Attempts at medical malpractice reform have been long underway at both the federal and state levels. Many states have developed their own models in efforts to lower costs both of litigation and malpractice liability insurance for providers. The American Medical Association reports that currently in Maryland, Michigan and Kentucky, courts are tasked with handling challenges that many feel are designed to circumvent the established protocols through tactics such as making claims based on ordinary negligence rather than actions of medical malpractice.
Plaintiff Sheila Davis was placed in a nursing facility after undergoing back surgery. While in her bed, the mattress broke loose sending her falling to the floor. The nurse on staff attempted to use a lift machine in order to place her back into a bed; however, she improperly executed the lift and Davis was sent crashing to the floor again. Davis brought a claim against Frostberg Facility Operations citing negligence, a breach of contract and a failure to adhere to the Maryland Consumer Protection Act.
The trial court ruled that the claim should have been filed using the pre-suit procedure associated with medical malpractice claims, which requires passage through the Alternative Dispute Resolution Office. An appellate court affirmed the dismissal; however, the case is now proceeding to the highest state court in October. MedChi, a partnership between The Litigation Center and The Maryland Medical Society, are supporting the nursing provider in the action. The President of the organization Stephen Rockower M.D., feels that the case is an example of an attempt to bypass the established system.
A complaint was filed in 2014 by Audrey Trowell against Providence Hospital in 2014 after she incurred injuries after falling two times while being assisted in using the bathroom. The hospital successfully moved for summary judgment in the matter based on her failure to submit an affidavit of merit that the state requires, and also that the claim was beyond the two-year statute of limitations. William B. Murray, an appellate judge, later determined that summary judgment was not appropriate in the claim and ordered remand to accurately determine whether the action qualifies as a medical malpractice or ordinary negligence claim.
The Michigan Medical Society, who opposed this consideration, wrote that the action is an attempt to “undermine the tort reform protocol”; meanwhile, the matter is scheduled for the state's Supreme Court to address.
Medical Review Panel Challenge in Kentucky
Kentucky followed the model which other states have by using medical review panels in the preliminary phase of claims of medical malpractice. This review process is designed to create uniformity and limit abuse within the system; however, the constitutionality of the law is being challenged. Tonya Claycomb brought a claim after her son was born with brain damage and cerebral palsy naming the Commonwealth of Kentucky as the defendant. Her legal team claims that the law creates additional monetary penalties and delays in the plaintiff's right to access the court system.