Tennessee Medical Malpractice Laws

I. Overview of Basic Principles and Concepts

What is Medical Malpractice in Tennessee?

Medical malpractice is a specific type of professional negligence by a healthcare provider. In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice. When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

Required Elements of a Medical Malpractice Claim in Tennessee

Introduction

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Tennessee law. Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation. Some degree of risk is inherent in most medical procedures. The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment. The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment.

While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim. In fact, this principle is codified in Tennessee Code Annotated (“TCA”) § 29-26-115(d), which states: “The jury shall be further instructed that injury alone does not raise a presumption of the defendant’s negligence.”

Tennessee medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury. The negligence must be the actual cause in fact of the patient’s injury. The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior. That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

The Basic Elements

The basic elements that must be proven by a plaintiff in a medical malpractice action are codified in TCA § 29-26-115(a) as follows:

In a health care action, the claimant shall have the burden of proving by evidence provided by subsection (b):

(1) The recognized standard of acceptable 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 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.

The statute essentially codifies the elements for common law negligence, i.e., standard of care, breach thereof, and causation between the negligence and injury. Estate of French v. Stratford House, 333 S.W.3d 546, 554 (Tenn. 2011). No action for negligence can succeed in the absence of any of the foregoing elements. Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993).

Under TCA § 29-26-115(b), the statutory elements of a medical malpractice claim must be established through testimony of an expert witness who satisfies the qualifications set forth in the statute. In order to qualify as an expert allowed to provide testimony on the elements of a medical malpractice action, TCA § 29-26-115(b) provides for the following requirements:

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 to be established 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 preceding the date that the alleged injury or wrongful act occurred. This rule shall apply to expert witnesses testifying for the defendant as rebuttal witnesses. The court may waive this subsection (b) when it determines that the appropriate witnesses otherwise would not be available.

The Tennessee Supreme Court, however, recognizes an exception to the expert witness testimony requirement. Estate of French, 333 S.W.3d at 555. Where the negligence is so obvious and readily understandable by an average layperson, expert testimony is not required to establish the applicable standard of care and breach thereof. Barkes v. River Park Hospital, Inc., 328 S.W.3d 829, 833 (Tenn. 2010). The rationale for the expert witness requirement is that generally medical malpractice cases involve facts and issues beyond the common knowledge of lay persons. Seavers v. Methodist Medical Center of Oak Ridge, 9 S.W.3d 86, 92 (Tenn. 1999). However, when the negligence is so obvious that it lies within the common knowledge and experience of the average person, there is no need for an expert to tell jurors that negligence occurred. Estate of French, 333 S.W.3d at 555.

Classic examples of situations that are considered within the common knowledge of lay jurors is when the wrong limb is amputated (left leg instead of right) and where a foreign object with no remaining therapeutic value is inadvertently left inside a patient following surgery. In these types of scenarios, laypeople can draw upon their own common knowledge and experience to conclude that the defendant was negligent without the need for an expert to tell them so.

In order to prevail on a medical malpractice claim, the plaintiff must also prove, through expert witness testimony, causation between the negligence and the complained of injury. TCA § 29-26-115(a). The Tennessee Supreme Court explained the causation element as follows:

Causation, or cause in fact, means that the injury or harm would not have occurred “but for” the defendant’s negligent conduct. Once it is established that the defendant’s negligent conduct was, in point of fact, the actual cause of the plaintiff’s injury or harm, the focus then becomes whether the policy of the law will extend responsibility for that negligent conduct to the consequences that have occurred. As this Court stated in, “legal responsibility must be limited to those causes which are so closely connected with the result and are of such significance that the law is justified in imposing liability. Some boundary must be set….” Fixing this boundary of liability is the purpose underlying the element of proximate cause. Proximate cause is merely the limitation which the courts have placed upon the actor’s responsibility for the consequences of the actor’s conduct…. [T]he consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond. Any attempt to impose responsibility upon such a basis would result in infinite liability….

Causation and proximate cause are distinct elements of negligence, and both must be proven by the plaintiff by a preponderance of the evidence. “Causation (or cause in fact) is a very different concept from that of proximate cause. Causation refers to the cause and effect relationship between the tortious conduct and the injury. The doctrine of proximate cause encompasses the whole panoply of rules that may deny liability for otherwise actionable causes of harm.” Thus, proximate cause, or legal cause, concerns a determination of whether legal liability should be imposed where cause in fact has been established. “Cause in fact, on the other hand, deals with the ‘but for’ consequences of an act. ‘The defendant’s conduct is a cause of the event if the event would not have occurred but for that conduct.’” [internal citations omitted] Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993).

The statute provides for the doctrine of res ipsa loquitur, stating “that there shall be a rebuttable presumption that the defendant was negligent where it is shown by the proof that the instrumentality causing injury was in the defendant’s (or defendants’) exclusive control and that the accident or injury was one which ordinarily doesn’t occur in the absence of negligence.” TCA § 29-26-115(c). The Tennessee Supreme Court explained res ipsa loquitur as follows:

Under Tennessee law, res ipsa loquitur is a form of circumstantial evidence that permits, but does not compel, a jury to infer negligence from the circumstances of an injury. The doctrine of res ipsa loquitur has traditionally been available in cases where direct evidence of a defendant’s negligence is either inaccessible to or unknown by the plaintiff. The doctrine does not dispense with the plaintiff’s burden of proof, but it merely allows an inference of negligence where the jury has a common knowledge or understanding that events which resulted in the plaintiff’s injury do not ordinarily occur unless someone was negligent. The weight of any inference to be drawn from the evidence is for the determination of the jury.

