Successful Litigation

Menorah Park Center for Senior Living v. Rolston – this case dealt with what constitutes an unauthorized disclosure of protected health information in the context of collecting a medical debt. (FULL AMICUS BRIEF)

Durrani v. Sand and Durrani v. Wilson – this case dealt with how long after the fact a physician can be sued for his or her treatment of a patient. (FULL AMICUS BRIEF

Cynthia Clawson v. Heights Chiropractic Physicians, LLC, et al. - The proposition of law presented to the Ohio Supreme Court once a physician/employee’s liability has been extinguished for alleged acts of malpractice the claimant can no longer pursue vicarious liability claims against the employer. (FULL AMICUS BRIEF)


Jaques v. Manton (Collateral Source Rule)

As an amicus participant in Jaques v. Manton, the AMCNO was pleased with the recent Ohio Supreme Court ruling that allows jurors to hear evidence of write-offs related to medical expenses in personal injury cases. The Court held that write-offs, the difference between billed charges and the amount actually accepted as payment in full for medical services, are not collateral sources under Ohio law and can be admitted into evidence consistent with the law as stated in a prior Court holding. The decision ensures that juries will hear accurate evidence of the amount of money actually spent or paid out for medical expenses in personal injury cases. For additional information go to Ohio Supreme Court, 2010-Ohio-1838.

White v. Leimbach (Informed Consent Issue)

As an amicus participant in White v. Leimbach, 10th Dist. No. 09AP-674, 2010-Ohio-1726, the AMCNO was pleased with the recent Ohio Supreme Court ruling that confirmed that the tort of lack of informed consent constitutes a medical claim and that a plaintiff must produce expert medical testimony establishing: 1) the material risks or dangers inherent in a procedure, and 2) that an undisclosed risk or danger actually materialized and proximately caused injury.  For additional information go to Ohio Supreme Court, 2010-Ohio-6238.

Wymsylo v. Bartec, Inc. (Ohio Supreme Court Upholds Indoor Smoking Ban)

As an amicus participant in Wymsylo v. Bartec, Inc., the AMCNO was pleased to learn that the Supreme Court of Ohio has affirmed a ruling by the Tenth District Court of Appeals to uphold the Ohio Smoke Free Workplace Act as constitutional.   The court’s 7-0 decision, authored by Justice Judith Ann Lanzinger, rejected claims by the owner of Zeno’s Victorian Village that fines assessed against his establishment for violating the statewide ban on smoking in places of employment exceeded the state’s legitimate police powers or were an unconstitutional governmental “taking” of private property. For additional information go to Ohio Supreme Court, 2010-Ohio-2187.

Ruther v. Kaiser (Medical Malpractice Statute of Repose)

As an amicus participant in Ruther v. Kaiser, the AMCNO was pleased with the recent Ohio Supreme Court ruling that upheld the statute of repose as enacted: Just as a plaintiff is entitled to meaningful time and opportunity to pursue a claim, a defendant is entitled to a reasonable time after which he or she can be assured that a defense will not have to be mounted for actions occurring years before. For additional information go to Ruther v. Kaiser, 2011-Ohio-1723.

Estate of Johnson v. Randall Smith, Inc.

As an amicus participant in the Estate of Johnson v. Randall Smith, Inc., the AMCNO was pleased to learn that the Ohio Supreme Court recently issued a favorable opinion holding that a physician’s gestures, conduct and expression of sympathy are excluded pursuant to R.C. 2317.43. See Estate of Johnson v. Randall Smith, Inc., 2013-Ohio-1507,— N.E.2d —, 2013 WL 1760949. Specifically, the Court held that a physician’s statement to a patient that he took full responsibility for the situation was not admissible because his gestures, conduct and statements, were covered under R.C. 2317.43. The Ohio Supreme Court also held that the Statute applies to any cause of action filed after September 13, 2004.

Lavin v. Husted (Sixth Circuit Court of Appeals Case)

A three-judge panel for the U.S. Court of Appeals for the Sixth Circuit sided with a group of physicians from Northern Ohio, including several AMCNO members, and struck down as unconstitutional an Ohio statute making it a crime for candidates for Ohio Attorney General or county prosecutor to accept campaign contributions from Medicaid providers. The AMCNO, Ohio Osteopathic Association and Ohio State Medical Association had joined as amicus curiae in the case after a lower court upheld the Ohio statute, fearing that, if left to stand, the trial court's decision would have a chilling effect on physician speech--particularly at a time when candidates for office at all levels of state and local government are increasingly weighing in on issues related to health care reform and health care policy generally--and would stigmatize physicians that serve a Medicaid population. Due to the law's overly-broad infringement of the First Amendment rights of Medicaid providers, the Court struck down the law as unconstitutional and ordered the lower court judge to enter judgment in favor of the plaintiffs. For additional information go to Lavin v. Husted.

