Category Archives: General

What is an Arm Worth?

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In a shocking comparison of the differences in workers compensation benefits from state to state, NPR and Propublica just released a nationwide study, in conjunction stories on NPR’s Morning Edition radio program this week.  To illustrate, they compared the benefits available in Alabama to the benefits available in Georgia for the loss of an arm on the job, and interviewed Josh Potter of Ringgold, Georgia.  Josh lost his left hand and most of his forearm in an accident at Unique Fabrications in LaFayette, GA.  While he will never be made whole, he has been fitted with a remarkable prosthetic arm, and is doing well, considering the circumstances.  The financial adjustments have been very difficult, however, for him and his family as workers compensation benefits do not replace a paycheck.  He fortunate that the accident did not happen in Alabama, however, where an amputated arm was only worth $49,000.

Click here for the full story on Josh.

For the full report, “The Demolition of Workers’ Comp”, prepared by Michael Grabell of Propublica and Howard Berkes of NPR, click here.

What is a “collateral source” and why is the Tennessee legislature trying to changes the rules?

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What is a “collateral source”?  It is a source of payment or benefit that is not relevant to issue of legal liability and damages in a personal injury case.  For example, an injured person may be covered under a group medical plan at work, or have an individual medical policy that covers some of the medical expenses caused by the accident.  Or, Medicare, Medicaid or some other governmental program may have paid most of the medical bills.  Loss of earnings due to an injury may be partially offset by Social Security disability benefits, or other disability benefits, or workers compensation benefits.

The collateral source rule is a rule of evidence that prohibits consideration of such collateral sources of payment or benefit to the plaintiff in a personal injury case.  So, where the collateral source rule is in effect, upon the trial of a personal injury case, a defendant cannot offer evidence that the plaintiff had medical insurance coverage that paid all or part of the medical expenses caused by the accident, or that he or she had a long term disability (LTD) policy, or other disability benefits.  Currently, certain advocates of “tort reform” in Tennessee (big business, insurance companies and the Chamber of Commerce) want to abolish the collateral source rule in Tennessee and permit defendants to introduce evidence of the injured plaintiff’s own medical and disability insurance coverage at trial.

Tennessee already gives doctors and hospital a big break by disallowing recovery of many collateral sources of payment or benefit to the plaintiff in medical malpractice or “health care liability” cases, T.C.A. § 29-26-119:

“In a health care liability action in which liability is admitted or established, the damages awarded may include (in addition to other elements of damages authorized by law) actual economic losses suffered by the claimant by reason of the personal injury, including, but not limited to, cost of reasonable and necessary medical care, rehabilitation services, and custodial care, loss of services and loss of earned income, but only to the extent that such costs are not paid or payable and such losses are not replaced, or indemnified in whole or in part, by insurance provided by an employer either governmental or private, by social security benefits, service benefit programs, unemployment benefits, or any other source except the assets of the claimant or of the members of the claimant’s immediate family and insurance purchased in whole or in part, privately and individually.” (Emphasis supplied)

But this is not a rule of evidence.  It is a limitation on damages, and the Tennessee Supreme Court has held that T.C.A. § 29-26-119 is “in derogation of the common law rule that allowed plaintiffs to recover medical expenses, whether paid by insurance or not” so “it must be strictly construed”, Hunter v. Ura, 163 S.W.3d 686 (2005).

How do neighboring states handle collateral source “evidence”?  Collateral sources of payment or benefit to the injured plaintiff are not allowed into evidence in Georgia.  See Denton v. Con-way Southern Express, 261 Ga. 41 (1991), (overruled on other grounds).

In Alabama, collateral sources of payment of medical expenses are admissible, under Ala. Code Sec. 12-21-45(a):

“In all civil actions where damages for any medical or hospital expenses are claimed and are legally recoverable for personal injury or death, evidence that the plaintiff’s medical or hospital expenses have been or will be paid or reimbursed shall be admissible as competent evidence. In such actions upon admission of evidence respecting reimbursement or payment of medical or hospital expenses, the plaintiff shall be entitled to introduce evidence of the cost of obtaining reimbursement or payment of medical or hospital expenses.”

