AI presents a new legal threat and people involved in litigation or who are contemplating litigation need to be aware of it.  You may have already heard about situations in which lawyers relied too heavily on AI and got in trouble with the court.  If not, just Google “lawyer who used AI to write brief”, and you can read case after case in state after state where lawyers have been sanctioned by courts for using AI to write their briefs.  While there is not a general prohibition on lawyers using AI, there are strict prohibitions about lawyers citing non-existent cases, erroneously quoting previous case law, etc.  In the cases of the sanctioned lawyers, AI “hallucinated” and gave the lawyers incorrect information and the lawyers did not double check its accuracy before submitting it to the Court.  Now, there is a new danger, and it is with clients asking AI legal questions either before or during the litigation.

In a recent case, a judge ruled that questions and answers between a party and the AI tool Claude were not protected by the attorney-client privilege and that all the information exchanged must be given to the attorneys on the other side of the case.  Communications between a client and a lawyer are almost always protected by the attorney-client privilege and not subject to disclosure.  However, communications with non-lawyer third parties are not protected.  The judge’s reasoning was that the defendant had voluntarily revealed confidential information to Claude and Claude’s own terms of use make it clear that the companies can use the data they receive from their users with third parties.  Interestingly, the chatbot’s terms also state that users should consult with a qualified legal professional for legal advice.

Conversely, in another recent case, the judge ruled the exact opposite in a situation where a woman had used AI in her employment case against her former employer.  In that case, the judge reasoned that the chatbot was a “tool” not a “person” and therefore did not rise to the level of disclosure to a third-party.

Two different outcomes in two different courts, but the lesson is clear.  Until courts or legislatures set defined rules on whether communications with AI are confidential, individuals considering litigation or involved in it should not use AI to discuss, research or organize their case.  Some law firms are cautioning their clients who want to use AI for their legal case to include language to the effect of “I am doing this research at the direction and request of my lawyer for my case against X”, etc.

Our advice is: do not use AI at all for case-related questions.  You hire a lawyer so you can fully disclose all issues and receive confidential advice about your case from an experienced attorney – do not get your legal advice from an AI program.  And respectfully, if you think you need to do your own research to double-check the advice of your lawyer, you probably need to find another lawyer.  To be sure, we often give advice that our clients do not particularly like.  Our job is to tell us what you need to hear not what you want to hear.  But, if you think you need to use Claude or any other AI tool to double check the accuracy of your lawyer, that is indicative of a deeper problem in your attorney-client relationship.

None of our lawyers are named Claude, but we are seasoned trial attorneys with decades of combined experience in helping injury victims and their families.  If you have questions about a potential claim, do not use AI.  Instead, call us for a free and confidential consultation.  We handle all injury and death cases on a contingency basis, so we only get paid if we recover money for you.  Call 615-742-4880 to get answers.

In today’s post, we thought we would go over some commonly misunderstood legal terms.  The idea developed after re-watching the series Friends with our teenage daughter.   In Season 7, Episode 8, Joey misunderstands the term “moot” when discussing Rachel’s assistant and instead uses “moo” to great comedic effect.  Like many professions and jobs, the law uses some terms that don’t arise in everyday conversation so here are some of the terms most commonly Googled by Americans along with our explanations as to their meanings.

Let’s start with “moot”.  Joey’s understanding is fairly correct (“it doesn’t matter”).  Here is an example of how it might arise in the law.  Imagine that you are going through a divorce and your spouse takes the dog that had been yours before the marriage.  In the divorce proceedings, one of the things that you sue for is the return of the dog.  After being served with the divorce papers and consulting with a lawyer, your spouse returns the dog.   The issue of whether the court should order your spouse to return the dog is now a “moot point” because the dog has already been returned.  While other issues may remain in the case such as division of assets, child custody, etc., the dog issue is moot, which means the court will not rule or decide that issue.

