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.

Suit omitted affidavit of merit in Michigan

In Trowell v. Providence Hospital and Medical Centers Inc., Audrey Trowell was admitted to the intensive care unit of the hospital in February 2011 following a stroke, and she suffered injuries after falling twice while being assisted in going to the bathroom, according to the opinion written by Michigan Appellate Judge William B. Murphy.

The complaint was filed in February 2014. The hospital argued the suit was insufficient in that the plaintiff did not notify it regarding her intent to sue, she did not have the affidavit of merit that Michigan’s tort reform law required, and her suit was filed outside of the two-year statute of limitations for medical liability suits.

Summary judgment was granted to the hospital by the trial court, but the state appellate court reversed the decision last August and remanded it back to the trial court.

“Accordingly, the trial court erred in summarily dismissing plaintiff’s lawsuit,” Murphy wrote. “Further factual development is required to properly ascertain whether plaintiff’s claims sounded in medical malpractice or ordinary negligence, and perhaps the suit presents a mix of such claims.”

The Michigan Supreme Court agreed to hear the hospital’s appeal of the decision. The Litigation Center and the Michigan State Medical Society filed an amicus brief in support of the hospital.

The amicus brief argued that the reversal “undermines the tort reform protocol established by the legislature to weed out non-meritorious cases,” that “the door is now open for plaintiffs who want to avoid the rigor of the malpractice claim protocol” and, as a result, “inaccurate, speculative and sketchy pleading will likely flourish.”

New reform sparks legal challenge in Kentucky

Medical review panels are not a new idea. Indiana started using them in 1975. According to the National Conference of State Legislatures, 15 states have laws requiring a variation of a medical review panel to review medical liability claims before they proceed to trial.

Kentucky’s new medical review panel law was strongly supported by the Kentucky Medical Association, which called it “a critical part” of its tort-reform advocacy effort and said it “represents a significant first step in creating a more fair and consistent legal climate for Kentucky health care providers.”

The bill was sponsored by state Sen. Ralph Alvarado, MD, who said on his website that its passage was the culmination of more than a decade of work. “Medical providers who commit inexcusable errors will still be held accountable for their decisions,” Dr. Alvarado wrote.

The bill was signed by Kentucky Gov. Matt Bevin on March 16, and the law took effect June 29. A lawsuit challenging its constitutionality was filed the same day the law became effective.

The suit was filed by Tonya Claycomb, whose son was born in 2014 with cerebral palsy and brain damage, according to the suit. The suit names the Commonwealth of Kentucky as the defendant, and it charges that the law is “arbitrary, vague” and violates due process because plaintiffs in a medical liability suit face “additional costs and delay and prohibits their immediate access to courts.”

With financial support from the Litigation Center, the KMA filed an amicus brief in support of the new law. In a news release, the KMA noted that it “believes the new law includes safeguards to ensure that legitimate malpractice claims have their day in court.”

“We believe that not only is the new law constitutionally sound, but that it will also improve the health care climate in Kentucky in several ways,” KMA President Nancy Swikert, MD, said in the release. “This law makes certain that those who have been injured are compensated in a more judicious and timely way. It is a win for all Kentuckians.”