Med-Mal Obstacles

New Tennessee Law May Reduce Frivolous Suits but Make Valid Claims More Difficult

In May, Governor Phil Bredesen signed into law amendments to Tennessee's Medical Malpractice Act. The amendments introduce three new concepts to Tennessee's medical malpractice litigation framework: 1) a pre-suit notice requirement; 2) speedy medical records production; and 3) Certificates of Good Faith. This article discusses the details of each of these new requirements and considers how implementation will further complicate an already highly technical area of tort practice. The amendments go into effect for cases filed on or after October 1, 2008.

Notice of Filing Suit

Pursuant to the new law found at Tenn. Code Ann. 29-26-121, any party initiating a medical malpractice case beginning Oct.1 of this year must give 60 days advance notice to the implicated health care providers before filing suit. Although the phrase "health care providers" is no longer defined in the Medical Malpractice Act (it was repealed in 1985), the phrase presumably includes doctors, nurses, hospitals and practice groups.

The statute does not specify what information must be included in the notice other than to require that the notice include a list of the other health care providers to whom notice is also being given. One would expect that adequate written notice need only include basic identifying information about the potential plaintiff as well as the treatment at issue. It would also be wise to clearly indicate on the face of the notice that it is being sent in compliance with Tenn. Code Ann. 29-26-121.

The statute provides that notice may be achieved by giving actual written notice to the health care provider or the health care provider's authorized agent by registered mail or overnight delivery through a national carrier. Presumably personal service would also suffice.

Once suit is filed, the medical malpractice complaint must affirmatively state whether each party has been provided written notice in compliance with the statute and must also provide "such evidence thereof as the court may require." Given the ambiguity of this phrase, it would be wise to require and retain a written receipt such as a registered mail green card or signed national carrier receipt in the event there is ever any question about proper notice being given.

The court has discretion to excuse noncompliance with the pre-suit notice requirement only for "extraordinary cause" shown. The statute does not define "extraordinary cause". The phrase is not used elsewhere in the Code and has only been used once in Tennessee case law since 1887. See Taylor v. Nashville & C.R. Co., 6 S.W. 393 (Tenn 1887) (an action to enforce judgment on certain bonds of the city of Nashville).

If proper pre-suit notice is given, the applicable statute of limitations and statute of repose is extended up to a period of 90 days. Specifically, subsection (c) provides that the applicable statutes of limitations and repose "shall be extended up to a period of 90 days." Presumably, this means that if notice is given, as it must be, these time periods are automatically extended by 90 days even if notice is given on the day after the negligence occurred " almost a full year before the statute of limitations would expire for an adult's claim. Any other interpretation of the phrase "shall be extended up to" is problematic because the statute does not otherwise explain under what circumstances a plaintiff would get an additional 90 days and under what circumstances the plaintiff would get an extension of less than 90 days. The imprecise language will lead to litigation regarding its interpretation. The phrase "shall be extended up to" is not used elsewhere in the Tennessee Code.

The 90 day extension expressly applies to both parties and potential parties, presumably protecting plaintiffs from the assertion of a statute of limitations defense by another tortfeasor identified after notice is sent but before suit is filed, brought into the litigation after suit is filed pursuant to Tenn. Code Ann. 20-1-119, or by a defendant whose name is corrected for misnomer under Tenn. R. Civ. P. 15.03 or Fed. R. Civ. P. 15(c). The statute further expressly provides that a plaintiff does not have to give pre-suit notice to those defendants made a party after the suit is initially filed.

Medical Records Production

Subsection (d) of Tenn. Code Ann. 29-26-121 requires the speedy production of a claimant's medical records in medical malpractice cases. Specifically, this statutory subsection requires a party to provide a complete copy of the claimant's medical records in possession of that party within 30 days of a request. As an alternative to providing the medical records, a claimant may supply a medical authorization.

There are a few troubling aspects to this subsection. First, the statute does not address what constitutes a "complete copy" of the claimant's medical records. Even in a medical malpractice action, it is conceivable that some records are irrelevant to the litigation and present privacy concerns. For example, imagine the 55-year-old woman who brings an action for malpractice arising from a rhinoplasty. Should she be required to produce hospital records which include documentation of an abortion at age 17?

This subsection also does not address the necessary scope of a medical records authorization. The statute does not state whether a medical records authorization may be limited to pertinent records. The statute also does not clarify whether the authorization may include reasonable requirements such as giving the claimant notice when the authorization is used to gather records and providing the claimant with a copy of those records. Presumably, an authorization which allows for the production of pertinent medical records and also sets out other reasonable limitations such as being provided notice and a copy should still satisfy the statute. Certainly, however, there will be disputes among plaintiff and defense counsel on these issues.