Here are some other words that are frequently researched online:

1.  Affidavit – An affidavit is simply a written document setting for facts and/or opinions and signed under oath and notarized.  In some situations, lawyers can use the affidavit in lieu of having a witness come to testify.  For example, in civil litigation in the context of a motion for summary judgment, the Rules of Civil Procedure permits affidavits instead of live testimony or depositions.  Lawyers can also use affidavits to lock-in a witnesses testimony.  For example, in a trucking accident case, a lawyer may ask a witness to sign an affidavit about what they saw at the time of the accident.  This helps prevent the witness from changing his testimony or it can be used if the witnesses memory begins to dim due to the passage of time.
2. Class action – a lawsuit filed by an individual or a small group of people who seek to represent a much larger group.  For example, a hotel’s computer system is breached and thieves steal the identifies of the hotel guests.  One of the hotel guests can file a class action against the hotel seeking compensation for all of the guests who were involved in the data breach.
3. Deposition – This is simply a question and answer session under oath in the presence of a court reporter who records verbatim all that is said.  The parties to a lawsuit often participate in depositions but witnesses, experts and others can be subpoenaed for a deposition.  The deposition can then be used at trial either as substantive evidence, under certain circumstances, or for cross examination.
4. Tort – This is simply a general classification of certain types of lawsuits.  Injury and wrongful death cases of all types including medical malpractice, auto accidents, slip and falls, injuries caused by products, etc. are torts.  Other types of cases such as defamation, trespass, assault, conversion, etc. are also considered torts.   Think of it like this: there are all types of desserts ranging from ice cream to cookie to cake.  Likewise, there are all types of lawsuits that fall under the general category of Torts.
5. Appellate – After a trial and post-trial motions, if one side or the other is unhappy with the result, generally, they can appeal.   Appeals are filed in “appellate” courts, either the court of appeals or the supreme court.  The parties will be asked to file “appellate” briefs to assist the court in understanding the case.  Later, the court of appeals or the supreme court will issue an “appellate” decision.  As you can see, appellate is generally used to quickly help the reader or listener understand at what stage the proceeding is in i.e. on appeal.
6. Burden of Proof – this references who is responsible for proving a claim or defense.  For example, if you claim that someone defamed you, you have the burden of proving that they negligently or intentionally made an untrue statement to another person (either in writing or verbally) and it caused you damages such as being fired from your job.  On the other hand, if the person that you sue for defamation claims in their defense that the statement was actually true, then they have the burden of proof for that defense.  They must produce evidence to prove their statement was true.
7. Sanction – a sanction is generally some form of punishment administered by the court for improper behavior during litigation.  It can take many forms.  The court can fine a party, a lawyer or both for misconduct.  Or, for example, during a trial, the court can exclude certain evidence if proper protocols were not followed.  The court can also completely strike a party’s claim or defense if the misconduct is severe enough.

If you have more questions, we have answers.  Our experienced team of attorneys provides free, no-obligation consultations in any type of injury or death case.  All you have to do is give us a call at 615-742-4880.

It has been a long time since this there has been a post on this blog.  Some might actually say we have been negligent.  So, we thought we would use our return to discuss the law of negligence, especially since negligence is at the heart of injury and wrongful death law.   Negligence is comprised of three things: breach of duty, causation and damages.  It sounds easy enough, but these concepts are the stuff of nightmares for first year law students in a tort class.   Let’s get to it.

Duty is a legal obligation requiring a person to do OR not do something.   In the context of a car accident, drivers have an obligation to stop at red lights.  Another duty would be that drivers have an obligation to drive the speed limit.  If a driver fails to stop at a red light as they are required by law to do, the driver has breached his legal duty.  Likewise, if a driver races down the street exceeding the speed limit despite the law forbidding them to do so, it is a breach of legal duty.

