Even though the national health care bill has been signed into law, debate continues across the country over whether states should pass their own tort reform laws as a means to decrease the costs of health care. While proponents of these bills, which generally include limits on the amount of damages medical malpractice patients can recover, argue they are necessary to keep costs low, others argue that these caps achieve little more than to hurt those who already have suffered the most harm.
Ohio's Non-Economic Damages Cap
In 2002, Ohio passed a comprehensive reform bill that put limits on the amount of compensation those injured by medical malpractice may recover for their injuries. More specifically, S.B. 281 limited the amount of non-economic damages medical malpractice plaintiffs are entitled to recover. Non-economic damages include compensation for pain and suffering, permanent disfigurement, disability and loss of consortium, for example.
Ohio law does not impose a cap on the amount of economic damages a plaintiff may recover, which includes compensation for medical expenses, lost wages and other quantifiable monetary losses.
Currently, Ohio's non-economic damages cap is set at $250,000 per plaintiff or three times the amount of economic damages, whichever is higher, up to a maximum of $350,000 per plaintiff, $500,000 per occurrence.
The cap is set higher for malpractice victims who have suffered catastrophic injury at $500,000 per individual, $1 million per occurrence. Under Ohio law, catastrophic injuries include the following:
- Permanent and substantial physical deformity
- Loss of use of a limb
- Loss of a bodily organ system
- Permanent physical injury that prevents self-care
The state passed the damages cap in response to growing concerns from health care providers about the rising costs of health care in Ohio. Proponents of the caps argued that that large jury verdicts and frivolous malpractice claims were increasing health care costs by requiring physicians to practice defensive medicine and order unnecessary tests for patients. Additionally, insurance providers were increasing the costs of malpractice insurance coverage for physicians and hospitals, making the operating costs too high for health care providers to remain in the state.
Cap's "Success" Subject to Debate
According to the Ohio Department of Insurance, the total number of closed medical malpractice claims in the state went down by 40 percent from 2005 to 2008. Additionally, the costs of medical malpractice premiums for health care providers have decreased by 22 percent over the past four years. The number of providers offering medical malpractice insurance coverage also has increased since the damages cap went into effect in 2003.
Based on these numbers, supporters of tort reform have proclaimed the Ohio cap to be a success and believe that it should be used as a model by other states seeking to pass similar medical malpractice reform laws.
Others, however, caution that these numbers may be misleading and that there are other reasons which may have had a significant impact on the decrease in medical malpractice claims in the state.
For example, in 2005 Ohio passed a law that requires medical malpractice plaintiffs to submit an "affidavit of merit" as a precondition to bringing a medical malpractice claim. The affidavit of merit must be completed by an expert witness who is willing to testify that the medical malpractice claim is legitimate. While it is possible this requirement has reduced the number of frivolous claims, there is no concrete proof of this effect.
The Ohio Department of Insurance also has said that it believes some credit for the decrease in med mal claims needs to given to changes made by doctors and hospitals. These changes include taking more precautions to reduce the number of preventable medical errors in the first place and taking internal action to remedy the situation when a preventable error does occur.
The biggest problem with medical malpractice caps is that they place limits not on the party who has committed the wrong, but on the party who has suffered the injury. It is only the plaintiffs who have suffered the greatest of injuries who would be able to recover non-economic damages that exceed the damages cap. Why should the law place limits on the financial recovery of those who have suffered the worst harm? Fairness dictates that it should not.
Ohio imposes a one-year statute of limitations on medical malpractice claims. For more information on pursuing a medical malpractice claim, contact an experienced attorney today.