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Is it legal malpractice when a Tennessee lawyer does not give the 60 days pre-suit notice of intent to sue doctor?

Nashville, TN |

The new Tennessee Medical Malpractice Act has two mandatory provisions. The Act states that a litigant SHALL: (1) give the doctor at least 60 days notice of intent to sue and along with medical authorizations, and (2) that the actual suit include a Good Faith affidavit from a doctor saying that there's medical malpractice. There are several appellate decisions reiterating this mandatory nature of the new Act.

If a lawyer does not comply with these provisions, and the case is dismissed on this basis, is it legal malpractice by the lawyer? (Assume that there's medical malpractice causing a death in the underlying case.)

This is the actual situation. We are seeking an experienced TN medical malpractice lawyer willing to review the records, sign an affidavit, and testify at trial.

Attorney Answers 6

Posted

Short answer: this as described is likely a case of legal malpractice.

Lawyers have much higher ethical duties to clients than other professions. When lawyers fail to follow the black-letter law as delineated by statute, there is usually a case of legal malpractice looming on the horizon. This is because our entire job is helping people navigate the often complex labyrinth of the legal system. We are paid to be guides through the labyrinth; when we fail to read the map to the labyrinth and steer you in the wrong direction, there is usually legal malpractice present. This is what we are supposed to do, this is a major, and for some lawyers the only, part of our job.

If the case is exactly as you present, then you can find a legal malpractice lawyer here on Avvo or contact your local Bar association. Lawyers who fail to do as statutes I strict can make us all look bad as a profession, sorry for this happening.

This advice being provided in no way represents the formation of a lawyer client relationship. This is advice only based on limited information. The advice seeker should seek an in-person meeting with a qualified attorney to discuss his or her issue.

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Posted

I don't know TN law but from what you have described, it sounds like legal malpractice, if the med. malpractice lawyer missed required filings. You should talk to a lawyer who handles professional malpractice cases for a consultation. Ordinarily, you would need a lawyer to testify as your expert in the LEGAL malpractice case. A lawyer would not be able to sign the affidavit for the underlying medical malpractice case, that requires a doctor of the appropriate specialty.

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Posted

Look for a local legal malpractice attorney right here on www.avvo.com

Good luck.

DISCLAIMER: David J. McCormick is licensed to practice law in the State of Wisconsin and this answer is being provided for informational purposes only because the laws of your jurisdiction may differ. This answer based on general legal principles and is not intended for the purpose of providing specific legal advice or opinions. Under no circumstances does this answer constitute the establishment of an attorney-client relationship.

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Posted

You may use Avvo's "find a lawyer" tool to find a legal malpractice lawyer in your city.

Only 29% Contingency Fee! Phone: 215-510-6755 www.InjuryLawyerPhiladelphia.com

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Posted

I can refer you to several well-qualified medical malpractice lawyers. You will also need a legal malpractice lawyer to handle your case.

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2 comments

David Craig Lee

David Craig Lee

Posted

Please refer me to a lawyer who will review the case and give an opinion re LEGAL malpractice. I've got a medical expert.

Stephen Chapman Knight

Stephen Chapman Knight

Posted

For an opinion on legal malpractice, you would want a medical malpractice lawyer. I don't know how they would feel about testifying, but I'd recommend John Day, Randy Kinnard, or David Smith.

Posted

Unfortunately, it sounds like the answer is "maybe", based on the scenario you have described. I think is is unreasonable to assume that there was medical malpractice in the underlying case - look at the statistics: plaintiffs lose nearly 9 out of 10 cases that proceed to trial. Medical malpractice cases in Tennessee are very difficult and there are many procedural hurdles that require strict compliance. The result has been that significantly fewer cases have been filed since the legislation was introduced involving the requirement for pre-suit notice and certification by experts.

The larger and maybe more difficult question is whether the underlying case for medical malpractice could also have been proven by preponderance of evidence. You may have an attorney who committed a breach of the standard of care applicable to lawyers, but you also will need to prove that if he or she complied with the law that you would have one the underlying case. That is an entirely different question and requires consultation with medical experts as well to address the merits of the medicine and whether the medical professionals' acts may have contributed to cause the patient's death.

Law is state-specific and laws may vary from state to state. You should consult an attorney in your state for specific legal advice. This answer does not establish an attorney-client relationship.

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