New state legislation introduced Thursday and Friday aim to offer more solutions to rising medical malpractice insurance rates.
The bills come from two separate parties and aims to reform areas in the court system by capping the amount a jury can award for pain and suffering, known as non-economic damages. Economic damages include loss of wages, medical care and rehabilitation costs.
The new legislation follows the trend started by Senate Bill 281, which seeks to limit pain and suffering awards to $300,000. It also limits attorney contingency fees on a sliding scale.
Jury awards for malpractice victims has topped the $1 million mark in several cases, most recently in the Columbus lawsuit brought by Deborah Dick, who received $5.1 million after losing the use of her legs in repeated misdiagnoses.
The bill, now in Senate hearings which began Tuesday, is supported by the 2,000 doctors and concerned parties who attended an Oct. 30 rally for stabilizing insurance rates.
The near-doubling of rates is causing many Ohio doctors to limit their medical services or go out of practice altogether, according to a study conducted by the Ohio State Medical Association.
However, the bill is being supported and challenged by two other pieces of legislation.
Sen. David Goodman, R-Bexley, who introduced the bill to the Senate over the summer, explained that a companion bill is acting as a way to move it through Ohio’s House of Representatives more quickly.
House Bill 665, introduced Friday by Rep. Tim Grendell, R-Chesterland, addresses larger non-economic damages in a similar way. The bill places a limit of $500,000 for non-catastrophic injuries and $1 million for catastrophic injuries, as well as limits on attorney contingency fees. The limits apply after the jury has made its verdict, but involve some math.
“Plaintiffs can be awarded three times the economic damages,” said Beth Vanderkooi, legislative aide to Grendell. “If this bill were enacted and a plaintiff were awarded $5,000 in economic damages, his non-economic damages would be limited to $15,000 – but the cap is $500,000, so he only gets that much.”
However, the caps do not apply in wrongful death cases, she said.
Grendell’s bill, when introduced and voted on in the House, “will make S.B. 281 easier to understand and able to be voted on more quickly,” Goodman said.
But some Ohio Democrats disagree with both bills.
Sen. Eric Fingerhut, D-Cleveland, and Rep. Edward Jerse, D-Euclid, introduced a package of three bills to address the malpractice insurance issues in their own way.
They first aim to reinstate the Joint Underwriting Authority, a state fund that serves as a last-resort insurer for Ohio’s doctors and medical facilities.
“The JUA provides a necessary check on the marketplace,” Fingerhut said. “It was effective in moderating rates by ensuring that there was competition in the medical malpractice insurance market in Ohio.”
Dr. John Thomas, a Wooster ophthalmologist and president of OSMA, affirmed this need for competition.
“There are only four insurance carriers in Ohio, and two of them don’t take new people,” Thomas said.
He said doctors are left with limited options for insurance and no way to get away from the high rates.
The second part of the Democrats’ plan creates a permanent commission to monitor the insurance rates in Ohio and report regularly to the Ohio General Assembly on the cost and availability of the insurance.
The third bill in the Democrats’ legislation increases the penalties for lawyers and parties filing frivolous lawsuits, applying rules already enacted in federal courts to Ohio courts. This is done in part by allowing judges to sanction those lawyers and clients.
Even if the doctor is not found liable, frivolous lawsuits can still hurt doctors.
Maryellen Spirito, an attorney for the Riverside Hospital doctors in the Dick case, said that there is no compensation for expenses or reputations lost by doctors who were judged to have done nothing wrong.
“The jury wanted to know if there was any recourse we had against the plaintiffs’ attorneys for filing a bogus lawsuit against my client,” she said. “There is virtually nothing I can do to make up for the several years and five weeks of trial this doctor endured.”
Fingerhut and Jerse also proposed legislation to prevent medical malpractice insurers from raising rates for any existing Ohio customer more than five percent from year to year, unless specifically given permission for good cause.
The introduction of all this legislature involves sponsor and proponent testimonies, and their movements depend on the pace of the bill in the General Assembly. After the legislature’s summer break, the proceedings for Senate Bill 281 are expected to move quickly, Goodman said.
“We expect to have it out [of the Senate] by the end of this week,” Goodman said. “We also expect it to move through the House fairly swiftly and go through before the end of session [in December]. At least, we hope.”
