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Ohio Trial Magazine Article by Gerald S. Leeseberg – Changes To Civil Rule 10 Which Affect Medical Malpractice Cases

By Gerald S. Leeseberg, Columbus Medical Malpractice Lawyer
For Publication in Ohio Trial Magazine

The Supreme Court has recently published for comment proposed changes to Civil Rule 10, governing affidavits of merit in medical claims, as well as some changes to the evidentiary rules pertaining to the qualifications of expert witnesses in medical claims. This discussion will attempt to briefly summarize those changes. By way of explanation, the history of the Rule is important and will be discussed as well. Moreover, it is necessary to understand that the proposed changes to Civil Rule 10 are actually part of a “package” of changes including anticipated statutory changes (outside the authority of the Supreme Court), intended to improve the way in which medical claims are litigated.

The origin of the requirement for an affidavit of merit in Civil Rule 10 arose out of attempts by the Ohio State Medical Association (OSMA) to enact mandatory physician screening panels modeled after the system in place in Indiana. Members of Ohio Association for Justice testified against such legislation, disputing the notion that physician screening panels were a) fair, or b) an expeditious manner of weeding out “frivolous claims.” Experience in Indiana showed that such panels found in favor of physicians in approximately 95% of all cases, added thousands of dollars of expense to each case, and took on average46 months to complete before litigation of the actual case could commence. The Indiana model worked exactly as intended by the medical profession and insurance industry proponents, not to “expeditiously weed out frivolous claims” but instead to interpose an expensive, difficult, and lengthy roadblock to such claims. Fortunately, when informed of such effects, the Ohio legislature saw fit to establish a working group to analyze the proposal and make recommendations. Instead of mandatory physician screening panels, through a process of negotiation the affidavit of merit requirement was enacted in Civil Rule 10. (The Rule has been amended once previously following its enactment, because of shortcomings in the original version.)

The affidavit of merit provision has since worked well, serving a “gatekeeper function” in Ohio, and is thought to be responsible for a significant decrease in the number of medical claims filed. Nevertheless, some in the medical profession and defense bar felt that the Rule did not impose enough requirements as a precondition to filing a medical claim, and/or was not being applied strictly enough by trial courts. Limited anecdotal evidence was collected demonstrating, at most, isolated instances where complaints had been filed without affidavits, affidavits were defective, and/or considerable leeway was granted by trial courts in complying with the Rule. (Despite the OSMA’s wishes, the Supreme Court has made it very clear that failure to comply with the Rule resulting in a dismissal constituted a dismissal otherwise than upon the merits. See Troyer v. Janis, 132 Ohio St.3d 229, 2012-Ohio-2406 (syllabus) (“[a] dismissal of a complaint for failure to attach the affidavit of merit required by Civ.R. 10(D)(2) is an adjudication otherwise than on the merits and is a dismissal without prejudice by operation of law”). Armed with such limited “evidence”, the OSMA’s lobbyists drafted proposals for more changes to Civil Rule 10, that would have imposed significant burdens on plaintiffs, and created enforcement headaches for trial courts. The OSMA proposal was submitted to the Supreme Court earlier this year for consideration.

In response, the Ohio State Bar Association, through William Weisenberg, reconvened a working group first established several years ago to discuss various issues specific to medical claim litigation and propose improvements, including the first affidavit of merit provision. (That group has at various times been comprised of representatives of the trial bench, defense bar, plaintiff bar, the OSMA, and the Ohio Nursing Association.) Through a prolonged process of discussion and negotiation, the affidavit of merit proposal submitted by the OSMA was changed to its present proposed form. More importantly, the entire process of initiating and litigating medical claims was reviewed in order to try to address the biggest complaint of the OSMA and its membership: the “shotgunning” of defendants in medical claims. When it was pointed out to the OSMA that this pernicious evil was the direct result of the shortest statute of limitations of any cause of action, compounded by a line of recent court decisions such asTheobald v. Univ. of Cincinnati, 111 Ohio St.3d 541, 2006-Ohio-6208, (and its progeny), Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, and Erwin v. Bryan, 125 Ohio St.3d 519, 2010-Ohio-2202, it became clear that additional changes would have to be made to minimize this practice. Fortunately, the OSMA was receptive to discussions about making constructive fixes. Those changes, which will require legislative amendments, essentially will allow plaintiffs to file a medical claim with a qualifying affidavit of merit, and thereafter gain a finite period of time within which to conduct discovery for the purpose of identifying any additional individuals that need to be joined as defendants. This is obviously better than the current system in which every possible tortfeasor needs to be named at the outset and later dismissed if appropriate, but only after significant time, expense and professional angst has been incurred by the physician being dismissed. Those positive changes will be discussed in more detail after they are enacted.

As to the proposed changes to Civil Rule 10, they can be summarized as follows:

  • identifies specific types of claims to which the affidavit requirement applies (“a medical claim, as defined in section 2305.113 of the Revised Code“]
  • establishes expert qualifications for affidavits, consistent with Rule 702 of the Ohio Rules of Evidence
  • mandates identification of the specific medical records or other information reviewed by the expert witness, including the source of such records and the dates of medical service encompassed within such records
  • requires an affidavit for every named defendant, and that each defendant to whom the affidavit applies be identified (while allowing for “consolidated” affidavits from an expert that apply to multiple defendants, if appropriate)
  • requires an averment by the expert:
    • establishing the expert’s qualifications sufficient to comply with Evid.R. 702
    • indicating the basis for the expert’s familiarity with the standard of care applicable to the named defendant(s) to whom the affidavit applies
    • asserting a breach in the standard of care by the named defendant(s)
    • as to the existence of injury or harm proximately caused by the breach in the standard of care

There are also concomitant changes proposed to the pertinent Rules of Evidence. They include reverting back to the old requirement that an expert meet the “75% rule” (as opposed to 50% under the current Rule). However, the criteria for qualification has been expanded to include not only professional time in the active clinical practice of medicine or to its teaching in an accredited medical school, but also includesresearch pertinent to the medical issues in the case as well. This change was intended to avoid situations where national or world authorities in various medical conditions were precluded as experts simply because a substantial portion of their time is spent researching, rather than just treating, a specific medical condition. Since research is often the foundation for establishing appropriate standards of medical care, it was not rational to exclude such authorities; provided, however, they are still required to spend at least 50% of their time in the active clinical practice so as to demonstrate familiarity with clinical standards of care.

Additionally, the time as of which an expert’s qualifications are to be determined has been changed from the time of trial to the time at which the cause of action arose. This is a significant improvement over the existing version, because the standards of care at the time of trial are inadmissible as irrelevant; it is the standard of care applicable as of the time the cause of action arose which is the only relevant time period. This change is intended to allow unquestioned authorities in a medical field to serve as an expert, and not be precluded simply because they may have retired or significantly cut back their clinical practice as of the time of trial. It also precludes the absurd converse situation where an “expert” may not have even been licensed to practice medicine at the time of the events giving rise to the claim, but may well qualify as of the time of trial several years later – when applicable standards of care may have changed and are, therefore, inadmissible as irrelevant.

In sum, the proposed changes are essentially directed at requiring more specificity as to what information has been relied upon by an expert, a prima facie assertion of the expert’s qualifications, and some indication of the basis upon which the expert is familiar with the standards of care as to defendants against whom the affidavit is offered, when giving the plaintiff the “green light” to proceed in a medical claim.