Medical Malpractice

Five Years After Going Under the Knife, Med Mal Law is Still Feeling the Effects

In 2008, our legislature amended the Tennessee Medical Malpractice Act by enacting two new statutes. The first statute was Tenn. Code Ann. § 29–26–121, known as “the notice statute.” It requires a “claimant” [plaintiff] in a health care liability action to give the “health care provider” [defendant] pre-suit notice of the claim at least 60 days prior to filing the complaint. Service of pre-suit notice extends the statute of limitations by 120 days.

The second statute was Tenn. Code Ann. § 29–26–122, which requires the plaintiff to file a certificate of good faith with her complaint. Many plaintiff lawyers who regularly handle malpractice cases supported the certificate of good faith requirement because they already had experts “on board” before filing a malpractice lawsuit. The law ensures that every plaintiff has a qualified expert who certifies that the case has merit. In a previous issue of this magazine, John Day examined these statutes as amended in 2009 when they were hot off the press in “Med Mal Makeover.”[1] At that embryonic stage, there was no body of appellate law to inform us how the statutes would be applied in specific situations.

Since 2009, much has happened. The appellate courts have put some meat on the bones of these statutes. Their interpretations have been strict. The statutes have survived challenges based on the Tennessee constitution and federal preemption.[2] Furthermore, in 2011 the legislature passed tort reform in the Tennessee Civil Justice Act.[3] Every medical malpractice action is subject to an aggregate cap of $750,000 or $1 million (for catastrophic injuries) per plaintiff for noneconomic damages.[4] One thing has not changed since 2009. Defendants still win approximately 80 percent of all medical malpractice trials.[5]

The primary purpose of this article is to report how the appellate courts have interpreted the notice statute and the certificate of good faith law. The secondary purpose of this article is to forecast how these statutes and tort reform will affect medical malpractice litigation. Financial risk will compel plaintiff lawyers as the gatekeepers to refuse “close cases” and thus accept fewer cases. This means many patients with meritorious claims that do not exceed the cap — claims by the elderly, the impoverished and the disabled — will never get their day in court. This is already happening in Texas, which has similar laws. Plaintiff and defense lawyers will diversify into other areas of practice as their malpractice caseload dries up.

Appellate interpretations of Tenn. Code Ann. § 29-26-121-122

A primer on both statutes is helpful here. The plaintiff’s pre-suit notice must contain all of the following particulars pursuant to Tenn. Code Ann. § 29-26-121:
(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 name and address 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.

The plaintiff must serve the pre-suit notice either by personal delivery or by mail to the health care provider. Personal delivery may be made to the health care provider individually or to her receptionist who accepts deliveries for the provider or receives patients.

Service may be mailed to an individual health care provider at both the address listed for the provider on the Tennessee Department of Health website (http://health.state.tn.us/licensure/default.aspx) and her current business address, if the latter is different from the address on the website. Service of the pre-suit notice to a health care corporation or business may be satisfied by mailing it to both the address for the agent for service of process and the provider’s current business address, if the latter is different from the address of the agent. Delivery is proven by affidavit, which the plaintiff must attach to her original complaint.

The plaintiff’s certificate of good faith must comply with Tenn. Code Ann. § 29-26-122. The plaintiff must file the certificate of good faith with her complaint. The certificate of good faith shall state that the plaintiff’s counsel has consulted with one or more experts who provided a signed written statement confirming that upon information and belief he is (1) competent under § 29-26-115 to express opinions in the case and (2) believes there is a good faith basis to maintain the action. If the certificate is not filed with the complaint, the complaint shall be dismissed absent a showing that the provider failed to provide copies of the claimant’s records or due to extraordinary cause. The proper way for a defendant to challenge noncompliance with §§ 29–26–121 or 122 is a Tenn. R. Civ. P. 12.02 motion to dismiss.[6]

It is important to determine ab initio whether the case requires expert testimony. There is no need for a certificate of good faith if the claim arises out of medical battery or negligence per se because expert testimony is not required.[7] However, notice must be served in every “health care liability action.” This means notice must be served in “any civil action alleging that a health care provider or providers have caused an injury related to the provision of, or failure to provide, health care services to a person, regardless of the theory of liability on which the action is based.” Tenn. Code Ann. § 29–26–101. This statutory definition abrogates parts of Estate of French v. Stratford House,[8] because an expert is now required in nursing home neglect cases. Tenn. Code Ann. § 29-26-101 virtually eliminated the distinction between “ordinary negligence” and medical malpractice for all claims against health care providers that accrued on or after Oct. 1, 2011.

