Revised Local Rule 34

 

 

MEDICAL MALPRACTICE ARBITRATION

 

34.01 Cases for Arbitration

(a) Upon filing of a medical malpractice case as defined in Section 2305.11(d) (3) O.R.C. in the Court of Common Pleas, said claim shall be assigned for arbitration as provided in Section 2711.21.

34.02 Selections of Arbitrators & Manner of Appointment

(a) Pursuant to the Provisions of Section 2711.21, the three members of the panel shall be appointed by the judge to whom the case is assigned as follows:

1. The judge to whom the case is assigned shall designate, within forty‑five (45) days after the filing of the Complaint, the arbitration panel chairman.

2. The names of the two (2) members of the panel to be appointed by the plaintiff(s) and defendant(s), respectively, shall be submitted to the judge within ten (10) days after receipt of the designation provided for in (1) above.

(b) If there is a failure of one or more parties to appoint one or more arbitrators as in (2) above, the judge shall, upon motion, appoint an arbitrator or arbitrators for the party or parties failing to comply, such appointment shall be made within five (5) days of the filing of such motion.

(c) The Assignment Commissioner shall maintain a list of medical malpractice arbitration panel chairmen who have been approved by the Court after consent to serve.

(d) No party appointed as an arbitrator shall have any interest in the case being heard.

(e) No disclosure shall be made to the arbitrators prior to the filing of the report and award referred to in Section 34.12 of this rule of any offers of settlement made by any party. Prior to the delivery of the Court file to the chairman of the board of arbitrators, the assigned judge shall remove from the file and retain all papers or notations referring to demands or offers for settlement. Such file shall be forwarded to the chairman at the time of the assignment of the case.

34.03 Discovery

The assignment of a case to an arbitration board shall not limit the right of the parties to continue discovery pursuant to the rules of Civil Procedure.

34.04 Hearing; When and Where Held: Notice

(a) Hearings shall be held at a place scheduled by the Court Assignment Commissioner. This provision shall not, however, limit the right of the arbitration panel to hold hearings in an appropriate place of their own choosing. A hearing shall be scheduled not more than forty‑five (45) days after the appointment of the board of arbitration and the Assignment Commissioner shall notify the arbitrators and the parties or their counsel in writing at least fifteen (15) days before the hearing of the time and place of the hearing. No hearing shall be fixed for Saturdays, Sundays, legal holidays or evenings, except upon agreement of all parties and the arbitrators.

(b) Since sufficient time is available to the parties prior to the hearing date to settle or compromise a dispute, once a hearing date is set, the hearing shall proceed forthwith at the scheduled time. There shall be no communications by counsel or the parties with the arbitrators concerning the merits of the controversy prior to the commencement of the hearing.

34.05 Inability of Party to Proceed

In the event that a party is unable to proceed when the case has been scheduled, and such date is agreed to by all parties, the Assignment Commissioner may mark the case continued and may assess a $25.00 continuance fee against such party.

34.06 Default of a Party

The arbitration may proceed in the absence of any party who, after due notice, fails to be present or fails to obtain an adjournment. An award shall not be made solely on the default of the party; the panel shall require the other party to submit evidence as they may require for the making of an award.

34.07 Conduct of Hearing; General Powers

(a) The three members of the panel shall be the judges of the relevancy and materiality of the evidence offered and conformity to legal rules of evidence shall not be necessary. All evidence shall be taken in the presence of the arbitrators, of all the parties, except where any of the parties is absent, in default, or has waived the right to be present. In addition to oral testimony, the panel may receive the evidence of witnesses by affidavit, deposition, videotape deposition, interrogatories, or written report and shall give it such weight as the panel deems is justified after consideration of any objections which may be made to such evidence. In the instance of affidavits and written reports, copies shall be furnished to counsel for all parties not less than two weeks in advance of hearing.

(b) Counsel shall, upon request and whenever possible, produce a party or witness at the hearing without the necessity of a subpoena.

34.08 Specific Powers

The panel shall have the general powers of a court including, but not limited to, the following:

(a) Subpoenas: to cause the issuance of subpoenas to witnesses to appear before the board and to request the issuance of an attachment according to the practice of the courts for failure to comply therewith. Issuance of subpoenas will be done in the same manner as is used in other types of cases.

(b) Production of Documents: to compel the production of all books, papers and documents which are deemed material to the case.

(c) Administering Oaths; Admissibility of Evidence: to administer oaths or affirmations to witnesses, to determine the admissibility of evidence, to permit testimony to be offered by depositions and to decide the law and the facts of the case submitted to the panel.

34.09 Supervisory Powers of the Court

The judge to whom the case is assigned shall have full supervisory powers with regard to any questions that arise in all arbitration proceedings and in application of these rules.