Next is causation. There are two types of causation: cause-in-fact and proximate (or legal) cause.  For purposes of this blog post, we are going to keep it simple and discuss the concept of causation broadly.   Again, using the example of a car accident, people run red lights and speed in their vehicles every single day.  Fortunately, most of the time, these breaches of duty do not “cause” an accident.  For example, a car accident does not occur because there was not another driver entering the intersection at the red light.  But of course, sometimes the breach of duty does cause harm – the red-light runner hits another vehicle, or the speeding vehicle strikes a pedestrian or a bicyclist.   This is the causation part of the equation; the breach of duty caused an accident.

One final thought on causation before moving to damages:  if you run a red light or exceed the speed limit, it is a legal violation for which you can be issued a criminal ticket.  But if you run a red light and do not cause any harm, you have not been “negligent” as defined by the civil justice system.

Finally, to be negligent, there must be damages.   If someone runs a red light and causes an accident with another vehicle, they are responsible for the damages they cause.  Of course, there will almost certainly be property damage.   If the collision also injures the other driver, the red-light runner is responsible for the injury and the damages related to the injury.  For example, if the other driver sustains a broken leg in the accident and can’t work in his job as a waiter, the red-light runner is legally responsible for the waiter’s lost wages as well as the broken leg.

There you have it – a thumbnail sketch of the law of negligence.  Returning to the original question, have we been negligent in posting to this blog?   Since we do not have a legal obligation to write and publish blog posts, we have not been “negligent”, but we have certainly been derelict and will try to do better.  John is the President of the American College of Trial Lawyers this year, so the Days have had a lot of busy days. But as always, we are here if you need us.  Just give us a call at 615-742-4880

Recently, a woman in the Chicago suburbs was driving while doing a live stream on Tik Tok.  As she was smiling in the camera and responding to comments, a loud thud can be heard on the video followed by the driver saying: “F@ck, f@ck, f@ck, I just hit somebody”.   A child in the vehicle asks what happened and then the video was disconnected.   The driver remained at the scene until authorities arrived but unfortunately the man that she hit died from his injuries.  Let’s look at some of the legal ramifications of this tragedy.

In Tennessee, by statute, it is illegal to drive while holding your phone.  The news reports of this incident do not indicate whether the driver was using a hands-free phone mount or if she was holding her phone.  But even if she was using a phone mount and not holding her phone, Tennessee statutory law requires a driver to devote their “full time and attention” to driving.  If you are looking at your phone to record a video and respond to comments (even if she was doing it verbally), this driver was not giving her full time and attention to the act of driving.

Pursuant to Tennessee law, if you violate a statute such as the two mentioned above, you can be found negligent per se, which means that establishing a civil claim against you is significantly easier.   Essentially, negligence per se means you have been found negligent and the only remaining requirements are (1) to prove that the injured person was within the class of persons the laws were designed to protect and (2) damages.  Without a doubt, the laws prohibiting hand-held cellphone use and requiring drivers devote their full time and attention to driving are intended to protect other drivers, bicyclists and pedestrians, so that hurdle is easy to meet.  In this case, a man was killed so there is no doubt that damage was caused by this driver.  In short, the family of the injured man has a strong case against the driver of this vehicle.

In addition, if a judge or a jury determines this woman’s actions were “reckless” as opposed to merely “negligent”, this woman could be found responsible for punitive damages in the civil case.  Punitive damages are designed to do more than compensate the victim.  They are designed to punish.

Furthermore, this driver will likely face criminal charges and fines.  A District Attorney might choose to charge her with vehicular assault, vehicular homicide or reckless driving because she killed a man as a result of her choice to shoot a livestream video of herself and interact with commentators while driving.   Because she had children in the car, she might also be charged with child endangerment.

Unfortunately, this woman is not an isolated event; reports indicate this is a growing trend. Parents, please talk with your teenage drivers about the dangers of this type of behavior behind the wheel.  Adults, please think of the consequences.  You could hurt or kill someone.  You could go to jail.  You could jeopardize your custody of your children if they are in the car with you while you do this.  For fans of TikTok and other platforms, if you see a content creator driving while interacting with the app, quit watching as a way to disincentivize  this type of dangerous behavior.

