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David A. Burkhalter, II
Burkhalter, Rayson & Associates, P.C.
I. MOTOR VEHICLE ACCIDENT
A. IF YOU ARE INVOLVED IN A MOTOR VEHICLE ACCIDENT:
1. Don’t leave the scene of the accident.
Tennessee law requires the driver of a vehicle involved in an
accident resulting in personal injury, death, or property damage to
stop his/her vehicle at the scene of the accident.
2. Call 911: Notify police, and if someone is injured, request
emergency aid.
Notify the police of the accident and check for injured persons.
If someone is seriously injured, request emergency aid.
Make the injured person comfortable, but do not move the person
unless you are skilled in giving emergency care or it’s absolutely
necessary to avoid further injury. Good intentions on your part
could result in further injury to the victim.
3. Warn other drivers.
Make every effort to warn other drivers of the accident to
prevent additional accidents. At night, use available flares,
reflectors, or flashlights.
4. Let the police take over.
Policemen are trained to handle any situation that may result
from or arise after an accident. If you are involved in an accident,
even though you are not physically injured, you may suffer from
shock and excitement which may make it difficult for you to think
clearly at the time. Let the policemen take over when they arrive,
and be polite and obey the officer. They will handle any emergency
and investigate the accident. Their investigation and report may be
helpful to you later.
5. Identify the other driver.
Obtain the other driver’s name, address, and license plate
(vehicle registration) number. Ask to see the other driver’s
license. It is also highly recommended that you get the name of the
other driver’s insurance company or agent.
6. Obtain names and telephone numbers of
witnesses.
Often, by the time the police arrive at the accident scene,
witnesses to the collision may be gone. Therefore, obtain the name,
address, and phone number of any witness(es) as soon as you can.
7. Do not admit guilt or
liability.
A ticket or an arrest at the scene of the accident does not
necessarily indicate liability. A plea of guilty and conviction,
however, may be used against you. It is important that you contact a
lawyer who handles accident cases as soon as possible before
admitting any liability or guilt.
8. Obtain medical treatment.
If you believe that you have been injured in the accident, go to
the nearest emergency room or to your personal physician as soon as
possible after the injury to be checked out by a competent health
care professional. In order to insure proper medical treatment, be
sure to disclose all injuries to the doctor, no matter how minor.
Follow the doctor’s instructions, and be sure to seek follow-up on
treatment, as necessary, if the injury does not heal within a short
time.
9. Obtain an accident report.
A copy of the accident report can generally be obtained from the
investigating officer’s police department within days of the
accident.
10. Take photographs.
Take photographs of the vehicles involved and any injuries you
sustained. If liability is being questioned, photographs of the
scene could be important, especially if they show debris or skid
marks or other peculiar conditions.
11. File accident reports and notify your automobile insurance
company.
Even if you are not at fault, notify your automobile insurance
company immediately and cooperate with your insurance
representatives in their investigation.
In addition, Tennessee law requires you to file a written report
of any accident in which you were involved which resulted either in
the death or injury to any person, and in accidents where property
damage at certain levels has occurred. Your insurance agent may
assist you in filing the appropriate forms and should be able to
tell you how much property damage there needs to be before you are
required to file an accident report. Failure to file a report may
cause you to lose your license.
B. WHAT DAMAGES ARE AVAILABLE IN A MOTOR VEHICLE WRECK
CASE?
If you lose work, sustain injuries or have other losses, you are
entitled to damages from the "at fault" party causing the wreck.
If the other driver (or drivers) are at fault, damages are the
law’s method of putting the wrongfully injured party, as closely as
possible, into a position equal to the position before he or she was
injured. Typically, damages may include the
following:
Damages for injury to your vehicle and cost of any rental
vehicle
Reimbursement of medical expenses, past and future;
Damages for any permanent injury;
Damages for disfigurement, i.e., scarring;
Damages for loss of income and loss of earning capacity;
Damages for pain and suffering, damages for diminution of
enjoyment of life, and damages for emotional distress - past and
future;
Your spouse may also be entitled to damages for loss of
consortium, services and society;
Also, if you are hit, for example, by a drunk driver, you may
also be entitled to punitive damages.
C. ARE THERE TIME LIMITS FOR MAKING A
CLAIM?
For every injury or death claim, there is a limited period of
time during which you must file suit in a court. This is called a
Statute of Limitations.
