Ohio Department of Insurance Update
During the summer months, physician leadership from the Academy of Medicine of Cleveland/Northern Ohio Medical Association (AMC/NOMA) met again with the director of the Ohio Department of Insurance, Anne Womer Benjamin. AMC/NOMA representatives provided the director with a copy of the Health and Human Services report concerning states that have enacted laws that limit malpractice awards and what affect this has on the geographic distribution of physicians. The content of this report sparked a discussion about the fact that the medical liability problem in Ohio is still an affordability problem; but now there are capacity issues. AMC/NOMA asked if there was any relief in sight for physicians in Ohio regarding the escalating costs of medical liability insurance. The director indicated that she needs additional data to substantiate a “real emergency.” The legislature and the governor are of the opinion that the caps have just been implemented and we need to wait and see what effect these have on the problem in Ohio.
ODI has been dedicating a lot of time to the medical malpractice issue and they are trying to evaluate any alternatives. The department needs to obtain data and they have been working on that for some time. They need to show a trend – not just that doctors are leaving but that there are access problems. The AMC/NOMA representatives suggested that ODI consider soliciting the help of the Ohio State Medical Board in this endeavor. The OSMB should have access to the licensure information of physicians that practice in Ohio and perhaps they could assist in gathering data regarding physicians and their practices. The OSMB has the addresses of all physicians in the state of Ohio and they may have data on which physicians have left the state. In addition, the AMC/NOMA offered to survey physicians in Northeastern Ohio to see if we could obtain additional current data.
AMC/NOMA physicians asked the director to provide her comments/concerns regarding the various medical liability companies that are starting up in Ohio. The director indicated that she has had groups present to the department with proposals for start up companies. There is concern on the part of ODI about how these companies are funded and capitalized. Dependent upon how the company is structured, the ODI may have little jurisdiction and the company may not be monitored by the ODI. In addition, again dependent upon their structure, if these start-up companies were to fail they are not covered by the Ohio Insurance Guaranty Fund in Ohio.
The AMC/NOMA representatives suggested that perhaps ODI has to immediately take a more public position on these companies and perhaps provide a written guide regarding these companies and how they are structured. The AMC/NOMA also suggested that in addition to a written guide regarding these companies the ODI should consider a separate listing on the ODI web site indicating which companies are not regulated by ODI.
By: John T. Mulligan, Esq.
Frequently, we are contacted by physician or dentist clients who have been
named as defendants in malpractice cases in situations where it seems clear
that the physician or dentist committed no negligence. Indeed, we have seen
situations recently in which a doctor or group was named in a complaint in
which the doctor or group had never treated a patient. A plaintiff’s lawyer can
be inclined to “name every doctor in the chart” simply to avoid missing
someone; thereby exposing the lawyer to a claim of legal malpractice. To
counter this, Ohio law once contained a provision, which, in effect, required
an expert opinion of negligence before the claim could be filed. An Ohio
Supreme Court decision invalidated this requirement.
The current malpractice insurance crisis has made merit less lawsuits a greater concern than in the past. Current trends in how insurance companies review these claims – irrespective of their merit – clearly indicate that premiums and renewals are affected by the number and frequency of claims. This is a significant problem facing physicians and dentists in the State of Ohio and throughout the nation. There may come a point at which there is some system created to deal with this problem, such as some form of mandatory review of a complaint prior to its being officially filed. Until that happens, doctors in Ohio and elsewhere will find themselves victimized by meritless cases.
There are provisions under Ohio law that permit what is, in effect, a countersuit in situations involving litigation abuse. Ohio Rule of Civil Procedure 11 requires that when a litigant is represented by counsel, every pleading, motion or other paper of the party must be signed by at least one attorney of record. The signature of the attorney constitutes a certificate by the attorney (or by the party if the party has no attorney) that the attorney or party has read the document; that to the best of the attorney’s or party’s knowledge, information and belief there are good grounds to support it; and that it is not interpose for delay.
Ohio Revised Code §2323.51 deals with frivolous conduct in
civil actions. This section defines frivolous conduct as that which serves
merely to harass or maliciously injure another party to the civil action or
appeal, or is not warranted under existing law and cannot be supported by a
good faith argument for any extension, modification or reversal of existing
law.
Where there is a violation of Civil Rule 11, or Ohio Revised Code §2323.51, the
party who has been damaged can seek economic recovery against both the party
and the party’s attorney.
The rules of ethics governing the practice of law in the State of Ohio contain
a similar provision pursuant to which attorneys who violate the prohibition of
R.C. §2323.51 can be subject to disciplinary action. While there may have been
complaints filed with the appropriate disciplinary organizations in Ohio
alleging such a violation, we are not aware of situations that have led to
disciplinary action being taken against a lawyer in these situations.
