A Solution to the Last Minute Request to Take a Medical Malpractice Case
I’m as guilty as anyone when it comes to saying “No.” Clients with a compelling potential case often make an strong push to find a lawyer just before the one year anniversary of the event giving rise to a Medical Malpractice case. Thus, here’s a way to help such a client, without putting myself at risk of disappointing that client and without risk of jumping into a case without an expert. The statutes are listed and quoted in part:
SELF EXTINGUISHING AUTHORITY TO REPRESENT
For a term of three months, I retain David C. Lee as my attorney (“Attorney”) related to the breast augmentation surgery on [date] performed by Dr. ____________________________________ whose office address is:
and whose address listed with the State of Tennessee is:
(List all doctors against whom you wish to make a claim.)
I authorize my attorney to send the NOTICE OF CLAIM and HIPAA RELEASE to the doctor, pursuant to Tenn. Code Ann. § 29-26-121. My attorney has supplied a copy of this statute. I have read and understood this statute. ___________ (initials) This is the limited scope of my attorney’s representation of me.
I also agree that the representation of me by David Lee shall terminate automatically on [90 days later/30 days prior to SOL], prior to any complaint being filed. I understand that I must obtain an additional authority to represent, either from David Lee or from some other lawyer or that I must file the case myself (pro se), in order to file the complaint. I understand that the Statute of Limitations is generally one year in Tennessee, but that the above described Notices tolls that statute by 120 days: “… When notice is given to a provider as provided in this section, the applicable statutes of limitations and repose shall be extended for a period of one hundred twenty (120) days from the date of expiration of the statute of limitations and statute of repose applicable to that provider.”
I understand that Tenn. Code Ann. § 29-26-122 states in part: “ In any health care liability action in which expert testimony is required by § 29-26-115, the plaintiff or plaintiff’s counsel shall file a certificate of good faith with the complaint. If the certificate is not filed with the complaint, the complaint shall be dismissed….” I have read and understood this statute. ___________ (initials)
I understand that Tenn. Code Ann. § 29-26-122 states in part: “ The certificate of good faith shall state that:
(1) The plaintiff or plaintiff’s counsel has consulted with one (1) or more experts who have provided a signed written statement confirming that upon information and belief they:
(A) Are competent under § 29-26-115 to express an opinion or opinions in the case; and
(B) Believe, based on the information available from the medical records concerning the care and treatment of the plaintiff for the incident or incidents at issue, that there is a good faith basis to maintain the action consistent with the requirements of § 29-26-115; …
I understand that my case is a Medical Malpractice Case in which we have the burden of proof. Tenn. Code Ann. § 29-26-115, Claimant’s burden in health care liability action — Expert testimony — Presumption of negligence — Jury instructions, states, in part:
(a) In a health care liability action, the claimant shall have the burden of proving by evidence as provided by subsection (b):
(1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred;
(2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and
(3) As a proximate result of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.
I understand that without a highly qualified medical expert whose has given I written opinion that I cannot maintain a Medical Malpractice Action against these doctors.
I agree to pay a reasonable contingency attorneys’ fee, not to exceed thirty-three and one third percent (33 & 1/3%) of the total recovery, pursuant to Tenn. Code Ann. § 29-26-120 Attorneys’ fees:
Compensation for reasonable attorneys’ fees in the event an employment contract exists between the claimant and claimant’s attorney on a contingent fee arrangement shall be awarded to the claimant’s attorney in a health care liability action in an amount to be determined by the court on the basis of time and effort devoted to the litigation by the claimant’s attorney, complexity of the claim and other pertinent matters in connection therewith, not to exceed thirty-three and one third percent (33 1/3%) of all damages awarded to the claimant.
I UNDERSTAND THAT I WILL NOT PAY ANY ATTORNEY FEES IF MY CASE IS UNSUCCESSFUL. We understand that all case expenses will be deducted after recovery of attorneys’ fees. We agree to pay 18% interest per year, or 1.5% per month, on all case expenses. We understand that we will owe such expenses even if the case is unsuccessful.
I hereby give our power of attorney to our attorney David C. Lee to execute the NOTICE and HIPPA RELEASE. We grant Attorney authority to advance necessary costs and expenses in preparation and trial of my case and deduct same from gross recovery.
SIGNED, this ______ day of ____________________________, 2014.
Witness (print name):