Is there really anything so fear-inducing, so terrifying for the plaintiffs’ lawyer than the initiation of a medical malpractice claim? Honestly, my palms sweat from the thought of it.
In Tennessee, where I practice, there are now more hurdles and hoops involved in the simple act of complying with pre-suit requirements than would be required to join Cirque du Soleil’s newest act in Vegas. So, what’s a plaintiff’s practitioner to do?
If you are among the ranks of many, it likely means you’ll abandon handling medical malpractice suits altogether save, perhaps, the most egregious of cases with the clearest cut liability and damages (to the extent that exists). This is a shame, because the number of calls I receive about potential medical malpractice continues to rise as the public becomes more aware that not all bad outcomes are simply acceptable risks of being a patient. Yet, though the calls continue to mount and, historically, the medical malpractice cases I have handled have been among the most personally and professionally rewarding of my career, my natural inclination is to turn away the medically harmed so that they don’t also unwittingly become the legally harmed.
The statistics indicate that I am not alone in this reaction. Medical malpractice filings are down in my home state. It would be nice to think that this is because incidents of medical malpractice are, themselves, down. Perhaps that is the case but, unfortunately, I think the more likely cause for the decrease is the enhanced difficulty in prosecuting cases which were already plenty difficult to prosecute.
By way of illustration, in the fall of 2008, the Tennessee legislature implemented the earliest in a series of health care liability pre-suit requirements. These measures included, among other things, pre-suit notification requirements as well as mandatory pre-suit certificates of good faith. In the two fiscal years leading up to the 2008 reforms, Tennessee saw the filing of 638 malpractice cases in 2007 and 537 cases for the fiscal year ending June 2008, only a few short months before the amendments became effective. Fast forward to the years following the legislative enactments and the decrease in filings is significant. In the 2011 fiscal year, the number dropped to 343. In 2012, total filings were 369 and for the fiscal year ending June 30, 2013, the state had 385 health care liability cases filed.
The purpose of the pre-trial notice requirements was, ostensibly, to attempt to avoid litigation by having early settlement discussions. However, I can tell you that I have never, not one time, had a productive post-notice/pre-litigation settlement discussion with one single provider, carrier, or defense counsel. Not one. And, I am not alone. My colleagues nearly universally report the same experience.
Instead, the notice requirements have served to reduce litigation, but likely because they have been so strictly construed that failure to comply has been held to be an outright bar to further pursuit of the case. This, in turn, reduces the number of practitioners willing to bear the risk. In fact, in Knoxville, the city where I practice and home to approximately 2,000 lawyers, I am one of only three local bar association members currently willing to serve on the Knoxville Bar Association’s lawyer referral panel for potential medical malpractice cases for injured patients.
In the early days of Tennessee’s legislative reforms, before it was clear how courts would construe appropriate notice if done by anything less than hand delivery to the physician, I made a point of insisting on personal delivery. And, by personal delivery, I literally mean into the hands of the physician himself or herself. There was good reason. Tennessee cases began to question authority and apparent authority for accepting notice and, accordingly, the only safe way, I feared, was to provide the notice directly to the doctors pending further court guidance on compliance with the statutory requirements.
In keeping with my concerns regarding pre-suit notice, I served a written notice to an OB-GYN in his office a few years ago. I quietly entered his office without calling any attention to myself, approached his staff and politely explained that I had a hand delivery for the doctor. They ushered me back into the hallway as if I was carrying with me a strain of the Bubonic plague.
The doctor was angry and incredulous—not that a claim might be made, but that I was being so rude and disruptive as to hand-deliver the notice rather than just sending it to him by mail. It was perceived by him as an overly aggressive intrusion on my part. His face became red and he snatched the documents from me in the hallway before I could even say a word. The urge to tell him to thank his lobbyist for the intrusion was strong, but I resisted. In the end, you can imagine that this doctor does not feel a strong level of gratitude for the pre-suit burdens put in place by the legislature for his purported benefit.
The decision to forego the potential risks and rewards of medical malpractice litigation may be a sound one in light of current jurisprudence and accompanying legislative caps on non-economic damages. Pondering these risks and benefits might be enough to make you get philosophical as a plaintiffs’ lawyer, if you weren’t already too busy just being scared. And, why be afraid? Well, for instance, take the case of the widow of Mark Stevens.
Mark Stevens went to a small community hospital in Hickman County, Tennessee with complaints of, among other things, fever, wheezing, sore throat, rapid breathing, and a toothache. He was sent home with medications but returned two days later. Again, he was discharged with medications. A few days later, he went into septic shock, respiratory failure, and multi-system organ failure. He ultimately died and his widow alleged that the defendant health care providers failed to properly diagnose and respond to his treatable life threatening illness.
The lawyers for the plaintiff executed pre-suit notice more than 60 days prior to filing suit, as required by Tennessee law. However, Tennessee law also requires that each prospective defendant receive with the notice a HIPAA-compliant medical authorization permitting the potential defendants to collect medical records from each other. In this instance, the medical authorization, while enclosed with the timely notice, contained admitted deficiencies.
The defendants moved to dismiss the lawsuit based upon noncompliance with the statute. The trial court denied the motion, ruling that the noncompliance was excused by extraordinary cause (i.e., the death of the patient), and further holding that the defendants had received timely notice of the suit and that the plaintiff correctly filed a pre-suit certificate of good faith. However, in November of 2013, the Tennessee Supreme Court reversed the trial court’s decision and dismissed the widow’s claim, all based upon her provision of a deficient medical authorization with the other pre-suit notice documents. Stevens v. Hickman Community Health Care Services, Inc., 418 S.W.3d 547 (Tenn. 2013).
The dissenting opinion pointed out that the plaintiff substantially complied with the statute, providing timely notice and giving the defendants the opportunity to engage in pre-suit negotiation, if desired. Further, the dissent noted that the defendants waited approximately seven months after receiving the initial notice to raise the deficiency for the first time, thus undercutting their own argument that they were prejudiced by their inability to collect records pre-litigation.
The impact for Ms. Stevens is that her late husband’s case will not be heard on the merits. The impact for patients who are victims of medical error and are already having trouble finding a lawyer to take their case is harder to quantify.