H.B. 7's Impact on the Litigation of Medical Claims in Ohio
February 14, 2019
Effective March 20, 2019, Ohio House Bill 7 will affect the litigation of “medical claims” in the following important ways:
Statute of Limitations Automatically Extended 180 Days for Unnamed Medical Claims and Defendants
In lieu of serving 180 day letters on all potential defendants, R.C. §2323.451 allows a claimant to file a complaint asserting a medical claim within the statute of limitations, and seek to discover the existence or identity of any other potential medical claims or defendants that are not included or named in the complaint. So long as the claimant files an amended complaint adding claims or defendants within 180 days of the expiration of the statute of limitations, the claims asserted in the amended complaint relate back to the original filing date, regardless of whether the statute of limitations expired on the additional claims or defendants during the period following the filing of the first complaint.
Simplified Service of 180 Day Letters
R.C. § 2305.113(B)(2) now allows service of 180 day letters, by certified mail, return receipt requested, upon any of the following:
The person’s residence;
The person’s professional practice;
The person’s employer;
The address of the person on file with the state medical board or other state licensing agency.
Qualified Immunity for Disaster Responders
R.C. §2305.2311 grants health care providers and emergency medical technicians immunity from liability for any care or treatment provided in response to a disaster, unless the care or treatment constitutes reckless disregard for the consequences so as to affect the life or health of the patient.
The heightened standard of proof does not apply to wrongful death actions arising out of disaster response, or actions outside the scope of authority of the provider or EMT.
Qualified Immunity for Holding and/or Discharging Patients with Dangerous Mental Health Conditions
R.C. §2305.51(D) states that health care providers, including hospitals, cannot be subject to civil liability or regulatory discipline if the provider:
Fails to discharge a patient or allow a patient to leave the facility when the provider determines, according to appropriate standards of professional practice, that the patient has a mental health condition that threatens the safety of the patient or others; or
Discharges a patient whom the provider, in good faith and according to appropriate standards of professional practice, does not have a mental health condition that threatens the safety of the patient or others.
Apology Statute Expanded
R.C. §2317.43 renders inadmissible as evidence of an admission of liability or as evidence of an admission against interest, statements of “error” or “fault” even when those statements are included in the patient’s medical records.
In addition, records of the provider review process that include statements made to or by the alleged victim, the victim’s relatives and acquaintances, representatives, are also inadmissible.
Federal Laws and Regulations Are Not Evidence of the Standard of Care
R.C. § 2317.44 holds that the guidelines, regulations, or other standards propounded under the Patient Protection and Affordable Care Act and the Social Security Act (including rules issued by Medicare and Medicaid) do not establish the standard of care and are inadmissible in any civil action based upon a medical claim, or administrative action involving licensure of the health care provider.
CMS Reimbursement Policies and Determinations Are Not Evidence of the Standard of Care
R.C. § 2317.45 states that CMS reimbursement policies and reimbursement determinations are inadmissible as evidence of the standard of care or breach of the standard of care.
Through thoughtful preparation and planning, our attorneys have successfully defended hospitals, professional practice groups, physicians, nurses, and other healthcare employees sued for medical negligence and other related claims. Please contact any of our healthcare attorneys for additional information on how Ohio House Bill 7 will affect your institution or practice.