The jury may not presume negligence from the fact of an injury alone. The plaintiff has the burden of showing circumstances from which the jury might reasonably conclude that the defendant was negligent. The plaintiff must demonstrate that he or she was injured by an instrumentality that was within the defendant’s exclusive control and that the injury would not ordinarily have occurred in the absence of negligence.

The doctrine of res ipsa loquitur has been applied in a variety of negligence actions, and in the context of medical malpractice, has been recognized both by the common law and by our General Assembly. Under the common law, courts have adopted a restricted version of res ipsa loquitur in medical malpractice cases. Claimants have been permitted to use res ipsa loquitur only in those cases where the proof is such that the jury can reasonably infer from common knowledge and experience that the defendant was negligent. [internal citations omitted] Seavers, 9 S.W.3d at 91-92.

II. Filing Deadlines for Medical Malpractice Claims

Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case. In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations. Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard. In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended. Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period. For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time. The deadline to carry out a specified action under a statute of limitations can also be extended. For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in Tennessee

In general, medical malpractice claims in Tennessee are subject to a one-year statute of limitations contained in the TCA § 29-26-116. Plaintiffs have one year from the date of the alleged negligence to commence a medical malpractice action under the standard statute of limitations in TCA § 29-26-116(a).

It is often the case that a single day is the difference between whether a plaintiff may commence an action or is time-barred because the limitations period has expired. Miscalculating when the last day of the limitations period is can literally result in an injured patient, even with a meritorious claim, being denied the chance at any recovery. As such, it is critical to understand how time is computed under Tennessee law in calculating the exact date the applicable limitations period ends.Rule 6.01 of the Tennessee Rules of Civil Procedure sets forth how time is calculated under Tennessee law. It instructs:

In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the date of the act, event or default after which the designated period of time begins to run is not to be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a legal holiday as defined in Tenn. Code Ann. § 15-1-101, or, when the act to be done is the filing of a paper in court, a day on which the office of the court clerk is closed or on which weather or other conditions have made the office of the court clerk inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than eleven (11) days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.

The Discovery Rule

Introduction

Every state has some version of the Discovery Rule. In general, the Discovery Rule is an exception to the standard statute of limitations. It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff. Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision. The rationale underlying the Discovery Rule is to prevent the statute of limitations barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in Tennessee

Tennessee recognizes the Discovery Rule for medical malpractice claims. It is contained in TCA § 29-26-116(a) and states: “In the event the alleged injury is not discovered within such one-year period [the standard one-year limitations period], the period of limitation shall be one (1) year from the date of such discovery.”

The statute does not answer the question of what constitutes discovery of the injury for purposes of triggering the running of the one-year limitations period under the Discovery Rule. This is a critical question because the date the injury is deemed to have been discovered triggers the running of the one-year statute of limitations. There are two possibilities: (1) when the injury is discovered—injury only or (2) when the injury is discovered together with its cause—injury and wrongful conduct of another. The Tennessee Supreme Court held in favor of the latter possibility as the triggering event for the running of the three-year Discovery Rule limitations period. Stanbury v. Bacardi, 953 S.W.2d 671, 678 (Tenn. 1997). In Stanbury, the Supreme Court instructed:

We emphasize that under the discovery rule, the statute begins to run when the plaintiff knows or in the exercise of reasonable care and diligence should know, that an injury has been sustained. It is knowledge of facts sufficient to put a plaintiff on notice that an injury has been sustained which is crucial. Again, a plaintiff need not “actually know that the injury constitutes a breach of the appropriate legal standard in order to discover that he has a ‘right of action.’” In other words, a plaintiff need not actually know the specific type of legal claim he or she has so long as the plaintiff is “aware of facts sufficient to put a reasonable person on notice that he has suffered an injury as a result of wrongful conduct.” In this case, the plaintiff was aware of facts sufficient to put a reasonable person on notice that she had suffered an injury as a result of the surgery. Advice from another health care professional that a claim exists is not a prerequisite to accrual of a medical malpractice cause of action. In fact, we have specifically rejected such a requirement in the context of medical and legal malpractice actions. [internal citations omitted] Id.

Minors

Minors are subject to a different limitations period than the standard one-year period that normally applies to medical malpractice claims. TCA § 28-1-106 provides that if the injured party was a minor at the time the cause of action accrued, he or she may commence an action within one-year after the party’s eighteenth birthday.

It is important to understand that the statute tolls the statute of limitations while the plaintiff is still a minor. However, medical malpractice claims are subject to a three-year statute of repose (see next Section of this article for discussion). TCA § 29-26-116(a)(3). The Tennessee Supreme Court held that the three-year statute of repose applicable to medical malpractice claims is not tolled by a plaintiff’s minority. Calaway ex rel. v. Schucker, 193 S.W.3 509, 510 (Tenn. 2005). Consequently, a plaintiff who was a minor at the time of the negligence must commence a medical malpractice action within three years after the date of the negligence or be forever time-barred from bringing suit.

