Med Mal Makeover

2009 Act improves on '08

The New New Medical Malpractice Notice and Certificate of Good Faith Statutes

HB2233 / SB 2109 (the 2009 Act)[1] provides a substantial change to the requirements of giving pre-suit notice in medical malpractice cases set forth in Tenn. Code Ann.  §29-26-121, which came into effect for cases filed on or after Oct. 1, 2008 (the 2008 Statute). The 2009 Act also creates, for the first time, a requirement that the lawyer's "good faith" certificate be filed with the complaint.[2] This article will discuss the 2009 Act and offer practical advice on how to comply with it.

The vast majority of the 2009 Act will be effective July 1, 2009. Thus, in the next few weeks the world of those prosecuting and defending medical malpractice claims will change again, just nine months after the effective date of the current statute. The nuances of the effective date of the statute will be discussed after the changes to the statute have been examined.

First, the 2009 Act makes clear that it is necessary to give notice only to those persons or entities that are going to benamed as a defendant in the action. There was some concern under the 2008 statute that nurses, technicians, and others who were negligent but would not be named as a defendant in the case also needed to be given notice. Those familiar with the 2008 negotiations knew that this was not the intent of the Legislature, but there remained a risk that the statute would be misconstrued and cases would be dismissed because notice to these non-parties had not been given.

This concern is eliminated under the 2009 Act. Thus, a lawyer giving notice need give notice only to those persons who will be named a defendant in the action. For example, one may choose to personally name a nurse employed by a hospital as a party defendant and sue the hospital under a vicarious liability theory. In such a case, both the nurse and the hospital must be given notice under the statute. On the other hand, a lawyer may elect to sue the hospital for the acts of the nurse and not name the nurse individually. If so, the nurse need not be given notice because he is not going to be named a party to the action.

Second, the 2009 Act, like the 2008 Statute, requires that written notice be given at least 60 days before filing suit. The 2009 Act contains a provision for extending the statute of limitations that will be discussed shortly, but a lawyer giving notice needs to be aware that the written notice must pre-date the actual filing of the complaint by no less than 60 days. The stated purpose of this 60-day period is to give the defendant the opportunity to investigate and perhaps even settle the case before it is actually filed. At a minimum, it will give the defendant the opportunity to gather information before suit is filed and should eliminate the need for extensions of time to answer the complaint or slow-walk discovery.

Third, the 2009 Act continues to require that the notice be given in all medical malpractice cases, including those filed in general sessions court.

Fourth, the 2009 Act explains what information must be included in the notice. These are the requirements:

(A) The full name and date of birth of the patient whose treatment is at issue;
(B) The name and address of the claimant authorizing the notice and the relationship to the patient, if the notice is not sent by the patient;
(C) The name and address of the attorney sending the notice, if applicable;
(D) A list of the names and addresses of all providers being sent a notice; and
(E) A HIPAA-compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.

A significant change between the 2008 Statute and the 2009 Act is the requirement that the patient or the patient's representative submit a HIPAA-compliant medication authorization with the notice. The statute requires an authorization for medical records only " it does not require the patient or the patient's representative to waive the physician-patient privilege generally or permit ex parte communications with defense counsel.

There is no penalty for giving more information than required by statute in the notice letter. However, those who fail to give the information required by the statute are at risk for an assertion that the notice is defective and does not operate to extend the statute of limitations. Thus, counsel may wish to use a checklist to ensure that each letter sent to a health care provider complies with the notice statute.

Fifth, the 2008 Statute could be construed as providing that notice was not effective unless the health care provider was personally served, personally signed the receipt for the registered letter containing the notice, or personally signed the receipt for the letter delivered by a nationally recognized carrier. This created a real problem for plaintiff's lawyers, since (a) compliance with the statute was necessary to extend the statute of limitations; (b) there was anecdotal evidence that doctors were not cooperating with attempts at personal service; (c) there were disputes concerning who signed the receipt; and (d) there was no effective way of resolving uncertainty about whether notice was properly given absent personal service on the provider.

The 2009 Act solves that problem. Now, service of notice on an individual health care provider is effective upon (a) personal service on the health care provider, or (b) personal service on "an identified individual whose job function includes receptionist for deliveries to the provider or arrival of the provider's patients at the provider's current practice location." Alternatively, service is also effective upon mailing notice to the provider by the method provided by statute. Importantly, it is not receipt of the written, mailed notice by the provider that extends the statute of limitations and statute of repose.[3] Rather, it is the mailing of the letter in compliance with the statute that extends the statute of limitations.