34.10 Witness Fees

Witness fees shall be in the same amount as now or hereafter provided to witnesses in trials in the Common Pleas Court of Crawford County, Ohio, which shall be taxed in costs.

34.11 Transcript of Testimony

The Court shall provide, at the request of any party, an official court reporter for each medical malpractice arbitration hearing. The cost shall be assessed pursuant to Section 2301.21, O.R.C.

34.12 Report and Award

Within thirty (30) days after the hearing, the chairman of the panel shall file a written report and award with the Clerk of the Court of Common Pleas and a duplicate copy with the judge to whom the case is assigned and on the same day shall mail or otherwise forward copies thereof to all parties or their counsel. In the event that all three members do not agree on the finding and award, the dissenting member shall submit a written dissenting opinion to be filed with the majority report.

 

34.13 Legal Effect of Report and Award: Entry of Judgment

The report and award, unless rejected pursuant to law, shall be final. If no rejection is made within the manner specified by statute, the Court shall enter judgment in accordance therewith. After entry of such judgment, execution process may be issued as in the case of other judgments.

34.14 Compensation of Arbitrators

(a) Each member of a panel who has signed an award or files a dissenting opinion, unless he has waived in writing his right to compensation prior to the hearing, shall receive as compensation for his services in each case a fee of Three Hundred Dollars ($300.00) for the first day plus One Hundred Fifty Dollars ($150.00) for each fractional half‑day thereafter. When more than one case arising out of the same transaction is heard at the same hearing or hearings, it shall be considered as one case insofar as compensation of the arbitrators is concerned. The members of a board shall not be entitled to receive their fees until after filing the report and award with the Clerk of Courts. The chairman of the arbitration panel shall be entitled to an additional One Hundred Dollars ($100.00) as compensation for the extra duties imposed upon him. Fees paid to arbitrators shall be assessed pursuant to Section 2711.21, O.R.C., and shall be taxed as costs, one‑half to plaintiff(s) and one‑half to defendant(s).

In addition to the deposit required by Rule 20 of this Court, plaintiff(s) at the time of filing of the Complaint shall deposit Five Hundred Dollars ($500.00) to guarantee the fees of the arbitrators, and within forty (40) days of the filing of the Complaint, defendant(s) shall deposit Five Hundred Dollars ($500.00) as a like guarantee; but, in no event shall the full deposit guarantee be deposited later that five (5) days before the date of the arbitration hearing. If there are multiple defendants and they cannot agree as to their proportionate share of the deposit, upon proper motion, the Judge to whom the case is assigned shall order the apportionment. When it appears proper, the Court may order additional deposits.

(b) In cases which require additional deposits for payment of arbitrators due to the arbitration lasting more than one day, the deposit to cover the additional costs shall be made not later than five (5) days after the completion of the arbitration.

(c) The chairman of the arbitration panel shall determine not less than four (4) days prior to, and not more than five (5) days following completion of the arbitration that the proper deposit has been made. If no deposit has been made by one or both sides, the chairman shall, through the Assignment Commissioner, schedule a show cause hearing before the judge to whom the case is assigned to determine why the plaintiff(s) and/or defendant(s) should not be held in contempt for failure to file the required deposit.

(d) Payment of fees shall be authorized by the judge to whom the case is assigned by Court Entry on a form to be provided by the Assignment Commissioner.

(e) In all cases in which the plaintiff(s) has filed a poverty affidavit or in which an insufficient deposit has been made to pay plaintiff(s)' portion of the compensation due the arbitrators and in which an award, settlement or judgment has been made in favor of the plaintiff(s), defendant(s) shall first pay to the Clerk of this Court out of such award, settlement or judgment, and before making any payment to the plaintiff(s), an amount equal to the undeposited plaintiff(s) portion of the compensation due the arbitrators. Otherwise, all compensation for arbitrators not paid from costs shall be paid upon proper warrant from the funds of Crawford County, Ohio.

34.15 Time Limit to Amend Pleadings

If the decision of the arbitrators is rejected pursuant to Section 2711.21 O.R.C., pleadings shall be amended and filed with the Clerk of Courts within thirty (30) days after filing of the report and award of the arbitrators. The parties making such pleadings amendments shall serve other parties pursuant to Ohio Rules of Civil Procedure.

(Adopted October 1, 1981; Amended November 23, 198l; Amended October 27, 1982)

34.16 Settlement

(a) Upon settlement of a case before the arbitration hearing, it is the responsibility of the parties to notify the Court's arbitrator and he in turn has the responsibility of notifying the other arbitrators.

(b) In an arbitration proceeding wherein the matter is settled within two weeks from the date of the hearing, the costs of the arbitrators for one day shall be taxed as costs.

(c) Regardless of when a case is settled, the Court's arbitrator shall receive $100.00 for the extra duties imposed upon him in the case, and this amount shall be taxed as costs. (Amended March 17, 1986)