Final Thoughts

The application of Tennessee medical malpractice statute of limitations is extremely nuanced, technical, and fact-driven. The rules governing this area of the law can be overwhelmingly complex and confusing for anyone other than an experienced Tennessee medical malpractice attorney. This is especially true when the statute of repose is also implicated (see next Section of this article). In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact an Tennessee attorney who specializes in medical malpractice law at the earliest possible opportunity.

III. Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations. Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed. If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them. The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes. A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued. In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury. The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued. Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists. A statute of repose serves as an absolute bar to recovery. Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations. The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose. In fact, even many practicing lawyers do not fully appreciate the critical differences between the two. This is likely due to the fact that statutes of repose are relatively rare. Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in Tennessee

Tennessee has a three-year statute of repose applicable to medical malpractice claims that is contained in TCA § 29-26-116(a)(3). It provides that in “no event shall any such action be brought more than three (3) years after the date on which the negligent act or omission occurred….” Id. Accordingly, even if the injury was not discovered within three years of the date of the alleged negligence, the statute of repose bars a claim from ever being brought after three years has passed.

Under the statute, there are only two exceptions to the three-year statute of repose. First, “where there is fraudulent concealment on the part of the defendant,” the statute of repose is tolled until the discovery that a cause of action exists, and then, a claim must be commenced with one year after the discovery of a cause of action. TCA § 29-26-116(a)(3). Second, the three-year statute of repose does “not apply in cases where a foreign object has been negligently left in a patient’s body, in which case the action shall be commenced within one (1) year after the alleged injury or wrongful act is discovered or should have been discovered.” TCA § 29-26-116(a)(4).

IV. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them. The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong. As a result, there could be no valid claim against a government entity. The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state. Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in Tennessee

Claims Against the State

In general, Tennessee has waived immunity to the extent specifically provided for by statute. Tort claims against the state for medical malpractice are governed by TCA § 9-8-307 for injuries that occurred on or after July 1, 2014 (for injuries that occurred prior to that date, this is the applicable version of § 9-8-307). The Tennessee Supreme Court explained the basic operation of TCA § 9-8-307 as follows:

Section 9-8-307 of the Tennessee Code Annotated vests the Tennessee Claims Commission with exclusive jurisdiction for medical malpractice claims against the State of Tennessee based upon the actions of physician residents employed by the State. The filing of a claim against the State in the Claims Commission waives any cause of action against such a physician resident based on the same act or omission occurring within the scope of employment. Tenn.Code Ann. § 9-8-307(b) (1998). The statute further provides that state employees are absolutely immune from liability unless their acts or omissions are willful, malicious, criminal, or done for personal gain. Tenn.Code Ann. § 9-8-307(h) (1998). Nothing in the statute, however, immunizes a private hospital from liability for the acts or omissions of physician residents employed by the State who are also acting as agents or servants of the private hospital. Johnson v. LeBonheur Children’s Medical Center, 74 S.W.3d 338, 343 (Tenn. 2002).

A claimant “must give written notice of the claimant’s claim to the division of claims and risk management as a condition precedent to recovery….” TCA § 9-8-402(a)(1). The required notice must “state the circumstances upon which the claim is based, including, but not limited to: the state department, board, institution, agency, commission or other state entity that allegedly caused the injury; the time and place of the incident from which the claim arises; and the nature of the claimant’s injury.” TCA § 9-8-402(a)(2).

The notice must be filed within the limitations period applicable to medical malpractice claims, with the standard limitations period being one year from the date of the negligence or one year from the date the injury was discovered (see Section on Statute of Limitations in this article). TCA § 9-8-402(b).
The statute provides: “The filing of the notice by the claimant tolls all statutes of limitations as to other persons potentially liable to the claimant due to the occurrence from which the claim before the commission arises.” Id.

The state is liable for only actual damages. TCA § 9-8-307(d). The state is not “liable for punitive damages and the costs of litigation other than court costs.” Id. Medical malpractice claims against the state are subject to the following damage caps: “the state shall only be liable for damages up to the sum of three hundred thousand dollars ($300,000) per claimant and one million dollars ($1,000,000) per occurrence.” TCA § 9-8-307(e).

Claims Against Governmental Entities

Tennessee has waived immunity for governmental entities to the extent provided for in the Tennessee Governmental Liability Act, TCA § 29-20-101. Immunity from suit for injuries “proximately caused by a negligent act or omission of any employee within the scope of his employment” is waived with respect to governmental entities. TCA § 29-20-205. Under the Act, when “immunity from suit is removed by this chapter, consent to be sued is granted and liability of the governmental entity shall be determined as if the governmental entity were a private person.” TCA § 29-20-206.

For purposes of the Act, TCA § 29-20102(3) defines the term ‘governmental entity’ as meaning:

any political subdivision of the state of Tennessee including, but not limited to, any municipality, metropolitan government, county, utility district, school district, nonprofit volunteer fire department receiving funds appropriated by a county legislative body or a legislative body of a municipality, human resource agency, community action agency or nonprofit corporation that administers the Head Start or Community Service Block Grant programs, public building authority, and development district created and existing pursuant to the constitution and laws of Tennessee, or any instrumentality of government created by any one (1) or more of the named local governmental entities or by an act of the general assembly.

