Earlier this week, Gerry Leeseberg testified in front of the Ohio House of Representatives Judiciary Committee against House Bill 559. H.B. 559 is proposed legislation designed to provide even more protections to negligent doctors and hospitals. Specifically, Gerry addressed two provisions of the bill – expanding the apology statute and reducing “shotgun” lawsuits.
Gerry’s testimony was preceded by Dr. Michael McCrea, an emergency room doctor from Toledo, Ohio. Dr. McCrea, testifying on behalf of the Ohio Chapter of the American College of Emergency Physicians, told a touching story about a child burn patient who died under his care in 2006, which eventually led to litigation. He talked at length about his inability to apologize to the family and explain what happened. He explained that he was advised against talking to the family by his hospital’s Risk Management Department and his malpractice insurance carrier’s attorneys, but he ignored that advice and it ultimately led to his dismissal in the case. Becuase of this experience, Dr. McCrea now advocates that health care providers should be provided “the protected opportunity to reach out to patients and family members after an adverse medical event, regardless of fault.”
In response, Gerry pointed out that Dr. McCrea already has the ability to speak to family members to offer apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence under Ohio’s current apology statute, and any such evidence would be inadmissible. Instead, it was Dr. McCrea who decided to stay silent in order to abide by the advice of his attorneys and Risk Management. Now, Dr. McCrea wants to expand this statute to allow him to not only apologize, but also tell the patient that he made a mistake without any repurcussions. This flies in the face of the rules of evidence and tort law, and would only seek to dilute the truth seeking function of the judicial system.
“Excluding admissions of fault creates and/or encourages unethical behavior,” said Gerry Leeseberg. “If a doctor admits to a patient that he was impaired at the time of a surgery, but is allowed to deny the admission when confronted with the truth, a defense lawyer may be subject to sanctions for denying liability in discovery while knowing that the doctor previously admitted wrongdoing, or allowing the doctor to offer perjurious testimony.”
“The proposed amendment is bad public policy, and will actually engender filing of medical claims as a result of the necessity of proving medical mistakes that were previously admitted,” noted Gerry Leeseberg. He also provided a unique example from our friends up north at the University of Michigan. The University of Michigan health care systems implemented a policy of full disclosure whenever a preventable medical mistake is made. Interestingly, despite admitting they made a mistake, the number of medical claims filed as a result of these errors have dramatically decreased. “Honesty is indeed the best policy,” remarked Gerry.
One of the unintended consequences of tort reform is the prevalence of “shotgunning” defendants, in which numerous defendants are by necessity named as a party in medical claims lawsuits if there is even a suspicion they may have been negligent. This creates a situation where a patient will believe that Doctor A is the likely negligent party, but will sue not only Doctor A, but also Doctors B and C just in case to prevent a legal fight about whether Doctors B and C can be brought into the case after it has been filed.
A complete copy of Mr. Leeseberg’s written testimony is attached as a PDF, but it is important to highlight some of the practical effects of proposed R.C. 2323.451, as currently written in H.B. 559:
- The proposed 180-day period to conduct formal discovery to determine if there are any other negligent parties that need to be added applies without exception. If the named defendants refuse to cooperate in discovery in an attempt to run out the 180 days, it creates a situation where the plaintiff is barred from joining all necessary parties or the trial judge has to deal with a discovery dispute.
- R.C. 2323.451 purports to establish an absolute bar to joinder of any person after 180 days following suit even if, for example, a defendant’s expert testifies after such period that an unnamed third person is solely or jointly culpable for the injuries suffered by the patient. If a patient is barred from joining such unnamed third party by R.C. 2323.451, the defendant’s expert will have to be precluded from offering such expert testimony.
- There will be an enormous amount of litigation as to how to interpret and apply R.C. 2323.451 if it were enacted.
Gerry Leeseberg has fought for those injured at the hands of negligent doctors and hosptials for over 30 years and continues to do so today. He hopes his testimony will offer new perspectives to the Republican-controlled Ohio legislature and that they will reconsider the bad public policy set forth by H.B. 559.
HB 559 TESTIMONY.pdf