As always, we are here if you need us.

Regardless of whether you call it Blackout Wednesday, Thanksgiving Eve, Whiskey Wednesday or Drinksgiving, the day before Thanksgiving is popular for excessive drinking.  More recently, Green Wednesday has entered the nomenclature, and it refers to those who prefer marijuana to, or in addition to, alcohol on the day before Thanksgiving.  The day before Thanksgiving is a popular day for partying for several reasons.  First, college kids and young adults return to their hometown for the Thanksgiving holiday and are eager to socialize and catch-up with old friends.  In addition, plenty of folks get off work and are ready to unwind knowing they have the next day off from work.  As a result, the National Highway Traffic and Safety Administration reports that the Wednesday before Thanksgiving is one of the deadliest days of the year for drunk driving.  Here are some things you can do to protect yourself and others.

If you are planning on drinking or smoking marijuana or consuming gummies, etc, please do not drive.  Plan in advance for a designated driver or confirm with friends that everyone will rely on a ride-sharing service such as Uber, Lyft, etc.  Use the ride-sharing service to get to the party so you are not tempted to drive home later in the evening when your judgment may be impaired.  Yes, it will cost more money to use a ride-sharing service to and from the party, but it is a lot cheaper than a DUI.  For example, if you are convicted of a DUI, the cost can be in excess of $25,000 due to attorney fees, court fines, the cost of court-ordered DUI schools and increased insurance premiums.

Or worse yet, if you hurt or kill someone, you could be facing serious criminal charges which require expensive legal representation.  In Tennessee, a DUI causing a death is a Class B Felony and carries a maximum prison term of 30 years and a $25,000 fine.  If your BAC is .20% or higher, you could be facing a minimum prison term of 15 years.

And for those who do not intend to celebrate Blackout Wednedsay, you can protect yourself by driving the speed limit which will allow you more reaction time to a sudden emergency caused by another driver.  Wear your seat belt and insist that all your occupants do the same.  Do not drive distracted.  If you see someone driving erratically, immediately report them to law enforcement.

Finally, if you are reading this and you are not sure of your auto insurance policy limits or if you are not sure whether you have purchased underinsured or uninsured motorist coverage, pick up the phone now and call your insurance agent.  Evaluate whether you need more coverage especially uninsured/underinsured motorist coverage, often referred to as UM/UIM coverage.  Uninsured motorist and uninsured motorist coverage protect you and your family if you are involved in an accident with someone without insurance or without sufficient insurance.  In Tennessee, 1 in 5 drivers has zero insurance. UM/UIM insurance is surprisingly affordable.  If the at-fault driver only has the legal minimum, your compensation will be limited to $25,000 regardless of your injuries unless the other driver has sufficient personal assets to compensate you. Underinsured motorist coverage can protect you in this situation.

From the Law Offices of John Day, we hope everyone has a wonderful and safe Thanksgiving holiday.  We are here if you need us.

Nashville: 615-669-3993

Murfreesboro: 615-867-9900

Brentwood: 615-742-4880

Toll-Free: 866-812-8787

At this time of year, across college campuses, fraternity hazing is well underway.  The pinnacle of fraternity hazing is “Hell Week”, which is typically the last step before formal initiation into a fraternity.  Hell Week and the rest of the pledge process are often characterized by physically demanding activities, sleep, drink and food deprivation, forced consumption of alcohol and nicotine (vapes, Zyn pouches, etc.), paddling or other forms of physical abuse, humiliation, exposure to extreme cold or heat, etc.  The pledges’ eagerness to join a fraternity makes them easy targets for mental and physical abuse that can often result in injury or death.  Is hazing illegal? Who can be held responsible?

Many states, including Tennessee, have laws prohibiting hazing.  Tennessee Code Annotated 49-7-123 states as follows: “Hazing” means any intentional or reckless act in this state on or off the property of any higher education institution by one (1) student acting alone or with others that is directed against any other student, that endangers the mental or physical health or safety of that student or that induces or coerces a student to endanger the student’s mental or physical health or safety.

