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The Law of Medical Malpractice in Ohio:

A Survey of Basic Considerations

Ohio medical malpractice law is among the most complex legal practice areas. The statutes, case-law, and regulations governing medical malpractice law in Ohio are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in Ohio exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.

Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in Ohio by both members of the general public as well as practicing lawyers. This widespread lack of understanding is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.

This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of Ohio medical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both non-lawyers and legal practitioners alike.

Section I below discusses the broad basic principles and concepts of medical malpractice law in Ohio. After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case. Sections II through XI examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in Ohio.

Below is a list of topics covered in this article. You can jump directly to a topic by clicking on it.

I. Overview of Basic Principles and Concepts
-What is Medical Malpractice in Ohio?
-Required Elements of a Medical Malpractice Claim in Ohio
-Introduction
-The Basic Elements
-Duty
-Standard of Care and Breach
-Causation

II. Filing Deadlines for Medical Malpractice Claims
-Introduction to Statute of Limitations
-Statute of Limitations for Medical Malpractice Claims in Ohio
-The Discovery Rule
-Introduction
-The Discovery Rule in Ohio
-Tolling Due to Minority or Unsound Mind
-Final Thoughts

III. Statute of Repose—Absolute Bar to Recovery
-Introduction
-Statute of Repose in Ohio

IV. Immunities and Limitations on Liability
-Sovereign Immunity
-Introduction
-Sovereign Immunity in Ohio
-Good Samaritan Law
-Introduction
-Good Samaritan Law in Ohio
-Additional Immunities and Limitations on Liability

V. Required Elements of a Medical Malpractice Complaint

VI. Affidavit of Merit

VII. Expert Medical Witnesses
-Introduction
-Who Qualifies as An Expert Medical Witness
-Admissibility of Expert Testimony
-Admissibility of Expert Testimony About Scientific Principles and Discoveries
-Introduction
-Admissibility of Scientific Principles and Discoveries in Ohio

VIII. Modified Comparative Negligence with 51% Bar Rule

IX. Limitations on Non-economic Damages

X. Limitations on Attorney Fees
-Contingent Fee Arrangement
-Limitations on Attorney Fees in Ohio

XI. Apologies and Gestures of Sympathy

I. Overview of Basic Principles and Concepts

What is Medical Malpractice in Ohio?

Medical malpractice is a specific type of professional negligence by a healthcare provider.  In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice.  When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

Required Elements of a Medical Malpractice Claim in Ohio

Introduction

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Ohio law.  Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation.  Some degree of risk is inherent in most medical procedures.  The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment.  The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment.  While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim

The Basic Elements

The basic elements of a compensable medical malpractice claim that must all be proven by a preponderance of the evidence by the plaintiff were summarized after a review of the governing case law by the Ohio Supreme Court in Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 131, and that formulation articulated by the Court remains the standard that courts continue to apply as of the date of this article.  It states:

Under Ohio law, as it has developed, in order to establish medical malpractice, it must be shown by a preponderance of the evidence that the injury complained of was caused by the doing of some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or circumstances, or by the failure or omission to do some particular thing or things that such a physician or surgeon would have done under like or similar conditions and circumstances, and that the injury complained of was the direct result of such doing or failing to do some one or more of such particular things.

Over the years, the Ohio Supreme Court has refined the basic formulation of a cause of action for medical malpractice.  In the 2015 case Cromer v. Children’s Hospital Medical Center of Akron (2015), 142 Ohio St.3d 257, 263, the Supreme Court described the necessary elements of a medical malpractice claim as follows:

  1. Duty—the healthcare provider owed the injured patient a legal duty to observe a specific standard of care;
  1. Breach—the healthcare provider’s actions deviated from or fell below the required standard of care thereby breaching the legal duty of care owed;
  1. Causation—the healthcare provider’s breach of the required standard of care caused or contributed to causing injury to the patient; and
  1. Damages—the injured patient suffered damages as a direct result of the injuries.

Duty

A legal duty owed by the defendant towards the injured party is fundamental to establishing an actionable medical malpractice claim.  Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142.  “If there is no duty, then no legal liability can arise on account of negligence.”  Id.Generally, a duty arises from the foreseeability of injury to someone in the defendant’s “general situation.”  Id.  However, “certain legally recognized relationships between parties” can establish the existence of an actor’s duty to another person; the relationship between healthcare providers and their patients is one of those legally recognized relationships.  Lownsbury v. VanBuren (2002), 94 Ohio St.3d 231, 235.

“In the context of an established physician-patient relationship, there is no need to independently determine whether the patient falls within the class of people who could foreseeably be injured, because the existence of the physician’s duty to that patient is already clear.”  Cromer, 142 Ohio St.3d at 263-264.  Accordingly, for most medical malpractice cases, the duty element need not be independently established as long as there is a physician-patient relationship between the injured party and the defendant.

Standard of Care and Breach

The Ohio Supreme Court reiterated in Cromerthat“the standard of care applicable to medical professionals is to exercise the degree of care that a medical professional of ordinary skill, care, and diligence would exercise under similar circumstances.”  Id. at 264 (citing Bruni, 46 Ohio St.2d at 131).  Medical specialists are “held to the standard of care ‘of a reasonable specialist practicing medicine or surgery in that same specialty in the light of present day scientific knowledge in that specialty field.’”  Littleton v. Good Samaritan Hospital & Health Center (1988), 39 Ohio St.3d 86, 93 (quoting Bruni, 46 Ohio St.2d at 130).

According to the Ohio Supreme Court, expert testimony is generally required to establish the requisite standard of care and defendant’s failure to provide care in conformity with the applicable standard.  Bruni, 46 Ohio St.2d at 130.  There is an exception to the expert testimony requirement.  Where “the nature of the case is such that the lack of skill or care of the physician and surgeon is so apparent as to be within the comprehension of laymen and requires only common knowledge and experience to understand and judge it,” expert testimony is not required to establish the relevant standard of care and breach thereof.  Id.

Classic examples of situations that are generally considered within the comprehension of laymen include (1) a foreign object inadvertently left inside a patient’s body following surgery and (2) the amputation of the wrong limb, e.g., right leg amputated instead of left leg.Estate of Hall v. Akron General Medical Center (2010), 125 Ohio St.3d 300, 313.  In these types of situations, “it is within a juror’s common knowledge and experience that the injury was one that would not ordinarily occur without negligence.”  Id. Thus, expert medical witness testimony is not required to establish the applicable standard of care and breach in such cases.

In 1976, the Ohio Supreme Court abandoned the so-called locality rule[1] with respect to both the applicable standard of care and expert witness qualification.  Bruni, 46 Ohio St.2d at 134-135.  The Court observed that the “basis for this rule was that a physician at that time [when the rationale was first expressed in 1880, see fn. 1] in a small town lacked the opportunity to keep abreast of the advances in the medical profession….  Under these circumstances it would be unfair to hold such a doctor to the same standard of care as doctors … in larger cities.”  Id. at 133.

