Youngstown Daily Legal News

Medical association backs bill to revise medical liability claim process

TIFFANY L. PARKS
Special to the Legal News
Published: April 23, 2013

The Ohio State Medical Association has endorsed a House bill that would modify the process for filing medical liability claims.

House Bill 103, sponsored by Rep. Matt Huffman, R-Lima, outlines the manner in which a claimant, who allegedly possesses a medical claim, gives to the person who is the subject of that claim written notice that the claimant is considering bringing an action upon that claim.

Tim Maglione, senior director of government relations for the OSMA, offered proponent testimony for the bill last week before the House Judiciary Committee.

“HB 103 proposes modifications to existing law with the goal of eliminating the undesirable practice of ‘shot gunning’ defendants in medical claims,” he said.

Maglione described shot gunning as a process where numerous defendants are initially named in a lawsuit but are subsequently dismissed from the case.

“The Plaintiffs’ Bar contends that this current practice is necessitated as a result of several recent case law decisions. However, the result is unnecessary expenses to plaintiffs and pointless costs to physicians and their insurers, not to mention other adverse consequences to physicians associated with the reporting of lawsuits filed against them,” he said.

Maglione said HB 103 aims to minimize the need for this practice by giving plaintiffs a finite amount of time to name additional defendants after the initial filing of a medical claim.

“The modifications would also impose upon plaintiffs the obligation to exercise due diligence to discover the basis for asserting claims against any such additional defendants within that period of time,” he said.

“These modifications are being proposed as a result of a comprehensive review of the process of filing medical lawsuits by a working group of attorneys representing the OSMA, the Ohio State Bar Association and the Ohio Association of Justice.

Under the bill, Maglione said service of the 180-day “intent to sue” notices could be more readily accomplished by a potential plaintiff sending the required statutory notice by certified mail to potential defendants at one of the specified addresses.

“After the initial medical claim complaint is filed, the statute of limitations is tolled for a period of 180 days as to other potential defendants,” he said.

“The intent is to provide a limited period of time for plaintiffs to conduct formal discovery to determine whether to join additional defendants and comply with the affidavit of merit requirements to do so.”

If enacted, HB 103 would prevent a plaintiff from joining any additional medical claim or defendant after 180 days have passed since a complaint was filed unless the medical claim is for wrongful death and the period of limitation for the claim has not expired or the existence and identification of the additional claim or defendant is discovered “in the exercise of reasonable care and diligence.”

“In addition to this legislative effort, the Ohio Supreme Court is considering modifications to Civil Rule 10 regarding affidavits of merit in medical claims,” Maglione said.

“Under the modifications, the requirements for qualifying affidavits of merit will be altered to provide more detailed information and specificity from the reviewing plaintiff medical experts as a precondition to filing medical claims.”

Maglione said members of OSMA, OSBA and OAJ believe the Rule 10 modifications should become effective concurrently with HB 103.

“... this legislative proposal and the Rule 10 modifications are a result of nearly two years of discussions among what most would consider disparate organizations,” he said. “But we have a common goal of eliminating unnecessary litigation and that has brought us together to work toward this common objective.”

HB 103 is co-sponsored by Reps. John Becker, R-Cincinnati, Jim Buchy, R-Greenville, Margaret Conditt, R-Hamilton, Cheryl Grossman, R-Grove City, Jay Hottinger, R-Newark, Connie Pillich, D-Cincinnati, Gerald Stebelton, R-Lancaster, and Lynn Wachtmann, R-Napoleon.

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