How is sufficient service by mail obtained? For individual health care providers, the lawyer has to send two letters to the health care provider, one to the provider's current business address and one to the address listed for the provider on the Tennessee Department of Health Web site. (The Act provides that if the addresses are the same only one letter need be sent.) Each letter must be sent by certified mail, return receipt requested, and must also be sent with a Certificate of Mailing from the United States Post Office. The Certificate of Mailing is obtained from the Post Office and proves that the envelope containing the notice was given to the Post Office for mailing.[4] The cost of the Certificate of Mailing is currently $1.15 per mailing. The 2009 Act sets forth a similar method for serving legal entities.

Those giving notice must pay for both a Certificate of Mailing and Certified Mail, return receipt requested. The purpose of the certified mail requirement is to increase the likelihood that the provider will recognize the significance of the mailing. The purpose of the Certificate of Mailing requirement is to eliminate the possibility that a lawyer could falsely claim that a letter had been mailed on a certain date when in fact it had not.

However, as explained above, the 2009 Act makes clear that the "addressee of the notice [does not need] to sign or return the return receipt card ... for service to be effective." Thus, the problem of trying to figure out whether the doctor signed for the letter or it was signed by someone who did not have authority to sign it for the doctor is eliminated. It makes no difference who actually received the letter, and it makes no difference whether the return-receipt card is signed or even returned. Rather, if the procedure described above is complied with, the notice is effective upon mailing and the statute of limitations is extended.

The goal of the notice provision is to give the provider notice, and therefore the plaintiff's lawyer who receives both letters back undelivered has the responsibility to make one more effort to give notice to the provider.[5] Once again, however, the 2009 Act is clear that the statute of limitations was extended with the original service by mail and therefore the return of the undelivered letters does not create a potential statute of limitations problem.

If the two letters come back undelivered, the 2009 Act provides that the plaintiff's lawyer has five business days from the receipt of the second undelivered letter to re-send the notice. This time, the notice must be sent by certified mail, return receipt requested and with a Certificate of Mailing to "the provider's office or business address at the location where the provider last provided a medical service to the patient." Thus, if you have trouble tracking down a hospital-based physician and both letters are returned undelivered, the notice requirement can be met if you re-send the notice to the provider's attention at the hospital where the provider last provided a medical service to your client.

One last point is important on the issue of giving notice. The statute still permits the personal service of notice on the individual health care provider. The author recommends that this should be a last resort. Medical malpractice litigation evokes strong emotions on both sides of the "v," and the passage of the 2009 Act eliminates the uncertainty attendant to giving notice that arose in the 2008 Statute. The 2009 Act means that there will be very few reasons to increase the rancor of this litigation by personally serving a doctor or other health professional. The Tennessee Medical Association worked with the Tennessee Association of Justice to draft and pass this legislation, and lawyers should respect that cooperative effort and avoid personal service on providers if possible.

Sixth, the giving of notice in compliance with the statute triggers a 120-day extension of the statute of limitations. The extension runs from the day that the statute of limitation or repose would have otherwise expired, not from the date notice was achieved. Thus, it makes no difference whether notice was given one day after an incident causing injury or 364 days after an incident causing injury " the statute of limitations is extended 120 days from the expiration of the original statute of repose.

Do not assume that a claimant can get more than one 120-day extension of the statute of limitations or that the 2009 Act resurrects a claim already barred by the statute of limitations or repose. The statute expressly provides that:

In no event shall this section operate to shorten or otherwise extend the statutes of limitations or repose applicable to any action asserting a claim for medical malpractice, nor shall more than one (1) extension be applicable to any provider.

This is an appropriate place to discuss the nuances of the effective date of the statute. Here is the language of Section 4 of the 2009 Act.

Section 1 [the notice provisions] of this act shall take effect and apply to notice given in all medical malpractice actions on or after July 1, 2009, the public welfare requiring it. Section 2 [the certificate of good faith provisions, discussed later in this article] of this act shall take effect on July 1, 2009, and shall apply only to those actions in which notice is given pursuant to Section 1. In the event that notice is successfully given more than once to a provider, the effect of the notice is determined by the law in effect on the date of the first successful notice.

Thus, in most cases it would be prudent for a plaintiff's lawyer who does not have to give notice of a medical malpractice claim before July 1, 2009 (e.g., the statute of limitations does not expire before July 1, 2009) to wait and give notice on or after July 1. Remember, notice extends the statute of limitations automatically when notice is given in compliance with the statute " there is no longer the anxiety of worrying whether the doctor will be on vacation and not able to accept notice or whether the return-receipt card will come back with a mysterious, unreadable signature. The rule giving rise to the extension is now clear, so there are clear advantages to waiting until after July 1 to give notice.