But the Court concluded that those considerations that initially justified the locality rule just did not exist anymore at the time of the decision.  Id. at 133-134.  In Bruni, the Court announced: “Accordingly, the standard of care … is that owed to a patient by the community of neurosurgeons.  Geographic conditions or circumstances do not control either the standard of the specialist’s care or the competence of the expert’s testimony.”  Id. at 134-135.

Causation

The general rule for medical malpractice cases “is that the plaintiff must prove causation through medical expert testimony in terms of probability to establish that the injury was, more likely than not, caused by the defendant’s negligence.”  Roberts v. Ohio Permanente Medical Group, Inc. (1996), 76 Ohio St.3d 483, 485.  According to the Ohio Supreme Court, “[o]pinions expressed with a lesser degree of certainty must be excluded as speculative.”  Shumaker v. Oliver B. Cannon & Sons, Inc. (1986), 28 Ohio St.3d 367, 369. “At a minimum, the trier of fact must be provided with evidence that the injury was more likely than not caused by defendant’s negligence.”  Id.The Supreme Court added that “an event is probable if there is a greater than fifty percent likelihood that it produced the occurrence at issue.”  Stinson v. England (1994), 69 Ohio St.3d 451, 455.

In Shumaker, the plaintiff’s expert witness stated that he was testifying to a “reasonable degree of probability” that the plaintiff’s injury was the result of the defendant’s negligence.  Id.  However, he modified his testimony by adding the word ‘could.’  Id.  The Court concluded that the expert did not actually provide opinion testimony that the plaintiff’s injury was causally linked to the defendant’s alleged negligence, “but only that such a causal connection could, but not necessarily did, exist.”  Id. at 369-370.  Therefore, his testimony must be excluded since it was legally insufficient to establish causation.  Id. at 370.

[1]The “locality” rule provides that the applicable standard of care by which a defendant healthcare provider is measured is the particular locality or community in which he or she practices.  The rationale for the rule was first expressed by the Massachusetts Supreme Judicial Court in the 1880 case Small v. Howard, 128 Mass. 131 (1880).  However, in 1968, the Supreme Court rejected the continuing use of the rule in Massachusetts and announced: “We are of the opinion that the ‘locality’ rule of Small v. Howard … is unsuited to present conditions.  The time has come when the medical profession should no longer be Balkanized by the application of varying geographic standards in malpractice cases.  Accordingly, Small v. Howard is hereby overruled.”  Brune v. Belinkoff, 354 Mass. 102, 108 (1968).

II. Filing Deadlines for Medical Malpractice Claims

Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case.  In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations.  Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard.  In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended.  Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period.  For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time.  The deadline to carry out a specified action under a statute of limitations can also be extended.  For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in Ohio

The standard statute of limitations governing medical malpractice claims is contained in R.C. §2305.113(A).  It requires a claim to “an action upon a medical, dental, optometric, or chiropractic claim” to be “commenced within one year after the cause of action accrued.”  The critical issue then is when does a cause of action accrue because that is the date when the statute of limitations begins to run against a plaintiff’s claim.

The Ohio Supreme Court answered this question in the 1987 case Frysinger v. Leech (1987), 32 Ohio St.3d 38, 41-42, in which it announced: “we hold that … a cause of action for medical malpractice accrues and the statute of limitations commences to run (a) when the patient discovers or, in the exercise of reasonable care and diligence should have discovered, the resulting injury, or (b) when the physician-patient relationship for that condition terminates, whichever occurs later.”  [emphasis in original]

Under Ohio law, a cause of action for negligence does not arise until there is “the existence of a duty, a breach of that duty and injury resulting proximately therefrom.”  Mussivand v. David (1989), 45 Ohio St.3d 314, 318.  An actionable medical malpractice claim, then, requires an injury.  Ruther v. Kaiser (2012), 134 Ohio St.3d 408, 412.  According to the Ohio Supreme Court, “[w]e have clearly stated that it is when a patient discovers or in the exercise of reasonable care and diligence should have discovered the resulting injury that a cause of action for medical malpractice accrues, or, in other words, vests.”  Id.

The Ohio Supreme Court established a three-prong test for determining the accrual date of the injury when applying the statute of limitations.  Hershberger v. Akron City Hospital (1987), 34 Ohio St.3d 1, 5-6.  The Court held that:

the trial court must look to the facts of the particular case and make the following determinations: when the injured party became aware, or should have become aware, of the extent and seriousness of his condition, which, of course, may occur without the necessity of further medical consultation; whether the injured party was aware, or should have been aware, that such condition was related to a specific professional medical service previously rendered him; and whether such condition would put a reasonable person on notice of need for further inquiry as to the cause of such condition.

The Supreme Court recognized that the term “extent and seriousness” in the Hershberger test was imprecise and led to confusion.  Allenius v. Thomas (1989), 42 Ohio St.3d 131, 133.  As a result, the Allenius Court went on to combine the three prongs in Hershberger and held that:

the “extent and seriousness of his condition” language of the test … requires that there be an occurrence of a “cognizable event” which does or should lead the patient to believe that the condition of which the patient complains is related to a medical procedure, treatment or diagnosis previously rendered to the patient and where the cognizable event does or should place the patient on notice of the need to pursue his possible remedies.

Moreover, we do not believe that a patient must be aware of the full extent of the injury before there is a cognizable event.  It is enough that some noteworthy event, the “cognizable event,” has occurred which does or should alert a reasonable person-patient that an improper medical procedure, treatment or diagnosis has taken place.

If a patient believes, because of harm she has suffered, that her treating medical professional has done something wrong, such a fact is sufficient to alert a plaintiff … to the necessity for investigation and pursuit of her remedies. Id. at 133-134 (internal citations omitted).

R.C. §2305.113(B) provides an exception to the standard one-year limitations period in R.C. §2305.113(A).  Subsection (B) allows a plaintiff to extend the one-year limitations period for an additional 180 days from the time proper notice is given to potential defendants.  Marshall v. Ortega (2000), 87 Ohio St.3d 522, 523.

The Discovery Rule

Introduction

Every state has some version of the Discovery Rule.  In general, the Discovery Rule is an exception to the standard statute of limitations.  It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff.  Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision.  The rationale underlying the Discovery Rule is to prevent the statute of limitations barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in Ohio

In 1983, the Ohio Supreme Court adopted the Discovery Rule for medical malpractice cases.  Oliver v. Kaiser Community Health Foundation (1983), 5 Ohio St.3d 111, 118.  In doing so, the Court stated that the establishment of the Discovery Rule “in medical malpractice actions arising under R.C. 2305.11(A) [currently R.C. §2305.113(A)] … will be productive of results more nearly consonant with the demands of justice and the dictates of ethics.”  Id. at 112.  Prior to adopting the Discovery Rule for medical malpractice cases, the Court’s position was that “the statute of limitations begins to run at the latest upon the termination of the physician-patient relationship” regardless of whether the patient is aware of the injury or the physician’s act constituting malpractice.  Id.

