SENATORS Spada, Mumper, Armbruster, Amstutz, Austria, Blessing, Carey, Coughlin, DiDonato, Fedor, Fingerhut, Robert Gardner, Harris, Hottinger, Jacobson, Jordan, Mallory, Nein, Padgett, Roberts, Schuler, Schuring, Dann, Stivers, Wachtmann, Zurz, Randy Gardner

To amend section 2743.43, to enact sections 2317.43,

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2323.421, 2323.45, and 3929.302, and to repeal

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section 2303.23 of the Revised Code to prohibit

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the use of a defendant's statement of sympathy as

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evidence in a medical liability action, establish

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qualifications for expert witnesses in medical

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liability actions, regulate the use of affidavits

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of noninvolvement in medical claims, and regulate

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the collection and disclosure of medical claims

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data.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That section 2743.43 be amended and sections	11
2317.43, 2323.421, 2323.45, and 3929.302 of the Revised Code be	12
enacted to read as follows:	13

Sec. 2317.43.  (A) In any civil action brought by an alleged	14
victim of an unanticipated outcome of medical care or in any	15
arbitration proceeding related to such a civil action, any and all	16
statements, affirmations, gestures, or conduct expressing apology,	17
sympathy, commiseration, condolence, compassion, or a general	18
sense of benevolence that are made by a health care provider or an	19
employee of a health care provider to the alleged victim, a	20
relative of the alleged victim, or a representative of the alleged	21
victim, and that relate to the discomfort, pain, suffering,	22
injury, or death of the alleged victim as the result of the	23
unanticipated outcome of medical care are inadmissible as evidence	24
of an admission of liability or as evidence of an admission	25
against interest.	26

(B) For purposes of this section, unless the context	27
otherwise requires:	28

(1) "Health care provider" has the same meaning as in	29
division (B)(5) of section 2317.02 of the Revised Code.	30

(2) "Relative" means a victim's spouse, parent, grandparent,	31
stepfather, stepmother, child, grandchild, brother, sister, half	32
brother, half sister, or spouse's parents. The term includes said	33
relationships that are created as a result of adoption. In	34
addition, "relative" includes any person who has a family-type	35
relationship with a victim.	36

(3) "Representative" means a legal guardian, attorney, person	37
designated to make decisions on behalf of a patient under a	38
medical power of attorney, or any person recognized in law or	39
custom as a patient's agent.	40

(4) "Unanticipated outcome" means the outcome of a medical	41
treatment or procedure that differs from an expected result.	42

Sec. 2323.421.  A person licensed in another state to	43
practice medicine, who testifies as an expert witness on behalf of	44
any party in this state in any action against a physician for	45
injury or death, whether in contract or tort, arising out of the	46
provision of or failure to provide health care services, shall be	47
deemed to have a temporary license to practice medicine in this	48
state solely for the purpose of providing such testimony and is	49
subject to the authority of the state medical board and the	50
provisions of Chapter 4731. of the Revised Code. The conclusion of	51
an action against a physician shall not be construed to have any	52
effect on the board's authority to take action against a physician	53
who testifies as an expert witness under this section.	54

Sec. 2323.45.  (A)(1) A health care provider named as a	55
defendant in a civil action based upon a medical claim is	56
permitted to file a motion with the court for dismissal of the	57
claim accompanied by an affidavit of noninvolvement. The defendant	58
shall notify all parties in writing of the filing of the motion.	59
Prior to ruling on the motion, the court shall allow the parties	60
not less than thirty days from the date that the parties were	61
served with the notice to respond to the motion.	62

(2) An affidavit of noninvolvement shall set forth, with	63
particularity, the facts that demonstrate that the defendant was	64
misidentified or otherwise not involved individually or through	65
the action of the defendant's agents or employees in the care and	66
treatment of the plaintiff, was not obligated individually or	67
through the defendant's agents or employees to provide for the	68
care and treatment of the plaintiff, and could not have caused the	69
alleged malpractice individually or through the defendant's agents	70
or employees in any way.	71

(B)(1) The parties shall have the right to challenge the	72
affidavit of noninvolvement by filing a motion and submitting an	73
affidavit with the court that contradicts the assertions of	74
noninvolvement made in the defendant's affidavit of	75
noninvolvement.	76

