Now is the Time for Health Care Liability Reform
The Ohio General Assembly has passed several laws over the last two decades to reform Ohio’s out-of-control personal injury lawsuit system. Each time, the overreaching Ohio Supreme Court invalidated those laws in brazen acts of judicial activism. Its time for state policymakers to try again to re-establish some common sense to Ohio’s legal system.
The most recent example of judicial activism was in 1999 when four members of the seven-member court struck down a broad tort reform statute enacted by the General Assembly and signed into law by then Governor George Voinovich in 1996.
Recently, tort reform has again become a major public policy issue in Ohio. Governor Bob Taft campaigned for reelection stressing his support for civil liability reform.
This year’s Supreme Court races became embroiled in ugly politics as plaintiffs’ attorneys sought to ensure that supporters of the current system remained in control of the court.
Groups of trial attorneys, who benefit immensely from the uncontrolled liability system, ran television ads against Justice Evelyn Stratton and Maureen O’Connor, both of whom pledged to interpret the law as passed by the General Assembly and Governor, instead of imposing their own public policy views from the bench.
A few days before the election, more than 3,000 health care practitioners descended upon the Capitol in Columbus to draw attention to the health care liability crisis.
The American Medical Association has identified Ohio as one of 12 states where physicians are leaving, retiring early, or refusing to perform certain high-risk procedures because they cannot afford or find malpractice insurance. The uncontrolled liability system is affecting all health care providers from obstetricians to oral surgeons. The spiraling cost of malpractice insurance has dramatically driven up the cost of health care for all Ohioans and limited access to care by driving providers from the marketplace.
Despite the best efforts of the plaintiffs’ attorneys, Ohioans reelected Stratton and elected O’Connor to the court. This means that for the first time in more than two decades, a majority of the justices on the Ohio Supreme Court will limit themselves to the traditional role of judges by acting as impartial arbiters, not policy-makers from the bench. It also means that passage of a new tort reform law will likely withstand legal challenge.
The Ohio General Assembly is currently considering a proposal to add some common sense reforms to the health care liability system.
One proposed reform would place a time limit of three years for commencement of malpractice lawsuits against physicians, dentists, or other health care providers. Under the current system, there is no effective time limitation for commencement of malpractice suits.
Because there is no time limit for bringing lawsuits, health care practitioners are faced with the costly burden of retaining old records even if they are unnecessary for patient care. For example, upon retirement, dentists who have practiced for thirty years are routinely advised by their liability insurers to indefinitely retain and maintain all their patient records, including charts, x-rays, and models, in order to defend against a lawsuit from a patient they haven’t treated for years or even decades.
The tort reform proposal would also permit a jury to consider other sources of payment available to a plaintiff to compensate for a particular injury, including insurance coverage and social security payments. This reform will ensure that a plaintiff does not receive double compensation for the same claim.
The most controversial reform is a proposed $300,000 cap on non-economic damages. The tort reform bill specifically provides that “compensatory damages” are not in any way limited. The reforms only limit so-called “pain and suffering” damages, which trial lawyers have used to bilk the system for huge sums of money.
Accordingly, under the proposal, an injured plaintiff can recover all of his or her actual damages, such as medical bills and lost wages, including future earnings, and still receive up to $300,000 beyond these out-of-pocket losses for intangible losses such as pain and suffering.
The passage of tort reform statutes in other states has improved the health care climate for patients and reversed the trend of providers leaving the state, retiring early, or refusing to perform certain high risk procedures. At the same time, these reforms have ensured that injured people still have the right to reasonable redress in the courts.
The only losers are the trial lawyers who have preyed on the system for too long.
David J. Owsiany is the senior fellow in legal studies for the Buckeye Institute.