Who can be held responsible for hazing if an injury or death occurs?  The answer to this question depends upon the facts of the individual hazing incident, the organizations involved, the charters of the fraternities, etc.  However, to be sure, the individuals involved in the hazing can be held responsible, and the homeowner’s insurance of their parents may be responsible for providing compensation.  The local, regional or national chapter of a fraternity and the university may also have liability depending upon the facts and circumstances of the incident causing injuries or death.

Holding the organizations involved responsible can be complex because of the language of their charters and insurance policy disclaimers.  For this reason, it is important to hire an experienced injury lawyer who can help you navigate the legal process and identify who should be held responsible.  For decades, the attorneys at the Law Offices of John Day have been helping injury victims recover the compensation they deserve.  We handle all injury and death cases on a contingency basis meaning we only get paid if we recover money for you.  And, unlike a lot of injury lawyers, we advance all case expenses so you never pay a penny out-of-pocket to pursue your legal rights.

To get started, simply call one of our convenient Middle Tennessee locations below for a free, no-obligation initial consultation.

Nashville: 615-669-3993

Murfreesboro: 615-867-9900

Brentwood: 615-742-4880

Our team will answer your questions and help you understand if you have a case or not.  We also encourage you to review some of our most popular FAQ pages, our client testimonials and reviews so that you can feel confident that you are making the right decision.

How To Select an Injury Attorney

How To Prepare For a Meeting With an Injury Attorney

What Happens After I Hire You?

How Much Do You Charge?

What Are the Deadlines for Filing a Lawsuit in Tennessee?

The short answer is “Yes”.  You absolutely can use an AI tool to help you handle your claim yourself.  But the better question is this:  Should you use an AI tool to handle your own personal injury claim?   We believe the answer to that question is “No.”  Allow us to explain.

Whether you are using Chat GPT, Microsoft CoPilot, Google Gemini, Claude, Grok, Perplexity or some other AI tool, the simple truth is the quality of the advice and any written documents generated are only as good as the information given to the AI tool, both by you and the other sources it relies upon to generate its response to your question.

For example, as I sat down to write this blog post, I typed into ChatGPT: “Can you write a demand letter for a car accident?”   ( A “demand letter” is the letter written to the insurance company for the at-fault driver in a car wreck seeking the payment of money to a person injured in the wreck.) The AI-response was as follows:

Absolutely – I can draft that for you.  To make it accurate and persuasive, I’ll need a few details first.  Could you please tell me:

1. Your information – your name, address, and contact info
2. The at-fault party’s information – name, insurance company and claim number (if known)
3. Accident details – date, location and a short summary of what happened.
4. Damages – vehicle damage costs, medical bills, lost wages and any pain and suffering.
5. Settlement demand – the total amount you want to request.

Once you share those, I’ll draft a professional demand letter you can send to the at-fault driver’s insurance company.

At first blush, you might say “Wow!  Who needs a lawyer?”  But here are just a few ways using ChatGPT or another AI tool could go terribly wrong.

