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Charles Farmer - Spragins, Barnett & Cobb, PLC, 731-424-0461 cfarmer@spraginslaw.com

Readers of West Tennessee Medical News have previously been advised that Tennessee's medical malpractice law has been amended. Since the amendments went into effect October 1, a review is in order.

The amendments implement three new concepts which supporters of the amendments hope will cut down on the number of frivilous lawsuits against health care providers.

These new concepts are (1) a pre-suit notice requirement; (2) a requirement for speedy production of medical records; and (3) a requirement of a Certificate of Good Faith.

Now, one planning to sue a health care provider(s) must give defendant(s) 60 days notice before filing suit.

While the law is unclear on what one has to say in the notice, it does require that it disclose all other health care providers who are receiving notice.

Once suit is filed, the Complaint which commences the suit must affirmatively state that the required notice has been given. It must also give the Court sufficient proof that the notice has been filed.

Ordinarily, one has a year from the date of injury to file a medical malpractice suit. By the filing of the proper notice referred to above, that period is increased by 90 days.

Now, complete medical records must be produced within 30 days of a request. A claimant (the one suing) can satisfy this requirement by signing a medical release form.

Some attorneys worry about privacy issues becoming problematic by the signing of a medical release form. There is a fear that records having nothing to do with a plaintiff's claim will be obtained.

The most important amendment now in effect is the requirement of Certificates of Good Faith.

This requirement mandates that, within 90 days of filing suit, a plaintiff or his attorney must file a Certificate of Good Faith (CGF) which states that one or more experts have been consulted who agree that the plaintiff has a "good faith" basis for filing the lawsuit.

The CGF, pursuant to T. C. A. 29-26-115, must assert that the expert relied upon is qualified to express an opinion that malpractice has occurred.

Tennessee law exisiting prior to the amendments which went into effect Oct. 1 already set qualifications of the expert(s) relied upon by plaintiffs.

Those experts (1) must have practiced in a contiguous state, in a relevant specialty, in the year before the alleged malpractice; (2) must know the standard of care in the plaintiff's community or a similar community; and (3) must be qualified upon the issues of liability; i. e., he must know what would be a departure from the ordinary standard of care and whether the alleged departure from that standard would/could have cause the plaintiff's injury.

An expert who might be used by a plaintiff at trial might not be the same as the expert used when filing the Certificate of Good Faith. But, both the expert used for the CGF and the "testifying expert", if different, must meet the same qualifications referred to above.

Failure of a plaintiff to file a CGF is fatal. Upon motion of the defendant, the plaintiff's claim is subject to dismissal, with no right to refile.

It is not uncommon for a defendant in a medical malpractice suit to point fingers at other health care providers who might have caused or contributed to the plaintiff's injury. They, too, must file CGF.

There will, of course, be substantial controversy about the adequacy of Certificates of Good Faith. An expert's opinion will probably be satisfactory if it includes the caveat that facts important to a conclusion are not available from current information, so long as the expert can still opine that there is a reasonable basis for maintaining the action.

Passage of the amendments should, as authors of the legislation intended, reduce the number of frivilous lawsuits. It will make lawyers more cautious, for penalties against lawyers can be severe.

If there is failure to comply with the CGF requirement, a guilty lawyer may be required to pay for some or all of the defending parties attorney fees and other costs. Further, a copy of the judge's Order finding that a lawyer has not adhered to the CGF reuirements will be forwarded to the Board of Professional Responsibility for possible sanctions.

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