Notice that because of how the Supreme Court interpreted when a cause of action accrues, i.e., discovery of the injury, the Discovery Rule is actually a component of the standard statute of limitations contained in R.C. §2305.113(A).

Tolling Due to Minority or Unsound Mind

The statute of limitations governing medical malpractice claims is tolled if the person entitled to bring any action is, at the time the cause of action accrues, “within the age of minority or of unsound mind….”  R.C. §2305.16.  The person may bring the action, within the otherwise applicable limitations period, “after the disability is removed.”  Id.For minors, that occurs upon attaining 18 years of age since that is when the disability of minority is removed.

As for when that occurs for a person of unsound mind, the Ohio Supreme Court ruled that the appointment of a guardian for the person of unsound mind does not remove the disability and thus does not start the running of the statute of limitations. Weaver v. Edwin Shaw Hospital (2004), 104 Ohio St.3d 390, 389-399.  The term disability in R.C. §2305.16 “does not refer to the legal inability to commence suit; rather, it refers only to the two descriptions of minority and unsound mind contained therein.”  Id. at 395.  Accordingly, the appointment of a guardian does not remove the disability of either minority or unsound mind and thus does not trigger the running of the statute of limitations.

The Court of Appeals noted that the term ‘unsound mind’ has not been clearly defined by the General Assembly, but it does include all forms of mental retardation or derangement.  McKay v. Cutlip (1992), 80 Ohio App.3d 487, 490.

Final Thoughts

The application of Ohio’s medical malpractice statute of limitations is extremely nuanced, technical, and fact-driven.  The rules governing this area of the law can be overwhelmingly complex and confusing for anyone other than an experienced Ohio medical malpractice attorney.  In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact an Ohio attorney who specializes in medical malpractice law at the earliest possible opportunity.

III. Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations.  Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed.  If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them.  The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes.  A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued.  In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury.  The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued.  Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists.  A statute of repose serves as an absolute bar to recovery.  Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations.  The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose[1].  In fact, even many practicing lawyers do not fully appreciate the critical differences between the two.  This is likely due to the fact that statutes of repose are relatively rare.  Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in Ohio

Ohio has a four-year statute of repose that runs from the date of the occurrence of the act or omission that forms the basis of the medical malpractice claim.  R.C. §2305.113(C).  The statute reads, in pertinent part, as follows:

  1. No action upon a medical, dental, optometric, or chiropractic claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim.
  1. If an action upon a medical, dental, optometric, or chiropractic claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim, then, any action upon that claim is barred.

The medical malpractice statute of repose has had a turbulent history.  Its constitutionality has been challenged several times, and in 1987, the Ohio Supreme Court held that it was unconstitutional “as applied to bar the medical malpractice plaintiffs who did not know or could not reasonably have known of their injuries….”  Hardy v. VerMeulen (1987), 32 Ohio St.3d 45, 47.  However, in 2012, the Supreme Court reversed course and announced “we overrule Hardy….”  Ruther v. Kaiser (2012), 134 Ohio St.3d 408.The Ruther Court held that “the medical malpractice statute of repose found in R.C. 2305.113(C) does not extinguish a vested right and thus does not violate the Ohio Constitution….” Id. at 418.  What the statute of repose does is prevent “a cause of action from vesting more than four years after the breach of the duty of care.”  Id. at 412.

Confusion remained after the Supreme Court’s decision in Ruther.  In the case, the plaintiff’s cause of action for medical malpractice did not accrue until after the statute of repose had already expired.  Accordingly, the statute of repose in that situation did not deprive the plaintiff of a vested right since no right had vested before the expiration of the four-year repose period.  But questions about the constitutionality of the statute of repose persisted regarding situations where the plaintiff’s claim vested during the repose period and is extinguished upon the expiration of the period.

In 2016, the Ohio Supreme once again addressed the constitutionality of the statute of repose in Antoon v. Cleveland Clinic Foundation (2016), 148 Ohio St.3d 483.  The plaintiff’s claim in the case vested during the four-year repose period, so relying on Ruther, the Court of Appeals ruled that once a claim has vested the statute of repose can no longer operate to bar litigation.  The Supreme Court disagreed and reversed the judgment of the Court of Appeals.  Id. at 494.

This time, the Supreme Court left no doubt, announcing: “We hold that Ohio’s medical-malpractice statute of repose, R.C. 2305.113(C), is constitutional even to the extent that it prohibits bringing suit on a cause of action that has vested….  Accordingly, R.C. 2305.113(C) is a true statute of repose that applies to both vested and non-vested claims.”Id. at 493-494.  The Court instructed that “any medical-malpractice action must be filed within four years of the occurrence of the act or omission alleged to have caused a plaintiff’s injury[2].”  Id. at 484.  The Court explained:

Today, we affirm that R.C. 2305.113(C) is a statute of repose because the time for bringing a suit under the section begins running from the occurrence of the act or omission constituting the alleged basis of the claim. And we find that the plain language of the statute is clear, unambiguous, and means what it says. If a lawsuit bringing a medical, dental, optometric, or chiropractic claim is not commenced within four years after the occurrence of the act or omission constituting the basis for the claim, then any action on that claim is barred.Id. at 490.

There are two statutory exceptions to the statute of repose that are contained in R.C. §2305.113(D).  First, if a person could not have discovered the injury within three years after the occurrence of the act or omission but discovers it during the fourth year of the repose period, the person may commence an action within one year after the person discovers the injury.  R.C. §2305.113(D)(1).  This exception allows a plaintiff to bring an action up to nearly a year after the expiration of the repose period, e.g., if the plaintiff discovers the injury days before the running of the repose period, he or she has up to a year from that date to bring an action, which is well past the end of the repose period.

The second exception applies to situations where a foreign object is left inside a person’s body.  In that case, “the person may commence an action upon the claim not later than one year after the person discovered the foreign object” or should have discovered it through the exercise of reasonable care and diligence.  R.C. §2305.113(D)(2).

A plaintiff seeking to invoke either of the statutory exceptions “has the affirmative burden of proving, by clear and convincing evidence, that the person, with reasonable care and diligence, could not have discovered the injury within the respective time period described in each of the exceptions.  R.C. §2305.113(D)(3).

Finally, the statute of repose does not apply to persons within the age of minority or of unsound mind as provided by R.C. §2305.16Weaver v. Edwin (2004), 104 Ohio St.3d 390, 398.

