Wrongful Death

March 18, 2026

Evidence of Re-Marriage Admissible in Wrongful Death Case; Errata Sheet Could Be Used in Cross-Examination.

After affirming several challenged evidentiary rulings, the Court of Appeals upheld a jury verdict for the defendant doctor in an HCLA case.

In Davis v. Ellis, No. W2024-01467-COA-R3-CV (Tenn. Ct. App. Nov. 26, 2025), the plaintiff filed an HCLA claim against the defendant doctor based on his treatment of the decedent. The decedent came to the emergency room with a complicated medical history and bilateral pneumonia. On her second day at the hospital, the defendant doctor performed a pulmonary consultation on the decedent at 4:00 pm. Based on his exam, the defendant changed the decedent’s antibiotic, ordered further testing, and ordered that she be transferred to the ICU stat. The defendant also charted that he suspected she would get worse and would likely need intubation within the next twenty-four hours.

The defendant’s shift ended at 6:00 pm, at which time the plaintiff’s vital signs were stable. Between 6:00 pm and the decedent’s death, she was seen by ten other medical professionals. The decedent’s condition began deteriorating at some point that evening, and around 11:00 pm a team attempted to intubate decedent. Intubation required multiple attempts, and the decedent passed away early the next morning.

March 8, 2026

Is Evidence of Remarriage Admissible in A Tennessee Wrongful Death Lawsuit?

by The Law Offices of John Day, P.C.

Under Tennessee law, most wrongful death lawsuits are filed by the decedent’s surviving spouse. Sometimes, several years pass before the wrongful death lawsuit comes to trial and, in the meantime, the surviving spouse who filed the wrongful death lawsuit remarries. Is evidence of the re-marriage admissible at the trial of the wrongful death lawsuit?

A recent decision of the Tennessee Court of Appeals indicates that the answer to this question may be “yes.” In Davis v. Ellis, 2025 WL 3296175 (Tenn. Ct. App. Nov. 26, 2025), the late Ms. Sylvia Davis of West Tennessee died in January 2011, allegedly because of the medical errors of Dr. Ellis. The case did not go to trial until the Spring of 2024 and the wrongful death case filed by her husband was rejected by a jury.

Husband appealed the jury result to the Tennessee Court of Appeals, alleging multiple errors by the trial court. One of the alleged errors was that the trial court improperly allowed the jury to learn (and the defendant doctor to comment on) the fact that the plaintiff husband remarried one year after Sylvia Davis’s death.

June 10, 2024

Non-attorney cannot represent siblings in wrongful death case.

by The Law Offices of John Day, P.C.

Where decedent was survived by two children, and those two children filed a wrongful death claim pro se purporting to assert claims on their own behalf and on behalf of the other four children, the complaint was only proper to the extent the two plaintiffs were asserting their own right under the wrongful death statutes.

In Grose v. Stone, No. W2023-00090-COA-R3-CV (Tenn. Ct. App. April 25, 2024), decedent died in a car accident. Thereafter, two of decedent’s six children filed a wrongful death claim. The complaint stated that plaintiffs were acting on their own behalf, and on behalf of decedent’s other four children as administrators of decedent’s estate.

After multiple opportunities to hire counsel and several court dates, the trial court ultimately dismissed the complaint as a whole. The trial judge found that the complaint was void ab initio and constituted the unauthorized practice of law by the two plaintiffs. Plaintiffs appealed this ruling, and the Court of Appeals reversed dismissal, finding that the complaint was partially proper.

April 25, 2022

More On Powers of Attorney, Arbitration Agreements, and Wrongful Death

by The Law Offices of John Day, P.C.

Where the person who executed an arbitration agreement in connection with decedent’s admission to a nursing home had a power of attorney for decedent, but that power of attorney did not mention the ability to make health care decisions, the arbitration agreement was unenforceable. Further, decedent’s wrongful death beneficiaries would not have been bound by the arbitration agreement even if it were enforceable.

In Williams v. Smyrna Residential, LLC, No. M2021-00927-COA-R3-CV (Tenn. Ct. App. April 8 2022), plaintiff was the son of decedent, who died while he was a resident at defendant assisted living center. Plaintiff filed this wrongful death action on behalf of decedent’s wrongful death beneficiaries. In response to the complaint, defendant filed a motion to compel arbitration. According to defendant, decedent’s daughter had executed an arbitration agreement on decedent’s behalf when decedent was admitted to the facility. At the time, the daughter was the named attorney-in-fact in decedent’s durable power of attorney (POA). Plaintiff argued that the arbitration agreement was not enforceable because the POA did not mention the authority to make health care decisions, and the trial court agreed, denying the motion to compel arbitration. On appeal, this ruling was affirmed.

January 4, 2022

Wrongful Death of a Zygote? Last Year the Law Changed

by The Law Offices of John Day, P.C.

Tennessee wrongful death lawyers may wish to read my newest article in the Tennessee Bar Journal, “”Wrongful Death of a Zygote?”

The article discusses a recent important change to Tennessee wrongful death law.

