The state of Ohio began its more than 30 year battle against escalating medical
liability insurance premiums in the mid-1970s, when many carriers suddenly stopped
writing malpractice insurance for its surgeons and obstetricians.
The Ohio Legislature first tackled tort reform in 1975 with a law capping non-economic,
pain-and-suffering damages in medical malpractice cases. However, the Ohio Supreme
Court, in a 5-1 decision, overturned the law as unconstitutional, finding the caps
violated the Ohio due process clause.
In 1985, former Ohio House Speaker Vern Riffe began hearings on comprehensive tort
and insurance reform legislation. He pushed the legislation through the General
Assembly, but was vetoed by then-Governor Dick Celeste. Riffe had the legislation
reintroduced in 1987 as HB1, and a politically pressured Gov. Celeste signed the
bill, which significantly rewrote tort law in the Buckeye State. The Ohio Supreme
Court, once again, reversed the law on constitutional grounds.
In 1997, the Ohio General Assembly passed a more comprehensive tort reform bill,
which was again overturned by the State Supreme Court. The Court sharply criticized
the General Assembly for passing a bill that included numerical caps after the Supreme
Court had already declared them to be unconstitutional.
Senate Bill 80 (SB 80)
Undeterred by these judicial reversals, in December of 2004, the Ohio Legislature
passed its most recent tort reform,
Senate Bill 80 (SB 80), another comprehensive set of laws that this time
filled certain gaps left by previous tort reform legislation. This bill included
several provisions specifically applicable to medical malpractice cases, including
caps on punitive damages, expanded post-verdict review of compensatory damage awards,
expanded definitions and penalties for frivolous conduct and changes in jury instructions
regarding taxability of damages. Of specific importance to SB 80, the trial judge
must now review evidence supporting an award of non-economic compensatory damages
if a defendant challenges the award as excessive. In reviewing the award, the judge
is to consider various factors, including whether improper “punitive” arguments
were made, such as arguments asking the jury to consider the defendant’s wealth.
Departing from its prior decisions, in 2008, the Ohio Supreme Court rejected the
legal challenges to SB 80. The court noted, its prior review had “focused on certain
unconstitutional facets of the prior tort-reform laws . . .” that it said could
be “addressed to create constitutionally valid legislation.” The court then stated
that the provisions at issue were “more than a rehashing” of statutes previously
declared unconstitutional—that the legislature had “made progress in tailoring its
legislation to address the constitutional defects identified” in prior decisions.
The court justified the bill as joining “Ohio firmly with the growing number of
states that have found [tort] reforms to be constitutional.” The court cited cases
from 19 other states that had upheld particular limitations on the awards of non-economic
damages. It also cited decisions from 10 other states upholding limitations on awards
of punitive damages. The clear trend seems to be for state courts to uphold such
Ohio’s more than 30 year quest for tort reform, and the subsequent State Supreme
Court eventual endorsement of SB 80, stands as evidence that, when persistent, tort
reforms can be upheld even when earlier efforts have been ruled unconstitutional.
The majority in 2008’s State Supreme Court stated that “[t]he fact that the General
Assembly has repeatedly sought to reform some aspects of the civil tort system for
over 30 years demonstrates the continuing prominence of this issue.”
The Ohio State Medical Association points to its
Department of Insurance’s finding that there was a 21 percent decline in the number
of medical liability claims from 2005 to 2006 as evidence SB 80 is an effective
tort reform measure. Having withstood legal challenge in early 2008, the association
is hopeful that its physicians should see shrinking professional liability premiums
in the near future.