But the plaintiff can offer evidence that he or she is “obligated to repay the medical or hospital expenses which have been or will be paid or reimbursed.”

In Alabama, the “collateral source rule has been abrogated, but it is a rule of evidence and not a law of damages.  Therefore, the jury has discretion to consider all the evidence and to either reduce the award or not based on the collateral source payments.”  AMF Bowling Ctrs. v. Dearman, 683 So. 2d 436, (Ala. Civ. App. 1995).

So, while Georgia does not permit any evidence of collateral sources at trial, Alabama does allow evidence of payment of medical expenses.  What should the Tennessee legislature do? If collateral sources are to be considered, should it be a rule of evidence or a rule of damages?  Tennessee already limits recovery of medical expenses to those that are reasonable and necessary and places a considerable evidentiary burden on the plaintiff to prove such with expert testimony.  And, Tennessee does not allow recovery of most “collateral sources” in medical malpractice cases.  In Georgia, by contrast, “the patient or the member of his or her family or other person responsible for the care of the patient shall be a competent witness to identify bills for expenses incurred in the treatment of the patient upon a showing by such a witness that the expenses were incurred in connection with the treatment of the injury, disease, or disability involved in the subject of litigation”, without the necessity of any expert testimony, O.C.G.A. § 24-9-921.

If collateral sources are to be admissible, why not ease the evidentiary burden on the plaintiff, and allow the bills to be considered upon testimony by the patient that he or she incurred the bills?

If the plaintiff’s medical or disability insurance coverage is be considered, what about the defendant’s liability insurance coverage?  Tennessee currently follows an archaic rule that even prohibits discovery of the defendant’s liability insurance coverage. Why not put all the cards on the table and let the jury know all the facts?

Note:  In one of the early “tort reform” efforts, in 1987, the Georgia legislature passed a law allowing evidence of collateral sources into evidence at trial.  The law was challenged and declared unconstitutional in 1991, in Denton v. Con-way Southern Express.  Hubert E. Hamilton was counsel for the plaintiff, Carol Denton, and successfully argued the case before the Georgia Supreme Court.

What is a “Reasonable” Medical Bill in Tennessee?

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It depends!  Under T.C.A. § 24-5-113(a), “medical, hospital or doctor bills” incurred due to an injury that are itemized in the complaint and attached as an exhibit are deemed to be “necessary and reasonable” as long as the total amount of the bills does not exceed $4000.

And, under T.C.A. § 24-5-113(b):

“ . . . if an itemization of or copies of the medical, hospital or doctor bills which were paid or incurred because of such personal injury are served upon the other parties at least ninety (90) days prior to the date set for trial, there shall be a rebuttable presumption that such medical, hospital or doctor bills are reasonable.”

But what if, after an injury causing accident, a hospital files submits its charges to Blue Cross Blue Shield (BCBS) or some other insurance company, gets paid the reasonable and customary amount provided by their contract, and then tries to collect the difference between the billed amount and the contract amount by perfecting a lien against the cause of action under T.C.A. §§ 29-22-102 (Tennessee Hospital Lien Act)?

In West v. Shelby County Healthcare Corp. 2014 Tenn. LEXIS 1033, (12/19/14), the Tennessee Supreme Court, said, in essence, that hospitals cannot have their cake and eat it too.  If they accept the contract amount, that is all they get.

“We have already held that persons insured by an insurance company are intended third-party beneficiaries of the contract between their insurance company and a hospital. Benton v. Vanderbilt Univ., 137 S.W.3d 614, 620 (Tenn. 2004). Thus, with regard to an insurance company’s customers, “reasonable charges” are the charges agreed to by the insurance company and the hospital. Nishihama v. City & County of San Francisco, 93 Cal. App. 4th 298, 112 Cal. Rptr.2d 861, 867 (App. Ct. 2001); Hoffman v. Travelers Indem. Co. of Am., 2013-1575, p. 10 (La. 5/7/2014); 144 So.3d 993, 1000. The Med’s contract with BCBST and BHSG defined what the reasonable charges for the medical services provided to Mses. West and Heags-Johnson would be.”

