On Thursday, November 21, 2002 Senate Bill 281, the medical malpractice legislation introduced by State Senator David Goodman ( R – Bexley ), was passed by the Ohio Senate by a vote of 22-9 and the bill will now move to the House Civil and Commercial Law Committee for hearings. The bill had several hearings before the Senate Insurance, Commerce and Labor Committee where it was amended and passed on Wednesday, November 20, 2002. Senate Bill 281 as passed by the Ohio Senate is available for your review on the State’s website at www.legislature.state.oh.us.
As amended by the Senate Committee the caps on non-economic damages were raised from $300,000 to $500,000 for non- catastrophic injuries. The amount recoverable for non-economic losses may exceed $500,000 for catastrophic injuries; however, the amount is not to exceed the greater of $750,000 or $35,000 times the number of years remaining in the plaintiff's expected life if the non-economic losses of the plaintiff are for permanent and substantial physical deformity, loss of use of limb, or loss of a bodily organ system. This does not apply to wrongful death actions.
In addition, the following changes were made to Senate Bill 281 through amendments: Establishes the legislative intent of the Ohio General Assembly in enacting the legislation (This was included to clarify the legislature’s intent in enacting Senate Bill 281 if challenged in the Courts.); increases the statute of repose from three years to four years; includes severability clause of provisions to the legislation; expands the list of health care practitioners covered in the bill; and clarifies that caps on non-economic damages do not apply to claims against residential care facilities.
House Bill 665, the medical malpractice bill introduced by State Representative Tim Grendell
( R – Chesterland ), also had hearings three days this week before the House Civil and Commercial Law Committee. Language under House Bill 665 differs from that in Senate Bill 281 and is not as favorable to our cause. The limits on non-economic damages and attorney contingency fees are stronger under Senate Bill 281. Under House Bill 665, non-economic damages are limited to $250,000 or an amount that is equal to three times the plaintiff’s economic loss, as determined by the trier of fact, to a maximum of $500,000 for non-catastrophic injuries and $1 million or $35,000 times the number of years remaining in the plaintiff’s expected life for catastrophic injuries. The limits will apply after the jury has rendered its verdict by a mandatory remittitur or new trial concept. House Bill 665 does place limits on attorney’s contingency fees, but unlike Senate Bill 281’s cap on contingency fees, it has a provision allowing the trier of fact (judge or jury) to permit additional attorney’s fees above the contingent caps when warranted. House Bill 665 also contains language pertaining to frivolous lawsuits.
John Bastulli, MD, Academy of Medicine of Cleveland/Northern Ohio Medical Association, testified in support of medical liability reforms. He said 94 percent of physicians responding from his region of the state have experienced an increase in their liability insurance premiums over the past two years, with an average increase of 83 percent. He said if liability premiums continue to increase, 64 percent responding to a survey said they are considering early retirement or leaving the practice. He said maintain high quality care has also become a problem as over 30 percent of physicians responding have had difficulty recruiting and/or retaining physicians as result of the insurance crisis.
Richard Ludgin, MD, JD, also from the AMC/NOMA testified in support of strong medical liability reforms. Dr. Ludgin gave statistical analyses of the last 11-year trend in the number and total payout for claims reported to the National Practitioner Data Bank. He also explained how periodic payments of future damages are a secure, appropriate, efficient mechanism for compensating injured individuals.
Dr. Kevin Geraci, AMC/NOMA president, also testified on HB 665 indicating that the legislature has a unique opportunity to make a decision that will affect the quality of health care in the state of Ohio. He stated that if the legislature does not act now that the constituents of the legislators on the committee were in danger of losing their access to their physicians.
Hearings on House Bill 665 and Senate Bill 281 are scheduled for November 25th and 26th of next week before the House Civil and Commercial Law Committee. Public testimony will heard at Monday’s hearing with amendments and a possible vote scheduled for Tuesday’s hearing. No testimony will taken on Tuesday.
Senate Bill 120 is scheduled for a hearing, amendments and a possible vote on Tuesday, November 26, 2002 before the House Civil and Commercial Law Committee. Senate Bill 120 eliminates a defendant’s joint and several liability for a plaintiff’s economic damages in tort actions and provides a recovery system based on a proportionate liability. This bill holds defendants liable only for their percentage of fault (non-economic) in civil tort actions. On economic damages, the bill would maintain the current doctrine in those cases where a defendant is more than 50% responsible for a plaintiff’s harm.
Members are encouraged to contact your State Representatives urging their support for Senate Bill 281. Please do so as soon as possible. Physicians should tell their legislators that they prefer Senate Bill 281 over House Bill 665 because the caps on noneconomic damages and on attorney contingency fees are stronger under Senate Bill 281. It is very important for you to contact House leadership, House Civil and Commercial Law Committee members, and your legislator on this issue. Names and addresses of legislators may be obtained through the AMC/NOMA web site or by contacting the AMC/NOMA.
Letters may be sent to:
The Honorable _______________
Oho House of Representatives
77 South High Street
Columbus, Ohio 43266-0603
Dear Representative ____________