The statute of limitations for commencing an action under the Act is provided for in TCA § 29-20-305(b), which states an “action must be commenced within twelve (12) months after the cause of action arises.”

TCA § 29-20-403(4) requires governmental entities to obtain insurance in the following minimum coverage amounts:

Minimum limits of not less than three hundred thousand dollars ($300,000) for bodily injury or death of any one (1) person in any one (1) accident, occurrence or act, and not less than seven hundred thousand dollars ($700,000) for bodily injury or death of all persons in any one (1) accident, occurrence or act, and one hundred thousand dollars ($100,000) for injury or destruction of property of others in any one (1) accident, occurrence or act. This subdivision (b)(4) shall apply to any action arising on or after July 1, 2007.

A judgment or award against a governmental entity may not “exceed the minimum amounts of insurance coverage for death, bodily injury and property damage liability specified in § 29-20-403, unless such governmental entity has secured insurance coverage in excess of such minimum requirements, in which event the judgment or award may not exceed the applicable limits provided in the insurance policy.” TCA § 29-20-311.

Good Samaritan Law

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency. While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so. It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws. While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency. Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation. As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Law in Tennessee

Tennessee has enacted a general Good Samaritan Law that is codified in TCA § 63-6-218. The statute provides immunity from civil damages for individuals who, in good faith, render emergency care or assistance. The statute reads:

Any person, including those licensed to practice medicine and surgery and including any person licensed or certified to render service ancillary thereto, or any member of a volunteer first aid, rescue or emergency squad that provides emergency public first aid and rescue services, shall not be liable to victims or persons receiving emergency care for any civil damages as a result of any act or omission by such person in rendering the emergency care or as a result of any act or failure to act to provide or arrange for further medical treatment or care for the injured person, except such damages as may result from the gross negligence of the person rendering such emergency care, who in good faith:

Renders emergency care at the scene of an accident, medical emergency and/or disaster, while en route from such scene to a medical facility and while assisting medical personnel at the receiving medical facility, including use of an automated external defibrillator, to the victim or victims thereof without making any direct charge for the emergency care….

Notice that the immunity granted by Tennessee’s Good Samaritan Law does not apply if the damages caused by the Good Samaritan were the result of “gross negligence.” Id. Thus, Good Samaritans are shielded from civil liability for ordinary negligence, but not conduct that amounts to gross negligence.

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the Tennessee Code Annotated. Many of the statutes medical malpractice plaintiffs are most likely to encounter are contained in Title 29—Remedies and Special Proceedings—of the Tennessee Code Annotated.

V. Presuit Requirements

Notice of Claim

A plaintiff with a medical malpractice claim must give the defendant or defendants notice of intent to file a claim against them. TCA § 29-26-121(a)(1). The notice must be provided at least 60 days before filing a complaint. Id. The statute states: “Any person, or that person’s authorized agent, asserting a potential claim for health care liability shall give written notice of the potential claim to each health care provider that will be a named defendant at least sixty (60) days before the filing of a complaint based upon health care liability in any court of this state.”

The notice must include:

1. The full name and date of birth of the patient whose treatment is at issue;
2. The name and address of the claimant authorizing the notice and the relationship to the patient, if the notice is not sent by the patient;
3. The name and address of the attorney sending the notice, if applicable;
4. A list of the name and address of all providers being sent a notice; and
5. A HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice. TCA § 29-26-121(a)(2).

When notice is provided in accordance with the statute, “the applicable statutes of limitations and repose shall be extended for a period of one hundred twenty (120) days from the date of expiration of the statute of limitations and statute of repose applicable to that provider.” TCA § 29-26-121(c).

Certificate of Good Faith

In any medical malpractice action in which expert witness testimony is required, the plaintiff must file a Certificate of Good Faith with the complaint. TCA § 29-26-122(a). The Certificate must state that:

(1) The plaintiff or plaintiff’s counsel has consulted with one (1) or more experts who have provided a signed written statement confirming that upon information and belief they:

(A) Are competent under § 29-26-115; 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… or

(2) The plaintiff or plaintiff’s counsel has consulted with one (1) or more experts who have provided a signed 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 reviewed 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 from 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 the expert review the medical record prior to expert certification.

The Tennessee Supreme Court explained that the Certificate serves “to confirm that one or more experts had been consulted and provided a signed written statement of their belief that there was a good faith basis for filing the complaint.” Ellithorpe v. Weismark, 479 S.W.3d 818, 825 (Tenn. 2015). That is, the Certificate is intended to weed out frivolous claims from being filed.

It is important that a medical malpractice plaintiff comply with the Certificate requirement. Failure to comply “shall, upon motion, make the action subject to dismissal with prejudice.” TCA § 29-26-122(c). Dismissal with prejudice means that the claim cannot be refiled.

VI. Required Elements of a Medical Malpractice Complaint

Basic Elements

In Tennessee, there is only one recognized form of action, and it is known as a “civil action.” Rule 2 of the Tennessee Rules of Civil Procedure. A medical malpractice action is commenced by filing a complaint with the clerk of the court. Rule 3. Rule 3 provides that an “action is commenced within the meaning of any statute of limitations upon such filing of a complaint….”

Basically, a complaint is a document that contains a short statement of the facts describing the plaintiff’s claim that entitles the plaintiff to relief and a demand for judgment granting that relief. A complaint is one of the authorized types of pleadings provided for in Rule 7.01.

