Ohio's New Medical Claims Law (H.B. 7) Is in Effect: What Families Should Know After a Death in Medical Care

Published April 9, 2019 · New Laws

When someone dies unexpectedly in a hospital or after a procedure, families want two things: honest answers and a fair process if something went wrong. A new Ohio law that took effect on March 20, 2019 changes how both of those work.

Amended Substitute House Bill 7 of the 132nd General Assembly was signed by the governor on December 19, 2018, according to the Legislative Service Commission's 2018 Digest of Enactments. It amends R.C. 2305.113, 2305.51, and 2317.43 and enacts four new sections, R.C. 2305.2311, 2317.44, 2317.45, and 2323.451. Here is what matters most for families.

The apology law now reaches "error" and "fault"

Ohio's apology statute, R.C. 2317.43, has long kept a health care provider's expressions of apology, sympathy, and condolence to a patient or family from being used as evidence of an admission of liability. In 2017, in Stewart v. Vivian, the Supreme Court of Ohio read the word "apology" to include expressions of regret that may acknowledge the care fell below the standard. We wrote about that decision at the time.

H.B. 7 goes further in the statute's own words. As amended, R.C. 2317.43(A)(1) adds statements expressing "error" and "fault" to the list, and it covers statements by a provider's representatives as well as its employees. If such statements appear in the medical record, the amended statute says only the portions containing them are inadmissible as evidence of an admission of liability.

Conversations during a hospital's review can be kept out

The amended statute also adds a new protection for what is said during a provider's review of an unexpected outcome. Under R.C. 2317.43(B), when a provider conducts a good-faith review into the cause of an unanticipated outcome, communications between the provider's side and the patient, relatives, acquaintances, or representatives are inadmissible in a civil action, unless they are recorded in the patient's medical record. The statute defines a review as one started and completed within the first 45 days after the outcome occurs or is discovered, and it says nothing requires a review to be conducted.

For families, this cuts both ways. A hospital may be more willing to talk openly about what went wrong. But what you hear in those meetings may not be usable later as evidence. Families should still take careful notes, because what is learned can point to the records and witnesses that do prove a case.

Changes to how medical claims are filed

The bill makes several procedural changes for claims that arise from medical care:

• Notice letters by certified mail. Ohio law allows a claimant to extend the one-year deadline for a medical claim by sending written notice before the year runs, which gives 180 days to file. H.B. 7 amends R.C. 2305.113 to require that the notice be sent by certified mail, return receipt requested, to specified addresses.
• A new filing option. New R.C. 2323.451, which applies to cases filed on or after March 20, 2019, lets a plaintiff file with an affidavit of merit, or a motion for more time to file one, and then use discovery for a limited period to identify other potential medical claims or defendants and add them. That window equals the days left in the one-year period plus 180 days from filing.
• Wrongful death is treated differently. After that window closes, R.C. 2323.451(E) bars adding new medical claims or defendants unless the claim is for wrongful death and the wrongful death limitation period under R.C. 2125.02 has not expired.

The bill also creates a qualified immunity for providers and emergency medical technicians who give emergency care during a disaster, but new R.C. 2305.2311(D) states that it does not apply to a tort action alleging wrongful death.

What families should do

Keep the two deadlines in mind. A wrongful death action generally must be filed within two years after the death under R.C. 2125.02(D)(1). Related claims arising from medical care, such as claims for the person's own injuries before death, can face a one-year limit under R.C. 2305.113. Those dates can arrive faster than families expect.

Get the records early. A procedure that took effect on March 22, 2019 lets an eligible family member ask the probate court to order release of a loved one's medical and billing records before an estate is opened. Our post on House Bill 595 explains how it works.

Settle who will serve as personal representative. The wrongful death claim is brought by the personal representative under R.C. 2125.02(A)(1). If relatives disagree about who that should be, our post on administrator disputes may help.

Do not rely on what was said at the bedside. Between Stewart v. Vivian and H.B. 7, apologies and admissions of error by providers will often not be heard by a jury as proof of liability. Cases are proven with records and testimony from qualified medical witnesses. Our page on medical malpractice deaths explains how these cases are evaluated, and our overview of Ohio wrongful death law covers who brings the claim and who benefits.