Interestingly, the statute applies to all parties and thus could be relied upon by a plaintiff or defendant to obtain a copy of medical records in the possession of a defendant or codefendant.

Certificates of Good Faith

The Certificate of Good Faith requirement established by Tenn. Code Ann. 29-26-122 presents by far the most significant change to our current medical malpractice scheme. In a nutshell, the statute requires that within 90 days after filing a complaint alleging medical malpractice, the plaintiff or plaintiff's attorney must file a Certificate of Good Faith confirming that one or more experts have been consulted and have provided a signed written statement confirming that the expert(s) believes there is a good faith basis for filing the lawsuit. The actual Certificate of Good Faith will be a form drafted by the Administrative Office of the Courts.

The expert's signed written statement is not on a form dictated by the statute. Presumably the statement will be drafted by plaintiff's counsel or the expert. The statement must confirm that, upon information and belief, the expert is competent under Tenn. Code Ann. 29-26-115 to express opinions in the case and that there is a good faith basis to maintain the action consistent with the requirements of Tenn. Code Ann. 29-26-115. Compliance with the requirements of Tenn. Code Ann. 29-26-115 will, as with medical malpractice cases even before the amendments, be the complicated part.

For all practical purposes, compliance with Tenn. Code Ann. 29-26-115 means that the expert on whose opinion the Certificate of Good Faith is based must have practiced in a contiguous state, in a relevant specialty, in the year before the incident, and know the standard of care in the defendant's community or a similar community. This also means that the expert must consider (and be qualified to consider) issues of liability (deviation from the standard of care) and/or causation.

This means that any lawyer who believed he or she could meet the Certificate of Good Faith requirements by conferring with a doctor friend, neighbor or paid expert service and then consult with a "testifying expert" later will probably need to think again. This is because the expert(s) on whom the attorney relies as a basis for the Certificate of Good Faith must meet all of the same requirements in qualifications and scope of opinion as a testifying expert.

Furthermore, at least in some instances, the need to have an expert opinion on both liability and causation will likely require written statements from more than one expert to support a single Certificate of Good Faith. Likewise, having multiple defendants in multiple specialties may necessitate multiple statements to support a single Certificate of Good Faith.

Those who primarily represent plaintiffs will be pleased to learn that there is an element of "tit for tat" in the statute. Subsection (b) of the statute does place a similar Certificate of Good Faith requirement on defendants alleging comparative fault against nonparties.

Specifically, subsection (b) requires that within 30 days after a defendant has alleged in an answer or amended answer that a nonparty is at fault, and expert testimony is required to prove such fault by Tenn. Code Ann. 29-26-115, that defendant must file a Certificate of Good Faith meeting the same requirements applicable to a plaintiff's Certificate of Good Faith and underlying written expert statement. Unfortunately, the bark here may be worse than the bite for three reasons.

First, the expert relied upon by the defendant may include the defendant health care provider himself (just as a defendant in a medical malpractice case may rely on his own affidavit in support of a motion for summary judgment). Of course, any defendant relying on this loophole should use caution if the defendant is not in a specialty relevant to the nonparty tortfeasor, does not practice in the same community as the nonparty tortfeasor or a similar community, or is otherwise not qualified to give opinions on causation given the requirements of Tenn. Code Ann. 29-26-115.

Second, if a defendant fails to file a Certificate of Good Faith, then that defendant's comparative fault allegations as to that nonparty tortfeasor may be stricken, but any other defendants who did timely file a Certificate of Good Faith may still assert the fault of that nonparty tortfeasor. Granted, any other result would likely be unfair to the complying defendant, but this practical exception sure takes the sting out of noncompliance in any multidefendant case. Of course the nonparty tortfeasor may move for sanctions under subsection (d) as discussed below but this provides little solace to the plaintiff who was also likely frustrated by the noncompliance. By comparison, the failure of a plaintiff to file a Certificate of Good Faith shall, upon motion, make the action subject to dismissal with prejudice, with no easy way out other than the discretion of the trial court.

Third, it does not appear that the Certificate of Good Faith requirement on defendants applies to comparative fault allegations against coparties, only nonparties. Thus, defendants do not have to file a Certificate of Good Faith to support their comparative fault allegations against codefendants. In contrast, while it is not specifically addressed in the statute, the Certificate of Good Faith requirement may apply to a plaintiff amending to add additional defendants pursuant to Tenn. Code Ann. 20-1-119.