[1] For an excellent discussion on the differences between statutes of limitations and statutes of repose, read pages 486-490 of the Ohio Supreme Court case Antoon v. Cleveland Clinic Foundation (2016), 148 Ohio St.3d 483.

[2] The Court declined to discuss whether Ohio’s saving statute, R.C. §2305.19, or the federal tolling statute, 28 U.S.C. §1367, operate to “extend the time for filing beyond the expiration of the statute of repose” because those issues were never litigated at the lower court level in the case and thus not before the Court.  Antoon, 148 Ohio St.3d at 484.  Thus, whether either or both statutes extend the period of time in which a claim may be filed past the four-year repose period appears to remain an open question after Antoon.

IV. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them.  The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong.  As a result, there could be no valid claim against a government entity.  The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state.  Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in Ohio

To the extent provided for in the Court of Claims Act, the state may be sued and have its liability determined in the Court of Claims.  The Act is codified in Chapter 2743 of the Ohio Revised Code.  Subject to the terms of the Act, Ohio waives immunity from liability.  R.C. §2743.02(A)(1).  It provides, in pertinent part: “The state hereby waives its immunity from liability … and consents to be sued, and have its liability determined, in the court of claims created in this chapter in accordance with the same rules of law applicable to suits between private parties ….”

However, there are strict rules and requirements in place that must be followed in order to bring suit against a state defendant under the Act[1].  The Act governs the manner in which an action may be brought against the state and its officers and employees.  Conley v. Shearer (1992), 64 Ohio St.3d 284, 286.

The initial major restriction on a plaintiff’s ability to sue the state in connection with the performance of a public duty is the requirement that a special relationship exists between the plaintiff and the government.  In general, the state is immune from liability for the performance or nonperformance of a public duty.R.C. §2743.02(A)(3)(a).  A public duty is owed to the general public, not any specific individual, so a failure to perform it adequately is a public injury, not an individual injury.  Sawicki v. Village of Ottawa Hills (1988), 37 Ohio St.3d 222, 230.  As such, any “redress, if at all, [must be] in some form of public prosecution.”  Id.  However, “if the duty is a duty to the individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages.”  Id.

With those legal principles in mind[2], R.C. §2743.02(A)(3(b) provides that the immunity in connection with the performance of a public duty does not apply when “a special relationship can be established between the state and an injured party.”  The statute states that a special relationship for purposes of the Act is established “if all of the following elements exist:”

  1. An assumption by the state, by means of promises or actions, of an affirmative duty to act on behalf of the party who was allegedly injured;
  1. Knowledge on the part of the state’s agents that inaction of the state could lead to harm;
  1. Some form of direct contact between the state’s agents and the injured party; and
  1. The injured party’s justifiable reliance on the state’s affirmative undertaking.

The Act specifically waives immunity for state-owned hospitals.  R.C. 2743.16(B) states:

The state hereby waives the immunity from liability of all hospitals owned or operated by one or more political subdivisions and consents for them to be sued, and to have their liability determined, in the court of common pleas, in accordance with the same rules of law applicable to suits between private parties, subject to the limitations set forth in this chapter. This division is also applicable to hospitals owned or operated by political subdivisions that have been determined by the supreme court to be subject to suit prior to July 28, 1975.

The statute of limitations for bringing suit under the Act is set forth in R.C. §2743.16(A).  It requires civil actions against the state to be “commenced no later than two years after the date of accrual of the cause of action or within any shorter period that is applicable to similar suits between private parties.”

Plaintiffs should be aware that any recovery against the state will be reduced “by the aggregate of insurance proceeds, disability award, or other collateral recovery received….”  R.C. §2743.02(D).

Good Samaritan Law

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency.  While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so.  It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws.  While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency.  Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation.  As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Law in Ohio

Ohio has enacted a general Good Samaritan law that is codified in R.C. §2305.23.  It provides immunity from civil liability for damages for any Good Samaritan who administers “emergency care or treatment at the scene of an emergency outside of a hospital, doctor’s office, or other place having proper medical equipment, for acts performed at the scene of such emergency….”  Under Ohio’s Good Samaritan law, both medical professionals and nonmedical professionals are covered as long as the emergency care or treatment is not rendered inside a medical facility.

There are two additional requirements that must be met for a Good Samaritan’s actions to be immunized from civil liability for damages.  First, the emergency care or treatment must be rendered without “remuneration, or without the expectation of remuneration, from the recipient of such care or treatment or someone on his behalf.”  Id.  Next, the Good Samaritan’s actions in rendering the emergency care or treatment cannot constitute “willful or wanton misconduct.”  Id.Accordingly, if a Good Samaritan renders emergency care with the expectation of being paid by the victim of the emergency or renders such care in a manner constituting willful or wanton misconduct, then he or she is not protected from civil liability otherwise afforded by the Good Samaritan law.

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughoutthe Ohio Revised Code.

V. Required Elements of a Medical Malpractice Complaint

A medical malpractice claim is commenced by filing a complaint with the appropriate court.  Rule 3 of the Ohio Rules of Civil Procedure.  A complaint is one of the authorized pleadings listed in Rule 7(A).  The complaint must contain (1) a short and plain statement of the claim showing that the plaintiff is entitled to relief and (2) a demand for judgment for the relief to which the plaintiff claims to be entitled.  Rule 8(A).  If the amount sought is more than $25,000, a statement to that effect must be included in the complaint, but the demand for judgment cannot specify the amount of recovery sought.  Id.  The complaint may seek relief “in the alternative or of several different types may be demanded.”  Id.

Each allegation in the complaint must be “simple, concise, and direct.  No technical forms of pleading or motions are required.”  Rule 8(E)(1).  The plaintiff may set forth two or more statements of a claim alternatively or hypothetically, either in one count or in separate counts.  Rule 8(E)(2).  Additionally, the plaintiff may “state as many separate claims … as he has regardless of consistency….”  Id.A complaint made by or on behalf of a minor or someone legally incompetent must disclose that fact within the complaint.  Rule 8(H).

A complaint must contain a caption setting forth the name of the court, the title of the action, the case number, and designation as a ‘complaint.’  Rule 10(A).  It must also contain the names and addresses of all parties to the action.  Id.  All allegations of claim must be made in numbered paragraphs, and the contents of each must be limited, as far as practicable, to a statement of a single set of circumstances.  Rule 10(B).A medical malpractice complaint must be accompanied by an Affidavit of Merit for each defendant named in the complaint for whom expert testimony is required to establish liability.  Rule 10(D)(2).