But even the Court got a bit confused when it pointed out that:

“The presumption in Tenn. Code Ann. § 24-5-113(a)(1) (2000) that itemized medical bills are necessary and reasonable does not apply to this case. That presumption applies only to personal injury actions brought in any court by injured parties against the persons responsible for causing their injuries. Tenn. Code Ann. § 24-5-113(a)(2). In addition, the presumption does not apply when the total cost of the medical bills exceeds $4,000. Tenn. Code Ann. § 24-5-113(a)(3). The claims made by Mses. West and Heags-Johnson are not personal injury claims against the persons who caused their injuries, and the amount of each claim exceeded $4,000. Accordingly, we must assess the reasonableness of the Med’s charges without the presumption that they are reasonable.”

Actually, as we point here, there is a rebuttable presumption of reasonableness, regardless of the amount, if the bills are served on the other parties at least 90 days in advance of trial under T.C.A. § 24-5-113(b).

Trial Court Should Have Been Reversed for Erroneous Jury Instruction in FELA Case.

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Plaintiffs usually fare well in FELA cases, which provide compensation for railroad employees injured on the job.  Unlike state workers compensation systems, however, which are no-fault systems, under FELA, the plaintiff must prove some negligence on the part of the railroad in causing the injury.  In Spencer v. Norfolk Southern Railway Co.  2014 Tenn. LEXIS 626 (8/29/14), the plaintiff injured his back when he threw a switch. The trial court told the jury that the plaintiff had to prove the railroad knew or should have known on the day of the incident that the switch was not operating properly.  The jury found in favor of the railroad, and the plaintiff appealed.  The Tennessee Court of Appeals found the jury instruction was erroneous and reversed, granting the plaintiff a new trial. Surprisingly, however, the Tennessee Supreme Court reversed the Court of Appeals and reinstated the jury verdict in favor of the railroad, finding the erroneous instruction to have been “substantially accurate.”  The Supreme Court acknowledged that the instruction could have been given more precisely and suggested that the jury should have been instructed to determine whether the railroad knew or should have known at a time sufficiently before the incident such that it could have taken action to prevent or ameliorate the incident.  But that was no help to the injured plaintiff, who will get not a second chance to prove his FELA case, and who will receive no compensation for his back injuries.

Preparing Your Personal Injury Client to Testify

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 “It’s hard to live your life in color and tell the truth in black and white”

(Gregg Allman)

“Few cases go to trial.  In virtually all serious injury cases, however, the plaintiff will have to give a deposition.  As a result, for most personal injury plaintiffs, the deposition is the trial.”

In its fall issue, The Verdict, the journal of the Georgia Trial Lawyers Association, has published an in-depth article entitled, “Preparing Your Personal Injury Client to Testify,” by Hu Hamilton and Patrick Cruise. The material outlined in the article was gleaned from years of trial experience in the school of hard knocks. It offers detailed practical suggestions for preparing injury clients for depositions, as well as for trial.

The Hamilton Firm LLC is committed to improving the practice of law through continuing legal education, leading workshops and seminars, and sharing with others through professional journals and magazines.

Visitors Beware When You Check Into Tennessee Hotels

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On May 12, 2010, Greg and Diane Parker, came to Tennessee from their home in California to visit Ms. Parker’s father. Mr. Parker was paralyzed from the waist down, so the couple rented a handicap accessible room at the Holiday Inn Express in Harriman, Tennessee.  After they checked in, they took a look at the bathroom and noticed a “gap between the shower bench and the wall”, and that the bench was loose. They reported the problem and requested a different room, but none was available. Hotel staff assured Mr. Parker that someone would repair the shower bench. They left for dinner, and their upon return they inspected the shower bench. It seemed to be repaired, “bolted up flush to the wall like it should be.” Mr. Parker pushed on the shower bench, and it did not “shake or sound loose.”  The next morning he went into the bathroom to shower, transferred himself from his wheelchair to the shower bench and had been showering for approximately ten minutes when the bench suddenly collapsed.  He was injured.

