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'Tort Reform' Debate to Resurface in New Session

Several years ago the legislature capped financial awards for medical malpractice lawsuits and now the state's largest physician group wants lawmakers to expand legal protections for doctors into additional areas.

The Ohio State Medical Association wants the General Assembly to pass a proposal that would significantly raise the legal standard for civil suits against doctors working in emergency departments, Tim Maglione, senior director of government relations, said in a recent interview.

OSMA also hopes lawmakers will effectively shorten the statute of limitations for physician liability in cases where the claimant is a child, he said. In addition, the group is also working on a proposal for doctors who treat Medicaid patients that could help lawmakers rein in state health care spending in the upcoming biennial budget.

Attorneys that represent injured patients are preparing to fight additional limits on medical malpractice litigation, but recognize the tide is not in their favor since Republicans now control both chambers and the Governor's Office.

Mike Dittoe, spokesman for Speaker Bill Batchelder (R-Medina), said medical malpractice would likely be one of several areas of tort law that House Republicans are planning to revisit.

"The caucus, I believe, will be looking at comprehensive tort reform in the coming weeks and months," he said.

John Van Doorn, executive director of the Ohio Association for Justice, said restrictions on tort litigation that the General Assembly passed several years ago has denied many Ohioans their legal rights.

"The data clearly shows fewer Ohioans have filed suit and their recoveries are smaller. The question is, isn't that enough?" he said.

Nevertheless, Mr. Maglione was optimistic that the proposal to grant immunity to doctors working in emergency departments would pass under the GOP-controlled legislature. A similar bill (SB86, 128th General Assembly) cleared the Senate last session, but saw no action in the Democrat-controlled House.

"Certainly the climate should be more ripe for a discussion of these things," he said.

The measure would have raised the legal standard from ordinary negligence to "willful and wanton" misconduct by the emergency room physician. However, the Senate revised it down a step to "recklessness" before passing the bill.

Restrictions on medical malpractice litigation enacted several years ago have had a positive effect on doctors' insurance rates and additional limitations can only help more to control skyrocketing health care costs, he said.

Since 2005, the number of medical malpractice lawsuits has declined by about 35%, and physicians' insurance rates have decreased by about 22%, he said. At the height of the litigation "crisis" there were only three insurance companies writing malpractice policies in Ohio and now there are more than 15.

"The market is more competitive, and it's more competitive because of the stability that's been created by tort reform," Mr. Maglione said. "But malpractice insurance is still a considerable expense for many physicians and that's why we want to continue to do things like Senate Bill 86 that can help the trend line even more."

OSMA will work on another front to limit the "statute of repose" timeframe to help control insurance rates for obstetrician/gynecologists and pediatricians, he said. Currently child patients can sue physicians until one year after they reaches age 18.

"That long tail of liability is one of the contributing factors why malpractice rates for OB/GYNs is so expensive," he said. About 20 states have enacted a separate statute of repose for minors that requires claimants to file suit by the age of 10.

Years ago the Ohio Supreme Court found a similar measure unconstitutional, he said. "But of course you can try to modify the statute to address the court's concerns. And then you also have a different philosophical makeup of the court today than maybe you did back when it was previously overturned."

OSMA is also working on a malpractice proposal that could help the state address the impending multi-billion dollar budget shortfall, Mr. Maglione said.

Offering "qualified protection" for doctors that participate in Medicaid could have a considerable impact on state health care expenditures, he said. While OSMA hasn't completed cost savings projections, the Congressional Budget Office said adding a similar proposal to the federal health care bill would save the country $54 billion over 10 years.

"You could extrapolate that kind of savings" to Ohio's Medicaid program, Mr. Maglione said. "Its certainly there."

Mr. Van Doorn, however, maintained Ohio law is already skewed against the average citizen.

"Ohio doesn't need to pass more regulations and more legal exceptions that let wrongdoers off the hook and saddle taxpayers with the bill," he said.

Similarly, Gerald Leeseberg, past president of the Franklin County Trial Lawyers Association, said there was no legitimate basis for granting immunity to emergency room physicians for making medical errors.

"This is a solution in search of a problem," he said, noting that statistics from the Ohio Supreme Court showed very few malpractice claims were filed against emergency room doctors.

And reducing the age that a patient can file suit could effectively eliminate legal remedy for children who have been harmed by a doctor, he said. "If you're the child not of majority age, you don't have the legal right to bring a lawsuit on you're behalf. Therefore, a child can be deprived of the protection of a civil case by their parents."

Moreover, in many cases parents and children are not aware of the nature or cause of certain medical problems, such as cerebral palsy, until many years later, he said. "They're often lied to by the health care providers, and have this condition described as a birth defect rather than having it explained to them that it's the result of improper medical care."

Mr. Leeseberg said Republicans' support for such measures is at odds with their often-stated values.

"They, on the one hand, espouse personal responsibility and accountability as a virtue, and on the other hand to seek to excuse people, in any walk of life, from being accountable and responsible for their negligence," he said.

Gongwer News Service

Volume #80, Report #10, Article #1-Friday, January 14, 2011

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