Ohio’s Legislature is seeking to expand Ohio’s “apology” medical malpractice law that currently shields physicians and other health care providers when they apologize to patients for injuries they suffered as a result of medical negligence. The expanded protection, if signed into law, would shield all communications made in reviewing the causes of or reasons for medical negligence, as long as the reviews are not contained in the patients’ medical records.
Ohio’s current medical malpractice apology law provides in Section 2317.43(A): (A) In any civil action brought by an alleged victim of an unanticipated outcome of medical care or in any arbitration proceeding related to such a civil action, any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that are made by a health care provider or an employee of a health care provider to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim, and that relate to the discomfort, pain, suffering, injury, or death of the alleged victim as the result of the unanticipated outcome of medical care are inadmissible as evidence of an admission of liability or as evidence of an admission against interest.
The proposed legislation would expand the shield to include: (B) In any civil action brought by an alleged victim of an unanticipated outcome of medical care, in any arbitration proceeding related to such a civil action, or in any other civil proceeding, any communications made by a health care provider, an employee of a health care provider, or a representative of a health care provider to the alleged victim, a relative or acquaintance of the alleged victim, or a representative of the alleged victim following an unanticipated outcome and made as part of a review conducted in good faith by the health care provider, an employee of the health care provider, or a representative of the health care provider into the cause of or reasons for an unanticipated outcome, are inadmissible as evidence unless the communications are recorded in the medical record of the alleged victim. Nothing in this section requires a review to be conducted.
The proposed legislation defines “review” as: the policy, procedures, and activities undertaken by or at the direction of a health care provider, employee of a health care provider, or person designated by a health care provider or employee of a health care provider with the purpose of determining the cause of or reasons for an unanticipated outcome, and initiated and completed during the first forty-five days following the occurrence or discovery of an unanticipated outcome. A review may be extended for a longer period if necessary upon written notice to the patient, relative of the patient, or representative of the patient.
Opponents of the medical malpractice “apology” law as it presently exists in Ohio, and as it may be expanded, believe that such laws are unethical because the laws permit physicians and other health care providers to admit to their patients that they committed medical malpractice yet they are protected from those admissions being used against them if a medical malpractice claim is later filed — they can later deny that they committed medical malpractice without concern that their earlier admissions could be used against them.
Why should doctors be cloaked with an impenetrable shield that prevents their open and honest admissions of error or fault in causing avoidable injuries to patients from being told to a jury whose job it is to determine if the doctors caused negligent harm — would anyone consider it to be acceptable or appropriate for a negligent driver of a motor vehicle to be protected from disclosure of his admission at the scene of a traffic collision that he was at fault for causing the collision that injured others?
If you or a loved one may be the victim of medical malpractice in Ohio or elsewhere in the United States, you should promptly consult with an Ohio medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.
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