Medical Malpractice Notice and Certificate of Merit Bill Sent to Governor

The Speaker of the House signed a bill yesterday that makes it more difficult for patients to bring medical malpractice actions. The Senate Speaker signed the legislation last week and therefore the bill is on its way to the Governor.

The legislation requires that a patient give at least 60 days notice to the defendants before filing a medical malpractice lawsuit.

More significantly, the legislation requires that a certificate of merit be filed within ninety days of filing suit. The certificate of merit must be signed by plaintiff’s counsel, who is certifying that

"(1) The plaintiff or plaintiff’s counsel has consulted with one (1) or more experts who have provided a signed written statement confirming that upon information and belief they: (A) Are competent under § 29-26-115 to express opinion(s) in the case; and (B) Believe, based on the information available from the medical records concerning the care and treatment of the plaintiff for the incident(s) at issue, that there is a good faith basis to maintain the action consistent with the requirements of § 29-26-115; or

(2) The plaintiff or plaintiff’s counsel has consulted with one (1) or more experts who have provided a signed written statement confirming that upon information and belief they: (A) Are competent under § 29-26-115 to express opinion(s) in the case; and (B) Believe, based on the information available from the medical records reviewed concerning the care and treatment of the plaintiff for the incident(s) at issue and, as appropriate, information from the plaintiff or others with knowledge of the incident(s) at issue, that there are facts material to the resolution of the case that cannot be reasonably ascertained from the medical records or information reasonably available to the plaintiff or plaintiffs counsel; and that despite the absence of this information there is a good faith basis for maintaining the action as to each defendant consistent with the requirements of § 29-¬26- 115. Refusal of the defendant to release the medical records in a timely fashion or where it is impossible for the plaintiff to obtain the medical records shall waive the requirement that the expert review the medical record prior to expert certification."

The failure to file such a certificate makes the case subject to dismissal with prejudice.

Defendants who assert fault against other health care providers must file a similar certificate.

The information about who signed the certificate, what data they reviewed is not ordinarily discoverable, However, "if a party …prevails on the basis of the failure of an opposing party to offer any competent expert testimony as required by § 29-26-115, the court may, upon motion, compel the opposing party or party’s counsel to provide to the court a copy of each such expert’s signed written statement relied upon in executing the Certificate of Good Faith." The legislation also permits a discovery deposition of the medical expert.

Sanctions include payment of attorneys’ fees and a report to the disciplinary board. Attorneys who are repeatedly sanctioned can be required to post a bond before filing suit.

If Governor Bredesen signs the bill it will apply to all actions filed on or after October 1, 2008. Here is a copy of the bill.

The legislation creates a significant hurdle for filing medical malpractice actions in Tennessee. Attorneys now face a financial penalty for filing cases without consulting an expert before or shortly after filing suit.

I will be speaking in much more detail about this legislation at a seminar sponsored by the Tennessee Association for Justice on June 26 in Nashville. I will give you more information about that program in a later post.