Host Sean Harris talks with OAJ’s Executive Director, John Van Doorn, about legislation pending in the Ohio Statehouse.

Sean: Hello and welcome to Civilly Speaking, OAJ’s monthly podcast on practical and timely legal issues, I am your host Sean Harris. Our guest today is OAJ’s own, John Van Doorn and John comes to OAJ, this is not your first rodeo, tell us about your background.

John: Sure Sean, I would be glad to do that with some trepidation as some OAJ members may think of me as being somewhat suspect as a result.

Sean: No you’ve seen the light.

John: Correct, I have come over to the force.

Sean: The good side.

John: I’ve come over to the good side. In the course of my career I have represented retailors, I have represented the Ohio State Medical Association, I have represented a major financial intuition and a consumer finance company and all of that before I arrived at the Ohio Association for Justice.

Sean: John has been heading up our lobbying efforts down at the Statehouse for many years and John’s here today to give us an update on the current state of the Ohio General Assembly, John welcome to Civilly Speaking.

John: Thank you, Sean.

Sean: So let’s start very broadly, where do we stand with the current General Assembly?

John: Well the general assembly convened in January and their first order of business this year is to pass the biennial state budget, that is the budget that takes the state, lasts the state for two years, this year and next and they have a lot of numbers to consider. It appears that the Ohio economy at least is experiencing a bit of a down turn so the revenue that is projected to be available to spend is down somewhat for previous years, which means they are not in the enviable position of spending more money, they will have to find ways to reduce the amount they spend on things like schools, prisons and Medicaid and of course Medicaid, which is one of the largest components in the state budget is complicated by what’s happening at the federal level.

Sean: And when we talk about the budget, that’s a massively complicated piece of legislation. We are talking thousands of pages.

John: Correct. Our members will be pleased to know that I have perused all three thousand and five hundred and fifty pages of the state budget to ensure that there are no substantive changes in state law that impact your practice or your clients. I have found nothing, where as in previous years there have been a couple of little tidbits tucked away in the budget that we didn’t appreciate.

Sean: And as I recall, two years ago the budget is where the health insurance subrogation provision was initially enacted.

John: That is correct. In that case, we were responsible for finding a home for that provision in the state budget. That was the provision that enacts Pro Rata subrogation, a provision that OAJ members strongly support it because it benefits their clients.

Sean: So it seems that medical negligence is always in the cross hairs, the last few years, what do they have in store on the medical front this time?

John: Well, the medical world, that is the Ohio State Medical Association representing physicians and the Ohio Hospital Association are promoting legislation to make some changes in our current medical negligence law, House Bill 7, which has ten provisions, is known as the bill that amends the apology statute. It would amend our current apology statute by making a doctors statement that to the patient or the patient’s family that the injury was their fault, they made an error, make that inadmissible in a court of law if there is a subsequent medical negligence claim. We of course oppose that. This is making an expectation to admissions against interest that would apply exclusively to physicians; they would be the only ones to have such an exception under the law. Remember Ohio is not a no fault state and in order to prove negligence in Ohio you have to establish that is was the tortfeasors fault. They are essentially trying to establish here that they get an exception from that rule. We’re battling that at the moment, would like to see it removed from the legislation all together. Sean there are other reasons why OAJ members who do not practice medical negligence should be paying close attention to this legislation and that is because this bill would create new provision, lets refer to it as Robinson on steroids. Our listeners are familiar with the Robinson issues about allowing evidence of discounts or negotiated rates in as evidence in personal injury claims in addition to the amount that is billed. This legislation would say that the amount that is billed is inadmissible. Only the amount that is actually paid to the physician or the hospital could be, would be admitted as evidence, which of course is a much lower amount. It’s not clear but it’s likely that this same provision would apply to all personal injury claims therefore all OAJ members who practice personal injury should be paying a close attention. A couple of other issues this legislation would abrogate loss of chance claims, those are claims where a person ‘s chance of survival is estimated to be less than fifty-one percent and it would also enact a new civil immunity for physicians, hospitals and others who are providing medical services during disasters or emergencies.

Sean: You know John the Robinson on steroids issues is fascinating and terrifying at the same time. Not that they have to you know base any of these proposals in reality or you know or a rational basis, but does the medical community have an explanation or a reason why, why they think it is a good policy to ignore what they themselves claim to be the reasonable value when they send a bill for purposes of a lawsuit?