In Myers, the Supreme Court parsed §§ 29–26–121 and 122 for the first time. The court determined that the legislature’s use of the term “shall” in both statutes was “mandatory, not directory.” This meant pre-suit notice must be given, and a certificate of good faith must be filed in every malpractice action. Otherwise, the case must be dismissed with prejudice.[9] Myers spawned a few appellate decisions that can be summed up as “one strike and you’re out.”

For example, in Groves v. Colburn,[10] Mrs. Groves determined after discovery that Dr. Colburn should be added as a defendant to the lawsuit. She sent Dr. Colburn notice of the claim in compliance with § 29–26–121 and filed a motion to amend her complaint. Mrs. Groves filed her amended complaint against Dr. Colburn but did not file a certificate of good faith with her amended complaint. The Court of Appeals held that a plaintiff who amends her complaint to add a party must contemporaneously file a certificate of good faith or else the second complaint must be dismissed. The court cited Myers for authority that “strict compliance is required” because the requirements in § 29–26–122 are “mandatory, not directory.”[11]

In Thurmond v. Mid-Cumberland Infectious Disease Consultants PLC,[12] the plaintiff filed his complaint on Jan. 5, 2012 alleging that the required proof of pre-suit notice and affidavit was on a disc attached as Exhibit A. The disc, however, was not attached to the complaint. The plaintiff subsequently filed the disc on Jan. 17, 2012 as an exhibit to the complaint. The defendants moved to dismiss pursuant to Rule 12.02(6). Thereafter, the plaintiff moved to amend his complaint on April 24, 2012. Proof of pre-suit notice and the required affidavit was attached as Exhibit C.

The trial court “reluctantly” determined that it had to dismiss the complaint on the basis that § 29–26–121 required that the affidavit be filed with the complaint. There was no proof of extraordinary cause to excuse noncompliance. The Court of Appeals affirmed. Tenn. Code Ann. § 29–26–121 requires proof of service of the written notice to be filed “with the complaint,” and use of the word “shall” is mandatory.[13] This applies to malpractice lawsuits filed in General Sessions as well.[14] The statutes do not authorize a claimant to cure deficiencies by filing an amended complaint.”[15]

In Foster v. Chiles,[16] the plaintiffs timely filed a complaint after sending pre-suit notices to the defendants as required by § 29–26–121. After nonsuiting their first lawsuit, the plaintiffs filed a second complaint in which they alleged the same cause of action against the same defendants. The second complaint cited the notices sent before the first complaint was filed. The Court of Appeals held that a second pre-suit notice was not necessary after nonsuit because the defendants had received written notice of the claim more than 60 days before the date on which the plaintiffs had filed their second complaint.[17]

What happens if the defendant health care provider is also a governmental entity? Does the 120-day extension of the statute of limitations found in § 29–26–121 extend Tenn. Code Ann. § 29–20–305(b), which is the one-year statute of limitations applicable to governmental tort liability actions? The Supreme Court answered “no” in Cunningham v. Williamson Cnty. Hosp. Dist.[18] The court found the legislature had failed to evince an express legislative intent in § 29–26–121(c) to extend the one-year statute of limitations in GTLA cases. Some cases fell by the wayside in the wake of Cunningham because plaintiff lawyers counted in a 120-day extension of § 29–20–305(b) that never existed.[19]

What risk does the plaintiff lawyer assume if she does not comply with § 29-26-122? It could be a substantial one. In Kerby v. Haws,[20] Ms. Kerby alleged that she suffered infections caused by a small metal object that Dr. Haws had negligently left in her body during surgery. Ms. Kerby’s lawyer filed a certificate of good faith with the complaint. After the object was discovered to be a surgical clip, which was supposed to remain in the patient’s body, Dr. Haws filed a motion for summary judgment. The plaintiff did not oppose the motion.

After the trial court granted summary judgment, Dr. Haws filed a motion for sanctions under § 29-26-122 against Ms. Kerby’s lawyer. Dr. Haws alleged that Ms. Kerby’s lawyer did not have a signed written statement from a medical expert competent to testify under Tenn. Code Ann. § 29-26-115 prior to executing the certificate of good faith. Dr. Haws moved the trial court to compel Ms. Kerby’s lawyer to produce his expert’s signed written statement. The trial court granted the motion, and Ms. Kerby’s lawyer produced signed medical statement.

Undaunted, Dr. Haws amended her motion to assert that Ms. Kerby’s lawyer had a duty to send a picture of the surgical clip to his expert before drafting the certificate of good faith. The trial court agreed and awarded sanctions against Ms. Kerby’s lawyer and his law firm in the amount of expenses incurred in the defense of Dr. Haws. This sum totaled $22,184. The Court of Appeals reversed, finding “it is not within an attorney’s expertise to guess what a medical expert might need to see, other than the medical records.”[21] Kerby is a reminder to plaintiff lawyers that there may be substantial and personal financial risk if the certificate of good faith is bungled.

