pled the comparative fault of anyone else, to ask opposing counsel for a stipulation as to reasonableness and necessity of medical expenses, and the other important steps along the way in a case. While every file has its own nuances, hopefully this will serve as a nice checklist for you on the more common occurrences in a case.

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Getting through litigation as efficiently as possible is (generally) in a plaintiff’s best interest. To avoid the “hurry up and wait” effect that can encumber a case, I send my clients a discovery questionnaire at the outset. I ask the clients to answer the questions that I anticipate needing to go forward in the case. I include the interrogatories we see most often – such as listing past residences, employers, and treating physicians. I also ask the client to gather and provide copies of documents frequently requested by defendants – recent photographs and videotapes, tax returns, and etc. At the same time, I ask my clients to gather the information and materials that will help us move the case forward on our end – copies of pertinent insurance policies, for example. The goal of all this is, of course, to have the information on hand before it is needed. Ideally, we are prepared to respond to written discovery the day we receive it, and can avoid delaying the case through extensions.
This form is one that I use in wrongful death actions. Download file. The information requested is largely the same as in a personal injury case, but the questions have been edited to specify whether I am asking about the decedent or the surviving family members.

It is a bit of a stretch to describe anything as a “form” for disclosing the opinions of an expert witness in a medical negligence case. Forms are designed to avoid re-inventing the wheel, shortcutting repetitive processes in lawsuits. There is rarely anything repetitive about the medico-legal issues that arise in a medical negligence case. Before putting pen to paper, an attorney must have a real grasp of the medicine and the law as it applies to a particular case.

That said, it is helpful to check an earlier Rule 26 disclosure as a prompt for the type of information that can be included, so I am providing this Rule 26 disclosure as an example. Download file. It sets forth the bases for the expert’s knowledge in the field, including an express statement that the expert is licensed to practice in Tennessee (or a contiguous state). It describes the expert’s familiarity with the standard of care in the locality, including how the expert gained that knowledge. The disclosure lists the materials that the expert has reviewed in forming his opinions. The disclosure states that the expert is familiar with the applicable standard of care and explains what that standard of care requires. It states that the defendants failed to act with the appropriate standard of care, and that failure to act with the standard of care resulted in the injuries and death of the decedent. The disclosure states that the expert’s opinions are held within a reasonable degree of medical certainty.

You will see this disclosure is very detailed. Some people try to get by with less, and depending on your opponent and your judge you sometimes can get by with less. The law is unclear on how much detail is required in an expert witness disclosure. When drafting an expert disclosure in a medical negligence case, it is helpful to check Tenn. Code Ann. 29-26-115 and a prior Rule 26 disclosure to refresh your recollection about what information should be included. Hopefully, this “form” will help you in your case.

This is the standard fee agreement that I use in my own practice. Download file. I have tweaked the agreement repeatedly over the years, and plan to continue modifying it in the future as the need arises. If you want an updated form, or if you have suggestions for updates, please email me.

A few points on the fee agreement:
– Tennessee law prohibits a contingency fee greater than 33 1/3% in medical malpractice cases. If you are reviewing or accepting a medical negligence case, be sure to remove the provision for a 40% contingency fee in the event of an appeal.
– Note that the contingency fee is based upon gross recovery, rather than net after expenses.
– Near the bottom of page 2, the paragraph stating that attorneys are still investigating the case should be removed if you have already committed to pursuing the matter.
– I realize that the provision concerning sales taxes is currently unnecessary. However, the Legislature is always threatening to impose a sales tax on professional services and therefore I added this provision in case they decide to do so.

This is a sample form set of interrogatories and requests for production of documents and things to send to a corporate defendant in a car wreck case. I typically serve a set of discovery with the complaint in order to get the ball rolling on the case. These form questions ask the basic issues that should be dealt with in almost any case involving a corporate defendant: (1) identifying witnesses, including experts; (2) determining whether any surveillance is being / has been conducted of the plaintiff; (3) narrowing any questions as to respondeat superior; and (4) discovering the factual bases for any affirmative defenses. There are other issues that you may want to address in the initial written discovery depending on the circumstances of the case. (For example, serving a request to produce the defendant’s vehicle itself for inspection to take photographs and recover data from the vehicle’s event data recorder, or “black box.”) Download file