A Rogue Rule?: An Exposè on the Unresolved Issues and Needless Litigation created by Ohio's Affidavit of Merit Rule

• Author: Jacob J. Beausay
• Position: J.D. Capital University Law School, May 2009
• Pages: 1155-1200

A ROGUE RULE?: AN EXPOSÈ ON THE UNRESOLVED

ISSUES AND NEEDLESS LITIGATION CREATED BY

OHIO’S AFFIDAVIT OF MERIT RULE

JACOB J. BEAUSAY*

I. INTRODUCTION

Since the 1970s, medical malpractice has emerg ed as a rapidly

expanding area of civil litigation.1 Along with the field’s emerging

prevalence came unforeseen consequences. Plaintiff a ttorneys were eag er

to file medical malpractice claims be cause of the deep pockets and large

verdicts the claims provided.2 More importantly, patients realized how

much a medical error could ultimately affect their financial well-being.3

Consequently, doctors and h ospitals noticed the effects of the ri sing

amount of litigation through th e cost of insuring themsel ves in the event of

a lawsuit.4 Thus began what some might call the medical malpractice

“crisis.”

From the late 1970s until today, the legal and th e medical com munities

have struggled to find a balance between claims that may be litigated (o r

those with “merit”) and claims that are purely frivolous.5 In the interval,

plaintiffs’ attorneys and doctors have been playing a “he said, she said”

blame game—doctors blame p laintiff attorneys for the exorbitant cost of

malpractice insurance p remiums and plaintiff attorneys blame the doctors

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Copyright © 2009, Jacob J. B eausay.

* J.D. Capital University Law Schoo l, May 2009; B.S . Pennsylvania State University,

2005. I w ould like to thank my family and friends for their support in writing this article. I

would especially like to than k Jeff Beausay for his assistance in developing and refinin g

this article.

1 Ins. Info. Inst., MED. MALPRACTICE, Sept. 2007 ,

http://www.iii.org/media/ho ttopics/insurance/medicalmal.

2 Id. (claiming that lawyers are excessively e ager to bring malpractice sui ts because of

the high fees that can be co llected if their clients win).

3 Id. (stating that one of the perceived reason s for the increa se in medical malpractice

claims was that people w ere more aware of the possibility of damages).

4 Id.

5 Id.

1156 CAPITAL UNIV ERSITY LAW REVIEW [37:1155

for maki ng to o many mi stakes.6 The result of this battle was th e creat ion

of new policy and reform of the law. In Ohio, the General Assembly

enacted sweeping reform to protect the doctors, hospitals and insurance

companies from th e rising amount of litigation .

In Ohio, tort reform was first in troduced in the late 1970 s.7 The to rt

reform was aim ed primarily at medical malpractice litigation.8 Amongst

the massive reform was a policy-based provision that was intended to

eliminate “frivolous” or meritless claims from ev er being fil ed.9 But, like

the rest of the tort reform in t he state, thi s prov ision had growin g pain s—

repeatedly being held uncons titutional by the Ohio Supreme Court.10 After

a long battle between the Ohio Sup reme Court and the Ohio General

Assembly, the two finally settled on creating a civil rule of proced ure

governing the fili ng of medical m alpractice claims .11

At the request of the General Assembly,12 the Supreme Co urt o f Ohio

adopted Ohio Rule of Civil Procedure 10(D)(2) which requires plaintiffs to

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6 Compare Ross Eisenbrey, Malpractic e Made Perfect, AM. PROSPECT, Aug . 2, 2005,

http://www.prospect.org/ cs/articles?articleId=10058 (arguing reducing medical errors

would save far more than any tort-reform law and do so without impeding victims’ rights o f

recovery), with Charles Kolodkin & Paul Greve, Medi cal Malpractice: The Hig h Cost of

Meritless Claims, INT’L RISK MGMT. INST., Jan. 2007,

http://www.irmi.com/Expe rt/Articles/2007/Kolodkin01.aspx ( arguing meritless lawsuits are

a primary cause of rising in surance premiums).

7 See 1975 Ohio Laws 2809 .

8 See id.

9 See Hodge v. Cheek, 581 N.E.2d 581, 584 (Ohio Ct. App . 1989) (“By requiring

plaintiff’s attorney or plaintiff to consult with a qualified expert p rior to filing a medical

malpractice claim, claims having no bona fide merit can b e weed ed out without

commencing an action.”).

10 See, e.g., Stat e ex rel. Ohio Acad. of Trial Lawyers v. Sheward, 715 N.E.2d 1062,

1102 (Ohio 1999) (The Supreme Court of Ohio he ld Am. S ub. H.B. 350, 121st Gen.

Assem., R eg. Sess. (Ohio 19 96) (various medical malpractice tort reform measures)

“unconstitutional in toto.”).

11 See id.; Hiatt v. S. Health Facilities, Inc., 62 6 N.E.2d 71, 73 (Ohio 1994) (both cases

holding that the statutory construction of the af fidavit o f merit requirement was

unconstitutional).

12 See Sub. H.B. 215 § 3, 125th Gen. Assem. , Reg. Sess. (Ohio 200 4); see also Manley

v. Marsico, 876 N.E.2d 910 , 911 n.1 (Ohio 2007).

2009] OHIO’S AFFID AVIT OF MERI T RULE 1157

obtain an affidavit of a qualified expert as a threshold matter to fil ing a

medical malpracti ce complaint.13 In pert inent part, the rule states:

(a) Excep t as provided in division (D)(2)(b) of this rule, a

complaint that contains a medical claim, dental claim,

optometric claim, or chiropractic claim, as defined in

section 2305 .113 of the Rev ised Code, s hall include one or

more affidavits of merit relative to each defendant named

in the complaint for whom expert t estimony is neces sary to

establish liability. Affidavits of meri t shall be provided by

an expert witness pursuant to Rules 601(D) and 702 of the

Ohio Rules of Evidence. Affidavits of merit shall include

all of the followin g:

(i) A statement that the affiant has reviewed all

medical re cords reaso nably available to the plainti ff

concerning the all egations contain ed in the complaint;

(ii) A statement that the affiant is familiar with the

applicable standard of care;

(iii) The opini on of the affiant that the standard of care

was breached by one or more of th e defendants to the

action and that the breach caused in jury to the plai ntiff.

(b) The plaintiff may file a motion to ex tend the period

of time to file an affidav it of merit. The motion shall be

filed by t he plaintiff with the comp laint. For good cause

shown and in accordance with division (c) of this rule, the

court shall g rant the plai ntiff a reasonable period of tim e to

file an affi davit of merit, not to exceed ninety days, except

the t ime may be extended beyond ninet y day s if the court

determines t hat a defendant or non-party has failed to

cooperate with dis covery or that ot her circumstan ces

warrant extensio n.14

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13 OHIO R. CIV. P. 10(D)(2).

14 Id. at 10(D)(2)(a)–(b).