Rule 8.01 requires that a complaint that states a claim for relief must contain: (1) a short and plain statement of the claim showing that the pleader is entitled to relief and (2) a demand for judgment for the pleader seeks. Also, relief “in the alternative or of several different types may be demanded.” Id.

Under Rule 8.05(1), each allegation in a complaint must “be simple, concise and direct. No technical forms of pleading” is required. The Rule also requires:

Every pleading stating a claim or defense relying upon the violation of a statute shall, in a separate count or paragraph, either specifically refer to the statute or state all of the facts necessary to constitute such breach so that the other party can be duly apprised of the statutory violation charged. The substance of any ordinance or regulation relied upon for claim or defense shall be stated in a separate count or paragraph and the ordinance or regulation shall be clearly identified. The manner in which violation of any statute, ordinance or regulation is claimed shall be set forth.

The complaint may state two or more statements of a claim alternately or hypothetically.Rule 8.05(2). In addition, the complaint may state as many separate claims as the plaintiff has regardless of consistency. Id.

The complaint must “contain a caption setting forth the name of the court and county wherein the action is filed or is pending, the title of the action, the file number, and a designation as” a complaint. Rule 10.01. The complaint must contain the names of all the parties. Id.

The complaint must state its claims “in numbered paragraphs, contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings.” Rule 10.02. In addition, each “claim founded upon a separate transaction or occurrence … shall be stated in a separate count … whenever a separation facilitates the clear presentation of the matters set forth.” Id.

The complaint “shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party.”Rule 11.01.

In one of the most significant decisions in decades on the issue of the sufficiency of complaints, the Tennessee Supreme Court summarized the basic pleading requirements in Tennessee in Webb v. Nashville Area Habitat for Humanity, 346 S.W.3d 422, 425 (Tenn. 2011), and the consequences of not complying with those requirements set forth in the Tennessee Rules of Civil Procedure.

Tennessee Rule of Civil Procedure 8.01 requires that a pleading for relief “shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks.” Rule 8.05(1) further provides:

Each averment of a pleading shall be simple, concise and direct. No technical forms of pleading or motions are required. Every pleading stating a claim or defense relying upon the violation of a statute shall, in a separate count or paragraph, either specifically refer to the statute or state all of the facts necessary to constitute such breach so that the other party can be duly apprised of the statutory violation charged. The substance of any ordinance or regulation relied upon for claim or defense shall be stated in a separate count or paragraph and the ordinance or regulation shall be clearly identified. The manner in which violation of any statute, ordinance or regulation is claimed shall be set forth.

When a complaint fails to comply with Rule 8, it is subject to dismissal by grant of a motion to dismiss for failure to state a claim upon which relief can be granted, as provided by Tennessee Rule of Civil Procedure 12.02(6). The standards by which our courts should assess and dispose of a Rule 12.02(6) motion to dismiss are well-established and have been clearly and consistently applied in Tennessee for nearly forty years, following the adoption of the Tennessee Rules of Civil Procedure in 1970.

A Rule 12.02(6) motion challenges only the legal sufficiency of the complaint, not the strength of the plaintiff’s proof or evidence.

Finally, the complaint must contain a statement whether the notice requirement of TCA § 29-26-121(a) has been satisfied, and the plaintiff must provide a copy of all notices send in accordance with the notice requirement statute. TCA § 29-26-121(b).

Notice Pleading

Tennessee is a notice pleading state. Webb, 346 S.W.3d at 426. The Tennessee Supreme Court explained as follows:

Under Tennessee Rule of Civil Procedure 8, Tennessee follows a liberal notice pleading standard, which recognizes that the primary purpose of pleadings is to provide notice of the issues presented to the opposing party and court…. Our state’s notice pleading regime is firmly established and longstanding; this Court recognized well before the Tennessee Rules of Civil Procedure were adopted that “[t]he object and purpose of any pleading is to give notice of the nature of the wrongs and injuries complained of with reasonable certainty, and notice of the defenses that will be interposed, and to acquaint the court with the real issues to be tried.” [internal citations omitted] Id. at 426-427.

The Supreme Court further explained:

While a complaint in a tort action need not contain in minute detail the facts that give rise to the claim, it must contain direct allegations on every material point necessary to sustain a recovery on any legal theory, even though it may not be the theory suggested … by the pleader, or contain allegations from which an inference may fairly be drawn that evidence on these material points will be introduced at trial. [emphasis in original] Id. at 427 (quoting Leach v. Taylor, 124 S.W.3d 87, 92 (Tenn. 2004)).

Fact pleading is the other (less common) system of pleading. For example, Oregon is a fact (or code) pleading state. Davis v. Tyee Industries, Inc., 668 P.2d 1186, 1193 (Or. 1983). According to the Oregon Supreme Court, “Oregon has been a code pleading state since statehood. The general rule has been that a pleading must contain factual allegations which, if proved, establish the right to the relief sought. This rule has been carried forward in the Oregon Rules of Civil Procedure” in Rule 18(A). Id. at 1191-1192. Essentially, fact pleading requires the plaintiff to allege specific facts that support his or her claim and not simply recite the generic elements of a cause of action in general terms.

The Federal Rules of Civil Procedure used in the Federal court system require notice pleading, which accounts for it being the more widely used pleading system in the country.

