Academy of Medicine of Cleveland/
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Senate Bill 281 (As Passed Ohio Senate) Medical Liability Reform
Senate Bill 281, sponsored by State Senator David Goodman ( R – Bexley ), is the medical liability reform legislation, which should make medical malpractice insurance premiums more affordable for physicians and other health care providers. The bill is modeled after California’s Medical Injury Compensation Reform Act (MICRA) of 1975. The bill was amended in the Senate Insurance, Commerce and Labor Committee on November 20, 2002 and passed the Ohio Senate by a vote of 22 – 9 on November 21, 2002. The bill has been referred to the Ohio House of Representatives Civil and Commercial Law Committee. This legislation, as passed by the Ohio Senate, includes the following provisions:
Statute of Repose - Requires a claim for alleged medical negligence to be brought within one after the cause of action accrued.Except for persons within the age of minority or of unsound mind, both of the following apply:no action upon a medical claim is to be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the claim; and if an action upon a medical claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the claim, then, notwithstanding the time when the action is determined to accrue, any action upon that claim is barred (section 2305.113).
Advance Notice of a Claim - Requires a claimant to give a 90-day notice of an intention to bring suit for alleged professional negligence. If the notice is given within 90 days of the expiration of the statute of limitations, the statute is extended 90 days from the date of the notice. Ohio law currently requires 180 days notice of an intention to bring suit (section 2305.113).
Evidence of Collateral Source Payments – Allows a defendant in a medical liability action to introduce evidence of collateral source payments as they relate to damages sought by the claimant. If the defendant elects to introduce evidence, the plaintiff may introduce evidence of any amount that the plaintiff has paid or contributed to secure the plaintiff's right to receive the insurance benefits of which the defendant has introduced evidence (section 2323.41).
Limits Non-Economic Damages - Limits non-economic damages, as pain and suffering, in a claim against a health care provider for non-catastrophic injury is not to exceed the greater of $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.Limits non-economic damages in a claim when there is permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system, or permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life sustaining activities, to the greater of $750,000 or $35,000 times the number of years remaining in the plaintiff's expected life. The limitation on non-economic damages does not apply a wrongful death actions brought pursuant to Chapter 2125 of the Ohio Revised Code.Establishes that the noneconomic damages allocated to an immune tortfeasor or to a tortfeasor whose liability is limited by law is not to be reallocated to any other tortfeasor.(section 2323.43).
Periodic Payments of Future Damages - Allows a health care provider to elect to pay a claimant’s future economic damages, if over $50,000, in periodic amounts (section 2323.55).
Binding Arbitration of Disputes - Allows patients and their health care providers to agree that any future dispute may be resolved through binding arbitration.The bill establishes specific language for such contracts and provides that all such contracts be revocable within 30 days, Ohio law currently provides for the right to revoke 60 days after care (sections 2711.22, 2711.23, and 2711.24).
Limits on Attorney Contingency Fees - Limits an attorney’s contingency fees in an action against a health care provider for professional negligence; 35% of the first $100,000, 25% of the next $500,000, and 15% of any amount exceeding $600,000 (section 4705.15).
Legislative Intent - Includes a specific legislative intent provision (Section 3 of Temporary Language).
Severability Language - Includes language that if any item of law that constitutes the whole or part of a section of law contained in this act, or if any application of any item of law that constitutes the whole or part of a section of law contained in this act, is held invalid, the invalidity does not affect other items of law or applications of items of law that can be given effect without the invalid item of law or application (Section 4 of Temporary Language).
Preemption by Federal LawProvides that if any item of law that constitutes the whole or part of a section of law contained in this act, or if any application of any item of law contained in this act, is held to be preempted by federal law, the preemption of the item of law or its application does not affect other items of law or applications that can be given affect (Section 5 of Temporary Language).
For a complete copy of the AMC/NOMA analysis of amended SB 281, contact the AMC/NOMA offices at (216) 520-1000, ext. 314.