Ohio lawsuit merit rule faces test

A trial court reversed its dismissal of a case and gave the plaintiff more time to file the certificate of merit. Doctors are arguing for stricter enforcement.

By Amy Lynn Sorrel — Posted April 17, 2006

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Sometimes it's not just the law on the books but how it's implemented that matters. That's the case in Ohio, where physicians say trial courts have been lenient in their treatment of the state's new statute requiring certificates of merit for medical liability lawsuits.

An Ohio appeals court will hear the first case to test the requirement since it went into effect last July. Ohio is one of 24 states with rules mandating testimony by the plaintiff's medical expert at the initial filing of a medical liability case.

The American Medical Association in March filed a friend-of-the-court brief, along with the Ohio State Medical Assn. and the American Assn. of Orthopaedic Surgeons. It asks the court to set a standard for strict enforcement of the requirement.

"We've been in a crisis, and [the Legislature] recognized early on that we needed a multifaceted approach to the problem in terms of access to care," said Almeta Cooper, OSMA general counsel.

If the court allows a looser interpretation of the law, it will "minimize the effect of the rule and erode its importance," said attorney Michael Fuchs, who represents the doctor in the case.

Ohio is one of 21 states the AMA has declared to be in crisis because of rising liability insurance premiums.

"The certificate of merit is important for physicians and patients in helping to eliminate and reduce frivolous lawsuits that are expensive to defend," said Rebecca J. Patchin, MD, AMA trustee and chair of the American Medical Association medical liability task force. As states continue to pursue such reforms, she said, "we would like to see it continue without any loopholes."

Ohio law always had required plaintiffs to have a medical expert testify in the case about the standard of care, Cooper said. Now the affidavit helps the court determine at the outset whether there is a reasonable basis for the lawsuit to proceed. Roughly 2,000 medical liability cases are filed annually in the state, according to 2004 data, she said.

"This is the first opportunity for the appellate court to clarify any confusion in the trial courts and say that this rule should be applied consistently," Cooper said.

The case before the Mahoning County Court of Appeals was filed July 28, 2005, by Sandra Banfield against James Brodell, MD, alleging that the doctor had provided negligent treatment during a 2004 knee replacement surgery, court documents show. Dr. Brodell denies the allegations.

In November 2005, a trial court dismissed the claim because Banfield's attorney did not file the certificate of merit with the initial complaint as required by the new rule, which took effect July 1.

But the trial court reversed its dismissal in December after the plaintiff's attorney asked the court to reconsider an extension because he was unaware of the rule change, court records said.

Dr. Brodell appealed the decision, saying the trial court had abused its authority by granting an extension, which under the rule should have been requested at the time of filing, court documents show.

The law, passed by the Ohio Legislature in September 2004, requested that the Ohio Supreme Court amend the court rules to require a certificate of merit by a medical expert in the same field as the alleged negligence and who has reviewed the medical records. The aim to to determine if one or more of the defendants might have breached the standard of care.

The rule "recognize(s) that there may exist certain unavoidable circumstances which prevent a plaintiff from filing an affidavit of merit with the complaint," the AMA brief points out.

But when seeking an extension, a plaintiff must show "good cause," according to the rule. It provides for exceptions, such as when the statute of limitations is set to expire and there is not sufficient time to find an expert before filing a claim; when medical records are not provided to the plaintiff in a timely manner; or when medical records do not identify the names of the doctors involved and more time is required to identify them.

In this case, "the trial court essentially rewrote [the requirement] so as to read into it exceptions that are not in the rule," the brief argues.

"Strict adherence to the rule is reasonable and puts into practice the important medical claim pre-suit due diligence and affidavit of merit procedures requested by the Ohio Legislature and implemented by the Ohio Supreme Court," the brief states.

But the plaintiff's attorney, Joseph W. Gardner, disagrees and argues the rule was meant to be applied on a case-by-case basis. Before the new rule, Gardner said, the Ohio Supreme Court struck down in 1994 and 1999 legislative attempts to put the certificate of merit requirement into law, ruling that it was unconstitutional. The courts typically gave plaintiffs a reasonable amount of time to correct a complaint and refile it, he said.

Since the change, trial courts have interpreted the rule in other cases to allow for an extension, he said. "That's the way the rule has been interpreted for the last 20 years, and that's why the Legislature this time put it in the hands of the court to decide."

But Fuchs argues that a failure to comply with the law does not constitute "good cause" and that the trial court's ruling in this case conflicts with the requirement and the legislative intent behind it.

"The Supreme Court obviously took a deliberate approach in amending the rules, and that goes hand in hand with tort reform from the Legislature," Fuchs said. The appeals court has not yet scheduled a hearing date.

"The goal is to have the court of appeals, and at some point the Supreme Court, say this is the rule, and it is important to follow," Fuchs said.

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Case at a glance

Banfield v. Brodell

Venue: Ohio Court of Appeals, Mahoning County
At issue: Whether a trial court erred in allowing a plaintiff to file a medical liability case without properly filing the required certificate of merit.
Potential impact: Physician groups say the trial courts should adhere to a strict interpretation of the requirement. If the courts don't, the law would fail to fulfill its intended purpose of curbing frivolous lawsuits. The plaintiff attorney says the courts have always interpreted the rule on a case-by-case basis.

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