Statutes of Limitations

Every action for medical malpractice must be brought within one year after the cause of action accrues. Ohio Rev. Code Ann. § 2305.11(B)(1) (Banks-Baldwin Supp. 2002). A cause of action for medical malpractice accrues when the claimant discovers or, in the exercise of reasonable care and diligence, should have discovered the resulting injury, or when the physician-patient relationship for that condition terminates, whichever occurs later. Frysinger v. Leech, 32 Ohio St. 3d 38, 512 N.E.2d 337 (1987). The discovery test hinges on the occurrence of a "cognizable event" sufficient to lead the patient to believe that the condition he complains of is related to his medical care and to place him on notice of the need to pursue possible remedies. Allenius v. Thomas, 42 Ohio St. 3d 131, 538 N.E.2d 93 (1989).

If a malpractice claimant gives written notice to the prospective defendant within the one-year limitation period, the claimant may bring an action at any time within 180 days of that notice. Ohio Rev. Code Ann. § 2305.11(B)(1) (Banks-Baldwin Supp. 2002). If, at the time the cause of action accrues, the claimant is a minor or of unsound mind, the statute of limitations is tolled until the disability is removed. Ohio Rev. Code Ann. § 2305.16 (Banks-Baldwin Supp. 2002).

Although the statute purports to bar any action commenced after four years from the occurrence of the act or omission on which the claim is based, Ohio Rev. Code Ann. § 2305.11(B)(2) (Banks-Baldwin Supp. 2002), this is unconstitutional if "applied to bar the claims of medical malpractice plaintiffs who did not know or could not reasonably have known of their injuries." Hardy v. VerMeulen, 32 Ohio St. 3d 45, 512 N.E.2d 626, cert. denied, 484 U.S. 1066 (1987). A later attempt to establish a statute of repose (now repealed) was held to be unconstitutional in State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451, 715 N.E.2d 1062 (1999).

Malpractice that results in death gives rise to two distinct claims: a malpractice claim for personal loss and suffering prior to death, enforceable by the decedent's personal representative, and a wrongful death claim for pecuniary loss to the decedent's spouse and next of kin. Koler v. St. Joseph Hospital, 69 Ohio St. 2d 477, 432 N.E.2d 821 (1982). A wrongful death action may be brought even if the malpractice claim is time-barred Id.; Brosse v. Cumming, 20 Ohio App. 3d 260, 485 N.E.2d 803 (1984) (malpractice claim already barred at time of death). By statute, an action for wrongful death must be brought within two years after the decedent's death, Ohio Rev. Code Ann. § 2125.02(D) (Banks-Baldwin Supp. 2002), but the Ohio Supreme Court has begun to apply a discovery rule that can extend this time. Collins v. Sotka, 81 Ohio St. 3d 506, 1998 Ohio 331, 692 N.E.2d 581 (1998).

Contributory or Comparative Negligence

Ohio has adopted the modified form of comparative negligence. Ohio Rev. Code Ann. § 2315.19 (Banks-Baldwin Supp. 2002). A claimant's contributory negligence will bar recovery if the claimant's negligence is greater than the combined negligence of all other persons from whom the complainant seeks recovery. Id.

Joint and Several Liability

Joint tortfeasors are jointly and severally liable for a claimant's economic loss, but their liability is several only with respect to the claimant's non-economic loss. Ohio Rev. Code Ann. § 2315.19 (Banks-Baldwin Supp. 2002). Legislation that would have eliminated joint liability for economic loss in some cases was held to be unconstitutional in State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451, 715 N.E.2d 1062 (1999).

Contribution

If two or more persons are jointly and severally liable in tort for the same injury or wrongful death, a right of contribution exists in favor of the one who has paid more than his proportionate share. Ohio Rev. Code Ann. § 2307.31 (Banks-Baldwin Supp. 2002). A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability was not extinguished by the settlement. Id.

If a judgment has been imposed on jointly and severally liable tortfeasors, the right of contribution may be enforced in the underlying action by motion. In the alternative, a separate action for contribution may be brought within one year after the judgment has become final, Ohio Rev. Code Ann. § 2307.32 (Banks-Baldwin Supp. 2002), or after settlement. MetroHealth Medical Center v. Hoffman-LaRouche, Inc., 80 Ohio St. 3d 212, 685 N.E.2d 529 (1997).

Vicarious Liability

Under the doctrine of respondeat superior, a hospital may be held liable for torts committed by its employees. Furthermore, under the doctrine of agency by estoppel, a hospital may be held liable for the negligence of physicians who are not its employees if (1) it holds itself out to the public as a provider of medical services, and (2) in the absence of notice or knowledge to the contrary, the patient looks to the hospital, as opposed to the individual physician, to provide competent medical care. Clark v. Southview Hospital & Family Health Center, 68 Ohio St. 3d 435, 628 N.E.2d 46 (1994). Legislation that would have made agency by estoppel more difficult to prove was included in the 1997 tort reform act held to be unconstitutional in State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451, 715 N.E.2d 1062 (1999).

