Saturday, November 23, 2002

Malpractice bill contains lawmakers' message for court

By Andrew Welsh-Huggins
The Associated Press

COLUMBUS - Republican lawmakers hoping to avoid another run-in with the Ohio Supreme Court over jury awards are explaining themselves to justices.

A Senate bill capping pain-and-suffering damages for patients injured by medical malpractice contains a section trying to justify it.

The explanation, relatively rare in state legislation, includes statistics on rising insurance rates and says doctors are having difficulty getting insurance.

The bill passed the Senate last week. The House Civil and Commercial Law Committee plans a vote on its own version Tuesday.

The Supreme Court found similar bills capping jury awards unconstitutional in 1991 and 1999. Senate President Richard Finan said lawmakers want to "cover all our bases" by clearly stating their intent.

The language may be lawmakers' attempt to reason with the court on a difficult issue, said Jonathan Entin, a Case Western Reserve University law professor.

"In a way, it's kind of like trying to start a conversation with the court - `We understand what you've done in the past, but we think it's time to think again about this stuff, so here's why we did this.'

"Obviously the court is going to have the last word on whether this sort of restriction satisfies the Constitution," Mr. Entin said. "It's not so much the Legislature sticking its thumb in the court's eye, but more, `Hey folks, this is a sufficiently hard question, let's think about it some more.'"

Lawmakers tried sending a similar message in 1996, when they passed a bill imposing almost identical caps proposed now and included an explanation of why they believed the law was constitutional.

The attempt didn't go over well with the 4-3 court majority that overturned the law.

The law "intrudes upon judicial power" by declaring itself constitutional, wrote Justice Alice Robie Resnick.

Such explanations "are judicial, not legislative in nature, and are being used to justify the re-enactment of legislation already determined to be unconstitutional," she wrote.

Chief Justice Thomas Moyer, writing for the minority, took the opposite view.

Including such language, "is consistent with the General Assembly's duty to consider the constitutionality of proposed legislation before enacting it," Justice Moyer wrote.

He strongly disagreed with the notion that including such information was a "usurpation of judicial power."

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