By JIM PROVANCE
BLADE COLUMBUS BUREAU
CLEVELAND - With the rare opportunity to have all six candidates for three contested seats on the Ohio Supreme Court before him, Dr. William Seitz made his point clear: Uphold Ohio's latest try to rein in medical malpractice litigation.
The president of the Academy of Medicine of Cleveland/Northern Ohio Medical Association didn't always like the answers he received.
"In 1999, our Supreme Court, which I admire, wrote the Sheward case and they said in this so-called tort reform action it is wrong to try and balance a statewide crisis on the shoulders of our most seriously injured citizens,'' said Warren-based appellate Judge William O'Neill, Democratic candidate for the seat being defended by Justice Terrence O'Donnell.
"They said that caps are unconstitutional,'' he said. "They are unconstitutional, and the Ohio General Assembly, well funded by the insurance industry, then passed so-called tort reform in 2002 and implemented caps in direct open defiance of the Ohio Supreme Court.''
In an unprecedented forum before about 150 doctors, medical professionals, and hospital administrators, the six candidates were questioned about Ohio's new medical malpractice reform law.
Shortly after the 2002 election appeared to change the philosophical makeup of the state's high court in their favor, doctors helped push through legislation capping how much juries may award malpractice plaintiffs for noneconomic intangibles such as pain and suffering at $1 million in the most catastrophic cases.
Lawmakers were reacting to reports that doctors were leaving the state or giving up riskier procedures because malpractice premiums skyrocketed.
Justice O'Donnell, a Republican appointed to the bench last year, criticized the 4-3 decision of the court in 1999 to directly hear a challenge to the tort reform law, bypassing the usual process of allowing a case to gradually work its way up through the court system.
"No evidence was ever presented,'' he said. "There was never a record made. No witness ever testified and no appellate court ever conducted review. The Supreme Court entertained a case filed on examination of a bill as it had been signed into law by the governor.''
Retired Cleveland Municipal Judge C. Ellen Connally, a Democrat challenging Chief Justice Thomas Moyer, questioned the ability of anyone to make an informed decision on medical malpractice.
"We are concerned about these liability cases, but we're working on very sketchy information...,'' she said. "It's important that we be fair and base our decisions on tort reform on actual statistical information. At this point, I do not believe we have the statistical information to make those kinds of decisions.''
Several times, candidates declined to answer questions, expressing fear it was hitting too close to home to an actual case they may later find themselves voting on. One such example was when discussion turned to adopting the English system of always requiring losers of cases to pay the costs of the victors.
Chief Justice Moyer noted Ohio courts have that option now.
"Our hope is that the message goes down the system to trial judges, to say to them it's alright to assess costs against a person you think has filed a suit that is frivolous...''
Toledo-based appellate Judge Judith Lanzinger, a Republican running for an open seat being vacated by Justice Francis Sweeney, said deference has to be paid to the General Assembly.
"The policy decision-making has to be done at the legislative level...,'' she said. "Even imperfect law may pass constitutional muster. It is certainly not for judges to substitute their personal ideas of what the law should be and overturn the legislative will.''
But Cuyahoga County Common Pleas Court Judge Nancy Fuerst, the Democratic candidate for the same seat, countered "the judiciary is not a rubber stamp for the legislature.''