VII. Expert Medical Witnesses

Introduction

The general rule under medical malpractice law holds that expert witnesses are nearly always required. The medical issues and related facts are generally far too complex for nonmedical professionals to understand without the aid of expert medical witnesses. As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization. Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

Who Qualifies as An Expert Medical Witness

The Tennessee Supreme Court instructed that TCA § 29-26-115(b) sets forth the requirements for competency of a proffered medical expert. Shipley v. Williams, 350 S.W.3d 527, 536 (Tenn. 2011). The statute 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 to be established 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 preceding the date that the alleged injury or wrongful act occurred. This rule shall apply to expert witnesses testifying for the defendant as rebuttal witnesses.

After an extremely thorough and detailed review of the case law on who qualifies as an expert witness under TCA § 29-26-115(b), the Tennessee Supreme Court in Shipley provided the following explanation:

Our review of Tennessee Code Annotated section 29-26-115 and pertinent Tennessee case law since 1986 leads us to several conclusions. First, subsection (b) of Tennessee Code Annotated section 29-26-115 sets forth the three requirements for an expert witness to be competent to testify in a medical negligence case. The witness must be (1) “licensed to practice in the state or a contiguous bordering state,” (2) “a profession or specialty which would make the person’s expert testimony relevant to the issues in the case,” and (3) must have “had practiced this profession or specialty in one … of these states during the year preceding the date that the alleged injury or wrongful act occurred.” Therefore, the only grounds for disqualifying a medical expert as incompetent to testify are (1) that the witness was not licensed to practice in Tennessee, Georgia, Alabama, Mississippi, Arkansas, Missouri, Kentucky, North Carolina, or Virginia [regional Locality Rule]; (2) that the witness was not licensed to practice a profession or specialty that would make the person’s expert testimony relevant to the issues in the case; or (3) that the witness did not practice this profession in one of these states during the year preceding the date of the alleged injury or wrongful act. Tenn.Code Ann. § 29-26-115(b). Shipley, 350 S.W.3d at 550.

Admissibility of Expert Testimony

Introduction

Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries. Simply put, courts must guard against allowing so-calledjunk science into evidence. To achieve that objective, most states[1] follow, to some extent, one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle. The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Admissibility of Expert Testimony in Tennessee

Rule 702 and Rule 703 of the Tennessee Rules of Evidence are the starting point for admissibility analysis regarding expert witness testimony. In McDaniel, CSX Transportation, Inc., 955 S.W.2d 257, 263-264 (Tenn. 1997), the Tennessee Supreme Court instructed:

In general, questions regarding the admissibility, qualifications, relevancy and competency of expert testimony are left to the discretion of the trial court. The trial court’s ruling in this regard may only be overturned if the discretion is arbitrarily exercised or abused. The specific rules of evidence that govern the issue of admissibility of scientific proof in Tennessee are Tenn. R. Evid. 702 and 703. [internal citations omitted]

Rule 702 states: “If scientific, technical, or other specialized knowledge will substantially assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise.” And Rule 703 states:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect. The court shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness.

In McDaniel, the Tennessee Supreme Court announced:

Although we do not expressly adopt Daubert, the non-exclusive list of factors to determine reliability are useful in applying our Rules 702 and 703. A Tennessee trial court may consider in determining reliability: (1) whether scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether a potential rate of error is known; (4) whether, as formerly required by Frye, the evidence is generally accepted in the scientific community; and (5) whether the expert’s research in the field has been conducted independent of litigation. McDaniel, 955 S.W.2d at 265.

VIII. Comparative Negligence

Modified Comparative Negligence with 50% Bar Rule

In 1992, the Tennessee Supreme Court adopted the doctrine of comparative negligence with a 50% bar rule in McIntyre v. Balentine, 833 S.W.2d 52, 56 (Tenn. 1992). In a detailed decision that traced the history of the doctrine of contributory negligence, the Supreme Court reversed the then-applicable doctrine of contributory negligence, adopted the doctrine of comparative fault, and announced practical details regarding its application. Id. The Court explained:

After exhaustive deliberation that was facilitated by extensive briefing and argument by the parties, amicus curiae, and Tennessee’s scholastic community, we conclude that it is time to abandon the outmoded and unjust common law doctrine of contributory negligence and adopt in its place a system of comparative fault. Justice simply will not permit our continued adherence to a rule that, in the face of a judicial determination that others bear primary responsibility, nevertheless completely denies injured litigants recompense for their damages.

We recognize that this action could be taken by our General Assembly. However, legislative inaction has never prevented judicial abolition of obsolete common law doctrines, especially those, such as contributory negligence, conceived in the judicial womb. Id.

The Court then had to decide whether to adopt the pure form of contributory negligence or a modified approach. It opted for the latter, stating: “We do not agree that a party should necessarily be able to recover in tort even though he may be 80, 90, or 95 percent at fault. We therefore reject the pure form of comparative fault.” Id. at 57.

Then it had to decide which form of modified comparative negligence it would adopt. The Court choose the 50% bar rule version, which holds that a plaintiff may recover as long as his or her own percentage of fault in causing the complained of injury is less than the defendant’s (the 50% bar rule). The Supreme Court announced: “We therefore hold that so long as a plaintiff’s negligence remains less than the defendant’s negligence the plaintiff may recover; in such a case, plaintiff’s damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff.” Id.

