New Medical Malpractice Case Filing Statistics

Here is the most up-to-date data on medical malpractice case filings in Tennessee.

Regular readers know that  effective October 1, 2008 the General Assembly imposed significant restrictions on patients who want to file a medical malpractice suits.  The new law, which was modified again effective July 1, 2009, requires pre-suit notice and the filing of a certificate of good faith.

For the 12-month period ending September 30, 2008, 644  medical malpractice lawsuits were filed in Tennessee.   A whooping 140 of those were filed in September 2008 as lawyers filed suits to avoid the burden and risks of filing cases under the new law.  If September 2008 were an average month, one would have expected only 45 cases to have been filed.

For the year ending September 30, 2009,  available data indicates that only 263 medical malpractice lawsuits had been filed.  (Note: several counties have not yet reported data for September 2009.  Final numbers will be available in a couple months.  I would be shocked if the total number of filings for the year ending September 30, 2009 would be more that 280.)

If one assumes that total filings for the year ending September 30, 2009 will be 280, medical malpractice filings are down 65%.

That percentage reduction is not really fair, however, because of the surge of filings in September 2008.  So, let's play with the numbers a little bit and see what we find.

Assume that all of the cases filed in September 2008 would have been filed even after the new statute came into effect and that, but for the new law, September 2008 filings should be re-adjusted to 45 - the average number of new lawsuits filed in each of the other months in that year.  Under that assumption, the adjusted total medical malpractice filings for the year ending September 30, 2008 were 549.

Next, assume that the other 95 cases filed in September 2008 would have been filed in the ordinary course in October -December 2008 or in early 2009.  Under that assumption, total medical malpractice filings for year ending September 30, 2009 would be 375 (assuming the final figures show total actual filings to be 280 plus the 95 hypothetical filings).  Under all of those assumptions, it would be fair to say that medical malpractice filings are down 32%.

This is a very conservative estimate.  Why?  First, it assumes that all of the cases filed in September 2008 under the old law would have been filed under the new law.   I think that is unlikely.   Second, it assumes that 36 medical malpractice lawsuits were filed in September, 2009, when available data tells us that only 19 were filed. 

It will take a couple years to get a completely accurate feel of how the new law has impacted medical malpractice case filings.  However,  at this time it is reasonable to say the new law has had a significant impact on case filings.  A reduction in the number of lawsuits is great for medical malpractice insurance companies and bad for insurance defense lawyers who defend malpractice cases.   In the short-run, a reduced number of filings is good for heath care providers. 

The impact on plaintiff's lawyers is that fewer lawyers will be handling these cases because the new law makes handling the cases more time-consuming, expensive and difficult.  In addition, anecdotal evidence tells us that, in an effort to reduce the loss of income from defending cases that are no longer being filed, defense lawyers will be working cases even harder, thus increasing the work on the lawyers for patients and decreasing the profitability of those cases.  As profitability decreases, only cases that have  substantial value will be filed, thus further impacting the ability of patients to seek legal redress for their injuries.

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Comments (3) Read through and enter the discussion with the form at the end
throckmorton - November 22, 2009 6:16 PM

You mentioned "the new law makes handling the cases more time-consuming, expensive and difficult." My understanding is that the new law just required a pre suit notice and a filling of a certificate of good faith. Could you elaborate on the time costs, expenses and difficulties?

John Day - November 22, 2009 7:58 PM

Time: you have to go through the hassle of preparing notices. Cost: time is money.
Difficulties: it is sometimes hard to track down potential defendants and mail to the appropriate address.
Certificate of Merit: If done correctly, this involves substantial time that is in addition to what good lawyers did before the certificate was required. Cost - time is money. In addition, more money must be spent on expert fees to review the statement, etc. Difficulties - experts fear giving what they fear may be viewed as "final" opinions before seeing deposition testimony. They have to educated on the process - and this costs more time and money.

John Bandeian, MD - March 6, 2010 3:51 PM

John:
I disagree that it will take several years to judge the effect of the new medical malpractice statute on numbers of suits filed. The effect can be judged with a reasonable degree of accuracy by comparing the number os suits filed in 2007 with those in 2009. (I doubt the amendments to the statute in 2009 will have a snignificant effect on the number of suits filed.)

I suspect that the claim that the frivilous medical malpractice suits contributes to the high cost of medical malpractice insurance is without merrit. This claim will be proved false if the total cost of defending suits is not reduced in proporiton to the reduction to the number of suits filed. I have attached a letter I sent to Jacquie Fortenberry.

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