Ohio utilizes what is commonly referred to as “notice pleading.”  Morris Children’s Hospital Medical Center (1991), 73 Ohio App.3d 437, 443.  Notice pleading serves “to simplify pleadings to a ‘short and plain statement of the claim’ and to simplify statements of the relief demanded … to the end that the adverse party will receive fair notice of the claim and an opportunity to prepare his response thereto.”  Fancher v. Fancher (1982), 8 Ohio App.3d 79 (quoting Rule 8(A)).  As such, a complaint “need not state with precision all elements that give rise to a legal basis for recovery as long as fair notice of the nature of the action is provided.”  Morris, 73 Ohio App.3d at 443 (internal citation omitted).  Nevertheless, the complaint must set forth at least the basic elements of the claim for which relief is sought.  Dinges v. St. Luke’s Hospital (2012), 971 N.E.2d 1045, 1050 (Ohio Ct. App.).

Complaints must be “construed as to do substantial justice.”  Rule 8(F).  To that end, the Ohio Supreme Court instructed that a complaint “shall be construed liberally in order that the substantive merits of the action may be served.”  MacDonald v. Bernard (1982), 1 Ohio St.3d 85, fn. 1.

[1] The Court of Claims publishes useful guidance for the general public about the steps and requirements for filing suit against the state under the Court of Claims Act.  The material is located on the Court’s official website available at:

https://ohiocourtofclaims.gov/claims-faq.php

[2] A discussion on the public duty doctrine and the special relationship exception is well beyond the scope of this article.  For those interested in learning more about this issue, start by reading Sawicki v. Village of Ottawa Hills (1988), 37 Ohio St.3d 222, 230, the cases cited therein, and its progeny.

VI. Affidavit of Merit

The plaintiff in a medical malpractice action is required to file an Affidavit of Merit (also referred to as Certificate of Merit) along with the complaint.  Rule 10(D)(2)(a) of the Ohio Rules of Civil Procedure.An Affidavit of Merit must be submitted for “each defendant named in the complaint for whom expert testimony is necessary to establish liability.”  Id.An Affidavit of Merit must be “provided by an expert witness meeting the requirements of Evid.R. 702 and, if applicable, also meeting the requirements of Evid.R. 601(D).”  Id. (see Section VIIof this article for discussion on qualifying as an expert witness).

An Affidavit of Merit is required to include all of the following:

  1. A statement that the affiant (expert witness)has reviewed all medical records reasonably available to the plaintiff concerning the allegations contained in the complaint;
  1. A statement that the affiant is familiar with the applicable standard of care;
  1. The opinion of the affiant that the standard of care was breached by one or more of the defendants to the action and that the breach caused injury to the plaintiff.

The plaintiff may file a motion to extend the period of time to file the Affidavit of Merit; the motion must be filed with the complaint.  Rule 10(D)(2)(b).  Upon a finding of “good cause,” the trial court “shall grant the plaintiff a reasonable period of time to file an affidavit of merit, not to exceed ninety days, except the time may be extended beyond ninety days if the court determines that a defendant or non-party has failed to cooperate with discovery or that other circumstances warrant extension.”Id.

The trial court is required to consider the follow factors in determining whether good cause exists to extend the period of time to file the Affidavit of Merit:

  1. A description of any information necessary in order to obtain an affidavit of merit;
  1. Whether the information is in the possession or control of a defendant or third party;
  1. The scope and type of discovery necessary to obtain the information;
  1. What efforts, if any, were taken to obtain the information;
  1. Any other facts or circumstances relevant to the ability of the plaintiff to obtain an affidavit of merit.Rule 10(D)(2)(c).

The purpose of the Affidavit of Merit requirement is “to establish the adequacy of the complaint and shall not otherwise be admissible as evidence or used for purposes of impeachment.”  Rule 10(D)(2)(d).  The Ohio Supreme Court observed that: “the purpose behind the rule is to deter the filing of frivolous medical-malpractice claims.  The rule is designed to ease the burden on the dockets of Ohio’s courts and to ensure that only those plaintiffs truly aggrieved at the hands of the medical profession have their day in court.”Fletcher v. University Hospitals of Cleveland (2008), 120 Ohio St.3d 167, 170.

Dismissal of a complaint for failure to comply with the Affidavit of Merit requirement “shall operate as a failure otherwise than on the merits.”  Id.  The Ohio Supreme Court confirmed that dismissal due to the failure to comply with the Affidavit of Merit requirement is done so other than on the merits and held that such a dismissal of the case is without prejudice.  Fletcher, 120 Ohio St.3dat 172.Dismissal of a case without prejudice means that it may be refiled once the defects have been cured and as long as it is not otherwise time-barred by the statute of limitations (or repose).In 2012, the Supreme Court explained that when a complaint is filed without an Affidavit of Merit attached dismissal of the case is for failure to state a claim due to “the insufficiency of the complaint,” not based on the merits of the case.  Troyer v. Janis (2012), 132 Ohio St.3d 229, 231.

VII. Expert Medical Witnesses

Introduction

The general rule under medical malpractice law holds that expert witnesses are nearly always required.  The medical issues and related facts are generally far too complex for nonmedical professionals to understand without the aid of expert medical witnesses.  As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization.  Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

Who Qualifies as An Expert Medical Witness

The starting point in the determination of whether a prospective expert medical witness is qualified to provide testimony in a medical malpractice case is Rule 702(B) and Rule 601(D) of the Ohio Rules of Civil Procedure.  Rule 702(B) states that a witness may qualify “as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony.”  Rule 601(D) provides that in order to qualify as an expert in a medical malpractice case the witnessmust also satisfy the following requirements:

  1. The person testifying is licensed to practice medicine and surgery, osteopathic medicine and surgery, or podiatric medicine and surgery by the state medical board or by the licensing authority of any state;
  1. The person devotes at least one-half of his or her professional time to the active clinical practice in his or her field of licensure, or to its instruction in an accredited school; and
  1. The person practices in the same or a substantially similar specialty as the defendant. The court shall not permit an expert in one medical specialty to testify against a health care provider in another medical specialty unless the expert shows both that the standards of care and practice in the two specialties are similar and that the expert has substantial familiarity between the specialties.

According to the Ohio Supreme Court, expert testimony is generally required to establish the requisite standard of care and defendant’s failure to provide care in conformity with the applicable standard.  Bruni, 46 Ohio St.2d at 130.  There is an exception to the expert testimony requirement.  Where “the nature of the case is such that the lack of skill or care of the physician and surgeon is so apparent as to be within the comprehension of laymen and requires only common knowledge and experience to understand and judge it,” expert testimony is not required to establish the relevant standard of care and breach thereof.  Id.

Classic examples of situations that are generally considered within the comprehension of laymen include (1) a foreign object inadvertently left inside a patient’s body following surgery and (2) the amputation of the wrong limb, e.g., right leg amputated instead of left leg.  Estate of Hall v. Akron General Medical Center (2010), 125 Ohio St.3d 300, 313.  In these types of situations, “it is within a juror’s common knowledge and experience that the injury was one that would not ordinarily occur without negligence.”  Id.  Thus, expert medical witness testimony is not required to establish the applicable standard of care and breach in such cases.

