REPRESENTATIVES Schmidt, Schneider, White, Collier, Peterson, Hollister, Kearns, Wagner, Faber, Gibbs, DeWine, Flowers, Taylor, Setzer, Raga, Reidelbach, Wolpert, Webster, Aslanides, Raussen, Daniels, Carmichael, Blasdel, Koziura, D. Evans, T. Patton, Sferra, Seaver, Hughes, Barrett, G. Smith, Driehaus, Woodard, Olman, Book, Brown

To amend section 2743.43, to enact sections 2317.43,

1

2323.421, 2323.45, and 3929.302, and to repeal

2

section 2303.23 of the Revised Code to prohibit

3

the use of a defendant's statement of sympathy as

4

evidence in a medical liability action, establish

5

qualifications for expert witnesses in medical

6

liability actions, regulate the use of affidavits

7

of noninvolvement in medical claims, and regulate

8

the collection and disclosure of medical claims

9

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 for the purpose of providing such testimony and is subject	49
to the authority of the state medical board and the provisions of	50
Chapter 4731. of the Revised Code.	51

Sec. 2323.45.  (A)(1) A health care provider named as a	52
defendant in a civil action based upon a medical claim is	53
permitted to file a motion with the court for dismissal of the	54
claim accompanied by an affidavit of noninvolvement. The defendant	55
shall notify all parties in writing of the filing of the motion.	56
Prior to ruling on the motion, the court shall allow the parties	57
not less than thirty days from the date that the parties were	58
served with the notice to respond to the motion.	59

(2) An affidavit of noninvolvement shall set forth, with	60
particularity, the facts that demonstrate that the defendant was	61
misidentified or otherwise not involved individually or through	62
the action of the defendant's agents or employees in the care and	63
treatment of the plaintiff, was not obligated individually or	64
through the defendant's agents or employees to provide for the	65
care and treatment of the plaintiff, and could not have caused the	66
alleged malpractice individually or through the defendant's agents	67
or employees in any way.	68

(B)(1) The parties shall have the right to challenge the	69
affidavit of noninvolvement by filing a motion and submitting an	70
affidavit with the court that contradicts the assertions of	71
noninvolvement made in the defendant's affidavit of	72
noninvolvement.	73

(2) If the affidavit of noninvolvement is challenged, any	74
party may request an oral hearing on the motion for dismissal. If	75
requested, the court shall hold a hearing to determine if the	76
defendant was involved, directly or indirectly, in the care and	77
treatment of the plaintiff, or was obligated, directly or	78
indirectly, for the care and treatment of the plaintiff.	79

(3) The court shall consider all evidence submitted by the	80
parties and the parties' arguments and may dismiss the civil	81
action based upon the defendant's lack of involvement in the	82
elements of the plaintiff's medical claim. The court shall rule on	83
all challenges to the affidavit of noninvolvement within	84
seventy-five days after the filing of the affidavit of	85
noninvolvement.	86

(4) A court's dismissal of a claim against a defendant	87
pursuant to this section shall not be deemed otherwise than upon	88
the merits and without prejudice. In the event subsequent	89
discovery indicates involvement by the dismissed defendant, then	90
upon the motion of any party the dismissed defendant shall be	91
reinstated as a party defendant by the court.	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:

119

(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) Each authorized insurer, surplus lines	158
insurer, risk retention group, self-insurer, the medical liability	159
underwriting association if created under section 3929.63 of the	160
Revised Code, and any other entity that offers medical malpractice	161
insurance in this state, shall report to the department of	162
insurance at least annually any medical, dental, optometric, or	163
chiropractic claim filed against an insured located in this state,	164
if the claim resulted in any of the following results:	165

(1) A final judgment in any amount;

166

(2) A settlement in any amount;

167

(3) A final disposition of the claim resulting in no	168
indemnity payment on behalf of the insured.	169

(B) The report required by division (A) of this section shall	170
contain all of the following information:	171

(1) The name, address, health care provider professional	172
license number, and specialty coverage of the insured;	173

(2) The insured's policy number;

174

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

175

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

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(5) The date that the claim was filed;

177

(6) The injured person's age and sex;

178

(7) The total number, names, and health care provider	179
professional license numbers of all defendants involved in the	180
claim;	181

(8) The date and amount of the judgment, if any, including a	182
description of the portion of the judgment that represents	183
economic loss, noneconomic loss and, if applicable, punitive	184
damages;	185

