On Thursday, August 26, more than 170 physicians, nurses and health care administrators attended an Ohio Supreme Court Forum co-sponsored by the Academy of Medicine of Cleveland/Northern Ohio Medical Association (AMC/NOMA) and the Center for Health Affairs (CHA). The forum provided an excellent opportunity for participants to learn more about the candidates’ ideas, backgrounds and philosophies so they will be informed when they cast their vote in November.
Introductions were provided by Mr. Bill Ryan, president and CEO of the CHA, and Dr. William H. Seitz, Jr., president of the AMC/NOMA. Mr. Ryan noted this fall, the Ohio electorate will choose who will sit in three of the seven seats on the Ohio Supreme Court. All the candidates for these seats were participants in our forum. Two were incumbents: Chief Justice Thomas Moyer and Justice Terrence O’Donnell. Joining the justices in the race are Judge Ellen Connally and Judge William O’Neill. The third race is for an open seat and running for that post are Judge Nancy Fuerst and Judge Judith Lanzinger. Mr. Ryan wrapped up his comments by providing background and credentials on each of the forum’s participants.
Dr. Seitz set the tone for the forum by outlining the effect of the medical liability crisis in Northeastern Ohio. He noted the high cost of medical liability insurance, decreased reimbursements for patient care, the fear of malpractice suits effecting the way physicians practice and the number of physicians available to practice medicine in the area have had a negative effect on the bright, young, in-training physicians who should be the future of medical care in our region. He noted the citizens of Northern Ohio have always had access to high quality, state-of-the-art medical care. We have some of the world’s best physicians and finest institutions. Medical care in our region has been consistently recognized by many national publications, as among the best our nation has to offer. From an economic standpoint, the concentration of medical services in Northeast Ohio makes the practice of medicine the largest single employer in the region.
Dr. Seitz noted physicians are the first to believe and admit that when quality is not there, when people are injured due to negligence or medical error, patients should be compensated. But when meaningless lawsuits coerce settlements, there is a domino effect for which all of us pay the price. The prime contributor to this situation has been the proliferation of meritless lawsuits, the escalating costs of defending such suits, excessive jury awards and settlements. Dr. Seitz outlined extensive AMC/NOMA survey data to illustrate his point. He also outlined how other states, such as California, have contained this problem through sustained tort reform.
Dr. Seitz concluded his remarks by stating the Ohio Supreme Court has the last word on the resolution of the medical liability crisis in Ohio. The Ohio Legislature has previously passed tort reform laws only to have the Ohio Supreme Court strike down the law. New tort reform legislation has passed in the Ohio Legislature and we need to assure that the Ohio Supreme Court upholds this law.
Monica Robins, the WKYC health anchor, moderated the remainder of the forum. The format alternated the order of each candidate’s response and no time was allowed for rebuttals. Candidates were allotted time for opening and closing remarks and asked to respond to prepared questions. (Due to limited space, this article provides an abbreviated version of the candidate responses to questions. For candidate background, their opening and closing remarks and a complete transcript of their responses to the questions and answers; visit the AMC/NOMA web site at www.amcnoma.org)
The first question noted that in the opening comments it was clearly articulated that there is a medical liability crisis in Ohio affecting patients - the electorate. Tort reform has passed in Ohio on three separate occasions only to be overturned by the Ohio Supreme Court. The court determined that these reforms were “unconstitutional” because they violated the single subject rule. Other states have been able to enact and sustain meaningful tort reform laws. What is it about Ohio’s constitution and rules that suggest that these laws are unconstitutional here?
Judge Connally responded by saying she feels there is not enough information on the tort reform issue. She felt Ohio is working with “sketchy” information. She said, it is important we (the justice system) are fair and bases our decisions regarding tort reform on actual statistical information. At this point, she does not believe we (the justice system) have the statistical information to make these kinds of decisions. Justice O’Donnell stated the analysis of constitutional consideration of a statute begins by examination of the statute and the constitutional provision with which the issue may be in conflict. He stated a proper Supreme Court review on a constitutional issue should be done with a complete record and evidence so the court has the necessary material to engage in this type of constitutional review. Judge O’Neill indicated the Ohio General Assembly is more than capable of passing meaningful legislation, which will give us (the state) meaningful relief to an acknowledged problem. The difficulty is the Ohio General Assembly, without data, continues to put a band-aid on an open wound. Judge O’Neill pointed to the insurance company rates and, in his opinion, caps don’t work. He indicated it is the job of the Ohio Supreme Court to see that the General Assembly does its job. He suggested, today, they are not. Judge Lanzinger stated there are different views about what interpreting the law actually means. The court does not know what kind of challenge a particular group might bring. However, it is up to the judge to listen very carefully and to try to absorb those arguments and then make a principled, intellectually conscious decision. Then, the judge needs to write it clearly so people understand why that decision was made the way it was. Judge Fuerst indicated judges are not legislators, but on the other hand, the judiciary is not a rubber stamp for the legislature. If there is a conflict in law or a controversy, which has developed on its way through the system from the trial courts through to the Supreme Court, a judge needs to look to the state’s constitution to make that determination when called upon. Chief Justice Moyer felt the question referred to the “one issue rule”. The Ohio Constitution does contain a provision that says the General Assembly must confine its legislation to single issues, except when its adopting budgets for obvious reasons. If the “one issue rule” is violated, it might be brought to the attention of the Court. The U.S. Constitution does not have this provision, and many state constitutions do not have it as well. But that is one reason, one basis upon which other tort reform acts have been declared unconstitutional. There have been attempts by members of the current General Assembly to confine and breakup the tort reform legislation into pieces so that it does not violate the “one issue rule”.