It is important to note that if "successful" notice has already been given under the 2008 Statute, the claimant does not get an automatic 120 extension of the statute of limitation provided by the 2009 Act. Rather, the claimant is still operating under the 2008 Statute, must wait 60 days to file suit, and the statute of limitations is extended for "up to 90 days" under the 2008 Statute. There is still uncertainty what "up to 90 days" means under the 2008 Statute, but some defense counsel are taking the position that you don't get any additional time unless you need it, i.e., the claimant's lawyer got the case less than 60 days before the statute of limitations expired. This part of the 2008 is at best confusing, and will not be sorted out for several years. Undoubtedly, some people will be caught in a trap and have their cases dismissed, and the only solace the author can give is that the 2009 Act eliminates the problem for cases in which notice is given after July 1.

As the 2009 Act makes clear, do not assume that if you already have "successful" notice you can eliminate the uncertainty just described by giving notice again. The 2009 Act expressly prohibits this, and if you attempt to do so you will end up operating under the 2008 Statute because you successfully provided notice under that statute.

Seventh, the 120-day extension of the statute of limitations comes at a price " the complaint must now be accompanied by a certificate of good faith as required under Tenn. Code Ann.  §29-26-122. Under the 2008 statute, the certificate had to be filed within 90 days of the filing of the complaint. This gave the plaintiff who had difficulty securing expert testimony before filing a complaint extra time to obtain it before the deadline to file a certificate of good faith with the clerk's office. It also gave a plaintiff who was unable to secure expert testimony the opportunity to take a voluntary dismissal under Rule 41 of the Tennessee Rules of Civil Procedure before the deadline for filing a certificate of good faith.

The opportunity to take a voluntary dismissal to avoid a deadline for filing a certificate of good faith is probably gone. There are only two exceptions for not filing the certificate with a medical malpractice complaint: the failure of the defendant to provide medical records as required by the statute or the showing of extraordinary cause. Thus, it is reasonable to expect that if a plaintiff files and serves a medical malpractice complaint on the eve of the statute of limitations without a certificate of good faith and then tries to take a voluntary dismissal, the defendant will take the position that the complaint was never appropriately filed in the first place and therefore the savings statute should not apply.

What is "extraordinary cause" that would delay the need for filing a certificate of good faith with the complaint? No one knows for sure, but some possible examples include illness of the plaintiff's lawyer, a death in that lawyer's immediate family, illness or death of the plaintiff's expert in the days before the filing became necessary, etc. What we do know is that (a) a showing of extraordinary cause is something more than a showing of good cause, and (b) the reasonably prudent plaintiff's lawyer would prefer to have the case law on extraordinary cause developed by some other lawyer. If there is a legitimate excuse for the failure to file a certificate of good faith with the complaint it would be prudent to (a) file a motion with the complaint setting forth the reasons that constitute "extraordinary cause," and (b) diligently work to file a certificate of good faith as quickly as possible.

Other than the date of filing, the requirements of the certificate of good faith did not change in the statute. In cases where expert testimony is required under Tenn. Code Ann.  §29-26-115 the lawyer is still certifying that he or she has consulted with one or more qualified experts who have provided a written statement that there is a good faith basis to maintain the action. A copy of the required certificate is available from the Administrative Office of the Courts.6 The signed statements of the doctors are not discoverable except under the limited conditions set forth in Tenn. Code Ann.  §29-26-122. The details of the certificate of good faith, and the potential penalties that arise with a finding that that suit was not filed in accordance with the statute, will not be discussed in this article.7

Eighth, the 2009 Act modified but did not change that requirement in the 2008 Statute that compliance with the notice provision must be pleaded in the complaint. If personal service on health care provider or the individual responsible for receiving deliveries or patients, the complaint should include a reference that that statute has been complied with and identify who was served and an affidavit to that effect. Inclusion of a paragraph in the complaint similar to the following should suffice: "Defendant Jones was given notice of this action more than 60 days before suit was filed by personal service of a notice complying with Tenn. Code Ann.  §29-26-121 on James F. Smith, a person whose job function includes a receptionist for the arrival of patients at Defendant Jones' office. The affidavit of Jamie Blake, attached hereto as Exhibit A, confirms that service of the notice was achieved on July 2, 2009."

Notice given by mail also must be referenced in the complaint and confirmed by an affidavit filed with the complaint. This type of allegation is suggested: "Defendant Jones was served with notice complying with Tenn. Code Ann.  §29-26-121. The affidavit of Jamie Blake, attached hereto as Exhibit A., confirms that notice as mailed in conformity with the statute on July 2, 2009." The affidavit should include reference to the address(es) to which the notice was sent and should attach the certificate of mailing from the post office and a receipt showing that the certified letter was sent. It is not necessary to attach the signed return receipt cards, but there is no harm in doing so.