Burnham v. Cleveland Clinic Foundation

This case dealt with interlocutory appeals. This issue often arises in the context of medical malpractice plaintiff attorneys demanding to see records of hospital quality assurance committees, or other peer review materials.  Although these materials are privileged under the law, and thus should not need to be produced, some trial courts in the past have ordered them produced nonetheless. The remedy for this situation (prior to April 2014) was to take an immediate appeal to the appropriate court of appeals per the Ohio Revised Code. In 2014, this changed when the Ohio Supreme Court (OSC) made it more difficult to take such an immediate appeal to court (Smith v. Chen). In order to do so, the appealing party had to demonstrate that they would not have a “meaningful remedy” if they waited until after trial to file an appeal. The appellate courts took a narrow view of this standard and a large number of appeals from decisions requiring the production of privileged information were dismissed soon after they were filed, without a decision to whether they were privileged. This created a lot of confusion–leaving appellate courts without guidance as to what constituted “meaningful remedy.” In addition, once a privileged document is disclosed, it cannot be retrieved. 

The AMCNO filed an amicus brief in this matter at both the appellate and OSC levels. The OSC decision in this case resulted in most adverse discovery orders in the medical malpractice context being immediately appealable, if they involve quality assurance or peer review materials–a step in the right direction.

Simpkins v. Grace Brethren Church of Delaware, Ohio

In this case, a divided OSC upheld the caps on noneconomic damages.  A jury had awarded $3.50 million in noneconomic damages to the plaintiff – an amount which a trial court subsequently reduced to $350,000 per tort reform legislation that became effective in 2005. This legislation was strongly supported and advocated for by the AMCNO.

On appeal the plaintiff argued that the cap on noneconomic damages was unconstitutional as applied to victims of sexual abuse (which was an issue in this case) and that each act of sexual abuse was a separate “occurrence” as that term is used in statute so that the damages would be increased.  The appellate court disagreed and relied on the OSC 2008 decision in Arbino v. Johnson & Johnson to find that the constitutional challenges were meritless.  Although the OSC was divided in their decision in this case, in the end, the Fifth District’s decision was affirmed, Arbino applied and was upheld as argued by the AMCNO in its amicus brief. The caps on noneconomic damages survived another legal challenge. 

Antoon v. Cleveland Clinic Foundation

In this case the OSC reversed a decision by the Eighth District Court of Appeals which had held that once a cause of action vests, or once a plaintiff becomes aware of his or her potential cause of action, the statute of repose is no longer relevant to a determination of the timeliness of a complaint.  The AMCNO filed an amicus brief in this case urging the OSC to reverse this decision. 

In this matter OSC upheld state law—R.C 2305.113 (C)—that requires medical malpractice lawsuits to be filed within four years of the act or omission alleged to have caused the injury.  In a 5-1 decision authored by Chief Justice Maureen O’Connor, the Chief Justice wrote, “If a lawsuit bringing a medical, dental, optometric, or chiropractic claim is not commenced within four years after the occurrence of the act or omission constituting the basis for the claim, then any action on that claim is barred.”

The statute of repose is critically important to physicians, hospitals, and other medical practitioners across Ohio because it was intended to place a hard and fast expiration date on a potential cause of action.  Therefore, the AMCNO is pleased with the OSC decision in this case which upheld state law, R.C. 2305.113 (C).

Stewart v. Vivian

The OSC decided this "apology statute" case, ruling that a healthcare provider's statement of apology that expresses fault or admission of liability to a patient or the patient's family cannot be admitted as evidence in a civil lawsuit against the provider. The AMCNO had worked with the Ohio State Medical Association, Ohio Hospital Association, and the Ohio Osteopathic Association to prepare a joint amicus brief that stated that words of apology, by the word's own dictionary definition, include words of fault.

In the 5-2 decision, the Court found that a physician's statement of apology expressing "a feeling of regret for an unanticipated outcome...may include an acknowledgement that the patient's medical care fell below the standard of care." The Court found nothing ambiguous about the word "apology" and found it may include statement of fault.

The majority decision, written by Justice Sharon L. Kennedy, affirmed rulings by lower courts not to admit the statements of Dr. Rodney E. Vivian in a medical malpractice lawsuit brought against him by the family of a woman who committed suicide while under Dr. Vivian's care at a Clermont County hospital.

The OSC unanimously agreed that Ohio's "apology statute," R.C. 2317.43, shields apologies that include admissions of fault.

Jones v. Cleveland Clinic Foundation

On July 23, 2020, the Ohio Supreme Court issued a decision rejecting a dissatisfied plaintiff’s attack on a jury verdict in favor of a physician in a medical malpractice lawsuit. Jones v. Cleveland Clinic Foundation, Ohio Supreme Court Slip Opinion 2020-Ohio-3780. In so doing, the Supreme Court reversed the Eighth District Court of Appeals that had vacated a defense verdict based on its belief that lengthy jury deliberations warranted a mistrial. The Academy of Medicine of Cleveland & Northern Ohio (AMCNO) joined in the physician’s efforts to convince the Ohio Supreme Court to affirm the jury verdict in his favor. For additional information go to Jones v Cleveland Clinic Foundation.