Ohio Medical Malpractice Summary

Email This Share on LinkedIn Share on Facebook Tweet This

Ohio medical malpractice law changed substantially with the passage of S.B. 281, 124th Leg. (2002). Most sections of the new law, including a cap on non-economic damages, apply only to claims arising out of acts or omissions on or after April 11, 2003. At this writing, there have been no published opinions ruling on the constitutionality of the major provisions of S.B. 281. However, as discussed below under Damage Caps, the Ohio Supreme Court upheld the constitutionality of a similar damage cap passed later applicable to other personal injury claims. At about the same time it passed medical malpractice reform, the legislature modified the way in which damages are allocated in tort cases generally. See Contributory or Comparative Negligence, Joint and Several Liability, and Contribution.

Statutes of Limitations

A medical malpractice action must be commenced within one year after the cause of action accrues. Ohio Rev. Code Ann. § 2305.113(A) (Westlaw 2010). A cause of action for medical malpractice accrues when the claimant discovers or, in the exercise of reasonable care and diligence, should have discovered the resulting injury, or when the physician-patient relationship for that condition terminates, whichever occurs later. Frysinger v. Leech, 32 Ohio St. 3d 38, 512 N.E.2d 337 (1987). If a malpractice claimant gives written notice to the prospective defendant within the one-year limitation period, the claimant may bring an action at any time within 180 days of that notice. Ohio Rev. Code Ann. § 2305.113(B) (Westlaw 2010).

A four-year statute of repose applies to claims arising out of acts or omissions on or after April 11, 2003. A claim must be brought within four years of the act or omission, except that a claimant has one full year from discovery, even if this exceeds four years, for claims discovered after three years or claims based on a foreign object left in the body. Ohio Rev. Code Ann. § 2305.113(C) and (D) (Westlaw 2010). Although there has been no published case to date addressing the constitutionality of this section, the Ohio Supreme Court has twice found medical malpractice statutes of repose to be unconstitutional. Hardy v. VerMeulen, 32 Ohio St. 3d 45, 512 N.E.2d 626, cert. denied, 484 U.S. 1066 (1987) (holding a four-year statute to be unconstitutional if “applied to bar the claims of medical malpractice plaintiffs who did not know or could not reasonably have known of their injuries”); State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451, 715 N.E.2d 1062 (1999) (holding a later statute unconstitutional in its entirety). If, at the time the cause of action accrues, the claimant is a minor or of unsound mind, both the one-year and four-year statutes are tolled until the disability is removed. Ohio Rev. Code Ann. § 2305.16 (Westlaw 2010).

Malpractice that results in death gives rise to two distinct claims: a malpractice claim for personal loss and suffering prior to death, enforceable by the decedent’s personal representative, and a wrongful death claim for pecuniary loss to the decedent’s spouse and next of kin. Koler v. St. Joseph Hospital, 69 Ohio St. 2d 477, 432 N.E.2d 821 (1982). A wrongful death action may be brought even if the malpractice claim is time-barred Id.; Brosse v. Cumming, 20 Ohio App. 3d 260, 485 N.E.2d 803 (1984) (malpractice claim already barred at time of death). By statute, an action for wrongful death must be brought within two years after the decedent’s death, Ohio Rev. Code Ann. § 2125.02(D) (Westlaw 2010), but the Ohio Supreme Court has adopted a discovery rule that can extend this time. Collins v. Sotka, 81 Ohio St. 3d 506, 692 N.E.2d 581 (1998).

Contributory or Comparative Negligence

Ohio recognizes a form of comparative negligence. A claimant’s contributory fault only bars recovery if it exceeds the combined fault of all other persons, whether or not they have been sued. Otherwise, recovery is simply diminished in proportion to the claimant’s fault. Ohio Rev. Code Ann. § 2315.33 (Westlaw 2010). The law is similar in cases arising prior to April 9, 2003, except that only the negligence of other parties is considered. Ohio Rev. Code Ann. § 2315.19 (Westlaw 2003) (repealed).

Joint and Several Liability

As a general rule, the liability of multiple defendants who have caused the same injury is several only. Each defendant’s share of the judgment is in proportion to his percentage of fault. The fault of non-parties may be included in the calculation. There is an exception for intentional tortfeasors and defendants with more than 50 percent of total fault, who are jointly and severally liable for economic damages. Ohio Rev. Code Ann. § 2315.22 (Westlaw 2010). In cases arising prior to April 9, 2003, multiple defendants are jointly and severally liable for a claimant’s economic loss, but their liability is several only with respect to non-economic loss. Ohio Rev. Code Ann. § 2315.19 (Westlaw 2003) (repealed).

