Recent Examples of AMCNO Initiatives Impacting the Practice of Medicine and Hospitals

The AMCNO Medical Legal Liaison Committee tracks cases for the AMCNO Board of Directors that come before the Ohio Supreme Court (OSC) and could impact or change the tort reform laws in Ohio which would greatly impact our members. The following cases resulted from deliberation of the AMCNO Medical Legal Liaison Committee, and the AMCNO had filed an amicus brief in each of these cases. Read on to learn of the OSC’s decisions.


Burnham v. Cleveland Clinic Foundation –

This case dealt with interlocutory appeals.  This issue often arises in the context of medical malpractice plaintiff attorneys demanding to see records of hospital quality assurance committees, or other peer review materials.  Although these materials are privileged under the law, and thus should not need to be produced, some trial courts in the past have ordered them produced nonetheless.  The remedy for this situation (prior to April 2014) was to take an immediate appeal to the appropriate court of appeals per the Ohio Revised Code.  In 2014, this changed when the Ohio Supreme Court (OSC) made it more difficult to take such an immediate appeal to court (Smith v. Chen).  In order to do so, the appealing party had to demonstrate that they would not have a “meaningful remedy” if they waited until after trial to file an appeal.  The appellate courts took a narrow view of this standard and a large number of appeals from decisions requiring the production of privileged information were dismissed soon after they were filed, without a decision to whether they were privileged.  This created a lot of confusion–leaving appellate courts without guidance as to what constituted “meaningful remedy.”  In addition, once a privileged document is disclosed, it cannot be retrieved.  The AMCNO filed an amicus brief in this matter at both the appellate and OSC levels.  The OSC decision in this case resulted in most adverse discovery orders in the medical malpractice context being immediately appealable, if they involve quality assurance or peer review materials–a step in the right direction.


Simpkins v. Grace Brethren Church of Delaware, Ohio

In this case, a divided OSC upheld the caps on noneconomic damages.  A jury had awarded $3.50 million in noneconomic damages to the plaintiff – an amount which a trial court subsequently reduced to $350,000 per tort reform legislation that became effective in 2005. This legislation was strongly supported and advocated for by the AMCNO.

On appeal the plaintiff argued that the cap on noneconomic damages was unconstitutional as applied to victims of sexual abuse (which was an issue in this case) and that each act of sexual abuse was a separate “occurrence” as that term is used in statute so that the damages would be increased.  The appellate court disagreed and relied on the OSC 2008 decision in Arbino v. Johnson & Johnson to find that the constitutional challenges were meritless.  Although the OSC was divided in their decision in this case, in the end, the Fifth District’s decision was affirmed, Arbino applied and was upheld as argued by the AMCNO in its amicus brief. The caps on noneconomic damages survived another legal challenge. 


Antoon v. Cleveland Clinic Foundation

In this case the OSC reversed a decision by the Eighth District Court of Appeals which had held that once a cause of action vests, or once a plaintiff becomes aware of his or her potential cause of action, the statute of repose is no longer relevant to a determination of the timeliness of a complaint.  The AMCNO filed an amicus brief in this case urging the OSC to reverse this decision. 

In this matter OSC upheld state law—R.C 2305.113 (C)—that requires medical malpractice lawsuits to be filed within four years of the act or omission alleged to have caused the injury.  In a 5-1 decision authored by Chief Justice Maureen O’Connor, the Chief Justice wrote, “If a lawsuit bringing a medical, dental, optometric, or chiropractic claim is not commenced within four years after the occurrence of the act or omission constituting the basis for the claim, then any action on that claim is barred.”

R.C. 2305.113(C) was enacted to protect physicians and other medical practitioners from stale lawsuits, expressly precluding lawsuits from being commenced more than four (4) years after the alleged act of negligence.  The purpose of the statute of repose was to provide medical providers certainty with respect to the time within which a claim can be brought and after which they may be free from litigation. 

The amicus brief filed on behalf of AMCNO encouraged the OSC to find that R.C. 2305.113(C) applies to any cause of action when the occurrence of the act or omission constituting the alleged medical malpractice takes place more than four years prior to the filing of the lawsuit, regardless of whether a cause of action has vested.

The AMCNO contended that Ohio’s statute of repose was adopted for the purpose of providing certainty to physicians, as well as other medical practitioners, by procedurally barring the filing and/or litigation of stale lawsuits after four years from the date of the alleged medical malpractice.  The AMCNO also argued that the statute of repose serves the critical public policy purpose of prohibiting the litigating of medical malpractice actions after such time because documents are no longer retained and memories are no longer fresh. 

The statute of repose is critically important to physicians, hospitals, and other medical practitioners across Ohio because it was intended to place a hard and fast expiration date on a potential cause of action.  Therefore, the AMCNO is pleased with the OSC decision in this case which upheld state law, R.C. 2305.113 (C).


Stewart v. Vivian –

The OSC decided this "apology statute" case, ruling that a healthcare provider's statement of apology that expresses fault or admission of liability to a patient or the patient's family cannot be admitted as evidence in a civil lawsuit against the provider. The AMCNO had worked with the Ohio State Medical Association, Ohio Hospital Association, and the Ohio Osteopathic Association to prepare a joint amicus brief that stated that words of apology, by the word's own dictionary definition, include words of fault.

In the 5-2 decision, the Court found that a physician's statement of apology expressing "a feeling of regret for an unanticipated outcome...may include an acknowledgement that the patient's medical care fell below the standard of care." The Court found nothing ambiguous about the word "apology" and found it may include statement of fault.

The majority decision, written by Justice Sharon L. Kennedy, affirmed rulings by lower courts not to admit the statements of Dr. Rodney E. Vivian in a medical malpractice lawsuit brought against him by the family of a woman who committed suicide while under Dr. Vivian's care at a Clermont County hospital.

The OSC unanimously agreed that Ohio's "apology statute," R.C. 2317.43, shields apologies that include admissions of fault.

The Pollen Line is now closed. See you in the spring!

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