Academy of Medicine of Cleveland/         Northern Ohio Medical Association Sines & Towner Policy Group

Conference Committee Amends Senate Bill 281 and Reports Out Conference Report

The Conference Committee met on Senate Bill 281 and reported it out of conference committee in the early evening. Senators Nein and Goodman and Representatives Grendell and Willamowski voted in favor of the Conference Report. Senator Fingerhut and State Representative Jerse voted no.

The Conference Report will go to the House probably tomorrow for a vote and the Senate on Tuesday.

The changes will be made to the Senate passed version. If an issue is not mentioned in the Senate passed version….it remained in the bill…..as the Senate passed version of legislative intent, severability, etc. Most of the following provisions which have been added came from the House version as reported from the Civil and Commercial Law Committee; not as passed the House.

Limitations on Non-Economic Damages

The amount of compensatory damages that represent damages for noneconomic loss that is recoverable in a non-catastrophic civil action is not to exceed the greater of :

$250,000 or an amount that is equal to 3 times the economic loss to a maximum of $350,000 per plaintiff; or

$250,000 or an amount that is equal to 3 times the economic loss to a maximum of $500,000 per occurrence.

The amount of recoverable for noneconomic losses for a catastrophic civil action may exceed the amount described above but is not to exceed the greater of $500,000 per plaintiff or $1 million per occurrence.

(An individual with no derivative claims would be capped at $500,000 for catastrophic actions).

Attorney's Fees

When an attorney's fee exceeds the amount of non-economic damages awarded, the attorney would be required to file such fees for approval with the probate court.

180 Day Notice

Senate Bill 281, as reported by the House Committee goes back to current Ohio law and provides that if prior to the expiration of the one year period of limitations for commencing an action upon a medical claim a claimant gives to the person who is the subject of the claim written notice that the claimant is considering bringing an action, that action may be commenced against the person notified within 180 days after the notice is given. (2305.113 (B)(1))

I think this language was also include: New language in the version reported by the House Committee prohibits an insurance company from considering the existence or nonexistence of such a written notice in setting the liability insurance premium rates that the company may charge the company's insured person who was notified. (2305.113(B)(2))

Statute of Repose

Accepted the four year statute of repose included in Senate Bill 281, as reported by the House Civil and Commercial Law Committee (not the version that passed the Ohio House). Also accepted the foreign object provision and 1 year discovery in the 4th year. I believe the following language was adopted in the report:

As reported by the House Committee, the bill requires a claim for alleged medical negligence to be brought within one year after the cause of action accrued. Except for persons within the age of minority or of unsound mind, both of the following apply:

1. 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;
2. 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, any action upon that claim is barred (removes the following language: notwithstanding the time when the action is determined to accrue).

The following additional exceptions have been included in the House reported bill:

1. If a person making a medical claim in the exercise of reasonable care and diligence, could not have discovered the injury resulting from the act or omission constituting the alleged basis of the claim within three years after the occurrence of the act or omission, but, in the exercise of reasonable care and diligence, discovers the injury resulting from that act or omission before the expiration of the four year period, the person may commence an action upon the claim not later than one year after the person discovers the injury resulting from that act or omission;
2. Discovery of Foreign Object in Person - If the alleged basis of a medical claim is an act involving a foreign object that is left in the body, the person may commence an action upon the claim not later than one year after the person discovered the foreign object or not later than one year after the person, with reasonable care and diligence, should have discovered the foreign object.

Ohio Medical Malpractice Commission - Creates the Ohio Medical Malpractice Commission consisting of nine commission members: 3 members appointed by the President of the Ohio Senate; 3 members appointed by the Speaker of the Ohio House; 1 member appointed by the Minority Leader of the Senate and 1 member appointed by the Minority Leader of the House; and the Director of the Ohio Department of Insurance or his designee. One is to represent the Ohio State Bar Association, the Ohio State Medical Association, and one is to represent the insurance companies in Ohio, and all of the members must have expertise in medical malpractice insurance issues.

The Commission is to do all of the following: study the effects of the Act; investigate the problems posed by, and the issues surrounding, medical malpractice; and submit a report of its finding to the Ohio General Assembly not later than 2 years after the Act's effective date.

Reporting of Malpractice Actions - House version requires every clerk of a court of common pleas in Ohio, annually, to send to the Ohio Department of Insurance a quarterly report containing all of the following information relating to each civil action upon a medical claim that was filed or is pending in that court:

1. The style and number of the case;
2. The date of its filing;
3. Whether or not there has been a trial and the dates of the trail if there was a trial;
4. The current status of the case;
5. Whether or not the parties have agreed on a settlement;
6. Whether or not a judgment has been rendered, the nature of the judgment, and the date of its entry; and
7. If a judgment has been rendered, whether or not a notice of appeal has been filed or whether the time for filing an appeal has expired.

The court is required to collect $5 as an additional filing fee in each civil action upon a medical claim that is filed with the court. (2303.23)

Good Faith Motion - Allows the filing of a good faith motion by the defendant to a medical claim. Requires the court to conduct a hearing regarding the existence or nonexistence of a reasonable good faith basis upon which the claim is asserted against the defendant; if the plaintiff lacked a good faith basis for continuing to assert the claim, the court is to award all of the following in favor of the defendant: all court costs incurred by the defendant; reasonable attorneys' fees incurred by the defendant in defense of the claim after the time that the court determines that no reasonable good faith basis existed upon which to assert or continue to assert the claim; and reasonable attorneys' fees incurred in support of the good faith motion.

Requires a defendant that intends to file such motion to serve a "notice of demand for dismissal and intention to file a good faith motion" prior to filing a good faith motion and allows the plaintiff to dismiss the defendant from the action within fourteen days of service of that notice. (section 2323.42)

Evidence of Collateral Source Payments - Senate Bill 281, as reported by the House Committee, permits a defendant to introduce evidence of any amount payable as a benefit to the plaintiff as a result of the damages, except if the source of collateral benefits has a mandatory self-effectuating federal right of subrogation, a contractual right of subrogation, or a statutory right of subrogation. Bill as reported by the House Committee also provides that if the defendant elects to introduce that evidence, the plaintiff may introduce evidence of any amount the plaintiff has paid or contributed to secure the right to receive the benefits of which the defendant has introduced evidence. (section 2323.41 (A)).

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. Includes under the definitions of "past damages" and "future damages" economic and noneconomic losses. Senate Bill 281, as reported by the House Committee, requires the court, in approving a periodic payments plan to "require" interest on the judgment in question in accordance with section 1343.03 of the Ohio Revised Code. (section 2323.55)

Expert Testimony - Senate Bill 281, as reported by the House Committee, requires licensed physicians to provide expert testimony on liability issues in a medical claim; however, it also includes a provision that provides that such provision is not to be construed to limit the power of the trail court to allow the testimony of any other expert witness that is relevant to the medical claim involved. (2743.43)

Patient Compensation Fund Study - Allows the Superintendent of the Ohio Department of Insurance to study the feasibility of a Patient Compensation Fund to cover medical malpractice claims and make recommendations to the Ohio General Assembly.

Definitions - From version reported by the House Committee.

Note: The AMC/NOMA is reviewing several of the provisions in this bill. AMC/NOMA physicians, staff and our lobbyists have attended each hearing on the medical liability bill, including the conference committee hearing. We will continue discussions with legislators and provide additional information to our members. Any questions should be referred to E. Biddlestone at (216) 520-1000, ext. 321.

Sines & Towner Policy Group