Medical Malpractice Bill Adds Pre-lawsuit Notice and “Certificate of Good Faith” Requirements
Bill Is Signed by Speakers of House and Senate and forwarded to Governor
East Tennessee Medical News - June 2008
By Jennifer Pearson Taylor
A compromise medical malpractice tort reform bill has passed the legislature and been sent to the governor.
When does the new law take effect?
The new law will apply to all actions filed on or after October 1, 2008.
What is now required of plaintiffs filing medical malpractice actions?
Two new steps are required: (1) pre-lawsuit notice; and (2) “Certificate of Good Standing.”
What is the “pre-lawsuit notice” requirement?
Under the bill, any person, or that person’s agent, asserting a potential claim for medical malpractice must give written notice of the potential claim to each health care provider against whom the claim is being made at least 60 days before filing suit. A list of all health care providers to whom notice is being given must be attached to the notice. Any complaint filed regarding the potential claim must state that the plaintiff(s) complied with the pre-litigation notice requirement and evidence of compliance may be required by the court.
Does giving notice provide a plaintiff with any benefit?
Yes. If notice is given, the applicable statutes of limitation and repose will be extended up to 90 days. The bill is silent on how to calculate the number of days for the extension, which applies to all parties and potential parties.
Is the notice ever not required?
A court may excuse compliance only for extraordinary cause, and no notice is required for parties added to an existing action as a result of a defendant alleging comparative fault.
What is the “Certificate of Good Faith” requirement?
Within 90 days after filing a complaint for medical malpractice in which expert testimony is required, the plaintiff or plaintiff’s counsel must file a “Certificate of Good Faith” stating that plaintiff or counsel has consulted with at least 1 expert, qualified under T.C.A. § 29-26-115 (the “locality rule”), who has provided a signed written statement confirming that they believe: (1) there is a good faith basis to maintain the action based upon the expert’s review of the plaintiff’s medical records; or (2) there are facts material to the resolution of the case that cannot be reasonably ascertained from the medical records or information reasonably available and, despite the absence of information, there is a good faith basis for maintaining the action as to each defendant.
Can the consulting expert certify the good faith basis without reviewing medical records?
Yes. Expert certification can be without the expert reviewing medical records if a defendant fails to release records timely.
Does a defendant health care provider ever have to file a certificate?
Yes. A defendant or defendant’s counsel must also file a “Certificate of Good Faith” within 30 days of alleging in an answer or amended answer that a non-party is at fault.
Can defendants obtain a copy of the expert witness written statement?
Not typically. The consulting expert’s written statement is not discoverable unless a court finds that the provision has been violated, in which case the statement is discoverable and the expert may be compelled to testify.
What happens if a certificate is not filed?
Failure to file a Certificate by a plaintiff will, upon motion, result in the dismissal of the action with prejudice. Failure of a defendant to file a Certificate will, upon motion, result in the comparative fault defense being stricken with prejudice.
Can a party get more time in which to file a certificate?
Yes. A court may grant an extension of time in which to file a Certificate for good cause shown.
Are there sanctions for violating the new law?
Yes. If the provision has been violated, sanctions against the party or counsel filing the Certificate will be awarded, including attorneys’ fees and costs. If the attorney violated the provision, the court will forward the order to the Tennessee board of professional responsibility. Three violations of the provision will, upon motion, result in future filings by the party or counsel being accompanied by a bond of $10,000 per adverse party. The Certificate must include the number of prior violations by the party or counsel.
Are there any other changes under the bill?
Yes. All parties to the action will be entitled to obtain complete copies of other parties’ medical records for the plaintiff, presumably without order by the Court and the plaintiff must provide a signed authorization releasing his or her medical records, within 30 days of a request.
Disclaimer: The information contained herein is strictly informational; it is not to be construed as legal advice. |
