By Brian Gannon & Taylor Knight

An unfavorable medical liability climate leads to extensive litigation, costly medical malpractice insurance, and even a reduced supply of medical providers to meet patients' needs.  In light of these realities, the Ohio General Assembly has recognized that medical malpractice litigation poses a danger to the availability and quality of healthcare in Ohio.  It further has recognized that while the annual number of malpractice claims resulting in payments to plaintiffs has more recently remained relatively steady, the average award to plaintiffs has risen dramatically, with the number of payments exceeding one million dollars doubling in a three-year period.

Since the early 2000s, the General Assembly has been working to reform Ohio’s medical malpractice laws to improve the availability and quality of health care available in Ohio. Recently, the General Assembly enacted House Bill 7, known as the “Medical Malpractice Improvement Act.”  House Bill 7’s sponsor indicated the purpose of the Act is to improve medical tort law and to “fill in the gaps” of existing law. The key components of House Bill 7 are as follows:

  1. Correcting language related to a nursing home plan of care in the statutory definition of a “medical claim,” to ensure that certain claims apply to nursing homes, but not to hospitals or other medical providers;
  2. Establishing an alternative standard of liability when a natural or man-made disaster or an epidemic overwhelms emergency care providers; specifically, medical providers will only be held liable in these circumstances if their actions constitute a reckless disregard for the consequences to the life and health of the patient;
  3. Providing immunity to health care providers who elect to keep as inpatients those whose medical condition allows for discharge, but whose mental health condition may threaten the safety of the patient or others;
  4. Adding the terms “error” and “fault” to the list of communications in the Apology Statute – which bars the admission of evidence of healthcare providers’ statements of apology, sympathy, or benevolence made to patients and their representatives following an unanticipated outcome of medical care – thereby allowing for more open conversations between patients and physicians when an unanticipated outcome in medical care occurs;
  5. Making inadmissible at trial medical records that contain reference to any communications by a medical provider that are protected by the Apology Statute;
  6. Making inadmissible at trial evidence of communications by a healthcare provider and/or by a victim that are made during a health care provider’s review of the cause of an unanticipated outcome, unless the communications are recorded in the victim’s medical records;
  7. Prohibiting at trial the use of guidelines, regulations and standards in the Patient Protection and Affordable Care Act, and in the Social Security Act, as evidence of the standard of care;
  8. Prohibiting at trial the use of insurer reimbursement policies and reimbursement determinations, and of Medicare and/or Medicaid regulations, as evidence of the standard of care or a breach in the standard of care; and
  9. Reducing the need for a plaintiff to “sweep” unnecessary defendants into a lawsuit due to the expiration of the statute of limitations, by providing a plaintiff an additional 180 days after the filing of a medical claim to conduct discovery for the purpose of identifying any other potential claims or defendants not named in the complaint, and allowing such claims and individuals to be added to the lawsuit (even though the statute of limitations has run) at any point during the 180-day period.

The Medical Malpractice Improvement Act became effective on March 20, 2019.  Significantly, House Bill 7 does not contain any express direction from the General Assembly that it is to be applied retroactively. As such, it cannot be applied to any case filed prior to its effective date.

If you have any questions regarding the Medical Malpractice Improvement Act, would like a complete copy of the Act, or have any questions with respect to healthcare liability, please contact a member of our Medical Malpractice, Long-Term Care Liability, or Health Care Practice Groups.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.

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