(2) If the affidavit of noninvolvement is challenged, any	77
party may request an oral hearing on the motion for dismissal. If	78
requested, the court shall hold a hearing to determine if the	79
defendant was involved, directly or indirectly, in the care and	80
treatment of the plaintiff, or was obligated, directly or	81
indirectly, for the care and treatment of the plaintiff.	82

(3) The court shall consider all evidence submitted by the	83
parties and the parties' arguments and may dismiss the civil	84
action based upon the defendant's lack of involvement in the	85
elements of the plaintiff's medical claim. The court shall rule on	86
all challenges to the affidavit of noninvolvement within	87
seventy-five days after the filing of the affidavit of	88
noninvolvement.	89

(4) A court's dismissal of a claim against a defendant	90
pursuant to this section shall be deemed otherwise than upon the	91
merits and without prejudice pursuant to Civil Rule 41.	92

(C) If the court determines that a health care provider named	93
as a defendant has falsely filed or made false or inaccurate	94
statements in an affidavit of noninvolvement, the court, upon a	95
motion or upon its own initiative, shall immediately reinstate the	96
claim against that defendant, if previously dismissed.	97
Reinstatement of a party pursuant to this division shall not be	98
barred by any statute of limitations defense that was not valid at	99
the time the original affidavit was filed.	100

(D) In any action in which the defendant is found by the	101
court to have knowingly filed a false or inaccurate affidavit of	102
noninvolvement, the court shall impose upon the person who signed	103
the affidavit or represented the defendant, or both, an	104
appropriate sanction, including, but not limited to, an order to	105
pay to other parties to the claim the amount of the reasonable	106
expenses that the parties incurred as a result of the filing of	107
the false or inaccurate affidavit, including reasonable attorney's	108
fees.	109

(E) In any action in which the court determines that a party	110
falsely objected to a defendant's affidavit of noninvolvement, or	111
knowingly provided an inaccurate statement regarding a defendant's	112
affidavit, the court shall impose upon the party or the party's	113
counsel, or both, an appropriate sanction, including, but not	114
limited to, an order to pay to the other parties to the claim the	115
amount of the reasonable expenses that the parties incurred as a	116
result of the submission of the false objection or inaccurate	117
statement, including reasonable attorney's fees.	118

(F) As used in this section:

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(1) "Health care provider" has the same meaning as in	120
division (B)(5) of section 2317.02 of the Revised Code.	121

(2) "Medical claim" means any claim that is asserted in any	122
civil action against a health care provider and that arises out of	123
the medical diagnosis, care, or treatment of any person. "Medical	124
claim" includes derivative claims for relief.	125

Sec. 2743.43.  (A) No person shall be deemed competent to	126
give expert testimony on the liability issues in a medical claim,	127
as defined in section 2305.113 of the Revised Code, unless:	128

(1) Such person is licensed to practice medicine and surgery,	129
osteopathic medicine and surgery, or podiatric medicine and	130
surgery by the state medical board or by the licensing authority	131
of any state;	132

(2) Such person devotes three-fourths of the person's	133
professional time to the active clinical practice of medicine or	134
surgery, osteopathic medicine and surgery, or podiatric medicine	135
and surgery, or to its instruction in an accredited university;	136

(3) The person practices in the same or a substantially	137
similar specialty as the defendant. The court shall not permit an	138
expert in one medical specialty to testify against a health care	139
provider in another medical specialty unless the expert shows both	140
that the standards of care and practice in the two specialties are	141
similar and that the expert has substantial familiarity between	142
the specialties.	143

(4) If the person is certified in a specialty, the person	144
must be certified by a board recognized by the American board of	145
medical specialties or the American board of osteopathic	146
specialties in a specialty having acknowledged expertise and	147
training directly related to the particular health care matter at	148
issue.	149

(B) Nothing in division (A) of this section shall be	150
construed to limit the power of the trial court to adjudge the	151
testimony of any expert witness incompetent on any other ground.	152

(C) Nothing in division (A) of this section shall be	153
construed to limit the power of the trial court to allow the	154
testimony of any other expert witness, on a matter unrelated to	155
the liability issues in the medical claim, when that testimony is	156
relevant to the medical claim involved.	157

Sec. 3929.302. (A) The superintendent of insurance, by rule	158
adopted in accordance with Chapter 119. of the Revised Code, shall	159
require each authorized insurer, surplus lines insurer, risk	160
retention group, self-insurer, captive insurer, the medical	161
liability underwriting association if created under section	162
3929.63 of the Revised Code, and any other entity that provides	163
medical malpractice insurance to risks located in this state, to	164
report information to the department of insurance at least	165
annually regarding any medical, dental, optometric, or	166
chiropractic claim asserted against a risk located in this state,	167
if the claim resulted in any of the following results:	168

