Malpractice actions can only proceed once basic requirements contained T.C.A. § 29-26-115 has been met. Firstly, the burden of prove is upon the claimant to provide the standard of professional practice within the community which defendant practices. As a claimant, therefore, prove that I am well vast with the standards of professional practices that should have upheld at the time when the injury was committed. I will also prove that defendant failed to act with reasonable in light of the aforementioned professional standard. It will also be important for me to prove that defendant acted with less care than what an ordinary and reasonable person would do (Feutz-Harter, 2012). Thirdly, I will take my time to demonstrate that owing to the omission or commission of the defendant, injuries were caused and that the injuries could not have occurred in absence of the defendant’s actions.
The second part of the statute provides requirement as far as witnesses are concerned. Persons can only qualified to be witnesses in a malpractice case if they can prove that they worked within the state where the injury occurred or a neighboring state during the year preceding the incident. This would, however, not be sufficient until the witnesses have proven that during that year they had practices in the profession in which the injury was caused. This prove is necessary or else the evidence provided by the witness would be irrelevant. It, therefore, means that evidence provided for any malpractice can only be useful if the person in question is an expert in the field and, therefore, capable of stating facts as they were in the case. This rule applies to all witnesses who testify in support of the defendant’s position. Although this requirement is crucial to the case, the court can waive it if it establishes that witness such description does not exist. In this case, the standard will be lowered to accommodate in witness that may prove his validity.
According to this statute, the defendant will not be presumed to negligent without any prove. I will further prove that there was negligence on the part of the defendant by following appropriate procedures. I will, therefore, demonstrate in a comprehensive manner that actions leading to the injury were under the exclusive control of the defendant and that under ordinary circumstances. I will also demonstrate that under ordinary circumstances, the injury caused does not occur unless there is negligence on the part of defendant. The condition is applicable in healthcare liability action. Claims against the defendant can only proceed once the claimant has proven beyond any doubt that the defendant’s negligence led to the occurrence of the injury. A person can simply accuse a medical practitioner of malpractice without concrete evidence to back the case. The case can only proceed once the claimant, in conjunction, with expert witnesses has proven that the defendant was negligent and that as a result of that, an injury was inflicted upon the plaintiff. It is important to note that the mere occurrence of injury on the plaintiff does not make the case actionable. It is the injury but rather proven negligence on the defendant’s part that results in actionable claims.
The claims on healthcare malpractice are so critical that is a requirement for the claimant to have huge amount of evidence in support of his case. The evidence provided by the claimant must demonstrate that the defendant was indeed negligent and that owing to this his state, injury was inflicted upon the claimant. It follows then that injury alone on the claimant does not qualify the case to be actionable. The case is only actionable if the claimant can prove that the defendant engaged in an action that resulted into injury which could otherwise have not occurred except for negligence on the defendant’s part. It does not matter the extent of injury or the severity of injury meted out on the claimant. If the claimant cannot prove the defendant’s negligence, then the action cannot proceed. I will seek to provide a lot of evidence is for me to succeed in pressing charges against the medical practitioner who will have engaged in malpractice.
According to Clinton (2013) the amendment of the Tennessee Medical Malpractice Act by two statutes: ‘Tenn. Code Ann. § 29–26–121’ and ‘Tenn. Code Ann. § 29–26–122’ have had profound consequences on the malpractice litigation in Tennessee. The first statute- Tenn. Code Ann. § 29–26–121, which is called ‘the notice statute’ requires the plaintiff (claimant) in a medical liability action to give a pre-suite notice of the claim to the defendant (medical practitioner) at least 60 days before filing the case. On the other hand ‘Tenn. Code Ann. § 29–26–122’ requires the plaintiff to make sure that his complaint is accompanied with a certificate of good faith (Daller, 2014). The introduction of these two statutes has had significant consequences on the medical malpractice litigation. Firstly, it has increased the cost of litigation especially for the claimants. This situation has further been aggravated by the subjecting of malpractice actions to a cap of $750000 and $1000000 for catastrophic injuries. Plaintiff lawyers could, therefore, find it less worthwhile to pursue cases which whose costs by far exceed the financial results.
