The Tennessee Court of Appeals issued an opinion on its relatively new certificate of merit rule in Crawford v. Kavanaugh. Maryland has a similar rule and this opinion is a cautionary tale for both Tennessee and Maryland malpractice lawyers. The lesson: don’t take a malpractice case unless you know how to handle it.
In Crawford, the defendant doctor performed a cystoscopy, retrograde pyelogram, and a brush biopsy on a woman’s ureter. The purpose of this procedure is typically to diagnose transitional cell carcinoma, a cancer of the urinary system. The doctor believed the woman had atypical urothelial cells. To combat this, the doctor performed a uretectomy and ureteroneocystostomy. The woman had an infection and other complications. Another doctor treating the woman noticed she had a bowel obstruction. The woman had to undergo another surgery.
Clearly, this is an awful thing in human terms but not a major injury in the medical malpractice milieu. The woman needed “many additional weeks” in the hospital and “many months of recuperation and rehabilitation.” Again, I don’t want to minimize her suffering. This is a tragedy if it happens to someone I care about. But that does not mean it is a good malpractice case. What is my point? This is the kind of case taken by maybe an otherwise good lawyer who does not regularly handle malpractice cases. Typically, experienced malpractice lawyers don’t take a case like this and won’t make these mistakes.
Anyway, Plaintiff’s lawyer filed a lawsuit before Tennessee’s new Medical Malpractice Act which would have left them in the clear. But they dismissed the case, refiled the case, and never filed a certificate of merit.
Of course, the court’s opinion says what you think it would say: the mere filing of a suit before the Act does not grandfather the Plaintiff’s attorney from the certificate of merit requirements if they dismiss and refile their case after the enactment of the statute.
From where I’m sitting, the take home message is that if you have a malpractice case, and you don’t handle malpractice cases regularly, you need to find an experienced malpractice law firm that does. Like us.