Contribution

A person (other than an intentional tortfeasor) who has paid more than his proportionate share of a common tort liability may obtain contribution for the excess from other persons who are jointly and severally liable for the same injury. Ohio Rev. Code Ann. § 2307.25(A) (Westlaw 2010). After a settlement, there is no right to recover contribution for settlement amounts that are in excess of what is reasonable, or from a person whose liability is not extinguished by the settlement. Ohio Rev. Code Ann. § 2307.25(B) (Westlaw 2010). A right of contribution may be enforced in the underlying action by motion, or in a separate action within one year of final judgment or a timely settlement. Ohio Rev. Code Ann. § 2307.26 (Westlaw 2010). The law applicable to cases arising prior to April 9, 2003, is similar. See Ohio Rev. Code Ann. §§ 2307.31 and 2307.32 (Westlaw 2003) (repealed).

Vicarious Liability

Under the doctrine of respondeat superior, a hospital may be held liable for torts committed by its employees. Furthermore, under the doctrine of agency by estoppel, a hospital may be held liable for the negligence of physicians who are not its employees if (1) it holds itself out to the public as a provider of medical services, and (2) in the absence of notice or knowledge to the contrary, the patient looks to the hospital, as opposed to the individual physician, to provide competent medical care. Clark v. Southview Hospital & Family Health Center, 68 Ohio St. 3d 435, 628 N.E.2d 46 (1994).

Expert Testimony

In actions involving a medical professional’s skill and judgment, expert testimony must be presented to establish the prevailing standard of care, a breach of that standard, and proximate cause. Ramage v. Central Ohio Emergency Services, Inc., 64 Ohio St. 3d 97, 592 N.E.2d 828 (1992). There is an exception for matters within the “common knowledge” of laypersons. Id. Such an expert must practice in the same specialty or a specialty substantially similar to that of the defendant. Ohio Rev. Code Ann. § 2743.43 (Westlaw 2010). Effective July 1, 2005, the complaint in a medical malpractice lawsuit must be accompanied by an affidavit of merit by a properly qualified expert with respect to each defendant against whom expert testimony is needed. An extension of time may be granted for good cause. Ohio R. Civ. P. 10(D)(2). An expert who has the same medical malpractice insurer as the defendant for whom he is testifying may be cross-examined about it. The Supreme Court held in Ede v. Atrium South OB-GYN, Inc., 71 Ohio St. 3d 124, 642 N.E.2d 365 (1994), that evidence of a common insurance carrier is sufficiently probative of the expert’s bias as to outweigh any potential prejudice caused by revealing that the defendant is insured.

Damage Caps

There is a cap on non-economic damages for medical malpractice arising out of acts or omissions on or after April 11, 2003. The basic cap is the larger of $250,000 or three times economic damages, subject to a maximum of $350,000 per plaintiff and a maximum of $500,000 per occurrence. These maximum amounts increase to $500,000 per plaintiff and $1 million per occurrence if the plaintiff has suffered permanent and substantial physical deformity, loss of use of a limb, loss of a bodily organ system, or permanent physical injury that prevents self-care. Ohio Rev. Code Ann. § 2323.43 (Westlaw 2010). The cap does not apply to cases brought under the wrongful death statute, Ohio Rev. Code Ann. § 2323.43(G)(3) (Westlaw 2010), but it does limit recovery by a decedent’s estate for such non-economic damages as conscious pain and suffering experienced prior to death. Prior damage caps, similar in some respects to the current statute but different in others, have twice been held to be unconstitutional by the Ohio Supreme Court. State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451, 715 N.E.2d 1062 (1999); Morris v. Savoy, 61 Ohio St. 3d 684, 576 N.E.2d 765 (1991). However, the court upheld a 2005 cap on non-economic damages in other personal injury tort claims. Arbino v. Johnson & Johnson, 116 Ohio St. 3d 468, 880 N.E.2d 420 (2007). The majority determined that the actual holding in Sheward was that the prior legislation, taken as a whole, violated the separation of powers and Ohio’s single-subject clause, and that the discussion of damage caps in Shewardwas non-binding dictum. Id. at 478, 880 N.E.2d at434.

Ohio also limits punitive damages to twice compensatory damages in tort cases (other than intentional torts) arising on or after April 5, 2005. Punitive damages are also limited to ten percent of net worth, up to a maximum of $350,000, in the case of an individual or small employer. Ohio Rev. Code Ann. § 2315.21(D) (Westlaw 2010). The constitutionality of this cap was upheld in Arbino.

Statutory Cap on Attorneys’ Fees

In medical malpractice actions based on acts or omissions on or after April 11, 2003, a probate judge must approve attorneys’ fees if they exceed the amount of the cap on non-economic damages. Ohio Rev. Code Ann. § 2323.43(F) (Westlaw 2010). See Damage Caps.

