Tennessee’s Medical Malpractice Act Seeks Reduction of Frivolous Lawsuits

Tennessee’s medical malpractice laws were recently amended and as such, it is worth reviewing as well as noting the changes made.  Supporters of the amendments believe the following concepts will reduce the number of “frivolous” lawsuits:

(1) a pre-suit notice requirement;

(2) a requirement for speedy production of medical records; and

(3) a requirement of a Certificate of Good Faith.

Before suing a health care provider, you must provide him/her with a 60-day notice before filing suit.  The law is not clear on what the notice must say however, the notice must identify all the health care providers on notice.

When the time comes to file your lawsuit, the Complaint must affirmatively state the Plaintiff has given the required notice.  The Complaint must also provide the Court proof the notice has been filed.  Typically, you have one year from the date of your injury to file a medical malpractice suit. However, by filing the proper notice, you increase that period by 90 days.

Another change is that the person suing must produce complete medical records within 30 days of a request. This requirement can be satisfied by signing a medical release form.  Some people are concerned about the disclosure of the private information contained in medical records — particularly information unrelated to the person’s claim.  In many cases, the amount of information disclosed can be limited to what is relevant to the injuries claimed.

Perhaps the most significant amendment is the requirement of Certificates of Good Faith.  Within 90 days of filing suit, a plaintiff must file a Certificate of Good Faith that says the plaintiff has consulted one or more experts, and the expert(s) agree the plaintiff has a “good faith” basis for filing a lawsuit.  The Certificate of Good Faith must also say the expert is qualified to express an opinion that malpractice has occurred.

Tennessee specifies what qualifications expert(s) relied upon must have.  Those experts must

(1) have practiced in a contiguous state, in a relevant specialty, in the year before the alleged malpractice;

(2) know the standard of care in the plaintiff’s community or a similar community; and

(3) must be qualified upon the issues of liability; i.e., he must know what would be a departure from the ordinary standard of care and whether the alleged departure from that standard would/could have cause the plaintiff’s injury.

The expert relied upon to file the Certificate of Good Faith need not be the same expert who testifies at trial on a plaintiff’s behalf.  However, both the Certificate of Good Faith expert and the testifying expert must meet the qualifications listed above.

If a plaintiff fails to file a Certificate of Good Faith, the heath care provider’s lawyers may file a motion to dismiss.  The Court may grant this motion with no right to re-file.

There is confusion and debate about what constitutes an adequate Certificate of Good Faith.  All facts are not typically available prior to filing a lawsuit; therefore, it is usually sufficient for the expert to state there is a reasonable basis for filing the lawsuit.

Whether the new amendments will result in fewer frivolous lawsuits is yet to be seen.  Opponents of the amendments believe they will only increase the amount of expenses plaintiffs expend to file lawsuits.  Opponents believe there are very few frivolous medical malpractice lawsuits to begin with.  Given the amount of expense associated with bringing a medical malpractice lawsuit, opponents argue few lawyers would bring a frivolous suit because it would be a waste of time and money.  Time will tell what the full impact of the amendments will be.

At Bailey and Greer, PLLC, our Tennessee medical malpractice attorneys constantly stay abreast of changes in the law.  Our legal team has a proven track record of successfully representing our clients in Tennessee medical malpractice cases.  Please contact us today to receive your free case evaluation by dialing 901-680-9777.  Our seasoned medical malpractice attorneys look forward to hearing from you.