Ninth, like the 2008 Statute, the 2009 Act provides that the "court has discretion to excuse compliance [of the notice provisions] only for extraordinary cause shown." No one knows what "extraordinary" cause means, but once again it is something more than "good" cause. Because of this high standard, plaintiff's lawyers are encouraged not only to comply with the statute but to document what they have done when they do it. Why? First, contemporaneous documentation of compliance will reduce the chance of error in drafting the affidavit that must accompany the complaint. Second, the court has the right to "require additional evidence of compliance to determine if the provisions of [the statute] have been met." A judge will be more likely to find "extraordinary cause" if the plaintiff's lawyer can point to contemporaneous documentation of his or her efforts to give notice under the statute.

Tenth, there has also been a change to the section concerning the exchange of medical records. Under the 2009 Act, a claimant still has the right to receive medical records within 30 days after a written request, and recipients of the notice still have a right to get records from one another and from plaintiff. The claimant need not produce records; he or she can produce a HIPAA-compliant medical authorization and comply with the provisions of the medical records requirement.

The 2009 Act sets forth three ways in which a health care provider can produce records:

(1) Mailing a copy of the requested portions of the records with a statement for the cost of duplication of the records to the individual requesting the records;
(2) Informing the individual requesting the records that the records will be mailed only upon advance payment for the records for the stated cost of the records, calculated as provided in  § 63-2-102. Any request for advance payment must be made in writing twenty (20) days after the receipt of the request for medical records. The provider must send the records within three (3) business days after receipt of payment for the records; or
(3) Fulfilling such other method as the provider and the individual requesting the records shall agree to in writing.

As a final note on the issue of medical records, the 2009 Act provides that "[t]her records received by the parties shall be treated as confidential, to be used only by the parties, their counsel, and their consultants. One would assume that the people who received medical records of others would treat them as confidential, but the 2009 Act codifies such good judgment and common courtesy.

Eleventh, experienced lawyers know that there is some element of gray in what falls within the definition of a medical malpractice case. The 2009 Act recognizes that a lawyer who in good faith gives notice and relies on the extension of the statute of limitations under the Act should not have a case dismissed on statute of limitations grounds if the case is later determined to be a straight negligence case and not a medical malpractice case. Thus, subsection (e) of the 2009 Act provides as follows:

In the event that a complaint is filed in good faith reliance on the extension of the statute of limitations or repose granted by this section and it is later determined that the claim is not a medical malpractice claim, the extension of the statute of limitations and repose granted by this subsection is still available to the plaintiff.


Readers are encouraged to pay attention to the "good faith" language in this subsection. While it is reasonable to us that judges will take a generous view of good faith (because a defendant given notice of a potential claim suffers absolutely no prejudice if the lawsuit is filed 484 days after an incident rather than 365 days after an incident), it would be a mistake to assume that a person who slips and falls in a hospital parking lot on her way to visit a patient in the hospital can rely on the statute of limitations extension granted by the 2009 Act.

Most will agree that the 2009 Act is an overall improvement over the 2008 Statute. This is not to condemn the sponsors of the legislation that resulted in the 2008 Statute " any lawyer who understands the legislative process knows that when crafting legislation out of whole cloth one sleeve may end up a little shorter than the other. What is far more important than looking backward with a critical eye is the willingness to recognize problems with the law and being willing to work in good faith to fix them. That is exactly what happened here. Senate Majority Leader Mark Norris, Senator Doug Overby, and House Judiciary Chairman Ken Coleman are to be congratulated for quickly recognizing the problems in the original statute and working to resolve those problems. Also to be commended are various representatives of the health care industry who provided input into the new act. To be sure, each of the special interest groups sought to secure some advantage in the process, but all conducted themselves with the utmost good faith and professional courtesy to craft legislation that will improve the process.

Notes

1. The Act was signed into law by Gov. Bredesen on June 11, 2009. It is Public Chapter 425.

2. Tenn. Code Ann.  §29-26-122.

3. For readability, the terms "statute of repose" and "statute of repose" will be collectivelyreferred to as "statute of limitation." Readers are aware of the difference between the two.

4. To learn more about certificates of mailing, go to http://www.usps.com/send/waystosendmail/extraservices/certificateofmaili...

5. The return of only one of the two letters sent to the provider does not impose any obligation on the claimant or the claimant's lawyer to re-mail the notice.

6. The AOC website is located at http://www.tsc.state.tn.us/.

7. These subjects are discussed in "New Tennessee Law May Reduce Frivolous Suits but Make Valid Claims More Difficult," http://www.tba.org/journal_new/index.php/component/content/article/104.


JOHN A. DAY JOHN A. DAY is a trial lawyer in Brentwood, Tenn. He is the author of A Handbook for Tennessee Tort Lawyers 2009 and the editor of a monthly newsletter on the law of torts, civil procedure, evidence and trial called the Tennessee Trial Law Report.