Shouldn’t the hotel owner/operator be held responsible?  A guest checks in, notices a problem and the hotel sends in a maintenance man to tighten the bolts, but it collapses anyway, injuring a disabled person.  Sounds like a no-brainer, but not to the Tennessee Supreme Court.

Incredibly, in Parker v. Holiday Hospitality Franchising, 2014 Tenn. LEXIS 638 (9/12/14), the Supreme Court absolved the hotel of all responsibility.  The hotel was built in 2006 by D&S Builders, who had improperly installed the shower bench without using proper blocking to secure it to the interior wall.  The contractor could not be sued due to Tennessee’s four year statute of repose on negligent construction claims, T.C.A. §§ 28-3-202 and 203.  The hotel owner had accepted the contractor’s work and opened the hotel to the public.  However, he claimed to have no notice of the defective condition of the shower bench, even though they sent a maintenance man to adjust it after the guest complained!

According to the Supreme Court, “The general rule in Tennessee is that a property owner is not vicariously liable for injuries third parties sustain from the negligence of an independent contractor who performs work for the property owner.”

”We hold that the undisputed facts fail to establish either the accepted work doctrine exception or the nondelegable duty to the public exception to the general rule that property owners are not liable for the negligence of independent contractors. We also hold that the undisputed facts establish that Mr. Patel had neither actual nor constructive notice of the defective condition created by the independent contractor’s negligence.”

Contrast this extremely unfair outcome involving a Tennessee hotel with the decision in Bright v. Sandstone Hospitality LLC, A13A1811 (3/26/14), where the Georgia Court of Appeals reversed the grant of summary judgment to the owner of a Wingate branded hotel in Kennesaw, Georgia that had similarly denied responsibility for a defective grab bar in a shower/bathtub, blaming the contractor who built the hotel several years before.  That case was recently settled after mediation for $250,000 with Hu Hamilton as lead counsel for the plaintiff.

Injury Claim Against a Georgia City: 6 Months Notice and Specific Monetary Demand Required

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It has long been the law in Georgia that anyone having a tort claim against a municipality (a city or town) had to serve written notice of the claim within six months of the event causing the injury.  This, of course, was a trap for the unwary and could lead to a legitimate injury claim being barred simply because timely notice was not given the city or town.  The injured person might not seek legal advice until it was too late, and occasionally, lawyers without much experience handling personal injury cases might not be aware of the notice requirements.

Effective July 1, 2014, not only must notice of the claim be presented within six months, but a demand for a specific sum of money must be included, even though the injured person may not have completed medical treatment, may still be out of work and may have no idea of the extent of permanent impairment and disability.

O.C.G.A. § 36-33-5(e) now provides: “The description of the extent of the injury required in . . . this Code section shall include the specific amount of monetary damages being sought from the municipal corporation. The amount of monetary damages set forth in such claim shall constitute an offer of compromise. In the event such claim is not settled by the municipal corporation and the claimant litigates such claim, the amount of monetary damage set forth in such claim shall not be binding on the claimant.”

Anyone having an injury claim against a Georgia city or town should seek competent legal advice as soon as possible, so that proper ante litem notice can be given.  Otherwise even a very serious injury claim against a city will be barred.

Tennessee trial judges must explain why they are granting or denying a motion for summary judgment.

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In a unanimous opinion today (7/15/14), Mary C. Smith v. UHS of Lakeside, Inc. the Tennessee Supreme Court has determined that the Tennessee Rules of Civil Procedure require trial judges to explain why they are granting or denying a motion for summary judgment before they ask the lawyer for the winning party to prepare a proposed order.

Motions for summary judgment are requests by one or more parties to a lawsuit for the court to rule on the merits of an issue before a case goes to trial. The court can determine prior to the start of a trial that there is no genuine issue of material fact and all or a portion of the case will come to an end.

