Distinction between Tennessee and Georgia Medical Malpractice Law: Statute of Limitations and Standard of Care

STATUTE OF LIMITATIONS

Tennessee medical malpractice law, referred to as “health care liability” by the Tennessee Code Annotated, differs in many aspects from Georgia medical malpractice law. First, the statue of limitations for medical malpractice cases in Tennessee is only one (1) year, as opposed to two years in Georgia. Tenn. Code Ann. § 28-3-104, § 29-26-116. The one-year period begins to run from the date of discovery. Id. No action shall be brought more than three years from the negligent act or omission, unless there is fraudulent concealment by the defendant. Tenn. Code Ann. § 29-6-116 (a)(2).

ELEMENTS OF MEDICAL MALPRACTICE

Tennessee Code Annotated § 29-26-115 sets out the requirements for a health care liability action. Under this code section, the claimant has the burden of proving:

(1) the recognized standard of professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time of the alleged injury or wrongful action occurred; (2) that the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and (3) as a proximate result of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred. Tenn. Code Ann. § 29-26-115(a).

Essentially, the plaintiff must establish the standard of care in that community, show the defendant breached that duty of care, and that the breach of the standard caused the plaintiff’s injury. This are of the code section varies little from Georgia law.

EXPERT QUALIFICATIONS

However, perhaps the largest distinction between Georgia medical malpractice law and Tennessee health care liability lies in the expert qualification requirements. The applicable code sections states:

No person in a health care profession requiring licensure under the laws of this state shall be competent to testify in any court of law to establish the facts required by subsection (a), unless the person was licensed to practice in the state or a contiguous bordering state a profession or specialty which would make the person’s expert testimony relevant to the issues in the case and had practiced this profession or specialty in one (1) of these states during the year proceeding the date that the alleged injury or wrongful act occurred. Tenn. Code. Ann. § 29-26-115 (b).

Thus, in order to establish the three requirements stated in subsection (a), there must be an expert, who practices in that field or specialty, in Tennessee or a contagious border state, and must have practiced in the year preceding the negligent act or omission.

LOCALITY RULE

The “locality rule” refers to the portion of Tennessee Code Annotated § 29-26-15(b), which states, “recognized standard of acceptable professional practice … in the community in which the defendant practices or in a similar community.” Previously, Tennessee common law operated under a “strict locality rule”, which required that an expert must be familiar with the standard of care in the locality in which the defendant practiced. Shipley v. Williams, 350 S.W.3d. 527, 537. That standard has since been relaxed and an expert is qualified to testify to the standard of care if they can show they are familiar with the standard of care in that community or a similar community. Id. While the courts have broadened the standard of the locality rule, they have declined to adopt a national standard of care. Id. at 545.

FILING OF CERTIFICATE OF GOOD FAITH

§ 29-26-122 of the Tennessee Code Annotated sets out an additional requirement for a medical malpractice suit in the state of Tennessee. § 29-26-122 states that if the plaintiff does not file a certificate of good faith with the complaint, the complaint shall be dismissed. Subsection (a) requires that the certificate of good faith must state (1) that the plaintiff has consulted with one or more experts who have provided a written statement confirming that upon information and belief they:

(A) Are competent under §29-26-115 to express an opinion or opinions 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 or incidents 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 ore more experts who have provided a signed written statement confirming that upon the information and belief they:

(A) Are competent under §29-26-115 to express an opinion or opinions 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 or incidents at issue and, as appropriate, information from the plaintiff or others with knowledge of the incident or incidents at issue, that there are facts material to the resolution of the case that cannot be reasonably ascertained form the medical records or information reasonably available to the plaintiff or plaintiff’s 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 he expert review the medical records prior to expert certification.