The Court instructed:

In all trials where the issue of comparative fault is before a jury, the trial court shall instruct the jury on the effect of the jury’s finding as to the percentage of negligence as between the plaintiff or plaintiffs and the defendant or defendants. Accord Colo. Rev. Stat. § 13-21-111.5(5) (1987). The attorneys for each party shall be allowed to argue how this instruction affects a plaintiff’s ability to recover. Id.

Notice that the plaintiff may recover damages so long as his or her proportionate share of negligence is not equal to or greater than the defendant or defendants being sued by the plaintiff—the 50% bar rule. If the plaintiff’s percentage share of determined fault is equal to or greater than the total of the defendant or defendants (i.e., plaintiff’s contributory negligence is determined to be 50% or greater), then the plaintiff is not entitled to any recovery.

For example, assume a plaintiff is determined to be 49% at fault, and the damage award is $100,000. The amount to which the plaintiff is entitled is $49,000 because the plaintiff’s allocated percentage share of fault, i.e., 49% or $49,000, is deducted from the damage award. If the plaintiff were determined to be 50% at fault, he or she would not be entitled to any recovery because Tennessee imposes the 50% bar rule.

Under contributory negligence (the doctrine that Tennessee followed prior to implementing the current doctrine of modified comparative fault—Whirley v. Whiteman, 38 Tenn. 610 (1858)), a plaintiff is completely barred from any recovery if his or her negligent conduct contributed as a legal cause in any degree to the injury. Contributory negligence is extremely unforgiven. If the plaintiff’s own negligence contributed to the injury in the slightest degree, i.e., even 1%, he or she cannot recover any damages. It is for this reason that nearly every state has abandoned it. Only Alabama, Maryland, North Carolina, and Virginia still permit the use of contributory negligence. In fact, Tennessee was the last of the states that currently follow comparative negligence to abandon contributory negligence. McIntyre, 833 S.W.2d at 55.

To underscore the point, assume that a plaintiff is 10% at fault for contributing to his or her own injuries with the defendant 90% at fault, and the damage award is $1 million. Under comparative negligence, the plaintiff will still recover $900,000 ($1 million less 10% or $100,000 attributable to his or her allocated share of fault). That is the result for under Tennessee’s current doctrine of modified comparative negligence. In contrast, under contributory negligence, the plaintiff recovers nothing. The plaintiff’s 10% allocation of fault serves as a complete bar to recovery. That is the stark difference between the two doctrines.

Comparative negligence is a fault and damages allocation system. Under Tennessee’s version, fault is determined and apportioned among the plaintiff and all defendants to the action, and how much compensation the plaintiff may recover is limited by his or her allocated relative share of fault for causing the injury. Fault is determined and apportioned among the plaintiff and all defendants, and the amount of damages the plaintiff can recover is limited by his or her relative share of fault. The Tennessee announced this rule while adopting the doctrine of comparative negligence, instructing that the “plaintiff’s damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff.” Id. at 57.

For example, assume a plaintiff is determined to be 25% at fault, and the damage award is $100,000. The amount to which the plaintiff is entitled is $75,000 because the plaintiff’s allocated percentage share of fault, i.e., 25% or $25,000, is deducted from the damage award. If the plaintiff were determined to be 50% at fault, he or she would not be entitled to any recovery because Tennessee imposes the 50% bar rule.

Apportionment of Fault with Multiple Defendants

When multiple defendants are involved, there are two different ways in which the degree of fault comparison can be applied. Each approach can lead to vastly different results. The individual comparison approach compares the plaintiff’s proportion of fault against each defendant individually, and the plaintiff may recover damages against only the defendants whose individual proportion of fault is greater than the plaintiff’s. For example, in a scenario where the plaintiff is deemed to be 40% at fault and two defendants are each apportioned 30% of the fault, the plaintiff is barred from any recovery. Under the individual comparison approach, the plaintiff’s share of fault for the injury is greater than either defendant individually.

On the other hand, the combined comparison approach permits the plaintiff to recover as long as his or her apportioned share of negligence is equal to or less than the combined negligence of all the defendants against whom recovery is sought. In the above example, the plaintiff would be entitled to recover damages from both defendants since his or her apportioned share of negligence is less than the combined share of the two defendants. Clearly, there is a stark contrast in the results of the two approaches with plaintiffs obviously favoring the combined comparison approach.

Fortunately for plaintiffs pursuing medical malpractice claims, the Tennessee Supreme Court announced that the “combined comparison” approach is the law in Tennessee. In McIntyre, the Court made this clear, stating: “in cases of multiple tortfeasors, plaintiff will be entitled to recover so long as plaintiff’s fault is less than the combined fault of all tortfeasors.” Id. at 58.

Under Tennessee law, the plaintiff in the foregoing example would be entitled to recover damages since the plaintiff’s share of negligence is less than the defendants’ aggregate share on a combined comparison basis (40% versus 60% for the defendants).

IX. Limitation on Noneconomic Damages

In general, Tennessee law imposes a $750,000 limit on the amount of noneconomic damages that can be recovered in a medical malpractice action. TCA § 29-39-102(a). The statute states:

Compensation for any noneconomic damages suffered by each injured plaintiff not to exceed seven hundred fifty thousand dollars ($750,000) for all injuries and occurrences that were or could have been asserted, regardless of whether the action is based on a single act or omission or a series of acts or omissions that allegedly caused the injuries or death.

