BEWARE!!! The New Medical Malpractice Act Begins October 1st
posted on September 22nd, 2008 in Certificate of Good Faith, Complaints, Notice, New Act by clintThe new Medical Malpractice Act begins on October 1st, and you better be prepared for the consequences. This Act radically changes filing requirements for any claim of medical malpractice. I studied the new Act carefully, and it has hidden traps. I will highlight the main provisions for you in this limited article. These are only my opinions for my cases. I strongly suggest that you associate more experienced counsel if you have any doubts about the new requirements. I have no doubt that defense attorneys will pounce on any perceived failure to comply with the new Act.
According to TENN. CODE ANN. § 29-26-121, the plaintiff must give written notice to each potential defendant at least 60 days before filing suit. You cannot file suit until after the 60 days has lapsed. Notice must be served by registered mail or overnight delivery. You must allege separately in the complaint that you complied with the provisions of TENN. CODE ANN. § 29-26-121(a). The Notice must provide some information about the nature of the claim. You may serve it on the health care provider or the provider’s authorized agent. Don’t just serve it on a nurse or office manager. See Dumbaugh v. Thomas, 2008 WL 2894792 (Tenn.Ct.App.) (dismissal for lack of proper service). You must attach to the Notice a separate list of all health care providers and addresses, when you perceive there is more than one health care provider at fault. If the defendant does not get served with the Notice, then expect a motion to dismiss the complaint for failure to comply with the statute.
If notice is given, the statute of limitations and repose is extended for a period of 90 days for all parties and potential parties. The statute is silent as to when the 90 day extension starts: when notice is sent or received? Don’t take a chance. I would file the complaint no later than 80 days after notice is sent. What if the defendant(s) alleges comparative fault against another health care provider? The statute is silent on this, but I suggest that you send notice to the new defendants as well.
The most troubling aspect of the new Act is the requirement for a Certificate of Good Faith. According to TENN. CODE ANN. § 29-26-122, the plaintiff lawyer must file a Certificate of Good Faith within 90 days after the complaint is filed. The Certificate must state that plaintiff’s counsel has consulted with one or more experts who have provided a written statement confirming that “upon information and belief” they are competent to express opinions under TENN. CODE ANN. § 29-26-115 and believe that “there is a good faith basis to maintain the action.” I think you should have a Rule 26 report in your file to support your Certificate of Good Faith. The written report should cover both elements of negligence and causation. If the defendant prevails on the merits, and the court determines that the Certificate is deficient, then the court may require the plaintiff’s lawyer to pay all of the defendant’s attorneys fees and costs incurred in the action. The court is also ordered to forward such violation to the Board of Professional Responsibility. In other words, you could lose the case and then spend time and money defending whether you had a good faith basis to bring the lawsuit in the first place.
I expect some unfortunate opinions interpreting the ambiguities of this new Act. Again, if you have a claim I strongly suggest that you associate more experienced counsel until there is an appellate body of law. Better safe than sorry.