Likewise, plaintiff lawyers cannot count on safe harbor by using the extraordinary cause provision. The trial court must conduct a hearing to determine whether “under the totality of the circumstances,” extraordinary cause existed to excuse noncompliance.[22] The statutes do not define extraordinary cause.[23] However, the Supreme Court referred to it as “going far beyond the ordinary degree, measure, limit, etc.; very unusual; exceptional; remarkable.”[24] Possible examples may include illness of the plaintiff’s lawyer, a death in that lawyer’s immediate family, or illness or death of the plaintiff’s expert in the days before the filing became necessary.[25] This is a high threshold that will not excuse the vast majority of errors. For all intents and purposes, the statutes demand perfection.

How Tenn. Code Ann. §§ 29-26-121-122 and tort reform will affect medical malpractice litigation

A difficult landscape confronted plaintiffs and their lawyers in medical malpractice litigation long before §§ 29-26-121-122 and tort reform. Health care providers and hospitals come into court with distinct advantages. They usually have the best experts who practice in the defendant’s community. They have the best trial lawyers in the community who represent them vigorously. Most jurors admire health care providers.

As an example, in my latest malpractice trial in Davidson Circuit, the trial court permitted us to use supplemental juror questionnaires. They were an invaluable learning tool to understand the attitude, opinions, and experiences jurors bring into the courtroom. Questionnaires streamline and focus voir dire in complex cases. The responses were stark.

Every juror in the venire thought the doctor faced professional suspension, job loss and fines if found liable. Most jurors thought malpractice cases are “usually frivolous.” Some of the jurors think malpractice verdicts increase health care costs. This increases the plaintiff’s burden of proof from practical standpoint. Plaintiffs need clear and convincing proof of the defendant’s liability to win, not just a preponderance of the evidence. Interestingly, the vast majority of jurors reported that they would consider filing a malpractice lawsuit and did not support caps on damages.

The cost of medical malpractice litigation, like medical costs in general, has steadily increased. Medical experts are busy and very expensive. In a typical case, an expert charges $500 to $1,000 per hour for testimony. Some high-end specialists like neurosurgeons charge $1,500 per hour for their expert testimony. The trial testimony averages $5,000 per expert per day. Total pretrial charges for expert review, assistance during discovery, preparation for testimony, the expense of deposing the defendant’s experts, researching and securing medical literature and treatises, court reporter fees, travel expenses, and procuring effective demonstrative exhibits range between $50,000 to $100,000 depending on the complexity of the case. The trial itself adds an additional $25,000 to $50,000 in expenses depending upon the number of experts. This does not include birth trauma cases, which can cost up to $350,000 to litigate.

Since the advent of §§ 29-26-121-122, the environment is more hostile for plaintiff lawyers. They must weigh the risk that any error in the pre-suit notice or certificate of good faith would have devastating financial consequences. Every plaintiff lawyer must have an internal system of checks and balances to guard against an error. Failure can turn a medical malpractice case into a legal malpractice case. The risk of advancing thousands of dollars for experts heaped upon the risk that the plaintiff lawyer may have to pay sanctions is a true test of mettle. Some lawyers will not take that cumulative risk.

The caps in tort reform affect the clients more than the lawyers. Plaintiff lawyers in Tennessee are under relentless pressure to refuse employment in all but the exceptional cases. These are cases with high economic and noneconomic damages or cases that meet the statutory catastrophic injury criteria for the $1 million noneconomic damages cap. It is all about investment and risk management. Most plaintiff lawyers will not risk losing $100,000 in litigation costs against a $750,000 maximum recovery when the defendant’s rate of victory at trial is nearly 80 percent.

The advent of tort reform and §§ 29-26-121-122 will compel some plaintiff lawyers to refuse employment by the elderly, the impoverished, and the disabled. Filings will continue to drop annually. This has been the experience in Texas since the advent of their medical malpractice tort reform in 2003.[26] Texas has a $250,000 cap on noneconomic damages and similar requirements for pre-suit notice and a certificate of good faith. The differential impact of tort reform on the elderly caused a drop in their share of medical malpractice payouts, which was well below their share of health care use in Texas. Logic dictates that we will see the same results in Tennessee if the caps survive a constitutional challenge.