In my opinion, the passage of the T.C.A. §§’s 29-26-121 and 29-26-122 was ill-advised and undermines rather than promoting justice. The failure of the plaintiff to provide the notice of the defendant and present the certificate of good faith would result into the close the case. This means that even though the plaintiff had all the reasons to and evidence to prove the defendant’s negligence, he will not be able proceed with actions against the defendant on the grounds that the certificate of good faith or notice has not been issued. The introduction of these two statutes has significantly reduced plaintiff lawyers’ chances of winning cases. This has compelled the lawyers to shy away from claims of the disabled, the elderly and the impoverished, which though meritorious, they do not exceed the threshold set by the statute.
The requirements contained in the two statutes make it very difficult for plaintiff lawyers to win any case. Firstly, for the case to be actionable, the claimant must present the two documents: evidence of a pre-suit notice and a certificate of good faith. It does not suffice that such documents as mentioned above have been supplied to the jury; the manner in which they are delivered is of critical impact on the progress of the case. For instance, if the plaintiff files suit against and a healthcare practitioner and later finds it necessary to include another practitioner, a certificate of good faith must be filed in respect to the latter. Failure to file the certificate would lead the case to a close without any proceedings against the defendant. In Groves v. Colburn, after filing a law suit against a healthcare provider, Mrs. Groves realized that Dr. Colburn qualifies as one of the defendants. She amended the law suit but did not file a certificate of good faith in respect to the defender. The court dismissed the complaint on grounds that a certificate of good faith had not been filed. This among other requirements of the new statutes makes it almost impossible for plaintiff lawyers to proceed with and even win any case. The plaintiff lawyers are, therefore, required to be perfect in all matters of jurisdiction lest they suffer huge financial liabilities resulting from such cases.
These two statutes do not promote justice because despite the high level of perfection expected from plaintiff lawyers, their failure to comply with any one the aspects provided results into huge financial liabilities. If the plaintiff presents a certificate of good faith that has not been certified by an expert in the relevant field, he stands a chance of suffering huge financial obligations in addition to facing sanctions. Plaintiff lawyers are, therefore, required to follow due process in filing a certificate of good faith and issuing a pre-suit notice. Professional health care practitioners charge very high prices for the services they offer to the lawyers and plaintiff. The total cost of such healthcare expert service alone is as high as $100000. Since the certificate of good faith must be authenticated by a qualified expert; this cost has to be incurred by the lawyer regardless of the nature of the case.
Unfortunately, on 20% of mal practice cases are won by plaintiff lawyers. This means that at times lawyers incur such huge litigation costs in vain. This fact, alone, has discouraged plaintiff lawyers from taking up healthcare malpractice cases. The future of justice in Tennessee especially in regard to medical malpractice litigation is in jeopardy.
The impact of such reforms is greater on the patients than it is on lawyers. Lawyers, just like any other professional service provider, are rational. They will only be willing to pursue a litigation that has chances of success. In this respect, all litigations whose cost exceeds the financial benefits would be avoided. Such cases include medical malpractice claims by the elderly, the impoverished and the disabled. The amendment of this statute, therefore, sought to protect medical practitioners rather than provide justice for the people. Lawyers only act as gatekeepers and, therefore, their role in the jurisdiction process is determined by the nature of the case, threshold requirements of the case and probable financial liabilities.
The manner in which appellate courts have interpreted the T.C.A. §§’s 29-26-121 and 29-26-122 has favored healthcare service providers. The claimant and the plaintiff lawyer are required to meet very strict requirements and yet the amount of money recoverable from the case is low. The fact that the threshold for the cases to precede has been raised and the monetary compensation from the case capped is sufficient evidence of the court’s favor of health care service providers. Many lawyers in Tennessee will opt out genuine cases because of the fear of losing and face huge financial liabilities emanating from such a loss. In the long run, healthcare service providers will continuously act negligently towards their patients without any fear of the law because it is in their favor. This is, indeed, a sorry state of affairs.
References
Clinton, C.L., (2013). ‘Five years after going under the knife, med mal law is still feeling the effects’, Tennessee Bar Journal 49, 112-16.
Daller, M. F. (2014). Tort law desk reference 2014: A fifty state compendium. S.l.: Kluwer Law International.
Feutz-Harter, S. (2012) Legal and Ethical Standards for Nurses, 4th Edition Eau Claire WI: PHC Publishing Group
