Over the past few months, the new AMC/NOMA lobbyists, legal counsel, staff and legislative chairman have met to formulate legislation that would allow for a pilot project in the state of Ohio to provide for an alternative dispute resolution process. This envisioned mandatory arbitration program would be created to consider the benefits of arbitration for any dispute as to the professional negligence of a healthcare professional, hospital, or a healthcare facility. The proposed legislation would amend certain sections of the Ohio Revised Code and enact additional sections to establish a pilot program mandating arbitration of medical negligence claims prior to the filing of a lawsuit. The legislation is required due to the medical malpractice crisis in Ohio, which has significantly impacted patients, providers and the state’s economy.
The program would be established under the Superintendent of the Department of Insurance to determine the benefits of using arbitration in medical negligence disputes. Five years after the effective date of the legislation the superintendent shall submit a written report on the use of arbitration panels to the governor, and the legislature. The legislation includes current law that provides for a four-year statute of repose for medical negligence cases. It also requires that the statute of limitations be tolled until sixty days after the arbitration panel serves all parties with the panel’s decision and during the process a claim could not be filed in the courts.
Under the arbitration process outlined in the legislation, a claimant must give written notice to the alleged parties involved. The notice must contain the factual basis for the claim, the standard of practice or care alleged to be applicable; the manner in which the applicable standard of practice was breached, what action allegedly should have been done to achieve compliance with a standard of practice or care; and the manner in which it is alleged that the breach of the standard of practice or care was the proximate cause of the injury claimed in the notice.
Within 150 days of receiving the notice the physician or health care professional may respond to each allegation made by the claimant or – if applicable, they may file a motion with the court for dismissal of the claim, accompanied by an affidavit of noninvolvement. An affidavit of noninvolvement is to set forth, with particularity, the facts that demonstrate that the defendant was misidentified or otherwise not involved individually or through the action of the defendant’s agents or employees in the care and treatment of the plaintiff, was not obligated individually or through the defendant’s agents or employees to provide for the care and treatment of the plaintiff, and could not have caused the alleged malpractice individually or through the defendant’s agents or employees in any way. The parties are to have the right to challenge the affidavit of noninvolvement by filing a motion and submitting an affidavit with the court that contradicts the assertions of noninvolvement made in the defendant’s affidavit of noninvolvement.
The current law sets forth that a physician from another state that testifies as an expert witness in Ohio in any action against a physician for injury or death, whether in contract or tort, arising out of the provision of or failure to provide health care services, is to be deemed to have a temporary license to practice medicine in Ohio solely for the purpose of providing such testimony and is subject to the authority of the State Medical Board of Ohio. The conclusion of an action against a physician is not to be construed to have any effect on the Board’s authority to take action against a physician who testifies as an expert witness under this section.
Current law provides that in order for a person to be deemed competent to give expert testimony, the person is currently required to be licensed by Ohio or another state, and to devote ¾ of the person’s professional time to the active clinical practice of medicine or surgery, or to its instruction in an accredited university. This section of current law has been amended to also require that the person practice in the same or a substantially similar specialty as the defendant. The law specifically prohibits a court from allowing an expert in one medical specialty to testify against a health care provider in another medical specialty unless the expert shows both that the standards of care and practice in the two specialties are similar and that the expert has substantial familiarity between the specialties. If the person is certified in a specialty, the person must be certified by a board recognized by the American Board of Medical Specialties or the American Board of Osteopathic Specialties in a specialty having acknowledged expertise and training directly related to the particular health care matter at issue.
Current law provides that nothing is to be construed to limit the power of the trial court to adjudge the testimony of any expert witness incompetent on any other ground. The provision providing that nothing is to be construed to limit the power of the trial court to allow the testimony of any other expert witness, has been amended to provide that nothing is to be construed to limit the power of the trial court to allow the testimony of any other witness, on a matter unrelated to the liability issues in the medical claim, when that testimony is relevant to the medical claim involved.
All claims alleging medical negligence shall be arbitrated prior to proceeding to trial. The judge to whom an action is assigned shall refer a claim to arbitration by written order within a given timeframe. The panel shall consist of three members, one representing the claimant, one representing the respondent, and a third member agreed to by those members to serve as the chair of the panel. The arbitration panel shall be composed of three voting members from the American Health Lawyers Association Alternative Dispute Resolution Service. It should be noted that if, at any time a claimant alleging medical negligence enters into a settlement agreement concerning the claim, the settlement agreement will be filed with the Superintendent of the Department of Insurance.