The next question noted that our right to due process is guaranteed by both the federal and state constitutions. In your experience, does this right guarantee a jury trial? Are there other means for resolving medical liability cases that could be more effective than a jury trial, for example, through alternative dispute resolution mechanisms such as mediation, arbitration and medical courts?
Judge O’Donnell felt if legislation were to pass infringing on the right to a jury trial, then the issue would need to be presented to our courts. He said it is difficult to comment on a matter that might come before the court and he indicated the issue of alternative dispute resolution is an important one to review. Judge O’Neill suggested a screening mechanism, for example, bringing doctors, lawyers, the insurance companies and housewives together, to present a case to a panel. If the panel thinks a case is actionable, it would go forward. If they determine it’s not actionable, maybe you go forward at your own peril. Judge Lanzinger stated she has seen the growth of alternative dispute resolution in the civil field, in general. She stated she would not want to say how she would vote if the issue came before her. But she could see, however, if the proper statute were in effect this mechanism could be helpful. She felt alternative dispute resolution could certainly help narrow issues at the very beginning of a case. Judge Fuerst indicated she agreed with many of the aspects of her colleagues here. She indicated in her work on the bench, she has noted that alternative dispute resolution is a tact that many are using. Parties are either going to a retired judge, or a very experienced lawyer to help sit down and mediate and work things out. Chief Justice Moyer indicated he is a strong believer in mediation. He indicated he was a leader in the country in offering mediation to parties who come to the adversary system. He said mediation provides another way for these issues to be resolved. Judge Connally indicated she did not believe, at this point, we could make a determination regarding the question of the right to a jury trial. She indicated the key to this issue is good case management and getting cases resolved quickly.
Another question related to judicial philosophy – specifically that we have all heard the term “judicial philosophy” used in Ohio Supreme Court campaigns, discussed in terms of judicial restraint or judicial activism. What is your philosophy? How do you balance the role of the court with the roles of the other branches of government?
Judge Lanzinger indicated the idea of “philosophy”, or what judges are supposed to do, or the role of a judge is a very important one. In her view, it is important to be just and ensure that the right result is reached in a case as well as to focus on an outcome. If you are a judge who believes in the more traditional views, you do believe in the separation of power—judges do not legislate, they interpret – and they do not write the law. This balance of power is so important, otherwise, you have an imbalance and you can have chaotic decisions causing problems for everyone. Judge Fuerst noted in the last 22 months as she has toured the state, she has noted the No. 1 thing people are concerned about with government is fair treatment and a level playing field. She indicated no court or judge, at any level in this state, should have any agenda except for the word of law. Chief Justice Moyer noted it is important judges do not take it upon themselves, the authority, or the opportunity to write the law the way we think the other branch of government should have it written. This is a strong principle. He said there are judges who believe otherwise. There are judges who believe a court of last resort is the last place someone can go to get justice, and you can see it in their votes. It is a minority view in the country. Judge Connally stated when you determine a person’s “judicial philosophy” you look at the person, you look at the judge and their reputation and the decisions they have rendered. She indicated that she believes it is people who are not satisfied with the decision made by the court accuse Supreme Court judges of being judicial activists. Justice O’Donnell stated the idea of advancing a philosophy for case decision-making could be summed up best in the concept and term, judicial integrity. Judicial integrity encompasses fairness, a willingness to look impartially at all of the facts in a case and apply the law to those facts. Judges don’t have the liberty to change the law, or to apply their own conception of what they think it is, or what they would like it to be. Rather, judges are obligated, and it is their duty, to follow the law as is written by the General Assembly. Judge O’Neill indicated that he agrees with everything Justice O’Donnell said, that is the law of Ohio. However, if you review the three independent branches of government, there are checks and balances. In 1999 our Supreme Court, which he admires, said that it is wrong to try and balance a statewide crisis on the shoulders of our most seriously injured citizens. They said that caps are unconstitutional. The Ohio General Assembly then passed so called “tort reform” and implemented caps in direct defiance of the Ohio Supreme Court – he believes that we have an out of control General Assembly.
The forum concluded with closing remarks from all of the candidates and a wrap up by Ms. Robins. This article is just a brief overview of the forum and does not include opening and closing comments or full answers to all of the questions. For a complete overview of the forum, visit the AMC/NOMA web site at www.amcnoma.org .