In the specific case the Court decided today, Mary C. Smith sued UHS of Lakeside, Inc. in the Shelby County Circuit Court following the death of her husband who had been treated at the Lakeside Triage Center in September 2004. UHS filed motions for summary judgment asking the trial court to dismiss Ms. Smith’s lawsuit. During hearings in March 2010 and September 2011, the trial judge orally granted UHS’s motions but did not explain the basis for her decisions. Instead, the trial judge asked UHS’s lawyer to draft orders that provided the legal basis for her decisions. The trial judge signed the orders prepared by UHS’s lawyer despite Ms. Smith’s objections.

Ms. Smith appealed, and the Court of Appeals set aside the summary judgment orders. The Court of Appeals decided the trial court failed to comply with Rule 56 of the Tennessee Rules of Civil Procedure, which requires trial courts to “state the legal grounds” when deciding a motion for summary judgment.

The Supreme Court agreed that the trial court failed to comply with Rule 56. The Court emphasized that deciding a motion for summary judgment is a high judicial function. The requirement that a trial court state its grounds promotes respect for the judicial system by ensuring that a summary judgment decision is the product of the trial court’s own independent analysis.

The Court held that the trial court erred by granting UHS’s motions for summary judgment without providing legal grounds and by asking UHS’s lawyers to supply the orders that articulated the reasons for the court’s decision. The Court concluded the trial court must, “upon granting or denying a motion for summary judgment … state the grounds for its decision before it invites or requests the prevailing party to draft a proposed order.”

In this case, the Court determined the contested orders were not the product of the trial court’s independent judgment, therefore the case was returned to the trial court for further proceedings.

Drastic Cuts in Tennessee Workers’ Compensation Benefits Coming For Accidents After July 1st:

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Governor Haslam’s Workers’ Compensation Reform Bill goes into full effect in Tennessee on July 1st and applies to any worker injured after June 30th.

  • Insurance companies will have even more opportunity to deny coverage based on pre-existing conditions.  The law now provides that all injuries must arise “primarily out of and in the course and scope of employment,” so the injured worker must prove that the employment “contributed more than 50% in causing the injury, considering all causes.”
  • Permanent partial disability (PPD) benefits, which are supposed to provide compensation for future earnings loss due to an injury, will be dramatically scaled back.  PPD awards will be based solely on the impairment rating, multiplied by 450 weeks:
    • An injured worker with a 5% impairment rating will receive only 22.5 weeks of benefits for PPD.
    • If he or she does not return to work, or returns to work earning less, only marginal increases of 1.35 to 1.45 times the impairment rating are available.  For example, a worker with a 5% rating who can’t return to work might be entitled to 30 to 32.6 weeks of benefits.

Thankfully, there is an “escape” clause in the new law that will allow for much larger PPD awards up to 450 weeks for a few workers, if at least three of four factors are proven:

  • Limited education
  • 55 or older
  • No transferable job skills
  • No reasonable employment opportunities locally.

For most workers, however, benefits for permanent disability will be very limited, no matter how devastating the effect of a serious injury is on his or her ability to earn a living in the future.

Better workers compensation benefits may be available through Georgia:

Georgia law may provide better benefits to an injured worker than Tennessee, and in some situations a claim can be filed in either state.  If the accident occurred in Georgia there may be jurisdiction in Georgia.  Even if the accident occurred outside Georgia, if the worker was hired in Georgia and the employer has a place of business there or if the worker lives in Georgia, the claim can be brought in Georgia.

If there is any possibility of dual jurisdiction in Georgia, call us.

Workers injured on the job should not blindly accept an insurance company’s decision to handle a workers compensation case as a Tennessee case.  If there might be jurisdiction in Georgia, call us immediately!

Here are just two examples of dual jurisdiction in Tennessee and Georgia:

  • A Tennessee company that routinely sends service technicians into Georgia to serve or repair equipment, such as heat and air units, industrial machinery or plumbing may be subject to Georgia workers compensation law if the accident occurs in Georgia.
  • A Tennessee trucking company that hires workers through its terminal in Georgia will be subject to Georgia workers compensation laws regardless of where the accident occurs.
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