What about a situation where an expert is consulted but believes he needs more facts before he or she can give an opinion? An expert statement is sufficient to support a Certificate of Good Faith even if it states that there are facts material to the resolution of the case that cannot be reasonably ascertained from the information initially available, so long as the expert goes on to conclude that, despite the missing information, there is still a reasonable basis for maintaining the action.

There are also exceptions in the statute for situations in which the expert does not have an opportunity to review the medical records. The requirement that records be reviewed by an expert will be waived where it is impossible for the plaintiff to obtain the medical records or where the defendant refuses to release the records timely. A trial court may grant an extension to file a Certificate of Good Faith if the court finds that a health care provider who has medical records relevant to the issues in the case has failed to timely produce medical records, or for other good cause shown.

A primary concern of those who practice medical malpractice law, particularly on behalf of plaintiffs, has been that a Certificate of Good Faith requirement would in essence require a plaintiff to disclose the opinions of his or her expert before formal discovery is conducted and thus subject the expert to unfair scrutiny about those early opinions. This concern is fairly addressed by the statute through the fact that the underlying statement of the expert(s) on which the Certificate of Good Faith is based is not subject to production to the court or the opposing party unless and until the plaintiff is unsuccessful in his or her claims against the defendant " and even then a result that is merely adverse to the plaintiff does not require production of the consulting expert's statements. Subsection (d)(2) states that the written statement of an expert relied upon in executing a Certificate of Good Faith is not discoverable unless and until a party prevails on the basis of the failure of an opposing party to offer any competent expert testimony as required by Tenn. Code Ann. 29-26-115. Only at that point may the trial court, upon motion, compel that a copy be provided to the court.

After production, however, if the court determines that a violation of the Certificate of Good Faith requirement has occurred, sanctions may be severe. The statute provides that the trial court may award sanctions against the offending party (if pro se) or the attorney (if not pro se), which may include payment of some or all attorney's fees and costs incurred by a party defending or responding to a claim or defense supported by the Certificate of Good Faith. The trial court also is required to forward a copy of the order finding a violation of the statute to the Tennessee Board of Professional Responsibility. The lawyer may be required to post a bond when filing suit after multiple violations.

What this means in cold hard facts is that if your expert falls apart at trial and you fail to prevail on a malpractice claim against a defendant or codefendant, you as the attorney may be subject to paying the opposing party's attorney fees and costs in defending that claim. Falling apart at trial could include failure to comply with the much dreaded locality rule requirement in medical malpractice cases, or failing to establish causation even though a deviation from the standard of care was established.

Of course, imposition of the harsh sanction of fees and costs is not mandatory. In fact, the trial court has discretion in even requiring production of the underlying statement. Moreover, just because the expert fell apart and the trial court requires production of the underlying statement does not mean that it was unreasonable to believe that the expert (or the case for that matter) would meet the requirements of Tenn. Code Ann. 29-26-115 when the case was filed and the Certificate of Good Faith submitted. Nevertheless, this sanction should cause all lawyers filing medical malpractice cases after the law goes into effect to pause.

Conclusion

In sum, while these new hurdles to filing a medical malpractice action are not insurmountable, they are burdensome and will most certainly be the downfall of some attorneys who have in the past dabbled in medical malpractice cases. The simplicity of Tenn. Code Ann. 29-26-121's notice requirement is troubling and will no doubt be the root of several appellate decisions as lawyers flesh out what it really means to give pre-suit notice. The speedy production of medical records requirement is also too vague in this lawyer's opinion and does little to protect the privacy concerns of injured plaintiffs. And if the Certificate of Good Faith requirement does not add at least a couple of extra butterflies to your stomach while sitting through the deposition or trial testimony of your expert, then you should not be handling malpractice cases.

An acknowledged goal of these amendments was to reduce the number of "frivolous" suits filed. I suspect that over time the amendments may achieve that goal. It is unfortunate, however, that in order to deter people from filing unmeritorious claims we have had to make it even more difficult for plaintiffs with valid claims to get to the courthouse.


REBECCA C. BLAIR REBECCA C. BLAIR is a shareholder of Day & Blair P.C. in Brentwood. Her practice includes cases arising from medical malpractice, automobile accidents, sexual assault, and other acts causing personal injury. She is a former associate editor of the Tennessee Tort Law Letter. She is on the Board of Governors of the Tennessee Association for Justice. Rebecca was recently selected for the ABA’s TIPS Leadership Academy