The Medical Malpractice Litigation Improvements Act
An Ohio State Medical Association (OSMA) backed tort reform bill was introduced in the Ohio House in May 2016 as HB 559. During the last General Assembly, the OSMA helped lay the groundwork for this legislation. The Medical Malpractice Litigation Improvements Act has been reintroduced this year as HB 7, and touches on 10 issues aimed at improving the medical malpractice climate in Ohio. It will be a major priority for the OSMA this year.
Does Tort Reform Work?
The provisions include:
1. Amendment of “apology statute”
The Medical Malpractice Litigation Improvements Act will clarify the apology statute to permit a broader conversation between patients and physicians when an unanticipated outcome in medical care occurs and will further open the lines of patient-physician communication in such instances.
2. Minimization of “shotgun lawsuits”
This legislation will reduce the undesirable practice of "shot gunning" defendants in medical malpractice cases, in which numerous defendants are initially named in a lawsuit but subsequently dismissed from the case, in medical claims, by allowing plaintiffs a period of time to name additional defendants after the initial filing of a medical claim.
3. Notice of Intent to File a Medical Claim
Currently by law a plaintiff is able to provide notice of intent to sue prior to the expiration of the statute of limitations in order to extend the deadline for filing a lawsuit. The bill deletes the potentially awkward or embarrassing personal service requirement for notice of intent to sue in current law, and will permit notice to be provided by certified mail.
4. Abrogation of the Loss of Chance Theory
“Loss of chance” is a speculative theory of tort liability created by the courts. It effectively shifts the burden of proof as to causation for the injury to the defendant, invites the jury to indulge in speculation and conjecture, and permits a verdict based on “possibility” as opposed to the law’s traditional requirement of “probability.” The bill will revert Ohio’s law to the traditional concept of causation.
5. Insurer Reimbursement Policies Not To Establish Legal Standard of Care
The Medical Malpractice Litigation Improvements Act prohibits the use of insurer payment policies and guidelines to establish the standard of care. In lawsuits brought against health care professionals, the standard of care must continue to be established by a qualified medical expert who can speak to the level and type of care that a reasonably competent and skilled health care professional should have provided under the circumstances.
6. Nursing Home Plan of Care
This provision corrects an imprecise use of terminology in current law relative to hospitals. While “plan of care” as a term is proper as to nursing homes it is not properly applied to hospitals and other providers.
7. Maintain Confidentiality of Peer Review Records
A provision in this legislation permits peer review information to be shared with regulators such as licensing boards, or the Ohio Department of Health, but clarifies that disclosing the peer review information to a regulator does not otherwise affect the confidentiality of the information and obligates the regulator to likewise maintain its confidentiality.
8. Prohibits Introduction of “Phantom Damages” in evidence
This bill would ensure in tort liability cases that the jury receives evidence of the amount actually paid for services, not the amount billed for those services without expectation of payment. A provision in the legislation clarifies that the measure of economic damages is the amount actually intended to be paid.
9. Mental Health Patient Discharge and Good Faith Exercise of Medical Judgment
Current Ohio law does not address what a health care provider should do when a patient, whose medical condition has been sufficiently treated so that the patient could be discharged, still has a mental health condition that may threaten the safety of the patient or others. If a health care provider or hospital makes a decision to retain a patient in the interest of the safety of the patient or others, the provider/hospital risks having to defend a wrongful imprisonment claim.
The bill provides protection for certain providers/hospitals for:
- Failing to discharge a patient if the provider/hospital believes in the good faith exercise of medical judgment that the patient has a mental health condition that threatens the safety of the patient or others; and
- Discharging a patient whom the provider/hospital believes in the good faith exercise of medical judgment does not have a mental health condition that threatens the health or safety of others.
10. Liability Standards for Emergency Care in a Disaster
A provision in the bill provides for alternative standard of liability when a natural or man-made disaster or an epidemic overwhelms emergency care providers.
The bill was introduced by state Rep. Bob Cupp. Medical malpractice is complex and the OSMA believes this legislation serves to fix important gaps in existing law regarding the issue, for the benefit of our members and physicians all over Ohio.