1. AI tools “hallucinate”.  That is the polite industry term when the AI tool simply gets it wrong or makes it up.  In fact, the New York Times reported recently about the rise of AI-related problems in the legal industry by non-lawyers and lawyers alike.  The problems range from using made-up quotes from real cases to citing cases that are irrelevant to the issue before the court or simply making up fake cases.
2. When AI tools first emerged, out of curiosity, we asked Chat GPT some legal questions such as the statute of limitations (that is, the legal deadline for filing a case in court) under Tennessee law. The responses were dead wrong.   If you or an inexperienced lawyer had relied on the ChatGPT answer, your case would have been dismissed shortly after it was filed.  If the information that the AI tool uses are wrong or out-of-date, the information the AI tool gives you will be wrong and out-of-date.
3. As we have said, the AI response is only as good as the information you put into it. For example, if you give the tool the information about your car accident in which someone ran a red light and hit you, it can churn out a demand letter and other materials for a red-light accident.  But what may get missed are other claims arising from the same accident.  Did the driver run the red light because they were drunk and is there a possible dram shop or liquor liability claim against a bar or restaurant?   Or maybe the car was a rental vehicle, and the driver applied the brakes, but they failed because they had not been properly maintained and that was the reason the driver could not stop in time to avoid running the red light?   If you don’t know the law for a dram shop claim or a negligent maintenance claim, then you are not going to put that information into ChatGPT and, in turn, Chat GPT is not going to include those as possible claims and you may lose those claims. Likewise, most people are unaware of the law of what medical bills are recoverable after a wreck or how lost wages are calculated.   Nor do most people know how pain and suffering are determined.  The bottom line is that when you attempt to create your own settlement demand you will either ask for too much (which means a case that could be settled will not be settled) or too little (which means you will settle the case for less than you would have received if you sought legal advice).
4. If you hire an experienced lawyer and they heaven-forbid make a mistake, malpractice insurance will protect you (before hiring any lawyer, confirm they have malpractice insurance) from the lawyer’s mistake. If ChatGPT makes a mistake, you will be forced to seek compensation from the company, developer or operator in an emerging and complex legal arena.  (Good luck with that.)

To give you an idea of how little confidence our firm has in AI-tools at this time, we do not permit our lawyers to use it for any legal research.  We have tested it and found that, at this time, it is not accurate enough that we will rely on it in giving advice to clients or filing papers in court.   We continue to monitor developments in the field, and we reserve the right to change our mind, but as of today AI is not sufficiently reliable for determining the answers to legal questions.

In summary, if you have been involved in a serious accident, you need an experienced lawyer, not AI.  Remember, at the Law Offices of John Day, we represent injury victims on a contingency basis, so you do not have to pay anything out of pocket to reap the benefits of hiring an experienced lawyer.  At the Law Offices of John Day, we rely on our team of seasoned injury lawyers, dedicated paralegals, a full-time nurse and administrative staff to deliver personalized and effective legal help.  We encourage you to compare our results and our credentials with an AI tool and other lawyers.  We are here to help if you need us.

Nashville: 615-669-3993

Murfreesboro: 615-867-9900

Brentwood: 615-742-4880

Toll-Free: 866-812-8787

Public schools in Middle Tennessee have already started and tomorrow marks the first day of school for private schools.  Of course, this means more drivers on the road during rush hour, more pedestrians and bikers and, of course, more buses.  Do you know important Tennessee laws regarding pedestrians and bikers?  Do you know under which circumstances you do not have to stop for a school bus with activated lights?  Take our true/false quiz and see what grade you receive on driver safety.

QUESTIONS:

1. A driver may hold their phone while driving as long as they are not texting.
2. You must always stop for a school bus with activated lights.
3. A motorist must never pass another vehicle stopped at a crosswalk.
4. A motorist must give a bicyclist a minimum of 3 feet of clearance when passing.
5. Car insurance never covers pedestrian and bike accidents.

ANSWERS:

1.   Since 2019, it has been against the law in Tennessee to hold your phone while driving.  It does not matter if you are talking, texting or playing the New York Times Spelling Bee, it is against the law to hold your phone while driving.  For all the parents with new drivers, remind your teen that a violation of this law will result in a fine and 6 points on their license and they may need to get a part-time job to help pay for the increase in their car insurance rates.
2. This one feels a bit like a trick question because most people assume that you should always stop for a school bus with activated lights.  However, if you are on a divided highway, only the drivers traveling in the same direction as the bus must stop.
3. If a car is stopped at a crosswalk, the odds are pretty good that a pedestrian is crossing.  If another motorist passes the stopped motorist, it presents a very hazardous situation as the pedestrian may appear from behind the stopped vehicle and into the overtaking vehicle’s path.  Therefore, passing a vehicle stopped at a crosswalk is against the law in Tennessee.
4. If a motorist cannot give a bicyclist the legally- required 3 feet of clearance, then they must wait to pass and the bicyclist is permitted to occupy the entire lane.
5.  Of course, as a contract, the language of your insurance policy controls the nature and extent of coverage, but almost all policies cover you as a motorist if you hit a pedestrian or bicyclist.   In addition, many people do not realize that their own auto insurance policy may cover them if they are a pedestrian or bicyclist and get hit by a motorist.