Notes

  1. John A. Day, “Med Mal Makeover 2009 Act Improves on ‘08; The New Medical Malpractice Notice and Certificate of Good Faith Statutes,” 45 Tenn. Bar J., n. 7 at 14-19 (2009).
  2. See Williams v. SMZ Specialists PC, 2013 WL 1701843 (Tenn.Ct.App. Apr. 19, 2013) (holding the statutes do not violate equal protection and due process provisions of the constitution); Webb v. Roberson, 213 WL 1645713 (Tenn.Ct.App. Apr. 17, 2013) (holding HIPAA does not preempt Tenn. Code Ann. § 29-26-121).
  3. Tenn. Code Ann. § 29-39-101, et seq.
  4. Tenn. Code Ann. § 29-39-102. Catastrophic cases implicating the $1 million cap are (1) spinal cord injury of paraplegia or quadriplegia, (2) amputation of 2 hands, 2 feet, or 1 of each, (3) third degree burns of 40 percent or more of the body as a whole or 40 percent percent or more of the face, and (4) wrongful death of a parent survived by a minor child where the parent had custody or visitation.
  5. Tennessee Jury Verdict Reporter Year in Review, January 2011.
  6. Myers v. AMISUB (SFH) Inc., 382 S.W.3d 300, 307 (Tenn.2012).
  7. Barnett v. Elite Sports Medicine, 2010 WL 5289669 (Tenn.Ct.App. Dec. 17, 2010); Abeyta v. HCA Health Services of Tn Inc., 2012 WL 5266321 (Tenn.Ct.App. Oct. 24, 2012).
  8. Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn.2011).
  9. See Caldwell v. Vanderbilt University, 2013 WL 655239 (Tenn.Ct.App. Feb. 20, 2013) (finding the case was medical malpractice rather than ordinary negligence so a certificate of good faith was required); in accord Williams-Ali v. Mountain States Health Alliance, 2013 WL 357580 (Tenn.Ct.App. Jan. 30, 2013).
  10. Groves v. Colburn, 2013 WL 3964758 (Tenn.Ct.App. July 30, 2013).
  11. Id. at *3.
  12. Thurmond v. Mid-Cumberland Infectious Disease Consultants PLC, 2013 WL 1798960 (Tenn.Ct.App. Apr. 25, 2013),
  13. Id. at *3. In footnote 2, the Court of Appeals acknowledged this was a “harsh” result where no prejudice was shown, but the statute required this result. Myers, 382 S.W.3d at 308.
  14. See West v. AMISUB (SFH) Inc., 2013 WL 1183074 (Tenn.Ct.App. Mar. 21, 2013) (holding the certificate of good faith requirement applies to “any medical malpractice action” filed in General Sessions Court).
  15. Id (citing Vaughn v. Mountain States Health Alliance, 2013 WL 817032 (Tenn.Ct.App. Mar. 5, 2013)). The Court of Appeals in Vaughn affirmed dismissal with prejudice because the plaintiff had failed to provide HIPAA-compliant medical authorization with the notices and also had failed to disclose the number of prior violations in his certificate of good faith.
  16. Foster v. Chiles, 2013 WL 3306594 (Tenn.Ct.App. Jun. 27, 2013).
  17. Id. at *4.
  18. Cunningham v. Williamson Cnty. Hosp. Dist. ––– S.W.3d ––––, 2013 WL 1912611 (Tenn. May 9, 2013).
  19. Id. at *6. See also Kelley v. Chattanooga-Hamilton County Hosp. Authority, 2013 WL 2295667 (Tenn.Ct.App. May 23, 2013) and Lawing v. Greene County EMS, 2012 WL 6562155 (Tenn.Ct.App. Dec. 17, 2012).
  20. Kerby v. Haws, 2012 WL 6675097 (Tenn.Ct.App. Dec. 20, 2012).
  21. Id. at *5.
  22. Hawkins v. Martin, 2012 WL 3007680 (Tenn.Ct.App. July 24, 2012).
  23. Myers, 382 S.W.3d at 310.
  24. Id. at 311.
  25. Id.
  26. Myungho Paik, Bernard Black, David Hyman, William Sage and Charles Silver, “How Do the Elderly Fare in Medical Malpractice Litigation, Before and After Tort Reform? Evidence from Texas,” 12 American Law and Economics Review, n. 2 at 561-600 (2012).

Clinton L. Kelly CLINTON L. KELLY is partner of the Kelly Firm in Hendersonville. He is board certified in medical malpractice law by the American Board of Professional Liability Attorneys. He is also certified as a medical malpractice specialist by the Tennessee Commission on Continuing Legal Education and Specialization. Clint currently serves on TBA’s CLE committee and on the TBA Litigation Law Section Executive Council. He has written a book, Kelly on Malpractice 2.0 (2nd ed.2012).