Recent increases in medical malpractice insurance premiums, medical malpractice awards and physicians’ fear of litigation have been reported as factors fueling the rise in healthcare costs and threatening access to medical care in the United States. During each medical malpractice crisis of the past two decades, individuals have debated the causes resulting in legislative attempts at tort reform. Legislative tort reform has now arrived in Tennessee in the form of Public Act No. 919. The Act is designed to reduce the number of non-meritorious medical malpractice lawsuits filed, thus reducing the time, expense (and stress) of unwarranted litigation.

Public Act No. 919 amends Tennessee Code Annotated (T.C.A.) §§ 29-26-121, 122 and addresses medical malpractice actions in Tennessee. After years in the making,Public Act No. 919 was approved by the General Assembly and was signed into law by Governor Phil Bredeson on May 15, 2008. The Act is set to take effect on October 1, 2008. When it does, some substantial changes will be made to the process of medical malpractice litigation. As with many new statutes, some of the changes to the process will be intentional, and some will be unintentional. This paper reviews the new Public Act and the changes to the current Medical Malpractice Statute.

The most important change to the medical malpractice statute, set forth by Public Act No. 919 as T.C.A. § 29-26-122(a), is the new requirement that within 90 days of filing a medical malpractice complaint, plaintiff or counsel must have the case reviewed by an expert who believes himself competent under the statute, and that expert must find there is a good-faith basis for the suit.

Specifically, plaintiff or his counsel must file a Certificate of Good Faith within 90 days of filing the complaint stating he consulted an expert who has signed a written report confirming he (1) believes he is a competent expert as defined by the medical malpractice statute, and (2) either believes there is a good-faith basis for the suit2 or believes there are facts that cannot be reasonably ascertained from the medical records or information available to plaintiff or his counsel, but there is a good-faith basis for the suit against each defendant in the absence of the missing facts. Thus, the intent of T.C.A. § 29-26-122(a) is to establish a gatekeeping function that will prevent cases without merit from going forward in the judicial system.

Until Public Act No. 919 takes effect, the disposition of frivolous cases generally requires a motion for summary judgment. In recent years this has been later in the course of the case, as courts have held that plaintiffs are entitled to take the depositions of defendant physicians prior to hearings on motions for summary judgment. Depending on how many parties are involved, this can be an expensive and time-consuming undertaking, both in terms of lost income for the defendant medical providers who often attend all of the party depositions, and in terms of costs to the insurance providers who pay for attorney time at all depositions, as well as court reporter and videographer fees for adverse depositions. After all party depositions have been taken the defendants can file motions for summary judgment.3 These motions are usually based on provider affidavits stating they did not violate the applicable standard of acceptable professional practice, and no action or inaction on their part caused harm to the plaintiff. To keep their cases from dismissed, the plaintiffs file a counter-affidavit from an appropriate medical provider stating the opposite. This creates an issue of fact for a jury, and keeps the case from being dismissed. If no counter-affidavit is filed however, the case is usually dismissed on summary judgement.

The gatekeeping function of the new Amendment should reduce a substantial amount of this type of preliminary expense. Those cases that previously could not be dismissed until after party depositions had been taken, despite the fact they had no support from any medical expert as required by the statute, should now not be filed at all, or at least should be dismissed 90 days after filing if no Certificate of Good Faith is signed.

The medical expert must be “competent” under the definition of the statute, but who is considered competent? Currently the parties regularly disagree on this issue. Motions to exclude expert witnesses are routinely filed on the basis that the expert is not qualified under the statute because he has not demonstrated he is familiar with the standard of care in a same or similar locality. Additionally, plaintiffs routinely attempt to use expert witnesses from related but different specialties, and defendants routinely file motions to exclude them. These are issues that have traditionally been decided by the judge assigned to the case. The expert’s name, city of practice or specialty do not have to be placed on the Certificate of Good Faith. This information is not discoverable in the course of litigation unless the plaintiff fails to offer any competent medical expert testimony as required by T.C.A. § 29-26-115, at which time the written statement of the certifying expert may be compelled by a motion from the opposing party.

The exception under which a plaintiff or his attorney can be exempted from signing a Certificate of Good Faith4 occurs if the defendant refuses to release the medical records in a timely fashion or where it is impossible for the plaintiff to obtain the medical records. These events waive the requirement that the expert review the medical record prior to expert certification. Under this scenario, the case may be certified only upon the basis of information provided by appropriate plaintiffs or witnesses.5 The Amendments do not indicate whether production will be considered timely if done in 10 days, in 30 days, or in any other time period. At some point in the future, the courts will have to set precedent on the time a medical provider has to provide the records, and therefore how far ahead of the statute of limitations the plaintiff or his attorney must ask for the records to take advantage of this exception.

In summary, the medical malpractice crisis over the last two decades has resulted in various states’ legislative attempts at tort reform. Tennessee’s legislature recently adopted a certification requirement with the goal of reducing the cost of dealing with frivolous medical malpractice lawsuits. Courts will undoubtedly be asked to interpret different elements of the amendments. In the immediate future the legislation may cause the proverbial rush to the courthouse as plaintiff’s attorneys try to get their cases filed before the certification requirements go into effect. A few doctors in the surrounding states who are all too willing to criticize doctors in Tennessee may charge higher fees to personal injury lawyer with a foreseeable result of encouraging good plaintiff’s attorneys to concentrate their available resources on the more serious injuries, driving up the
amounts paid in medical malpractice cases with merit. Therefore, it may be difficult to gather reliable data on whether the legislative goal has been reached for a few years. Regardless, the current amendments appear to be a good step in the right direction.

References:
1. Ann Fam Med 4(3):240-246, 2006.
2. Amendment T.C.A. § 29-26-122(b) sets forth similar requirements for a defendant alleging comparative fault against a non-party.
3. See e.g. Conger v. Gowder, 2001 WL 301155 (Tenn. Ct. App.).
4. See Amendment T.C.A. § 29-26-122(d).
5. Amendment T.C.A. § 29-26-122(a).

Dr. Regan is an associate clinical professor of psychiatry at Vanderbilt University School of Medicine and an associate with North, Pursell & Ramos (NPR), PLC, in Nashville. Ms. Thompson is an associate with NPR.