Legislative Update: Recent Changes to Tennessee Medical Malpractice Statute
East Tennessee Medical News – July 2009
By Ian P. Hennessey

In February 2009, legislation was introduced to again reform Tennessee’s medical malpractice statute.  On June 11, 2009, Governor Bredesen signed the bill into effect.  There are significant changes that take effect on July 1, 2009, but shall apply only to those actions in which notice is required on or after July 1, 2009.

Changes to Form of Written Notice
Previously, written notice of a potential medical malpractice claim must be given to each defendant health care provider at least sixty days before filing a complaint.  Accompanying this notice, the plaintiff must provide a list of all health care providers to whom notice is being given.

The new amendment mandates that the notice include: (1) the full name and birthday of the patient whose treatment is at issue; (2) the name and address of the claimant authorizing the notice and the relationship to the patient (in cases in which the notice is not sent by the patient); (3) the name of the attorney sending the notice (if applicable); and (4) a HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.  In addition, the attached list of health care providers receiving the notice must include the name and address of each provider.

If a complaint is eventually filed, the plaintiff must resubmit the same information and state whether he or she has complied with the notice requirements.

Clarification of Service Requirements for Written Notice
The amendment also clarifies the requirements for service of the written notice.  The notice must be served on the provider within the applicable statute of limitations, and may be served through personal delivery to the provider or a receptionist at the provider’s practice location.  Personal delivery to the provider or receptionist is considered effective on the date it is made.

The notice also may be served by mailing the notice to the address listed for the provider on the Tennessee Department of Health website (and to the provider’s current business address, if different).  For corporate health care providers, service may be accomplished by mailing the notice to the entity’s address for its agent for service of process (and to its current business address, if different).  In either instance, the notice must be sent by certified mail, return receipt requested.  However, it is unnecessary that the provider actually return the return receipt for service to become effective.  Instead, service is considered to be effective as of the first date service by mail is made.  If the mailed notice is returned undelivered, within five business days of receipt of the second undelivered letter, the claimant must mail the notice to the provider’s office or business address where they last provided medical services to the patient.

Clarification and Extension of Statute of Limitations
The amendment also clarifies the extension of the statute of limitations granted by the October 2008 statute amendment.  Previously, when written notice was given, the statute of limitations was extended “up to 90 days.”  The amendment clarifies that the extension is measured from the date the statute of limitations would have expired absent the extension.  The amendment also increases the extension from 90 days to 120 days.  However, no more than one extension will apply to any provider.

Medical Authorization
Previously, all parties were entitled to obtain complete copies of the claimant’s medical records from any other party.  A medical authorization by the claimant was considered compliance by the claimant.  Under the amendment, the claimant complies with this provision by producing a HIPAA-compliant medical authorization sent with the notice.  In addition, the amendment states that a party is entitled to obtain copies of medical records from any provider receiving notice, and such records must be produced within 30 days of their written request.  The amendment requires that any records received shall be treated as confidential and used only by the parties, their counsel, and their consultants.

Good Faith
Under the October 2008 amendments, the claimant was required to file a “Certificate of Good Faith” within 90 days of filing a complaint.  However, the 2009 amendment eliminates the 90 day period altogether and instead requires the “Certificate of Good Faith” be filed along with the complaint.  If the claimant fails to file the “Certificate of Good Faith” with the complaint, the lawsuit will be dismissed unless claimant can show that the provider failed to timely provide copies of the patient’s medical records or if claimant can show “extraordinary cause.”

Disclaimer: The information contained herein is strictly informational; it is not to be construed as legal advice.