Case law, as it has developed in the State of Ohio, has not been particularly
favorable to parties who have been wrongfully included in lawsuits. In
addition, many wrongfully named defendants do not actively pursue these types
of claims because of the difficult, time consuming and expensive proposition of
trying to obtain sanctions from the court.
As noted in the article on page 2 of this publication on the recent Ohio tort
reform legislation, Ohio law now contains an additional litigation procedural
vehicle whereby doctors in malpractice cases can obtain dismissals.
Unfortunately, as noted in that article, the dismissal cannot occur until after
all discovery has been completed – a relatively late stage of the proceeding.
A further problem with pursuing relief under the provisions of Ohio law is
that, generally speaking, the malpractice defense attorney assigned by the
insurance company to represent a doctor will not pursue the claim because it
not part of his or her engagement by the insurance company.
For better or for worse, under the American system of jurisprudence the bias
continues to be in favor of permitting parties who claim to have been injured
wide latitude in bringing claims. Except in situations where there is a
statutory award of legal fees to the prevailing party, courts in the United
States will generally not award legal fees except in extreme situations. This
is unlike the English system under which the prevailing party recoups its legal
fees.
Source: McDonald Hopkins’ Health Law, McDonald Hopkins Co. LPA, 2100 Bank One Center, 600 Superior Avenue East, Cleveland, OH 44114. This article is reprinted with permission from McDonald Hopkins.
On Tuesday, June 17, 2003, State Representative Jean Schmidt (R–Loveland) gave sponsor testimony on House Bill 215 before the House Insurance Committee. This legislation would create medical review panels for use in medical liability cases. Schmidt said that the issue of affordability and availability of medical liability insurance for physicians continues to threaten access for Ohioans. Many doctors, especially in high-risk specialties, face difficult decisions on whether to scale back services, close their practices, or move to another state. She said that Senate Bill 281 was the first step toward solving the problem but that the General Assembly needs to do more to ensure continued access to healthcare.
Schmidt noted that more than 25 states currently have statutes establishing medical review panels that review malpractice claims and render non-binding advisory opinions on the merits of the case. She said that House Bill 215 is patterned after Indiana’s law that was enacted in 1975 and has proven to encourage early withdrawal or dismissal of non-meritorious claims and encourages quicker settlement of cases found to have merit.
Schmidt went on to state that the opinion of the panel is not binding and either party may continue to pursue their case in court. However, the expert report of the panel is admissible as evidence in a subsequent trial and members of the panel may be called as witnesses. Schmidt reviewed the effectiveness of these review panels in other states. She said that in Louisiana, 40 percent of the plaintiffs who last the medical review panel dropped the case. In addition, 48 percent of losing plaintiffs in New Mexico dropped their cases and of those who continued onto trial, the defendant physician won 95 percent of the time. When the defendant physician lost at the panel, a negotiated settlement was reached with the plaintiff 81 percent of the time.
House Bill 215 requires medical claims against health care providers to be reviewed by a medical review panel prior to the claim proceeding in court. This legislation would apply when a medical claim is asserted against a provider, unless the plaintiff and provider have entered into a valid enforceable contract requiring binding arbitration of medical claims or have agreed to submit to nonbinding arbitration. A medical review panel is to review medical claims against providers and the provider is to notify the Superintendent of the Ohio Department of Insurance when a civil action asserting a medical claim against the provider is commenced. The medical review panel is to review the claim and render its expert opinion prior to the civil action proceeding on the claim.
Representatives want to hear from you! Write letters in support of HB 215 and share how the med-mal crisis has impacted your practice. Letters may be sent to: State Representative Jeqn Schmidt, Ohio House of Representatives, 77 South High Street, Columbus, OH 43266-0603 or ODI Insurance Committee Chair Geoff Smith (R-Columbus) at the same Ohio House of Representatives address.
AMC/NOMA Gearing Up for 2004 Ohio Supreme Court Races
The
support and grassroots efforts of the AMC/NOMA during the 2002 Ohio Supreme
Court races were very successful. The election of Justice Maureen O’Connor and
the reelection of Justice Evelyn Stratton were priorities for the AMC/NOMA and
assured a more provider-friendly Supreme Court for the time being. However, with the 2004 Supreme Court
elections looming physicians will have to begin preparing for another tough
battle.
Four
Supreme Court seats will be contested in 2004.
Chief Justice Thomas Moyer and Justice Paul Pfeifer will be up for
reelection. Justice Francis Sweeney
will be forced into retirement, which will leave his open seat up for grabs.
Newly appointed Justice Terrence O’Donnell of Cleveland will also face an election
in 2004. He replaced former Justice Deborah Cook when the U.S. Senate confirmed
her nomination to the U.S. Sixth Circuit Court of Appeals in May.
The
AMC/NOMA will once again be very active in supporting and advocating those
candidates who are likely to be more in line with physician interests. Ohio
trial attorneys will also be gearing up to promote their candidates and the
physician community will have their work cut out for them to triumph in 2004.