Plaintiffs’ attorneys are challenging pre-trial mechanisms that assess the worthiness of medical liability complaints before cases can proceed.
In contrast with the federal government—where a House-passed medical liability reform bill languishes in the Senate—many states have found success enacting tort reforms that better serve patients and physicians. But court cases are challenging reforms in place in at least three states.
In Maryland and Michigan, plaintiffs’ attorneys are using what is described as “artful pleading” to skirt pre-trial measures that assess the merits of a complaint and its worthiness for going to court. And in Kentucky, a suit has challenged the constitutionality of its new law authorizing medical review boards to assess the merits of a complaint.
The Litigation Center of the American Medical Association has filed amicus briefs in the Maryland and Michigan cases in which patients sued for injuries incurred after falling. By claiming ordinary negligence instead of medical malpractice, the plaintiffs bypassed review processes.
The cases have gone through the trial and appellate courts and are now before the high court in both states.
Dispute-resolution office bypassed in Maryland
In Davis v. Frostberg Facility Operations, patient Sheila Davis was admitted to a nursing facility following back surgery. At one point, her mattress came loose and she fell on the floor. A nurse placed her on a mechanical lift to help her back into bed. But the nurse was inexperienced in operating the device, causing Davis to fall again.
Davis sued Frostberg Facility Operations for negligence, breach of contract and violation of the Maryland Consumer Protection Act. The trial court dismissed the complaint, ruling that it was based on medical malpractice and the proper procedure of submitting the claim with the Maryland Healthcare Alternative Dispute Resolution (ADR) Office for pre-suit arbitration had not been followed.
The dismissal was upheld by the Maryland Court of Special Appeals. The case is now before the state’s high court, the Maryland Court of Appeals, with oral arguments scheduled for Oct. 5.
The Litigation Center joined with the Maryland State Medical Society, known as MedChi, in filing an amicus brief in support of the nursing facility.
MedChi President Stephen Rockower, MD, a Rockville-based orthopedic surgeon, is concerned that this case could set a precedent and lead to others following the same path.
“We went through a big malpractice crisis in the ’90s and early 2000s, but we worked a lot of stuff out with the attorneys, so things would go better,” Dr. Rockower said. “We’re worried that, if this went through, it would be a significant roundabout of the system we’ve worked out over the last 20 years.”
He added that considerable time had been spent with the legislature in drafting the proper procedures to follow in these cases, but there appears to be an attempt by attorneys to be “enterprising in trying to skirt around them.”
“There are reasons the rules are there,” Dr. Rockower said. “The merits of the case are still to be decided, but you have to go through the proper channels.”
The amicus brief states that Maryland’s reforms and pre-filing requirements have improved the liability climate by discouraging nonmeritorious claims and stabilizing the state’s medical malpractice insurance market.