UPDATE on Medical Malpractice Notice and Certificate of Good Faith Statute

SB  2109   passed the Senate at 11:36 on June 4 and is now on its way to the Governor’s desk.  The Bill  passed the House (HB2233) in May.   UPDATE:  The Governor signed the legislation on June 11.   Click here for information on the June 15 seminar on this important bill.

The bill dramatically changes the law that came into effect just last October 1, and impacts both the pre-suit notice and the certificate of merit provisions.   The effective date of the bill is a little tricky and bears careful study, but the notice provisions come into effect July 1, 2009.

Generally speaking, the law makes it easier to give notice of a potential medical malpractice claim and gives more specifics about what the notice must say.  It also requires that the claimant provide a HIPPA-compliant authorization with the notice.

If notice is given in accordance with the statute, the statute of limitations and repose is extended 120 days.  However, when the complaint is filed, the new law requires that the complaint must be accompanied by a certificate of good faith.

Here is a summary of the bill  prepared by  the General Assembly:

AMENDMENT #1 rewrites the bill. Under present law, any person asserting a potential claim for medical malpractice must give written notice of the claim to each health care provider against whom the claim is being made at least 60 days before the filing of a complaint based upon medical malpractice. A list of all health care providers to whom notice is being given must be attached to the notice. This amendment clarifies that the list must include the name and addresses of such persons and requires that the notice additionally 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; and
(4) A HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.

The above information must also be provided with the medical malpractice complaint.

This amendment clarifies that the requirement of service of written notice prior to suit is deemed satisfied if, within the statutes of limitations and statutes of repose applicable to the provider:

(1) Personal delivery of the notice to the health care provider or an identified individual whose job function includes receptionist for deliveries to the provider or for arrival of the provider’s patients at the provider’s current practice location; or
(2) Mailing of the notice:
(A) To an individual health care provider at both the address listed for the provider on the department of health Web site and the provider’s current business address, if different;
(B) To a health care provider that is a corporation or other business entity at both the address for the agent for service of process; and the provider’s current business address, if different from that of the agent for service of process.

If the mailings described above in (2)(A) or (2)(B) are returned undelivered from both addresses, then, within five business days after receipt of the second undelivered letter, the notice would be mailed in the specified manner to the provider’s office or business address at the location where the provider last provided a medical service to the patient. Compliance with the above (2) would be demonstrated by filing a certificate of mailing from the U.S. postal service stamped with the date of mailing, and an affidavit of the party mailing the notice, establishing that the specified notice was timely mailed by certified mail, return receipt requested. A copy of the notice sent would be attached to the affidavit. It is not necessary that the addressee of the notice sign or return the return receipt card that accompanies a letter sent by certified mail for service to be effective. This amendment clarifies that personal service is effective on the date of that service and that service by mail is effective on the first day that the service is made.

Under present law, when the above notice is given, the applicable statutes of limitations and repose are extended for up to 90 days. This amendment increases this extension to up to 120 days and clarifies that the extension would begin from the date of expiration of the statute of limitations and statute of repose applicable to that provider. This amendment clarifies that no more than one extension would apply to a provider.

Under present law, all parties in a medical malpractice action may obtain complete copies of the claimant’s medical records from any other party. The receipt of a medical authorization executed by the claimant is considered compliance by the claimant with this provision. This amendment revises this provision to instead clarify that the claimant complies with this requirement by providing the providers with the authorized HIPAA complaint medical authorization required to accompany the notice. This amendment clarifies that a party may obtain the copies from "any other provider receiving notice" instead of from "any other party". This amendment specifies the manner in which a provider may comply with this requirement. This amendment requires that the records received by the parties be treated as confidential and be used only by the parties, their counsel, and their consultants.

Present law requires the plaintiff or plaintiff’s counsel to file a certificate of good faith within 90 days after filing a complaint in any medical malpractice action in which expert testimony is required under present law. This amendment revises this provision to require that the certificate be filed "with the complaint" instead of "within 90 days". This amendment specifies that the complaint will be dismissed, pursuant to present law, if the certificate is not filed with the complaint unless there is a showing that the failure was due to the failure of the provider to timely provide copies of the claimant’s records or demonstrated extraordinary cause.

This amendment specifies that in the event that notice is successfully given more than once to a provider, the effect of the notice will be determined by the law in effect on the date of the first successful notice.

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