A party to a medical negligence claim has the right, but is not required, to attend an arbitration hearing. The Ohio Rules of Evidence shall apply to arbitration hearings. Factual information having a bearing on damages or liability shall be supported by documentary evidence when possible. The parties’ presentation before the arbitration panel, the filings, briefs or summaries and the findings of the panel shall be admissible in any subsequent court proceeding. The full written opinion, however, will not be admissible. To the extent permitted by the Rules of Evidence, an admission made by a party or a party’s representative to the panel, and witness testimony given at the arbitration hearing, shall be admissible in any subsequent court proceeding.
Within 14 days after the arbitration hearing, the panel shall make an evaluation and notify each party of its evaluation in writing. The evaluation shall include a specific finding on the applicable standard of practice or care. The evaluation shall set forth the panel’s awards and shall indicate if any award is not unanimous. All dissenting members shall accompany the evaluation. If the panel determines that a complete action or defense is frivolous as to any party, the panel shall so state as to that party. If the action proceeds to trial, the party who has been determined to have a frivolous action or defense shall post a cash or surety bond, approved by the court in the amount of fifty thousand dollars for each party against whom the action or defense was determined to be frivolous. If judgment is entered against the party who posted the bond, the bond shall be used to pay all reasonable costs incurred by the other parties and any costs allowed by law or by court rule, including reasonable attorney fees. The evaluation shall include a separate award as to each cross-claim, counterclaim, and third-party claim that has been filed. For this purpose, all such claims as noted above filed by a single party shall be treated as a single claim.
Each party shall file a written acceptance or rejection of the arbitration panel's evaluation within 28 days after service of the panel's evaluation. The failure to file a written acceptance or rejection within the 28 days constitutes acceptance. A party’s acceptance or rejection of the evaluation shall not be disclosed until the expiration of the 28 day period, at which time the chairperson of the panel shall mail a notice to all parties to the action indicating each party’s acceptance or rejection of the evaluation. If all parties accept the arbitration panel's evaluation, the chairperson of the panel shall mail a copy of the panel’s awards to all of the parties and shall add all fees, costs, and interest to the date of judgment.
In a case involving multiple parties, all of the parties on either side of the claim have the option of jointly accepting all of the panel’s awards or they can accept some awards while rejecting others. However, as to any particular opposing party, the party shall either accept or reject the awards in their entirety. A party that accepts all of the awards may indicate in their acceptance that the acceptance is contingent upon the opposing parties accepting the awards. If this limitation is not imposed, the accepting party shall be considered to have agreed to an entry of judgment. If the limitation is included and some of the opposing parties reject any of the awards, the party including the limitation is considered to have rejected the awards shall be entered as to those opposing parties who have accepted the portions of the evaluation that apply to them.
In both single claimant and multiple claims, if all or part of the evaluation of the arbitration panel is rejected by opposing parties, the action shall proceed to trial on the unresolved matters, subject to the party filing a complaint with the court within 60 days. If a complaint is filed and the action proceeds to trial, the parties involved shall not reveal the amount of the evaluation’s awards until the judge has rendered judgment.
If a party has rejected an evaluation and the action proceeds to trial, that party shall pay the opposing party's actual costs unless the verdict is more favorable to the rejecting party than the evaluation. However, if the opposing party has also rejected the evaluation and award, that party is entitled to costs only if the verdict is more favorable to that party than the evaluation. Any arbitration agreement agreed to by all parties shall be binding on all parties to the agreement.
Snapshot of Key Points in the mandatory arbitration legislation:
The proposed legislation was drafted in an effort to create a fair and reasonable forum for resolving medical malpractice claims, while quickly and efficiently disposing of frivolous claims. Senator Kevin Coughlin (R-27) has agreed to sponsor the legislation in the Ohio Senate. A press conference was held on March 2, 2004 in Columbus to announce the introduction of this important legislation that would greatly benefit the medical community. On hand to present at the press conference were: Senator Coughlin, Dr. John A. Bastulli and Dr. John Clough. Other organizations currently supporting the legislation are the Ohio Osteopathic Association, the Ohio Podiatric Medical Association and the Summit County Medical Society.
For more information on this important legislation, please contact: Elayne R. Biddlestone at the AMC/NOMA offices at 216-520-1000, ext. 321.