Periodic Payments

In medical malpractice actions based on acts or omissions on or after April 11, 2003, the court has broad discretion to adopt a plan for the periodic payment of future damages exceeding $50,000 if any party asks it to do so. Ohio Rev. Code Ann. § 2323.55 (Westlaw 2010). Future installments bear interest at the statutory rate (see Pre-Judgment Interest) and continue to be paid to a plaintiff’s heirs if he dies. Ohio Rev. Code Ann. § 2323.55(G)(1) and (I) (Westlaw 2010). The periodic payment statute in effect prior to April 11, 2003, has been held to be unconstitutional, but the Supreme Court opinion doing so emphasized the absence of interest on deferred installments, which has been changed in the current statute. Galayda v. Lake Hospital Systems, 71 Ohio St. 3d 421, 644 N.E.2d 298 (1994), cert. denied sub nom. Damian v. Galayda, 516 U.S. 810 (1995).

Collateral Source Rule

The collateral source rule is substantially modified for medical malpractice cases based on acts or omissions on or after April 11, 2003. Defendants can introduce evidence of benefits a plaintiff received from insurers or others that reduce his loss. There are exceptions for payments from sources that have a right to subrogation under federal or state law, and an offset for amounts a plaintiff paid to procure benefits. Ohio Rev. Code Ann. § 2323.41. Somewhat different prior reforms of the collateral source rule were held to be unconstitutional in State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451, 715 N.E.2d 1062 (1999), and Sorrell v. Thevenir, 69 Ohio St. 3d 415, 633 N.E.2d 504 (1994).

Pre-Judgment Interest

Pre-judgment interest in tort cases is awarded to a successful plaintiff if he establishes, at a hearing, that he made a good faith effort to settle the case and the losing defendant did not. Ohio Rev. Code Ann. § 1343.03(C) (Westlaw 2010). Formerly, interest ran from the date the cause of action accrued, but an amendment effective June 2, 2004, provides that in negligence cases where liability is contested, it runs only from the date of filing (or under certain circumstances from notice). The amendment also prohibits the award of pre-judgment interest on future damages. It changed the rate of interest from ten percent to the federal short-term rate, rounded to a whole number, plus three percent, as determined by the tax commissioner each October for the following year. Id..; Ohio Rev. Code Ann. § 5703.47 (Westlaw 2010). The rate is four percent for judgments rendered in 2010.

Appellate cases give trial judges broad discretion to decide what constitutes a “good faith effort,” and allows them to consider evidence about the state of mind of the person making settlement decisions. For example, the court in Garrett v. St. Elizabeth Health Center, 142 Ohio App. 3d 610, 756 N.E.2d 698 (2001), relied in part on testimony by the risk manager of a self-insured hospital that he decided to “roll the dice” in a case.

Patient Compensation Funds and Physician Insurance

Ohio does not have a patient compensation fund or a general program of state-sponsored liability insurance for physicians.

Immunities

The State of Ohio has waived its immunity by statute, and that of all hospitals owned or operated by political subdivisions, including municipal corporations and counties. Ohio Rev. Code Ann. §§ 2743.02, 2744.01, and 2744.02 (Westlaw 2010). The state may only be sued in the Court of Claims. This is advantageous to defendants, as Court of Claims cases are tried in the state capital before a judge, not a jury. Ohio Rev. Code Ann. §§ 2743.02 and 2743.03 (Westlaw 2010).

A civil action against the state or its political subdivisions must be brought within two years from the time the cause of action arose or within any shorter period of time applicable in similar suits between private parties. Ohio Rev. Code Ann. §§ 2743.16 and 2744.04 (Westlaw 2010).

Political subdivisions are immune from liability for punitive damages. Collateral source benefits received by the claimant are deducted from any award against a political subdivision. Except in wrongful death cases, there is a cap of $250,000 per claimant on damages that do not represent “actual loss,” such as pain and suffering or loss of consortium. Ohio Rev. Code Ann. § 2744.05 (Westlaw 2010). This cap has been held to be constitutional. Oliver v. Cleveland Indians Baseball Co., 123 Ohio St. 3d 278, 915 N.E.2d 1205 (2009).

Arbitration

Ohio law permits, but does not require, the reference of medical malpractice actions to arbitration. The decision of an arbitration board is non-binding and neither the decision nor any dissenting opinion may be admitted into evidence at trial. Ohio Rev. Code Ann. § 2711.21 (Westlaw 2010). Ohio authorizes and regulates contracts entered into before care is rendered to submit all disputes to binding arbitration. Ohio Rev. Code Ann. §§ 2711.22 to 2711.24 (Westlaw 2010).

Copyright © 1990-1998 McCullough, Campbell & Lane LLP. All Rights Reserved.
Revision Date: February 6, 1998