Expert Testimony

In actions involving a medical professional's skill and judgment, expert testimony must be presented to establish the prevailing standard of care, a breach of that standard, and proximate cause. Ramage v. Central Ohio Emergency Services, Inc., 64 Ohio St. 3d 97, 592 N.E.2d 828 (1992). There is an exception for matters within the "common knowledge" of laypersons. Id. Legislation requiring that malpractice lawsuits be accompanied by an expert's certificate of merit was held to be an unconstitutional infringement on the exclusive authority of the Supreme Court to promulgate rules of procedure. State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451, 715 N.E.2d 1062 (1999). That decision also held to be unconstitutional a legislative attempt to overturn an unusual ruling involving expert witnesses. If a defendant presents an expert who has the same medical malpractice insurer as the defendant, he may be cross-examined on the subject. The Supreme Court held in Ede v. Atrium South OB-GYN, Inc., 71 Ohio St. 3d 124, 642 N.E.2d 365 (1994), that evidence of a common insurance carrier is sufficiently probative of the expert's bias as to clearly outweigh any potential prejudice caused by revealing that the defendant is insured.

Damage Caps

Ohio does not impose any caps on either compensatory or punitive damages. Attempts to establish damage caps have twice been held to be unconstitutional. State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451, 715 N.E.2d 1062 (1999); Morris v. Savoy, 61 Ohio St. 3d 684, 578 N.E.2d 765 (1991).

Statutory Cap on Attorneys' Fees

Ohio law does not place a limit on the fees a medical malpractice claimant's attorney may receive.

Periodic Payments

There is a statute on the books providing that where an award of future damages in a medical malpractice case exceeds $200,000, either party may move the court to order the periodic payment of that amount exceeding $200,000. Ohio Rev. Code Ann. § 2323.57 (Banks-Baldwin 1994). This, however, has been held to be unconstitutional. Galayda v. Lake Hospital Systems, 71 Ohio St. 3d 421, 644 N.E.2d 298 (1994), cert. denied sub nom. Damian v. Galayda, 516 U.S. 810 (1995).

Collateral Source Rule

Ohio has a modified collateral source rule that applies to medical malpractice cases only. An award of damages may not be reduced by insurance proceeds or benefits from a policy for which the claimant or his employer has paid, but evidence of other collateral source payments is admissible and may be considered by the trier of fact to reduce damages. Ohio Rev. Code Ann. § 2305.27 (Banks-Baldwin Supp. 2002).

Pre-Judgment Interest

Pre-judgment interest, computed from the date the cause of action accrued, is awarded to a successful plaintiff if he establishes, at a hearing, that he made a good faith effort to settle the case and the losing defendant did not. Ohio Rev. Code Ann. § 1343.03 (Banks-Baldwin Supp. 2002). Appellate cases on this subject demonstrate that trial judges have broad discretion to decide what constitutes a "good faith effort," and that they may consider evidence having to do with the state of mind of the person making settlement decisions. For example, the court in Garrett v. St. Elizabeth Health Center, 142 Ohio App. 3d 610, 756 N.E.2d 698 (2001), in deciding to award interest, relied in part on testimony by the risk manager of a self-insured hospital that he decided to "roll the dice" in a case, and that he was waiting for the demand to come down before making an offer.

Patient Compensation Funds and Physician Insurance

Ohio does not have a patient compensation fund or a general program of state-sponsored liability insurance for physicians.

Immunities

The State of Ohio has waived its immunity by statute, and particularly that of all hospitals owned or operated by political subdivisions, including municipal corporations and counties. Ohio Rev. Code Ann. §§ 2743.02, 2744.01, and 2744.02 (Banks-Baldwin 1994 & Supp. 2002). The state may only be sued in the Court of Claims. Ohio Rev. Code Ann. § 2743.02 (Banks-Baldwin 1994). This is advantageous to defendants, as Court of Claims cases are tried in the state capital before a judge, not a jury.

A civil action against the state or its political subdivisions must be brought within two years from the time the cause of action arose or within any shorter period of time applicable in similar suits between private parties. Ohio Rev. Code Ann. §§ 2743.16 and 2744.04 (Banks-Baldwin 1994 & Supp. 2002).

Political subdivisions are, however, immune from liability for punitive damages. Also, collateral source benefits received by the claimant are deducted from any award against a political subdivision. Although no limitation is placed on the amount of compensatory damages that one may recover against a political subdivision for actual loss, damages that do not represent actual loss (such as pain and suffering) are limited to $250,000 per claimant. Ohio Rev. Code Ann. § 2744.05 (Banks-Baldwin Supp. 2002).

Arbitration

Ohio law allows for, but does not mandate, the reference of medical malpractice actions to an arbitration board. Ohio Rev. Code Ann. § 2711.21 (Banks-Baldwin 1994). The decision of the arbitration board is non-binding and its opinion, together with any dissent, is not admissible into evidence at trial. Id.