Find out how long you have to file a medical malpractice lawsuit, what you need to prove, and what damages you can recover
Tennessee's history of treating the sick began in the 18th century when James Adair, a physician who traded with American Indians in the trans-Allegheny region, began applying natural remedies, such as snakeroot, wild horehound, and plantain, to injured American Indians.
Today, Tennessee is home to some of the most advanced hospitals in the world, including the Vanderbilt University Medical Center and the CHI Memorial Hospital.
Nevertheless, medical errors happen.
In this article, we'll take a look at medical malpractice in the Volunteer State.
What is medical malpractice?
Medical malpractice occurs when a patient suffers harm because a healthcare professional deviates from the accepted standard of care.
Examples of acts that commonly result in medical malpractice claims include:
- Failure to diagnose an illness
- Misdiagnosis of an illness
- Misreading of a lab result
- Improperly prescribed medication or dosage
- Failure to follow proper medical procedures
- Failure to warn a patient of known risks
- Prematurely discharging a patient
Both the civil lawsuit and the criminal prosecution are pending.
Who can be sued for medical malpractice in Tennessee?
In Tennessee, a medical malpractice lawsuit can be filed against any licensed health care provider. This includes:
- Physical therapists
- Dental hygienists
- Pharmacy technicians
- Physician assistants
|Tennessee medical malpractice claims resolved (2015-2018)|
|Year||Claims resolved through settlement||Claims resolved through trial||Claims resolved through other (arbitration, dropped)|
How do I prove medical malpractice in Tennessee?
In a Tennessee medical malpractice lawsuit, the plaintiff has the burden of proving the following:
- The health care provider failed to exercise the degree of care and skill expected of a reasonable health care provider in the same specialty and the same community, and
- Such failure was the proximate cause of the plaintiff's injury.
In medical malpractice cases, the focus is generally placed on establishing the appropriate standard of care. In other words, what should have been done in the situation? The appropriate standard of care is typically established by experts in the same field as the defendant who testifies about whether the defendant's actions were appropriate.
Are there any special procedural requirements to follow in Tennessee?
Tennessee medical malpractice cases are different than more common personal injury cases for a number of reasons, including the fact that there are certain procedural hoops plaintiffs must jump through before filing a medical malpractice lawsuit.
Specifically, a plaintiff in a Tennessee medical malpractice action must do the following:
- Before the lawsuit is filed, the plaintiff must provide a 60-day notice to the healthcare providers they intend to sue (called a "pre-suit notice") along with a HIPAA-compliant medical authorization form. This requirement, which can be found in Tennessee Code Annotated § 29-26-121, is intended to give healthcare providers an opportunity to settle a case before a lawsuit is filed.
- The plaintiff must file a "certificate of good faith" within 90 days of filing the lawsuit stating that the plaintiff consulted an expert who provided a signed written report confirming that they believe there's a good faith basis for the lawsuit.
If these procedures aren't followed, the court may dismiss the plaintiff's case with prejudice, meaning the plaintiff will be permanently barred from filing the lawsuit.
How long do I have to file a medical malpractice lawsuit in Tennessee?
Tennessee law only gives plaintiffs a certain amount of time to file a lawsuit. The amount of time a plaintiff has to file a lawsuit is called the statute of limitations and it exists so plaintiffs can't threaten defendants with litigation indefinitely.
Consider the following example:
Bill had surgery on June 1, 2021.
On June 7, 2021, Bill began experiencing sharp pains in his abdomen. He went to the doctor on June 10, 2021, to be treated for the pains. The doctor took x-rays and discovered that the surgeon had left a sponge in Bill's abdomen. In order to remove the sponge, Bill had to undergo a second surgery.
When does Bill have to file his medical malpractice claim against the surgeon?
- June 1, 2022
- June 7, 2022
- June 10, 2022
Based on the statute of limitations, Bill has to file his medical malpractice claim by June 10, 2021—one year from the date Bill discovered that harm giving rise to a medical malpractice claim was committed.
There are certain narrow exceptions to the 1-year medical malpractice statute of limitations. The most common exception is for plaintiffs under the age of 18. If the plaintiff was under the age of 18 when they were injured, the statute of limitations doesn't start running until they turn 18.
What damages can I recover in a medical malpractice lawsuit?
In a Tennessee medical malpractice case, you can recover the following damages:
- Economic damages represent the monetary losses resulting from the injury, such as medical expenses (past and future) and lost wages (past and future).
- Non-economic damages represent the non-monetary losses resulting from the injury, such as pain and suffering and loss of consortium.
- Punitive damages are intended to punish the defendant and are only awarded when the defendant acted intentionally or with gross negligence.
It's important to note that Tennessee places damage caps on medical malpractice cases. Specifically, Tennessee caps non-economic damages at $750,000.
In cases where the plaintiff suffers "catastrophic injuries" as a result of the malpractice, the $750,000 cap is increased to $1 million. Catastrophic injuries include:
- Spinal cord injuries
- Amputation of 2 hands, 2 feet, or 1 of each
- Third-degree burns over 40% or more of the body
- Wrongful death of the parent of a minor child
Finally, Tennessee places a $500,000 cap on the amount of punitive damages that may be awarded.
|Total medical malpractice damages paid in Tennessee (2015-2018)|
|Year||Total damages paid by settlements||Total damages paid by judgments|
|2015||$54.96 million||$2.4 million|
|2016||$37.22 million||$2.8 million|
How do I choose the right medical malpractice attorney?
Medical malpractice cases can last for months or even years. What's more, the outcome of a medical malpractice case will likely impact the rest of your life. For these reasons, it's important to choose the right attorney to handle your case.
So how do you choose the right attorney?
Here are some things to keep in mind:
- Experience. Medical malpractice cases are complex. In addition to the unique procedural requirements, medical malpractice cases generally require attorneys to review extensive medical records, retain medical experts, and depose and cross-examine medical professionals. As a result, it's important to hire an attorney who has experience litigating medical malpractice cases.
- Good communication. Because medical malpractice cases can last years and often require you to share sensitive information, it's important to hire an attorney who, in addition to being competent, is someone you can get along with. Fortunately, most attorneys offer free initial consultations which give you the opportunity to find out whether the attorney is a good fit for you.
- Affordability. Most medical malpractice attorneys charge on a contingent-fee basis. This means that the attorney takes a percentage of any damages you're awarded (usually 20-40%). On the other hand, if you don't receive any damages, you don't owe the attorney a dime. Be sure to discuss any hidden fees with your attorney.