AAOS Bulletin - December 2006

Tort reform setback in Ohio

On Sept. 27, 2006, the Seventh District Court of Appeals in Ohio ruled that failure to file a physician’s affidavit certifying the merit of a medical malpractice claim is excusable despite an explicit state law requirement to the contrary. In Banfield v. Brodell, a patient alleged her surgeon was negligent but did not obtain an “Affidavit of Merit,” even though the requirement had gone into effect 27 days before the lawsuit was filed. The attorney’s only excuse for the oversight was ignorance of the new rule. 

After initially dismissing the lawsuit, the trial court reversed itself by stating that the Affidavit of Merit was unnecessary. The AAOS, in an amicus brief with the Ohio State Medical Association and the American Medical Association, argued that an Affidavit of Merit is a crucial tool in preventing the frivolous malpractice lawsuits that plagued Ohio and that any exception to the requirement would set a perilous precedent.

The appeals court, in a 2-to-1 majority, upheld the trial court’s decision to reinstate the lawsuit. While acknowledging that ignorance of the law is not normally a valid justification, the majority excused the failure to file the Affidavit of Merit and created a new category of permissible ignorance in Ohio by finding that the patient’s attorney was not being “willfully ignorant.” The majority cited no precedent for this new excuse nor did it define this apparently self-contradictory term. (Merriam-Webster defines ‘willful’ as deliberate and ‘ignorant’ as being unaware. It is unclear how someone can be intentionally unaware of their actions.)    

The dissenting judge stated that “the case law indicates that counsel’s action of failing to file the…affidavit of merit does not amount to excusable neglect,” and took issue with the majority’s contention that the requirement was a surprise, as it had been well-publicized for at least 10 months before its effective date. Finally, the dissent warned that excusing the filing of the Affidavit of Merit “is opening up the flood gates for attorneys to be excused for their inattention to the changes in the law…especially in medical malpractice cases.”


In the October 2006 Bulletin, the “In the News” article on the South Carolina State Supreme Court decision reported that the state’s Provider Self-Referral Act prohibits physical therapists from working in a physician’s office. In fact, it is the state’s Physical Therapy Practice Act (1998), which amended the Provider Self-Referral Act (1993), that includes the prohibition.

States seeing results of tort reform

In Texas, Florida and Illinois, physicians are seeing lower medical liability rates and more options resulting from recently passed tort reform legislation. Many of Florida’s largest medical liability insurers have filed for rate decreases for 2007, in part due to reforms passed in 2003. As a result, insurers are offering an average rate reduction

of 8 percent, although some specialties may see rates cut by as much as 20 percent.

An Illinois law passed in 2005 is resulting in lower rates and increased competition. Under the law, the state’s largest medical liability insurer, ISMIE Mutual Insurance—a physician-owned company that accounts for 65 percent of the state market—was forced to open its rate formulas to other firms. The result has been increased market competition along with a 5.2 percent cut in ISMIE rates.

Three years after the passage of medical tort reform legislation in Texas, the number of physicians applying for medical licenses in the state is at a record high. In 2006, 4,500 new medical license applications were submitted—40 percent more than last year. Additionally, out-of-state insurance carriers have expressed interest in offering plans in Texas, and physicians have seen their costs for medical liability insurance drop.

CMS reminds members to apply for NPI

The Centers for Medicare & Medicaid Services (CMS) reminds AAOS members to apply for their National Provider Identifier (NPI). Obtaining an NPI is free and can be done online or via paper application. Applying on-line is quicker than using the paper form. Web-based applications have an approximate 30-day processing time; paper applications will take longer. CMS urges providers to include all legacy identifiers (for Medicare and all other payers) on their NPI applications. If you have already applied for an NPI, CMS asks that you update your information to include all legacy identifiers. This information is critical for payers to transition to the NPI. May 23, 2007 is the deadline for obtaining your NPI. To apply for your NPI visit online.

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