We hope you passed the quiz with flying colors.  We also hope everyone will leave themselves enough time to get to their destination, slow down, be polite and courteous to other drivers and simply focus on safe driving.  If you need us, we are here to help.  As always, we offer a free initial consultation so you can get your questions answered and decide if we are the firm for you.  We handle all accident cases on a contingency basis so we only get paid if we win.

Nashville: 615-669-3993

Murfreesboro: 615-867-9900

Brentwood: 615-742-4880

Toll-Free: 866-812-8787

A “never event” in medicine is an event that should not happen.  It is generally considered a serious, preventable medical error that, in an ideal world, should not occur.   One example of a “never event” is when a surgeon and the surgical team leave a sponge or medical device in a patient.  Sponges are the most common foreign object left in patients but guide wires, devices, pieces of devices and even surgical instruments have been left in patients.  Read on to learn which surgeries carry the highest risk, the symptoms a patient can experience if a sponge or other object is left and your legal rights if this should happen to you or someone you love.

What types of surgeries are high-risk for a retained object error?

Certain types of surgeries have a higher risk.  For example, experts estimate a foreign object is left inside a patient in 1 out of every 5,000 surgeries.  However, in intrabdominal surgeries the risk is estimated to be closer to 1 in 1,000 surgeries.  Gastrointestinal, thoracic, vascular and multi-cavity surgeries carry the highest risk.

Emergency surgeries have an increased risk for a retained object versus a planned surgery.  Similarly, if your surgeon is confronted with an unplanned change in the procedure performed, then the likelihood of a retained object increases.  For example, a surgeon may find an unexpected tumor or nerve entrapment or there may be excessive bleeding that requires immediate intervention.   In short, an unexpected event during the surgery adds additional risk that the surgical team could make a mistake and leave an object in the patient.  Finally, patients with a higher body mass index have a higher risk of being the victim of this type of mistake.

How can surgeons leave an item in a patient during surgery?

The surgical team is supposed to count the number of sponges and the surgical instruments prior to surgery.   While the surgery is ongoing, the count is maintained and, before closing the incision, the surgical team should count those items again.  If there is a change in personnel during the surgery, the count should be performed again.  Generally, these counts are performed by two members of the surgical team.   Unfortunately, sometimes the counts are either not done or someone miscounts.  Some, but certainly not all, hospitals use radio-opaque sponges that show up easily on x-ray and the surgical team will use a portable x-ray machine to verify the manual count before concluding the surgery.  More recently, technology has advanced for sponges with embedded chips that communicate with a receiver, but these are expensive and not widely used.

What happens if a sponge or other item is left during surgery?

A retained object following surgery can be a very dangerous situation that can lead to death.  Common problems include pain and infection, as well as fistulas, organ damage, adhesions and chronic pain syndromes.  For nearly all retained objects, a second surgery to remove the item is necessary.

What legal rights do I have if a surgeon left an item during surgery?

A retained object after surgery is usually medical negligence.  Some hospitals will try to settle the case with you by offering to remove the item for free.  Do not be tempted by such an offer.  Depending upon the facts of your case, you could be entitled to much more for pain and suffering, lost wages, future care, etc.  We recommend you hire an experienced medical malpractice  lawyer.   John Day is board certified in Medical Malpractice and has twice been named the Medical Malpractice Lawyer of the Year for Nashville.  To get started, give us a call.  We only get paid if we recover money for you.