In Tennessee, the period for bringing an injury or death claim is
usually one (1) year from the date of the accident. If suit is not
filed within this time period, your right to sue could be forever
lost.
D. WHAT IF I AM IN A WRECK ON COMPANY TIME?
If you are involved in an automobile wreck on company time and
receive an injury, then you may have a claim for worker’s
compensation, and a claim against the at fault party.
However, in most cases, the worker’s compensation carrier will be
entitled to be reimbursed if you obtain a recovery from the at fault
party. If you also have a worker’s compensation claim, it is best to
obtain the services of the same attorney on both cases.
E. WHAT ABOUT CASES OF SERIOUS INJURIES OR
DEATH?
In a case of serious personal injuries or death of a loved one,
it is important to contact a competent lawyer that handles accident
cases as soon as possible. Liability may be at issue, and there may
be a need to take photographs of the scene, the vehicles, and the
injured parties, and possibly to hire an accident reconstruction
specialist (or other expert), as well as taking other actions that
could affect the ultimate outcome of a claim or suit. Also, you will
need to make numerous decisions where advice of a skilled attorney
would be helpful. The attorney’s office can also take over many
necessary details of handling your claim, such as negotiating a
property damage settlement and handling communications with
insurance adjustors, other insurance companies, and medical
providers.
Shortly after the accident, a claims adjustor will be assigned by
the other driver’s insurance company to gather information in regard
to the accident. It is common for the adjustor to ask an injured
party to give a written or recorded statement as to how the accident
occurred and also to seek medical information from you, and in
cases of serious personal injury or death, this should not be done
with you seeking legal advice. You can then decide how you want
to deal with the other driver’s insurance carrier.
F. WHAT ARE BURKHALTER, RAYSON & ASSOCIATES’ CRITERIA FOR
TAKING VEHICULAR WRECK CASES?
We take these types of cases on a contingency fee basis (no
recovery/no attorney fee). Before we accept a case, we look at the
following factors:
1. There must be serious personal injuries involved or a death;
2. The other driver (or drivers) must have been negligent, i.e.,
"at fault" (or if fault is contested, we believe we can prove the
other driver (or drivers) was at fault);
3. The other driver (or drivers) must have liability insurance
(or you must have adequate uninsured or under insured motorist
insurance).
II. PRODUCTS LIABILITY CASES
If you have been injured (or a loved one killed) by a product,
you may be able to file suit against the manufacturer or retailer if
it can be proven that there was a defect in the product or that
sufficient safety warnings were not provided. If so, companies
involved in bringing the product to market can possibly be held
liable for injuries caused by the product.
If your claim involves a manufacturing defect, you will have to
present the defective product for examination, so it is extremely
important to preserve the product as best as possible and do not
modify it in any manner. As to the product, note the name of the
manufacturer, model and serial number. Keep any instructions. Keep
any receipts showing when and where the product was purchased. Make
a record of exactly when the incident occurred and under what
circumstances, and obtain the names, phone numbers, and addresses of
any witnesses. You need to preserve any and all other evidence as
well, i.e., take photographs of any physical damage caused by the
product and also take pictures showing your personal injuries.
In cases of death or serious personal injury, you should contact
a competent attorney that handles these types of cases immediately.
Product liability cases can be complicated and usually involve
expert testimony. Since expert witnesses, such as engineers, have to
be retained, the cases can be costly to pursue, so there has to be a
death or a serious personal injury sufficient to justify the suit.
Companies generally retain their own legal and technical advisors,
so your case will most likely require the services and skills of an
experienced attorney in order to be successful.
If you’re injured by a product at work, your claim may need to be
coordinated with a corresponding worker’s compensation claim. It’s a
good idea to retain the services of the same attorney, allowing him
or her to represent you in both cases.
Time limits to file action: Generally, in Tennessee, you must
file a product liability suit within one (1) year of the injury.
1. What are Burkhalter, Rayson & Associates’
criteria for pursuing a products liability case?
We take these cases on a contingency fee basis (no recovery/no
attorney fee). We look for two (2) factors:
1. There must be a serious personal injury or death caused as a
result of a defective product or caused as a result of insufficient
safety instructions;
2. There must be proof of a causal connection between the
defective product and the serious personal injury or death.
III. MEDICAL MALPRACTICE
1. What is Medical Malpractice?
Not every bad medical result is a result of medical malpractice.
