In the last five years, the Tennessee legislature has made several changes to the state’s laws that have significantly impacted the Tennessee Medical Malpractice Act. In 2008, two new statutes were enacted which changed the way a medical malpractice case is initially brought. Tenn. Code Ann. § 29–26–121, known as the “notice statute,” requires the plaintiff in a health care liability action to provide the defendant with pre-suit notice of the claim. Under this new law, the plaintiff must give the defendant notice at least 60 days before filing the complaint. The second statute, Tenn. Code Ann. § 29–26–122, requires a plaintiff to file a “certificate of good faith” with his or her complaint. This means that the plaintiff has had a qualified expert review the case and certify that it has merit.
A few years later, the Tennessee General Assembly passed sweeping tort reform, and, in the process, considerably affected the state’s medical malpractice laws. The legislation, known as the Tennessee Civil Justice Act, was signed into law on June 16, 2011 and applies to actions that accrue on or after October 1, 2011. Most notably, the statute instituted monetary caps on noneconomic and punitive damages. There is now a $750,000 cap for noneconomic damages, and punitive damages are capped at the greater of twice the compensatory damages or $500,000. The Tennessee Civil Justice Act did more than cap damages though. The statute now provides definitions of the terms “health care provider” and “health care liability action.” Notably, health care liability action now includes “any civil action, including claims against the state, alleging that a health care provider or providers have caused an injury related to the provision of or failure to provide health care services, regardless of the theory of liability on which the action is based.” The definitions were added in order to make clear the applicability of the Tennessee Medical Malpractice Act.
Now, several years later, we are beginning to see the influence these changes have had on Tennessee’s medical malpractice cases. According to studies, the number of health care liability lawsuits (or medical malpractice lawsuits) filed in Tennessee since the changes were first implemented in 2008 has decreased by 36%. Five hundred and eighty-four (584) medical malpractice lawsuits were filed in 2007; last year, only 374 suits were filed.
Proponents of the reform state that the decrease in claims proves that the change in the law operated to reduce frivolous lawsuits. Plaintiff’s lawyers, however, claim that the changes favor health care providers and made it nearly impossible to hold doctors and nurses accountable for their mistakes. They assert that the new certifying process has complicated the procedure for filing a claim and has seriously increased the cost of trial preparation. Regardless of who is right, one thing remains clear: defendants still win the overwhelming majority of medical malpractice trials. See The Tennessee Bar Association.
In light of these changes in the law and their bias towards defendants, it is increasingly more important for potential plaintiffs to seek legal help as soon as possible. A delay could effectively eliminate your right to recover. If you or a loved one has been injured by a health care provider, do not hesitate to contact The Higgins Firm today. Our Tennessee Medical Malpractice attorneys will gladly sit down with you to discuss your rights and help you determine how to proceed with your potential claim.