The trial court has broad discretion in determining whether a witness is qualified to provide testimony in a medical malpractice case.  The Ohio Supreme Court instructed:

the qualification or competency of a witness to testify as an expert or to give his opinion on a particular subject rests with the trial court, and, on appeal, its rulings with respect to such matters will ordinarily not be reversed unless there is a clear showing that the court abused its discretion.In re Appropriation by Ohio Turnpike Commission (1955), 164 Ohio St. 377,386.

An abuse of discretion amounts to more than an error of judgment, but instead equates to “perversity of will, passion, prejudice, partiality, or moral delinquency.”  Pons v. Ohio State Medical Board (1993), 66 Ohio St.3d 619, 621.  Abuse of discretion implies that the trial court acted in an unreasonable, arbitrary, or unconscionable manner.  State v. Herring (2002), 94 Ohio St.3d 246, 255.

The Ohio Supreme Court has ruled that there is no requirement that an expert medical witness must be from the exact same practice area or specialty to qualify as an expert witness permitted to provide opinion testimony.  Alexander v. Mt. Carmel Medical Center (1978), 56 Ohio St.2d 155, 158.  Where “the fields of medicine overlap and more than one type of specialist may perform the treatment, a witness may qualify as an expert even though he does not practice the same specialty as the defendant.”  Id.

The Supreme Court instructed that the determination of whether a proposed expert witness is qualified to provide testimony on a particular matter must focus on the generally accepted rule that:

the witness must demonstrate a knowledge of the standards of the school and specialty, if any, of the defendant physician which is sufficient to enable him to give an expert opinion as to the conformity of the defendant’s conduct to those particular standards and not to the standards of the witness’ school and, or, specialty if it differs from that of the defendant.  Thus, it is the scope of the witness’ knowledge and not the artificial classification by title that should govern the threshold question of his qualifications.  Id. at 160 (internal citations omitted).

The Supreme Court added: “It is a general rule that the expert witness is not required to be the best witness on the subject.”  Id. at 159.  Rather, the standard is simply “whether a particular witness offered as an expert will aid the trier of fact in the search for the truth.”  Id.

With the foregoing rules of law in mind, the Ohio Supreme Court held that a podiatrist was qualified to offer expert opinion testimony against an orthopedic surgeon on the issue of the application of and failure to remove a cast that was too tight.  Id. at 162.  The Court took note of the fact that the “application and removal of casts are not the exclusive domain of orthopedic surgeons.  It is an area where the various fields of medicine overlap….”  Id. at 160.  Thus, the mere fact that the plaintiff’s expert witness was an otherwise qualified podiatrist and not an orthopedic surgeon like the defendant does not bar the witness from qualifying as a medical expert with respect to the specific standard of care issue in question.

Similarly, the Supreme Court allowed a physician who specialized in neurology and psychiatry to serve as an expert medical witness on the issue of causation against the defendant who was a board certified orthopedic surgeon.  Ishler v. Miller (1978), 56 Ohio St.2d 447, 452.  The Court noted that the expert witness worked closely with orthopedic surgeons at an orthopedic hospital, served as a consultant to orthopedic surgeons diagnosing low back problems, and demonstrated a knowledge of the standards and procedures of the defendant’s profession on the specific issue of whether to perform back surgery or not.  Id. at 453.

Based on those facts, the Court concluded the witness was qualified to serve as an expert medical witness on the specific issue of whether the back surgery should have been performed on the plaintiff or not.  Id.The Court observed, however, that he could not have qualified to provide expert testimony on whether the surgery was actually performed properly, underscoring the point that an expert can be qualified for specific issues in a case but not others.  Id.

Admissibility of Expert Testimony

The admissibility of expert witness testimony is governed by Rule 702.  It states that a witness may testify as an expert if all of the following apply:

  1. The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
  1. The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
  1. The witness’ testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:
  • The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;
  • The design of the procedure, test, or experiment reliably implements the theory;
  • The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.

The determination of whether expert witness testimony is admissible “is a matter generally within the sound discretion of the trial court.”  Schaffter v. Ward (1985), 17 Ohio St.3d 79, 80.  As a general principle, the Ohio Supreme Court noted that trial courts should favor the admissibility of expert testimony whenever it is relevant and the criteria in Rule 702 are met.  State v. Nemeth (1998), 82 Ohio St.3d 202, 207.

As with the determination of whether a witness is qualified to provide expert testimony, the trial court has broad discretion in deciding whether expert witness testimony is admissible.  The Ohio Supreme Court stated “when the trial court determines that certain evidence will be admitted or excluded from trial, it is well established that the order or ruling of the court will not be reversed unless there has been a clear and prejudicial abuse of discretion.”  Calderon v. Sharkey (1982), 70 Ohio St.2d 218, 222.

Under the applicable case law, an expert witness’ testimony is admissible if it will assist the trier of fact to understand the evidence or to determine a fact in issue, and testimonyassists the trier of fact only if it relates to a matter “beyond the ken” of a layperson.  State v. Koss (1990), 49 Ohio St.3d 213, 216.  If the issue for which expert testimony is being proffered is not beyond the common knowledge and experience of ordinary people, then the expert testimony is inadmissible because it does not serve to assist the trier of fact.  State v. Thomas (1981), 66 Ohio St.2d 518, 521.

Additionally, expert testimony will assist the trier of fact only if it meets a threshold standard of reliability as established through expert witness testimony.  Miller v. Bike Athletic Co. (1998), 80 Ohio St.3d 607, 611.  In making the reliability determination, the inquiry focuses on whether the principles and methods employed by the expert witness in reaching his or her opinion are reliable, not whether the expert witness’ conclusions are correct.Id.

According to the Ohio Supreme Court, “a trial court’s role in determining whether an expert’s testimony is admissible … focuses on whether the opinion is based upon scientifically valid principles, not whether the expert’s conclusions are correct or whether the testimony satisfies the proponent’s burden of proof at trial.”  Id. at 613-614.  The Court stated: “Thus, the ultimate touchstone is helpfulness to the trier of fact, and with regard to reliability, helpfulness turns on whether the expert’s technique or principle [is] sufficiently reliable so that it will aid the jury in reaching accurate results.”  Id. at 614 (internal quotation marks omitted).

Admissibility of Expert Testimony About Scientific Principles and Discoveries

Introduction

Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries.  Simply put, courts must guard against allowing so-called junk science into evidence.  To achieve that objective, most states[1] follow, to some extent, one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”  Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle.  The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case.  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Admissibility of Scientific Principles and Discoveries in Ohio

Ohio adopted theDaubert test in the 1998 Ohio Supreme Court caseMiller v. Bike Athletic Co. (1998), 80 St.3d 607.  Ohio trial courts are charged with a gatekeeping function that “imposes an obligation upon a trial court to assess both the reliability of an expert’s methodology and the relevance of any testimony offered before permitting the expert to testify.”  Terry v. Caputo (2007), 115 Ohio St.3d 351, 356.