John: Of course and their argument and which I have to admit has some appeal, is that to, and they refer to the amount that is billed as phantom damages. Those aren’t the amount that you actually suffered because the amount that is necessary to make the injured part whole is the amount that was actually paid. That is the amount that transpired or changed hands so why should we be discussing these quote on quote phantom damages that never actually occurred. Of course, I mean they failed to take into account you know a lot of other factors like evidence about what are truly reasonable charges for medical care that doctors themselves would insist that what they billed is the reasonable amount and what their paid negotiated or discounted reimbursement is not fair and is not reasonable for their services.

Sean: John tell us about what is going on in the area of work place discrimination. I gather that the current makeup of the general assembly is not happy with the current state of the law.

John: This is a piece of legislation that has been proposed on and off for more than a decade. This has been a priority for the Ohio Chamber of Commerce and the business community in total. What they are trying to do is to roll back, water down some of Ohio’s existing anti-discrimination laws in the area of employment. This legislation, House Bill 2, would be a major overhaul law that provides protection for religious employees, veterans, individuals with disabilities, women, minorities, and older workers in the work place. Let me give you an example. A Christian who wants to pray during his lunch break would be protected under Ohio’s current law if his manager or supervisor discriminated against him. Under this bill, that supervisor would have immunity would not, would no longer be liable for his actions against that devote employee. In addition, I mean this bill has been offered without any evidence that there are problems. There’s no complaints that Ohio’s laws are causing Ohio’s businesses to suffer in any way, they are not having any trouble finding people to volunteer to be promoted to manager or supervisor and finally let me point out the irony that the same proponents that argue that what this legislation would do would be to bring Ohio’s laws in line of federal law, these same proponents generally argue that Ohio should not conform with federal law that Ohio should be seeking its own level to establish laws and the feds should go their own direction.

Sean: And is OAJ the only one on the opposite side of this bill or do we have anybody helping?

John: Sean I am very pleased to say that in this case OAJ is part of a large coalition that’s been assembled and led by the Ohio Employment Lawyers Association, OAJ past-president Fred Gittes, who is the long time chair of the OELA legislative committee is at the for front of opposing this as a legislation and has surrounded us with a number of groups including Equality Ohio, Disability Rights Ohio, The Center for Disability and Empowerment, the Ohio ALF-CIO, teachers groups, the National Multiple Sclerosis Society. It’s an impress array of groups that are raising questions and doubts for the need of this legislation.

Sean: And do you have sense of the likely hood of passage for this bill?

John: This legislation is probably going to pass. Given the current makeup of the General Assembly where the lawmakers generally support initiatives brought to them by the business community it’s highly likely that this is going to pass in some form or another so our mission, if we can’t kill the bill will be to try to water it down and amend it substantially.

Sean: Speaking of business relations, workers’ comp is always a hot topic down at the General Assembly what do they have in store in the workers’ comp front?

John: The Bureau of Workers’ Comp and the Industrial Commission have to pass their biennial budgets separately from the state budget so there is a workers’ comp budget bill, House Bill 27, and there is an Industrial Commission budget bill, House Bill 28, both of those bills have been introduced and are pending. We have of course reviewed those, OAJ’s workers’ comp section, reviewed those bills closely and we found only one item in the workers’ comp budget bill that is a concern, that provision would allow the bureau to dismiss thousands of C92 applications. C92 applications are made for permanent partial disability claims. The problem here is that after you file an application, an injured worker is required then to undergo a medical exam, the bureau represents that there are thousands, some twenty thousand, who have failed to show up for their medical exam despite repeated efforts by the bureau to notify them that they need to go to this exam. The bureau says that of these twenty thousand applications that are just sitting dormant in suspense, there average age is about ten years and the bureau would like to dispose of these by dismissing the applications. Well OAJ and our Workers’ Comp section does not object to disposing of a lot of these claims, we want to make sure that those who wish to come forward to preserve their application have an opportunity, due process if you will, to come forward and say no I intend to pursue my claim. So we’re working through that concern as we speak with the Bureau of Workers’ Comp and with the members of the House Insurance Committee where this bill is being heard.

Sean: Well we’ve spent the time this morning talking mostly about playing defense, which is critical, but there are some opportunities for OAJ to play offense legislatively as well. What are or what bills is OAJ supporting or proposing?