(9) In the case of a settlement, the date and amount of the	186
settlement, the injured person's incurred and anticipated medical	187
expenses, wage loss, and other expenses;	188

(10) The loss adjustment expense paid to defense's counsel,	189
plaintiff's counsel if available, and all other allocated loss	190
adjustment expenses paid;	191

(11) The date and reason for final disposition, if no	192
judgment or settlement occurred;	193

(12) A summary of the occurrence that created the claim,	194
including all of the following information:	195

(a) The name of the institution, if any, and the location	196
within the institution where the injury occurred;	197

(b) The final diagnosis for which treatment was sought or	198
rendered, including the patient's actual condition;	199

(c) The operation, diagnostic, or treatment procedure causing	200
the injury;	201

(d) A description of the principal injury that gave rise to	202
the claim;	203

(e) The safety management steps that have been taken by the	204
insured to make similar occurrences or injuries less likely in the	205
future.	206

(13) Any other information required by the superintendent of	207
insurance pursuant to rules adopted in accordance with Chapter	208
119. of the Revised Code.	209

(C) The superintendent may prescribe the format and the	210
manner in which the information described in division (B) of this	211
section is reported. The superintendent may, by rule adopted in	212
accordance with Chapter 119. of the Revised Code, prescribe the	213
frequency that the information described in division (B) of this	214
section is reported.	215

(D) The superintendent may designate one or more rating	216
organizations licensed pursuant to section 3937.05 of the Revised	217
Code or other agencies to assist the superintendent in gathering	218
the information, and making compilations thereof, required by this	219
section.	220

(E) There shall be no liability on the part of, and no cause	221
of action of any nature shall arise against, any person or entity	222
reporting under this section or its agents or employees, or the	223
department of insurance or its employees, for any action taken	224
that is authorized under this section.	225

(F) The superintendent shall impose a fine of five hundred	226
dollars against any person designated in division (A) of this	227
section that fails to timely submit the report required under this	228
section. Fines imposed under this section shall be paid into the	229
state treasury to the credit of the department of insurance	230
operating fund created under section 3901.021 of the Revised Code.	231

(G) Except as specifically provided in division (H) of this	232
section, the information required by this section shall be	233
confidential and privileged and is not a public record as defined	234
in section 149.43 of the Revised Code. The information provided	235
under this section is not subject to discovery or subpoena and	236
shall not be made public by the superintendent or any other	237
person.	238

(H) The department of insurance shall prepare an annual	239
report that summarizes the closed claims reported under this	240
section. The annual report shall summarize the closed claim	241
reports on a statewide basis, and also by specialty and geographic	242
region. Individual claims data shall not be released in the annual	243
report. Copies of the report shall be provided to the members of	244
the general assembly.	245

(I) As used in this section, medical, dental, optometric, and	246
chiropractic claims include those claims filed with a medical	247
malpractice insurer against an insured located in this state that	248
either:	249

(1) Meet the definition of a "medical claim," "dental claim,"	250
"optometric claim," or "chiropractic claim" under section 2305.113	251
of the Revised Code;	252

(2) Have not been asserted in any civil action, but that	253
otherwise meet the definition of a "medical claim," "dental	254
claim," "optometric claim," or "chiropractic claim" under section	255
2305.113 of the Revised Code.	256

Section 2. That existing section 2743.43 and section        Sec. 2303.23.	257
of the Revised Code are hereby repealed.	258

Section 3. The General Assembly respectfully requests the	259
Supreme Court to require a plaintiff filing a medical liability	260
claim to include a certificate of expert review with the complaint	261
or to file the certificate of expert review with the court within	262
thirty days after the filing of the claim. The General Assembly	263
respectfully requests that the certificate of expert review	264
require the signature of an expert witness from the same specialty	265
as the defendant; said witness shall be required to meet the	266
evidentiary and case law requirements of a medical expert capable	267
of testifying at trial. A certificate of expert review should be	268
required to state with particularity the expert's familiarity with	269
the applicable standard of care, the expert's qualifications, the	270
expert's opinion as to how the applicable standard of care was	271
breached, and the expert's opinion as to how the breach resulted	272
in the injury or death.	273

Section 4. The General Assembly respectuflly requests the	274
Supreme Court to amend the Rules of Civil Procedure to incorporate	275
the mandatory discovery disclosure rules embodied in Rule 26 of	276
the Federal Rules of Civil Procedure.	277