(1) A final judgment in any amount;

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(2) A settlement in any amount;

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(3) A final disposition of the claim resulting in no	171
indemnity payment on behalf of the insured.	172

(B) The report required by division (A) of this section shall	173
contain such information as the superintendent prescribes by rule	174
adopted in accordance with Chapter 119. of the Revised Code,	175
including, but not limited to, the following information:	176

(1) The name, address, and specialty coverage of the insured;

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(2) The insured's policy number;

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(3) The date of the occurrence that created the claim;

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(4) The name and address of the injured person;

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(5) The date and amount of the judgment, if any, including a	181
description of the portion of the judgment that represents	182
economic loss, noneconomic loss and, if applicable, punitive	183
damages;	184

(6) In the case of a settlement, the date and amount of the	185
settlement;	186

(7) Any allocated loss adjustment expenses;

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(8) Any other information required by the superintendent	188
pursuant to rules adopted in accordance with Chapter 119. of the	189
Revised Code.	190

(C) The superintendent may prescribe the format and the	191
manner in which the information described in division (B) of this	192
section is reported. The superintendent may, by rule adopted in	193
accordance with Chapter 119. of the Revised Code, prescribe the	194
frequency that the information described in division (B) of this	195
section is reported.	196

(D) The superintendent may designate one or more rating	197
organizations licensed pursuant to section 3937.05 of the Revised	198
Code or other agencies to assist the superintendent in gathering	199
the information, and making compilations thereof, required by this	200
section.	201

(E) There shall be no liability on the part of, and no cause	202
of action of any nature shall arise against, any person or entity	203
reporting under this section or its agents or employees, or the	204
department of insurance or its employees, for any action taken	205
that is authorized under this section.	206

(F) The superintendent may impose a fine not to exceed five	207
hundred dollars against any person designated in division (A) of	208
this section that fails to timely submit the report required under	209
this section. Fines imposed under this section shall be paid into	210
the state treasury to the credit of the department of insurance	211
operating fund created under section 3901.021 of the Revised Code.	212

(G) Except as specifically provided in division (H) of this	213
section, the information required by this section shall be	214
confidential and privileged and is not a public record as defined	215
in section 149.43 of the Revised Code. The information provided	216
under this section is not subject to discovery or subpoena and	217
shall not be made public by the superintendent or any other	218
person.	219

(H) The department of insurance shall prepare an annual	220
report that summarizes the closed claims reported under this	221
section. The annual report shall summarize the closed claim	222
reports on a statewide basis, and also by specialty and geographic	223
region. Individual claims data shall not be released in the annual	224
report. Copies of the report shall be provided to the members of	225
the general assembly.	226

(I) As used in this section, medical, dental, optometric, and	227
chiropractic claims include those claims asserted against a risk	228
located in this state that either:	229

(1) Meet the definition of a "medical claim," "dental claim,"	230
"optometric claim," or "chiropractic claim" under section 2305.113	231
of the Revised Code;	232

(2) Have not been asserted in any civil action, but that	233
otherwise meet the definition of a "medical claim," "dental	234
claim," "optometric claim," or "chiropractic claim" under section	235
2305.113 of the Revised Code.	236

Section 2. That existing section 2743.43 and section        Sec. 2303.23.	237
of the Revised Code are hereby repealed.	238

Section 3. The General Assembly respectfully requests the	239
Supreme Court to amend the Rules of Civil Procedure to require a	240
plaintiff filing a medical liability claim to include a	241
certificate of expert review as to each defendant. The General	242
Assembly respectfully requests that the certificate of expert	243
review require the signature of an expert witness from the same	244
specialty as the defendant; said witness shall be required to meet	245
the statutory evidentiary and case law requirements of a medical	246
expert capable of testifying at trial. A certificate of expert	247
review should be required to state with particularity the expert's	248
familiarity with the applicable standard of care, the expert's	249
qualifications, the expert's opinion as to how the applicable	250
standard of care was breached, and the expert's opinion as to how	251
the breach resulted in the injury or death.	252

Section 4. The General Assembly respectfully requests the	253
Supreme Court to amend the Rules of Civil Procedure to establish	254
an expedited discovery process in medical liability claims to	255
provide for the timely resolution of the disputes.	256