The test for reliability requires an assessment of the validity of the expert’s methodology by applying with flexibility several factors set forth in DaubertId.The Ohio Supreme Court in Terry provided extremely useful and clear step-by-step guidance for trial courts to follow in making admissibility determinations.

The trial court should first assess whether the method or theory relied upon has been tested.  Next, it should consider whether the theory has been the subject of peer review, and then whether the method has a known or potential error rate.  Finally, Daubert instructs trial courts to look at whether the theory has gained general acceptance in the scientific community.  None of these factors, of course, is dispositive of the inquiry, and when gauging the reliability of a given expert’s testimony, trial courts should focus solely on principles and methodology, not on the conclusions generated.

The trial court’s Daubert responsibilities, however, do not end with reliability, because the trial court’s gatekeeping function also requires it to judge whether an expert’s testimony is relevant to the task at hand in that it logically advances a material aspect of the proposing party’s case.  This aspect … requires a connection between the scientific research or test result … and particular disputed factual issues in the case.  Reliability and relevance are not mutually exclusive findings, and they may overlap in some instances.Id. at 356-357 (internal citations and quotation marks omitted).

[1]In fact, only Nevada, North Dakota, and Virginia do not follow either the Frye or Daubert standard.  For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/.

VIII. Modified Comparative Negligence with 51% Bar Rule

By statute, Ohio uses modified comparative negligence[1] with a 51% bar rule.  R.C. §2315.33.  It provides that a plaintiff’s contributory fault does not bar him or her:

from recovering damages that have directly and proximately resulted from the tortious conduct of one or more other persons, if the contributory fault of the plaintiff was not greater than the combined tortious conduct of all other persons from whom the plaintiff seeks recovery in this action and of all other persons from whom the plaintiff does not seek recovery in this action.  Id.

Notice that the plaintiff may recover damages so long as his or her share of fault is not greater than (the 51% bar rule) all other persons who are determined to have contributed to the plaintiff’s injury regardless of whether they are a party to the lawsuit or not (that is, the combined fault of both defendants and non-parties to the lawsuit who are determined to share fault for plaintiff’s injury).The total fault, expressed as percentages, of the plaintiff, defendants, and non-parties must equal 100%.R.C. §2307.23.  If the plaintiff’s percentage share of determined fault is greater than the total of all defendants and non-parties to the lawsuit, then “the court shall enter judgment in favor of the defendants.”  R.C. §2315.35.

Modified comparative negligence is a fault and damages allocation system.  Under this system, fault is determined and apportioned among all parties (plaintiff, defendants, and non-parties to the lawsuit), and how much compensation the plaintiff can recover is limited by his or her relative share of fault for causing the injury.  As a result, the plaintiff’s recovery is limited by his or her assigned percentage of fault.  R.C. §2315.33states that the “court shall diminish any compensatory damages recoverable by the plaintiff by an amount that is proportionately equal to the percentage of tortious conduct of the plaintiff….”

The 51% bar rule means that if the plaintiff’s allocated percentage of fault is 51% or greater he or she is completely barred from recovering any damages.For example, assume a plaintiff is determined to be 50% at fault, and the damage award is $100,000.  The amount to which the plaintiff is entitled is $50,000 because the plaintiff’s allocated percentage share of fault, i.e., 50% or $50,000, is deducted from the damage award.  If the plaintiff were determined to be 51% at fault, he or she would not be entitled to any recovery because Ohio imposes the 51% bar rule.

Upon a determination of the plaintiff’s comparative negligence, the total damage award must specify the following:

  1. The total amount of compensatory damages that would have been recoverable but for the plaintiff’s own assigned percentage of fault;
  1. The portion of the total amount of compensatory damages that represents economic loss;
  1. The portion of the total amount of compensatory damages that represents noneconomic loss;
  1. The percentage of tortious conduct attributable to: (a) the plaintiff, (b) each defendant, and (c) each non-party to the lawsuit determined to share a portion of fault for plaintiff’s injury. C. §2315.34.

The contributory fault of the plaintiff is an affirmative defense to a medical malpractice action that may be asserted by the defendant.  R.C. §2315.32 and Bird v. Pritchard (1973), 33 Ohio App.2d 31, 34.  As an affirmative defense, the defendant bears the burden of proof by a preponderance of the evidence.  Valencic v. The Akron and Barberton Belt Railroad Company (1938), 133 Ohio St. 287, 289.  Contributory negligence (or fault) means “any want of ordinary care on the part of the person injured, which combined and concurred with the defendant’s negligence and contributed to the injury as a proximate cause thereof, and as an element without which the injury would not have occurred.”  Brinkmoeller v. Wilson (1975), 41 Ohio St.2d 223, 226.  According to the Ohio Supreme Court, an “affirmative defense in a negligence case typically is the equivalent of asserting that even assuming that the plaintiff has made a prima facie case[2] of negligence, the plaintiff cannot recover.”  Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St.3d. 427, 431.

[1] Ohio statutes use the term ‘contributory fault,’ so the terms ‘contributory fault’ and ‘comparative negligence’ (or fault) are used interchangeably in this article.

[2] The Ohio Supreme Court described a prima facie case as follows: “Prima facie tests are mechanisms by which courts may readily dispose of cases that cannot sustain a particular cause of action.  To say that a plaintiff has established a prima facie case is simply to say that he has produced sufficient evidence to present his case to the jury….”  Coryell v. Bank One Trust Co. N.A. (2004), 101 Ohio St.3d 175, 179 (internal quotation marks omitted).

IX. Limitation on Noneconomic Damages

Ohio law imposes limits on the amount of noneconomic damages that can be recovered in a medical malpractice action for personal injury.R.C. §2323.43.  The statute provides for two levels of caps on the amount of recoverable compensatory damages attributable tononeconomic loss.  R.C. §2323.43(A)(2) and (3).  The basic damage cap contained in R.C. §2323.43(A)(2) is the greater of (1) $250,000 or (2) an amount equal to three times the amount of economic damages, as determined by the trier of fact, up to a maximum of $350,000 for each plaintiff or a maximum of $500,000 for each occurrence.

The second damage cap limits recoverable noneconomic damages to $500,000 per plaintiff and $1 million per occurrence.  R.C. §2323.43(A)(3).  However, this higher damage cap applies only if the noneconomic losses of the plaintiff are for either of the following:

  1. Permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system;
  1. Permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life sustaining activities.

The judge, lawyers, and witnesses involved in a medical malpractice case are all prohibited from advising the jury about the existence of the limitations on the amount of noneconomic damages that may be recovered by the plaintiff.  R.C. §2323.43(D)(2).  The caps on noneconomic damages provided for in the statute do not apply to wrongful death actions brought pursuant to Chapter 2125 of the Ohio Revised Code.  R.C. §2323.43(G)(3).

