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The Ohio House this week passed House Bill 276, legislation that implements changes to Ohio’s medical liability laws. The bill updates Ohio’s “I’m Sorry” law to allow healthcare professionals to have a broader conversation with a patient following an adverse event and protects that conversation from later being introduced into evidence as an admission or statement against interest. Current law provides that, in any civil action regarding an unanticipated outcome of medical care, any expressions of apology or sympathy made by a healthcare provider are inadmissible as evidence of liability.

Healthcare professionals assert that due to the fact that admissions of fault are not expressly provided for in the so-called “I’m Sorry” statute in the same way as apologies or expressions of sympathy, there is a gray area in the law that potentially allows a plaintiff to interpret or confuse an apology with an admission of fault.

During proponent testimony on the bill, the Ohio State Medical Association (OSMA) told the House Judiciary Committee that this gray area has resulted in health care professionals experiencing a growing concern with having a conversation with a patient or a patient’s family about unforeseen events that may have occurred. Although the “I’m Sorry” law intended to foster communication during unfortunate circumstances, the group asserts that the narrowness of the statute leaves many patients and patient families questioning what really happened to cause the adverse event.

Specifically, H.B. 276 provides that a healthcare provider’s statements or affirmations expressing error or fault made to the victim or the victim’s relative of an unanticipated outcome of medical care relating to suffering, injury or death is not admissible as evidence of an admission of liability. Expressing support for the measure, the OSMA testified that the bill would promote an honest discussion between patients, families, and healthcare practitioners, resulting in improved communications by promoting empathy and an explanation of an adverse event.

The bill also prohibits the use of insurer payment policies and guidelines from being used to establish the standard of care. Expressly, the language states that federal care guidelines, quality criteria, and insurer payment rules do not establish a legal basis for negligence or the standard of care to determine medical liability. This provision was added to protect against efforts by the Centers for Medicare and Medicaid Services (CMS) and private insurers to adopt payment policies that adjust or restrict reimbursement to healthcare providers and hospitals under certain circumstances.

Supporters of the provision say these payment guidelines, originally created as cost-containment tools for the federal government and third-party payers, have increasingly been implemented by an ever-growing number of insurers, and could be used in legal proceedings to indicate medical negligence. H.B. 276 would clarify that these guidelines cannot be used to establish the standard of care duty of care owed.