December 20, 2021

Decedent’s personal injury settlement did not become wrongful death proceeds after his death.

by The Law Offices of John Day, P.C.

Where decedent had filed a personal injury and loss of consortium case in West Virginia, settled that case, and then received a portion of the settlement proceeds before his death, the Court of Appeals affirmed dismissal of this Tennessee case filed by decedent’s heirs “seeking to have the settlement proceeds received pursuant to the West Virginia litigation characterized as wrongful death proceeds.”

In Welch v. Welch, No. M2021-00081-COA-R3-CV (Tenn. Ct. App. Dec. 10, 2021), plaintiffs were the heirs of decedent, who had previously died of mesothelioma. Before his death, decedent filed suit for personal injury and loss of consortium in West Virginia. That suit was settled, and decedent received several distributions from the settlement proceeds before he died.

After decedent’s death, plaintiffs filed this suit in Tennessee, attempting to have the remaining settlement proceeds distributed as wrongful death proceeds rather than having them distributed under decedent’s will. The trial court dismissed the action, finding that the settlement of the personal injury case “very clearly intended to foreclose upon any future wrongful death funds related to the mesothelioma litigation,” and the Court of Appeals affirmed the dismissal.

March 11, 2019

Assertion of the Fifth Amendment Privilege in Wrongful Death Cases

by The Law Offices of John Day, P.C.

A motion for summary judgment cannot be based solely on “unverified reworded statements of some of the factual allegations of the complaint,” along with unsworn, unverified, and unsigned exhibits. In addition, when a defendant asserts their Fifth Amendment privilege against self incrimination in an answer or in response to discovery requests, such assertion cannot “in and of itself be taken as an admission of the allegations[,]” but a plaintiff should be allowed to “present corroborating evidence as to each fact for which it seeks a negative inference” in connection with the assertion of the privilege.

In Smith v. Palmer, No. M2017-01822-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2019), plaintiff filed a wrongful death suit against several defendants regarding the death of her daughter. The daughter and defendants were camping at a music festival, and daughter’s body was found one morning in the lake. There was a dispute as to the cause of death, and though criminal charges were not filed, plaintiff alleged that defendants “caused her daughter’s death and conspired to cover it up.”

May 16, 2018

Who Has the Right to Bring Suit in a Tennessee Wrongful Death Case?

by The Law Offices of John Day, P.C.

A surviving spouse maintains priority to file a wrongful death action, even if the surviving spouse’s alleged negligence caused or contributed to the decedent’s death.

In Nelson v. Myres, No. M2015-01857-SC-R11-CV (Tenn. March 5, 2018), decedent died in a car accident. The daughter filed a wrongful death action, naming several defendants, including decedent’s surviving husband. According to daughter, husband “was under the influence of an intoxicant at the time of the accident” and his actions disqualified him from maintaining the suit (husband was “ultimately incarcerated for vehicular homicide”). Husband filed a wrongful death action, naming only the other driver as a defendant, and the other driver asserted comparative fault against husband in his answer.

Husband moved to dismiss daughter’s wrongful death action, claiming that he had the superior right to bring the case, and the trial court agreed. The Court of Appeals, however, reversed, holding that husband “had an inherent conflict of interest because, due to his conduct in bringing about the accident, he would be both a defendant and a plaintiff in [decedent’s] wrongful death action.” The Court of Appeals held that “only [daughter’s] lawsuit would fully prosecute [decedent’s] cause of action.” Husband appealed to the Tennessee Supreme Court, which reversed the Court of Appeals decision, reinstating husband as the proper person to maintain the wrongful death action.

May 11, 2018

Comparative Fault in Tennessee Wrongful Death Cases

by The Law Offices of John Day, P.C.

For your reading pleasure – my newest article in the Tennessee Bar Journal. The article discusses the responsibility imposed on one who decides to bring a Tennessee wrongful death suit and how fault allocations against that person can complicate the case.

October 3, 2017

Pro Se Wrongful Death Complaint Survives Challenge

by The Law Offices of John Day, P.C.

In at least some situations, a surviving spouse can properly file a pro se wrongful death complaint, because the decedent’s right of action actually “passes to” the surviving spouse under Tennessee’s wrongful death statutes.

In Beard v. Branson, No. M2014-01770-SC-R11-CV (Tenn. Aug. 30. 2017), plaintiff’s wife died of sepsis after being treated by defendants. Plaintiff filed a pro se wrongful death action, and defendants moved to dismiss on the grounds that the complaint “was filed in a representative capacity on behalf of the decedent and, as a non-attorney, [plaintiff] could not file a lawsuit for another in a representative capacity.” After the motions to dismiss were filed and after the one-year statute of limitations had run, plaintiff retained an attorney, who filed a notice of appearance and an amended complaint. The trial court denied the motions to dismiss, holding that plaintiff “was permitted to file the wrongful death action pro se because, under section 20-5-106, the decedent’s cause of action passed to [plaintiff] as the surviving spouse, and the decedent had no other statutory beneficiaries.”