Ohio does not impose any limitation on compensatory damages that represent economic lossthat can be recovered in medical malpractice cases.  R.C. §2323.43(A)(1)states that there “shall not be any limitation on compensatory damages that represent the economic loss of the person who is awarded the damages in the civil action.”

In medical malpractice cases that go to trial and result in a damage award in favor of the plaintiff, the trier of fact is required to specify all of the following:

  1. The total compensatory damages recoverable by the plaintiff;
  1. The portion of the total compensatory damages that represent damages for economic loss;
  1. The portion of the total compensatory damages that represent damages for noneconomic loss. C. §2323.43(B).

The term ‘noneconomic loss’ is defined by the statute as:

nonpecuniary harm that results from an injury, death, or loss to person or property that is a subject of a civil action upon a medical, dental, optometric, or chiropractic claim, including, but not limited to, pain and suffering, loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education, disfigurement, mental anguish, and any other intangible loss.R.C. §2323.43(H)(3).

The statute defines the term ‘economic loss’ as any of the following types of pecuniary harm:

  1. All wages, salaries, or other compensation lost as a result of an injury, death, or loss to person or property that is a subject of a civil action upon a medical, dental, optometric, or chiropractic claim;
  1. All expenditures for medical care or treatment, rehabilitation services, or other care, treatment, services, products, or accommodations as a result of an injury, death, or loss to person or property that is a subject of a civil action upon a medical, dental, optometric, or chiropractic claim;
  1. Any other expenditures incurred as a result of an injury, death, or loss to person or property that is a subject of a civil action upon a medical, dental, optometric, or chiropractic claim, other than attorney’s fees incurred in connection with that action.C. §2323.43(H)(1).

X. Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases.  That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award.  If there is no recovery, then the attorney does not receive any payment as a legal fee.  Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources.  Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option.  Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive.  Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee.  Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions.  Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees in Ohio

Ohio law does not impose any generally applicable caps on attorney fees specific to medical malpractice cases.  However, there are a couple of limitations on fees of which plaintiffs with a medical malpractice claim should be aware.

The first limitation is in connection with probate proceedings involving a wrongful death claim on behalf of the decedent’s estate based on medical malpractice.  If the attorney’s contingent fee is greater than the limitations on noneconomic damages set forth in R.C. §2323.43(A)(2) or (3), the attorney is required to make an application to the probate court for approval of the fee.  R.C. §2323.43(F)(1).  The application must contain:

a statement of facts, including the amount to be allocated to the settlement of the claim, the amount of the settlement or judgment that represents the compensatory damages for economic loss and noneconomic loss, the relevant provision in the contingency fee agreement, and the dollar amount of the attorney’s fees under the contingency fee agreement. The application shall include the proposed distribution of the amount of the judgment or settlement.R.C. §2323.43(F)(1).

Attorney fees in medical malpractice cases are subject to the reasonableness standard that governs all fee arrangements in Ohio under Rule 1.5 of the Ohio Rules of Professional Conduct.  Rule 1.5(a) states:

A lawyer shall not make an agreement for, charge, or collect an illegal or clearly excessive fee. A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. The factors to be considered in determining the reasonableness of a fee include the following:

  1. the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
  1. the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
  1. the fee customarily charged in the locality for similar legal services;
  1. the amount involved and the results obtained;
  1. the time limitations imposed by the client or by the circumstances;
  1. the nature and length of the professional relationship with the client;
  1. the experience, reputation, and ability of the lawyer or lawyers performing the services;
  1. whether the fee is fixed or contingent.

Comment 1 to Rule 1.5 clarifies that the eight factors listed are not exclusive in the reasonable determination, nor will each factor be relevant in each case.  Comment 3 states that contingent fees “are subject to the reasonableness standard” detailed in the Rule.  It adds that “a lawyer must consider the factors that are relevant under the circumstances” in determining whether a contingent fee is reasonable.

Rule 1.5(c)(1) requires that contingent fee agreements be in writing, signed by both the client and lawyer, and describe “the method by which the fee is to be determined, including percentage or percentages that shall accrue to the lawyer in the event of settlement, trial, or appeal….”  The agreement must also describe litigation and other expenses that will be deducted from any recovery and whether such expenses will be deducted before or after the contingent fee is calculated.  Rule 1.5(c)(1).  Finally, the agreement must clearly notify the client which expenses, if any, he or she will be liable for regardless of whether the client is the prevailing part.  Id.

XI. Apologies and Gestures of Sympathy

Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit.  This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.

Ohio is among the states that has enacted an “I’m Sorry” law.  It is contained in R.C. §2317.43and is specific to healthcare providers.  The statute shields healthcare providers who communicate expressions of sympathy by making them inadmissible as evidence of liability in an action for medical malpractice.  The statute states:

In any civil action brought by an alleged victim of an unanticipated outcome of medical care or in any arbitration proceeding related to such a civil action, any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that are made by a health care provider or an employee of a health care provider to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim, and that relate to the discomfort, pain, suffering, injury, or death of the alleged victim as the result of the unanticipated outcome of medical care are inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

As of the date of this article, it is an open question whether admissions of fault are covered by the statute.  Currently, there is split between the Court of Appeals of Ohio, Ninth District, and the Court of Appeals of Ohio, Twelfth District, on this issue.  The Ninth District concluded that Ohio’s “I’m Sorry” law “does not require the exclusion of admissions of liability or fault by a medical professional.”  Davis v. Wooster Orthopaedics & Sports Medicine, Inc. (2011), 193 Ohio App.3d 581, 587-588.  In contrast, the Twelfth District stated “we find that the intent of the statute is to exclude from evidence all statements of apology—including those statements admitting fault.” [emphasis in original] Stewart v. Vivian, 64 N.E.3d 606, 621 (Ohio Ct. App. 2016).  The Court held “we conclude that statements of fault are inadmissible under the apology statute.”  Id. at 622.

The two Courts of Appeals are in agreement that the statute is ambiguous on the issue.  Id.  The Ninth District observed that at the time of its decision in 2011 17 states with an “I’m Sorry”law “distinguish between statements of sympathy and admissions of fault or liability” and exclude admissions of fault from coverage, i.e., they are admissible as evidence.  Davis, 193 Ohio App.3d at 584.  The Court observed further that eight states with an “I’m Sorry” law expressly exclude admissions of faultfrom being admissible as evidence.  Id. at 585.  Finally, the Court noted that Ohio’s statute does “not make a clear distinction between an alleged tortfeasor’s statement of sympathy and one acknowledging fault.”  Id.

The question will likely be resolved shortly.  The Ohio Supreme Court agreed to consider the certified conflict question on whether R.C. §2317.43covers statements of fault.  Oral arguments were heard by the Supreme Court on April 6, 2017.