Senate Bill 59 – Mandatory Arbitration

The Academy of Medicine of Cleveland and Northern Ohio (“AMCNO”) has been the leader in pursuing Alternative Dispute Resolution (“ADR”) in the State of Ohio. AMCNO’s legislation, SB 59, is sponsored by Senator Coughlin and mandates arbitration for all medical malpractice claims. To insure the constitutionality of the Bill, parties may proceed to Court after the arbitration but they must pay the attorney fees of the other side if the party loses at arbitration and then loses again at trial. SB 59 had stalled in the Senate Insurance Committee but is now receiving additional hearings. This week, representatives from the AMCNO testified on behalf of the Bill. At that time, the Committee accepted a Substitute Bill. The Substitute Bill, which the AMCNO helped write, contains five changes, which are outlined below.

Historically, a party to an arbitration could purposely not put forward their best case and then rely on an inflammatory dissenting opinion from their chosen panel member to protect them in a subsequent court proceeding. Therefore, we clarify that dissenting arbitration opinions are not admissible in a subsequent court proceeding. Second, we addressed a constitutional concern about selection of the pilot counties by choosing our pilot counties using a concept found elsewhere in the Ohio Revised Code. The constitutional argument is typically an equal protection argument. With the Amendment, the counties shall be selected by the Director of the Director of the Department of Insurance, after consultation with the Ohio Supreme Court. In addition, three counties must have populations of two hundred fifty thousand or more, one additional county must have population of one million or more, all counties must be in the top 25th percentile as far as medical malpractice premiums as determined by ODI, and the Director of ODI may choose other counties at her discretion (limit of 7 total). Third, the applicability of the Bill is expanded. The Bill now covers individuals who are agents or employees of the covered doctor. Fourth, the current SB 59 allows a respondent/defendant to just not respond to the arbitration and force the matter into Court. The Substitute Bill provides for appointment of an additional panel member and an order against the respondent for failure to reply and participate in the arbitration proceeding. Last, the Substitute Bill adds a Unity of Provisions Clause. 

In addition to strong support from the AMCNO, SB 59 has garnered additional support from the Ohio Hospital Association, the Ohio Podiatric Medical Association, the Ohio Chapter of the American College of Obstetricians and Gynecologists, the Ohio Osteopathic Association and the Ohio Orthopaedic Society. The AMCNO has been actively working to garner support from other specialty societies around the state. 

AMCNO members are encouraged to write to Senator Steve Stivers, the Chairman of the Senate Insurance, Commerce and Labor Committee. It is easy to do through the AMCNO website. Go to the Legislation link, Eye on the Statehouse to email at letter to Senator Stivers. Complete copies of the testimony given by the AMCNO may also be viewed on our web site under the SB 59 link.