Kelly on Malpractice

The Tennessee Medical Malpractice Act of 2009 provides major changes to the Tennessee Medical Malpractice Act of 2008. The vast majority of the 2009 Act will be effective on July 1, 2009. This newsletter will discuss by number how the 2009 Act changes the 2008 Act so you will know how to manage them.

1. The 2009 Act only requires you to give notice to those persons or entities that are going to be named as a defendant in the action. There was some concern under the 2008 Act that unnamed nurses, technicians, and others who were negligent had to be given notice. This concern is eliminated under the 2009 Act. You only have to notify the defendant(s) in the lawsuit. For example, you may decide to name a nurse and hospital as party defendants. Both the nurse and the hospital must be given notice under the 2009 Act. On the other hand, if you decide only to sue the hospital under respondeat superior, then the nurse need not be given notice.

2. The 2009 Act describes for the first time exactly what information must be included in the notice. Here 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. It is significant to note that this does not require the patient to waive the physician-patient privilege or permit ex parte communications with defense counsel.

3. Service of notice on an individual health care provider is now effective upon 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.” This solves the problem left by Dumbaugh v. Thomas, 2008 WL 2894792 (Tenn.Ct.App.) (affirming dismissal for service of process on a nurse / receptionist who was not authorized by the defendant physician to accept service of process). It seems that the doctors got tired of being chased in public by private process servers. Alternatively, service is also effective upon mailing notice to the provider by the method provided by the Act. Remember, it is the mailing of the notice to the defendant that extends the statute of limitations, not receipt of the notice by the defendant.

4. To get proper service by mail, you have to send two notices to the health care provider. One notice goes to the provider’s current business address and the other notice goes to the address listed for the provider on the Tennessee Department of Health website. If the addresses are the same, then only one notice needs to 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 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. The cost of the Certificate of Mailing is currently $1.15 per mailing. Fortunately, it is irrelevant who actually receives the notice, and it is irrelevant whether the return-receipt card is signed or returned. As long the aforementioned procedure is followed, notice is effective upon mailing and the statute of limitations is extended. If the two notices come back undelivered, the 2009 Act provides that the plaintiff’s lawyer has five business days from the receipt of the second undelivered notice 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.” This means when the notice is undelivered you can re-send the notice to the provider’s attention at the hospital where the provider last provided a medical service to your client.

5. Compliance with the notice provision of the 2009 Act gives you a 120-day extension of the statute of limitations. Remember that the extension runs from the day that the statute of limitation would have expired, not from the date notice was mailed or received. For example, it makes no difference whether notice was given one day after the tort or 364 days after the tort. The statute of limitations is extended 120 days from thr date that the statute would have ordinarily expired.

6. Timing of enactment makes a difference here. Section 1 [the notice provisions] of the 2009 Act takes effect and applies 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] of the 2009 Act takes effect on July 1, 2009, but 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. In other words, if you sent notice before July 1, 2009, then the 2009 Act does not apply to that case. However, if you sent notice after July 1, 2009, then the 2009 Act applies to that case.

7. The complaint must now be accompanied by a certificate of good faith as required under TENN. CODE ANN. §29-26-122. This is a major change from the 2008 Act, where the certificate of good faith had to be filed within 90 days of the filing of the complaint. The 2008 Act gave you extra time to find an expert after filing the complaint. It also gave you the opportunity to nonsuit before the deadline for filing a certificate of good faith. According to John Day, under the 2009 Act the opportunity to nonsuit in order 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: (a) the failure of the defendant to provide medical records as required by the statute or (b) the showing of extraordinary cause. According to John Day, if you file a medical malpractice complaint on the eve of the statute of limitations without a certificate of good faith and then try to take a nonsuit, then the defendant will probably take the position that the complaint was never appropriately filed in the first place, and therefore, the savings statute should not apply. 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. The signed statements of the doctors are not discoverable except under the limited conditions set forth in TENN. CODE ANN. §29-26-122.

8. The 2009 Act modified but did not change that requirement in the 2008 Act that compliance with the notice provision must be plead in the complaint. If there is personal service on the 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 (b) the identity of who was served and (c) an affidavit to that effect. According to John Day, 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 also 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 it.

I strongly suggest that you contact us in advance of filing a new claim under the new law unless you are a certified medical malpractice specialist. the hidden traps can trip up even the most prudent trial lawyer.