Subject Matter: Tennessee Medical Malpractice Acts October 1 2008 Amendments
Good evening. Attached is SB 2109/HB 2233 amending the Tennessee
Medical Malpractice Act’s October 1, 2008 amendments we reported last
Fall. The state Senate completed action today on this legislation
sponsored by Sen. Doug Overbey, R-Maryville, and House Judiciary
Committee Chair Kent Coleman, D-Murfreesboro, to improve the process
for notice, clarify the extension of the statutes of limitations and
repose, and facilitate medical records exchange. The 2009 bill now
goes to the governor, who is expected to sign it. The revisions were
the result of an agreement between the Tennessee Association for
Justice and the Tennessee Medical Association.
NOTE: It is critical that all evidence of service be retained it can be
evaluated for compliance with the amended service of notice provisions.
NOTE: It is critical that protocols regarding the management and
production of medical records in response to a HIPAA compliant request
and these amendments. The amendment now requires "specified portions"
of the medical record to be produced as opposed to the entire medical
record. In LTC, we often have charts that cover several years of a
residency and production of sections of the chart is unduly burdensome
and very labor and time intensive. Thus, it is advisable that written
agreements be reached with a requesting party or opposing attorney to
address records production. Also, if the records are being copied by a
3rd party vendor, the vendor MUST comply with the Tennessee duplication
costs statute (see below). We manage production of charts for our
clients for reasons of strict compliance with this statute so please
call for any advice in this regard.
NOTE: The 90 day grace period for filing a certificate of good faith
after the Complaint is filed has been deleted and the Complaint SHALL
be dismissed if a certificate of compliance is not filed WITH the
They will take effect July 1, 2009. Below is a summary of the 2009 amendment:
Section 1(a) – 60 day notice.
The amendment provides more details about the content of the 60 day
notice (identification of the resident, identification of claimant
authorizing the notice and relationship o patient, identification of
all providers noticed and a HIPAA complaint authorization).
The amendment also provides detailed requirements of satisfying service
of the notice for purposes of tolling the statutes of limitations and
the statutes of repose (personal service, service by mail) and
compliance by filing a certificate and affidavit of service.
Section 1 (c) – 120 day tolling of SOL and S of Repose The amendment
added 30 more days to the extension of the SOL and S of Repose when
notice is given. The statutes are now extended by 120 days
*Section 1 (d) – Production of medical records A "party" shall provide
a copy of "specified portions" of the claimant’s medical record within
30 days of receipt of receipt of a legally authorized written request
for records. The provider complies with this section by:
1) mailing the record portions with a statement for duplication costs;
2) informing the requesting party that the records will be mailed only
upon advance payment calculated under the Medical records Costs Statute
("The party requesting the patient’s records is responsible to the
provider for the reasonable costs of copying and mailing such patient’s
records. For other than records involving workers’ compensation cases,
such reasonable costs shall not exceed twenty dollars ($20.00) for
medical records forty (40) pages or less in length and twenty-five
cents (25Â¢) per page for each page copied after the first forty (40)
pages and the actual cost of mailing. Any third-party provider of
record copying and related services shall be subject to the reasonable
cost limits contained in this section and shall not impose any charge
or fee for such services in excess of such cost limits.") Requests for
advance payments must be made 20 days after the request and the records
produced 3 business days after receipt of the advance payment; 3. Any
other method agreed to in writing by the requesting party and the
Section 1 (e) -Good faith reliance upon tolling by claimant
If the Complaint is filed in good faith reliance on the extension of
the statutes of limitations/repose granted in these amendments and it
is later determined that the claim is NOT medical malpractice, the
extensions are still available.
Section 2 – Certificate of good faith
IN a medical malpractice action in which expert testimony is required,
Plaintiff must now file a certificate of good faith WITH the Complaint
and no longer has a 90 day grace period. If the certificate is not
filed with the Complaint, the Complaint SHALL be dismissed.
Call us if you have any questions and if you’d like us to set up a
call-in web seminar to review these amendments and the status of the
Medical Malpractice Act subsequent to the October 1, 2008 amendments.
Take care. Rebecca
Rebecca Adelman, Esq.
The Law and Mediation Offices of
Rebecca Adelman, PLC
545 South Main Street
Memphis, Tennessee 38103
Firm/Company: Law & Mediation Offices of Rebecca Adelman
Document Date: June 5 2009
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