Personal Injury Law

Medical Malpractice Filings Dropping

By John A. Day

The requirement of pre-notice and a certificate of good faith (T.C.A. Sec. 29-26-121 and 122) has had a significant effect on filings of medical malpractice cases.

From October 1, 2008 (when the new law came into effect) until April 30, 2009) there were only 111 medical malpractice cases filed in the entire state.  During the same seven-month period a year earlier there were 314 filings.

Here is the data for the some of the larger counties in the state:

County                            2007-08                   2008-09

Shelby                                  81                               30

Davidson                             73                               25

Knox                                     32                               12

Hamilton                             10                                  1

Rutherford                           13                                 4

Montgomery                          3                                  0

Washington                         14                                 5

Sullivan                                 20                                 4

Maury                                      4                                  1

Sumner                                  3                                  0

Anderson                               3                                  3

Wilson                                    3                                  3

Dickson                                  3                                  2

Thus, in the first seven months of the year, medical malpractice filings are down by about 60%.  There is no reason to believe that there is any less malpractice in Tennessee  than there was last year, so one can readily point to the new law as the reason for the drop in filings.

However, as I said when I reported the data for the first three months after the pre-suit notice and certificate of good faith bill came into effect, we are going to have to see data for at least a full year to get a true feel for the effect of the legislation.  Quite frankly, I would have expected more filings in the first four months of the year.  In the first three months after the statutes were in effect only 28 cases were filed, and this data shows that 83 were filed in the next four months. 

I expect that we will see 140 to 175 cases filed between now and September 30.  At 175, the total filings for the year will be 286.  In the fiscal year ending June 30, 2008, there were 537 medical malpractice filings.  If my guesstimate is correct, filings will be down about 40%.

The defense bar is feeling the pinch.  Several defense lawyers have told me that their pipeline is not being re-filled.  I remember hearing several years ago that it cost an average of $15,000 (or was it $18,000?) to defend a case that was quickly defeated on summary judgment (no in-depth discovery, etc.).  If my memory is correct, and if case filings are down by, say,  200 per year, and the cases not being filed are those type of cases, that is $3,000,000 less paid to defense firms to defend those cases.

Look for defense counsel to defend  cases with even more vigor (if that is possible).

As I mentioned in a post on Thursday, June 4, the General Assembly has a passed a bill modifying the law passed October 1.  The Governor is expected to sign the bill any day now.  This bill eliminates some of the basic unfairness in the pre-suit notice provisions, but may actually further decrease filings because of the new requirement that the certificate of good faith must be filed with the complaint.

To learn more about the legislation click here.

Full post as published by Day on Torts on June 05, 2009 (boomark / email).