Nashville: 615-669-3993

Murfreesboro: 615-867-9900

Brentwood: 615-742-4880

Toll-Free: 866-812-8787

In the first quarter of 2025, the number of recalled products in our country rose 25%.  Primarily, the increase was a result of more recalls related to food, drink and pharmaceuticals, although consumer products had their highest number of recalls in 14 years. Interestingly, these increases come against a backdrop of an understaffed agency.  The Government Accounting Office has reported that the Food and Drug Administration (FDA)  has been understaffed for inspections since 2018, during the Biden administration. However, with the cuts by DOGE that were approved by the Trump administration, the FDA’s budget and staffing has been reduced even further.  The unfortunate but obvious prediction is that there will be more recalls and more injuries to the American public.

John Day has been known to say: “A fence at the top of a hill is better than an ambulance at the bottom.”  Unfortunately, American citizens are not in a position to erect a fence around food, drug and consumer product manufacturers, suppliers and distributors.   It is the role of government to provide regulations, oversight in the form of inspections, and enforcement for the protection of the consuming public.  For example, 90% of the drugs dispensed in the United States are generic, with most of them being produced in China and India.  The FDA’s staff is responsible for conducting inspections in these countries to ensure that the drugs being sent to the United States are safe.  With fewer inspectors and a smaller budget, the fence at the top of the hill gets weaker and weaker and the likelihood that an ambulance will be needed increases.

In the aftermath of all this, the consuming public will be left with few options and remedies.  Primarily, the legal system will be the only recourse.  If the deli meat that you consume is contaminated with Listeria and you become seriously ill requiring hospitalization, you will likely be able to sue the manufacturer of the deli meat for selling contaminated food.  However, depending upon the jurisdiction in which the claim is filed, it could take years to reach a resolution.  And depending upon the jurisdiction your claim is filed, your damages may be capped at an amount woefully insufficient to compensate you for your injuries.

Let’s use Tennessee as an example.  If you eat deli meat contaminated by Listeria, and the Listeria causes sepsis in your body, and the sepsis progresses to the point that your dominant arm and hand must be amputated to the shoulder, under Tennessee law, the most that you can recover for the loss of your arm and dominant hand is $750,000.  While you can also recover your medical bills, lost wages and some other types of damages, the maximum you can recover for the loss of your arm and dominant hand is $750,000.  Ask anyone on the street that you pass if they would make that trade and let us know if you find anyone who would.  And because such a result from Listeria is rare, the manufacturer of the deli meat might just decide that they would rather pay on those rare occasions than take the more expensive food safety steps.  In other words, it is cheaper to compensate the people they harm than ensure they do not manufacture tainted deli meat.

Besides, criminal prosecution is unlikely.  In fact, the Consumer Product Safety Commission was enacted in 1972, they have only prosecuted executives of a company one time, and that occurred last month – one time in 53 years!  Two men were sentenced to jail and fined after failing to disclose information and testing that revealed a defect in their dehumidifiers.  Those defects had caused more than 450 fires.  Imagine if an individual, rather than a business, had set or attempted to set 450 fires, their jail sentence would undoubtedly be more than 40 months.

To be sure, there is waste in our government.  Heck, for most of us, there is waste in our own household.  Do we really need two streaming services? Was that electronic bass that sings “Take Me to the River” really necessary?  Did your dog need another toy?  OK, maybe, because he is the bestest boy!   I digress.  The truth is that a lot of what government does is unseen and not even thought about.  How many Americans know that the FDA sends inspectors to China to confirm our generic drug supply is safe?  Conversely, I would bet that most Americans think that is important, especially if they or a loved one was getting drugs made in those countries. With underfunding, defunding and mass layoffs in government, American consumers will likely need to rely more heavily on the legal system.  At the Law Offices of John Day, our award-winning lawyers are ready to help, but we would encourage you to contact your elected officials, Republicans and Democrats, and urge them to strengthen the fence.  We are here if you need us.

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