John: The first bill, Sean, would be House Bill 20, which makes an exception to the cap on non-economic damages, the exception would be for victims of rape and sexual assault this is directly related to the Simpkins v. Grace Brethren Church of Delaware case which was decided late last year which found that the cap applied to a young lady, Jessica Simpkins, who was raped by her pastor and she pursued a claim against the church because the church knew or should have known that the pastor had a history of these kinds of criminal activities, but the Supreme Court ruled that the cap did apply and that if the legislature  intended for there to be an exception it should specifically write that exception in law. House Bill 20 is an attempt to write that exception explicitly in law for these victims of sexual assault and rape.

Sean: So you’re telling us that tort reform protects rapists?

John: It sure does in this case and in my guess is that you could probably think of other examples where it might protect criminals.

Sean: And again, and although it seems perhaps obvious to us, what chance does this bill have?

John: Sorry to report the chance of this legislation passing are slim. Although it seems very obvious to us that this cries out for a solution and the reason is simple I mean first this is a General Assembly that’s dominated by business interests and this legislation would poke a major hole in caps on damages and caps on damages are the crown jewel of tort reform in the minds of the tort reform community all the way from the chamber of commerce to the insurance industry.

Sean: John I understand that in the area of business litigation, specifically small businesses who find inaccuracies on their credit report there is the possibility of some positive legislation in that regard.

John: Exactly Sean, we are going to pursue legislation that would allow small businesses to see what information is on their commercial credit report and to challenge or question what they believe to be inaccurate information on their credit report. It seems like common sense to us, after all we as individual consumers are afforded the right if someone, if there is a black mark on our credit report we can see who has made that report, what information they have reported, did I miss some payments on a bill and if I believe that information is inaccurate, I did make those payments on that bill then we can challenge it and if we can establish that the information is accurate it can be corrected and our credit report cleaned up. The same right, that same privilege to know what has been reported and to challenge inaccurate information is not available to the small business operating out there whose very livelihood are depended in many cases on their credit rating. That’s commercial credit rating will in many cases determine what it cost you to borrow money, which is a life blood of small business, or whether you get any loans, small business loans at all so with the help of some of OAJ’s members who have represented small businesses we’re going to be pursuing legislation to force commercial credit reporting agencies, Dun and Bradstreet, dominate this market we are going to force them to make available to small businesses information about negative reports and give them the small businesses the opportunity to challenge that information.

Sean: And John what do we know about, I know immunity tends to be handed out by handed out like candy by the legislature these days, but I gather that immunity in regards to climbing walls has a chance for some change.

John: Well we hope so Sean. For the benefit of everyone there you should know that at the very end of 2016 there was a civil immunity for the operators of climbing walls added to unrelated legislation at the very last instant before this unrelated legislation passed the General Assembly. It did not have a hearing, there was no opportunity for OAJ to object, unfortunately it passed and what is says essentially is that if there is an equipment failure at a climbing wall facility that the operator cannot be found liable for injuries caused by that equipment failure. Now stop and think about this for a moment, what that means is if you send your children to a climbing wall, as you know they are suspended by a rope hanging from a bracket at the top of the wall its hooked to a harness that goes around their waist so that if they come loose from the wall they don’t fall fifteen feet awkwardly and hurt themselves, a member of their staff holding the other end of the rope grabs it and they are suspended and lowered then slowly and safely to the ground. However in some cases, it’s possible that that bracket could snap, could be that the rope breaks, whatever it is your child instead of being suspended could fall awkwardly and break their neck and be severely injured as a result. Right now you have no recourse according to Ohio law, we’re trying to change that with legislation this time around and with any luck trying to get some hearings held so we can correct these I mean this inequity this aboration that just doesn’t deserve to be in law.

Sean: And I imagine that when the bill was initially passed there was horror stories of small business climbing wall businesses just being sued out of existence.

John: Well actually there was no testimony so nobody had to come in and say this is a terrible thing. This was done under cover of darkness. It had to do with an unrelated issue. A powerful operator of climbing walls did not like being regulated by the Ohio Department of Agriculture, would prefer to be regulated by the Department of Commerce, where the level of regulation would be significantly relaxed and in addition then this clever climbing wall operator added immunity language at the same time they were shifting regulation from agriculture to commerce. Very clever, nobody saw it. I have spoken with a number of legislators who agree that it is outrageous. They’re very concerned that there is going to be an injury and no recourse. Let’s see if we can get it fixed.

Sean: John Van Doorn thanks very much for joining us here on Civilly Speaking.

John:  Thank you Sean it was my pleasure and thank you all for listening.