Basically, medical malpractice can occur when a doctor, nurse,
dentist, chiropractor or other health provider fails to act
reasonably, based upon what is expected from similar healthcare
providers under the same circumstances. Probably, the most likely
indicator that medical malpractice may have occurred is a
dramatically different or unexpected result of treatment or surgery.
An example would be serious brain injury or death following
relatively minor surgery. Another tell tale sign is the failure of
the medical provider to give a good explanation for a worsened
condition of the patient or for the death of the patient. It may be
vitally important that you consult a competent attorney immediately,
especially if someone dies, as an autopsy may be necessary to prove
that someone was guilty of negligence. You also may need to see
other doctors who will properly treat you and/or document the
malpractice.
If you are injured or a member of your family is injured or dies
because of a doctor, nurse or other health provider (or if you
suspect possible medical malpractice is occurring), you should keep
a detailed written record of everything that happened to you or your
relative while in the hospital. If still in the hospital, be bold
and question anything that is wrong. Demand prompt attention of the
doctor or nurse if you or your relative needs attention. Ask a nurse
to double check with your doctor if you have any question about the
medication or treatment. Contact a competent attorney as soon as
possible. Get the names, addresses and phone numbers of everyone who
might be a witness. Do not talk to any insurance adjustor or
investigator representing the doctor or responsible healthcare
provider without first consulting your attorney.
2. Malpractice suits are very technical and expensive to
bring.
Medical malpractice cases are extremely expensive because medical
experts will have to be hired to testify about the negligence of the
medical provider. Due to the difficulty of medical malpractice cases
and the expense of pursuing a claim, most attorneys must find
sufficient evidence of medical negligence and sufficient
damages before making the decision to go forward with a suit for
malpractice. Without sufficient damages caused by the medical
negligence, then the economics dictate that pursuing such a case is
unwise.
3. Time limits to pursue a
claim.
If the negligent act occurred in Tennessee, generally, medical
malpractice cases must be brought within one (1) year of the date of
the malpractice, or within three (3) years of the discovery of the
medical malpractice, unless there is fraudulent concealment, or
unless the malpractice involves a foreign body, i.e., a sponge or
medical instrument left inside the injured party. If you fail to
file within these time periods, then your right to sue could be
forever lost.
4. What are Burkhalter, Rayson & Associates’ criteria for
accepting a medical malpractice claim?
We take these cases on a contingency fee basis (no recovery/no
attorney fee), and we investigate the cases very carefully before we
accept them. We look for three (3) factors:
1. The health care provider was negligent;
2. There are substantial damages (death or very serious personal
injuries) justifying the substantial cost of pursuing the case;
and
3. Causation, meaning that the specific negligence caused the
substantial damages.
These factors help us decide if the case is feasible to pursue on
your behalf.
IV. OTHER TYPES OF CLAIMS FOR PERSONAL
INJURY OR CLAIMS FOR DAMAGES
If you or your family member have been seriously injured, or if
your loved one has been killed as a result of the actions or failure
to act of another, there may be a viable personal injury case.
Examples would include, but not be limited to, being attacked by
vicious dogs, being severely injured as a result of some defective
or dangerous condition involving property, swimming pool injuries,
airplane injuries, being seriously injured as a result of pesticides
or chemicals or being poisoned, being intentionally attacked, being
sexually assaulted, being falsely arrested, cases of fraudulent
conduct, etc. There are numerous situations which could result in a
suit for personal injuries. Typically, the time limits to file such
a claim would be within one (1) year from the date of the negligence
or wrongful act.
1. What are Burkhalter, Rayson & Associates’ criteria for
taking a case?
We take these cases on a contingency fee basis (no
recovery/no attorney fee). We look for three (3) factors:
1. There must be a viable cause of action available against a
solvent person or company, i.e., someone who would have insurance
coverage;
2. There must be a serious personal injury or
death;
3. There must be proof of a causal connection between the wrongful
misconduct and the serious personal injury or death.
Copyright© 2005 Burkhalter, Rayson & Associates,
P.C. All Rights Reserved
________________________
The materials in our web page are for the general education and
knowledge and do not constitute legal advice or create an
attorney-client relationship. Litigation can be complex and the law
ever-changing, and it varies from jurisdiction to jurisdiction.
If you have an individual legal problem or question, you should
seek a legal opinion that takes into account the applicable law and
your particular circumstances.
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