If the loss or injury is deemed to be catastrophic, the cap on noneconomic damages is increased to $1,000,000. TCA § 29-39-102(c). Under TCA § 29-39-102(d), a catastrophic loss or injury means one or more of the following: (1) spinal cord injury resulting in paraplegia or quadriplegia; (2) amputation of two hands, two feet, or one of each; (3) third degree burns over 40% or more of the body as a whole or third degree burns up to 40% or more of the face; or (4) wrongful death of a parent leaving a surviving minor child or children for whom the deceased parent had lawful rights of custody or visitation. If the presence of a catastrophic loss or injury as defined in the statute is in dispute, “the trier of fact, by special verdict, shall determine” its existence. TCA § 29-39-102(f).

The existence of the cap on noneconomic damages “shall not be disclosed to the jury, but shall be applied by the court to any award of noneconomic damages.” TCA § 29-39-102(g).

The cap on noneconomic damages was contained in the Tennessee Civil Justice Act of 2011 and applies to causes of action that accrue on or after October 1, 2011.

Finally, it should be noted that the Tennessee Supreme Court has not ruled on the constitutionality of the cap on noneconomic damages as of the date of this article. In 2015, it was asked to do so in Clark v. Cain, 479 S.W.3d 830 (Tenn. 2015), but the Court declined the invitation because the issue was not yet ripe. The plaintiff in Clark did not have a judgment in excess of the statutory cap and thus it did not operate to limit the plaintiff’s damage award at the time the Supreme Court was asked to rule on the constitutionality of the cap on noneconomic damages. The Court explained: “Whether the cap is implicated in this case thus remains an open question, and the issue of the constitutionality of that cap is not ripe for determination at this time.” Id. at 832.

X. Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases. That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award. If there is no recovery, then the attorney does not receive any payment as a legal fee. Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources. Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option. Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive. Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee. Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions. Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees in Tennessee

In medical malpractice cases where a contingent fee agreement exists between the injured party and attorney, the fee is capped by statute at “thirty-three and one third percent (331/3%) of all damages awarded to the claimant.” TCA § 29-26-120. It must be noted that the foregoing is the maximum permissible as a contingent legal fee and that the court has the statutory authority to determine the actual amount awarded to an attorney in a medical malpractice case. Id. The statute states:

Compensation for reasonable attorneys’ fees in the event an employment contract exists between the claimant and claimant’s attorney on a contingent fee arrangement shall be awarded to the claimant’s attorney in a health care liability action in an amount to be determined by the court on the basis of time and effort devoted to the litigation by the claimant’s attorney, complexity of the claim and other pertinent matters in connection therewith, not to exceed thirty-three and one third percent (331/3%) of all damages awarded to the claimant.

Additionally, there is an important limitation on fees designed to protect all clients of which plaintiffs with a medical malpractice claim should be aware. In general, attorney fees in medical malpractice cases are subject to the reasonableness standard that governs all fee arrangements in Tennessee under Rule 1.5 of the Tennessee Rules of Professional Conduct.

A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

• the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
• the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
• the fee customarily charged in the locality for similar legal services;
• the amount involved and the results obtained;
• the time limitations imposed by the client or by the circumstances;
• the nature and length of the professional relationship with the client;
• the experience, reputation, and ability of the lawyer or lawyers performing the services;
• whether the fee is fixed or contingent;
• prior advertisements or statements by the lawyer with respect to the fees the lawyer charges; and
• whether the fee agreement is in writing.

Comment 1 to Rule 1.5 states that the ten factors are not exclusive. In addition, not every factor will be relevant in each case, according to the Comment.

Contingent fee arrangements are expressly permitted by Rule 1.5(c), subject to the requirements described therein. A contingent fee arrangement must be in writing and signed by the client, and it must “state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal….” Id. It must also explain what “litigation and other expenses [are] to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated.” Id. The agreement must “clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party.” Id. Finally, at the end of the case, “the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.” Id.

XI. Apologies and Gestures of Sympathy

Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit. This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.

Tennessee is among the states that have enacted an “I’m Sorry” law. It is contained inRule 409.1 of the Tennessee Rules of Evidence. In contrast to similar statutes in some other states, Tennessee’s is not specific to healthcare providers. Instead, Rule 409.1 applies more broadly to expressions of sympathy or benevolence in connections with accidents in general, not limited to medical procedures or healthcare providers.

The Rule shields expressions of sympathy or benevolence from being admissible as evidence in a civil action. It states:

That portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident and made to such person or to the family of such person shall be inadmissible as evidence of an admission of liability in a civil action. A statement of fault that is part of, or in addition to, any of the above shall not be inadmissible because of this Rule.

Notice that statements admitting fault are not protected by the Rule and are thus admissible as evidence in a civil action.

For purposes of the Rule, the term ‘accident’ means “an occurrence resulting in injury or death to one or more persons which is not the result of willful action by a party.” Rule 409.1(b)(1).

The term ‘benevolent gestures’ means “actions which convey a sense of compassion or commiseration emanating from humane impulses.” Rule 409.1(b)(2).

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