Ohio Supreme Court Approves Pain and Suffering Cap

The Ohio Supreme Court has concluded that Ohio’s statutory caps on damage awards in personal injury lawsuits are constitutional in a 5-2 decision today.

Like most states with caps, the cap applies to pain and suffering damages and other intangible injuries. The Ohio cap is particularly restrictive: $350,000 unless the injured person lost a limb or bodily organ. Ohio also has a punitive damages rule that restricts punitive damages to twice the amount of damages awarded as the judge or jury awards in compensation for the plaintiff’s injuries, minus any reductions because of the cap on pain and suffering damage. (Actually, the formula is a little more complicated than that, but this is the gist.)

Here, the plaintiff filed a product liability case against Johnson & Johnson claiming she suffered blood clots due to having used the Ortho Evra Birth Control Patch, a hormonal birth-control patch.   [Editor’s note: we saw the same thing with NuvaRing).

Dissent from Ohio Cap Opinion

Two justices dissented. Justices Paul E. Pfeifer wrote, “Today is a day of fulfilled expectations for insurance companies and manufacturers of defective, dangerous or toxic products that cause injury to someone in Ohio… But this is a sad day for our Constitution and this court. And this is a tragic day for Ohioans, who no longer have any assurance that their Constitution protects the rights they cherish.”  Well said.

Interestingly, Justice Pfeifer also noted that in deciding to cap damages, the Ohio legislature relied on studies that were not “peer-reviewed” or “published in a scholarly journal.” While this might not be a reason to ignore the legislative intent, because presumably, the legislature can decide what they decide for any reason they want, it underscores the inaccurate data that insurance companies and big business used to rig or construe the data in such a way to create a crisis when one does not exist.

My Dissent

If I wrote a dissenting opinion on the constitutionality of the damages cap in Ohio, this would be the full text of my dissent:

“The right of trial by jury shall be inviolate.” Article I, Section 5 of the Constitution of the State of Ohio.

Ohio Malpractice Cap Language

Before we go, let me give you the Ohio malpractice cap statute in its most relevant part. The emphasis is mine:

2323.43 Compensatory damages for economic and noneconomic loss

(A) In a civil action upon a medical, dental, optometric, or chiropractic claim to recover damages for injury, death, or loss to person or property, all of the following apply:

(1) There shall not be any limitation on compensatory damages that represent the economic loss of the person awarded the damages in the civil action.

(2) Except as otherwise provided in division (A)(3) of this section, the amount of compensatory damages that represents damages for noneconomic loss that is recoverable in a civil action under this section to recover damages for injury, death, or loss to person or property shall not exceed the greater of two hundred fifty thousand dollars or an amount that is equal to three times the plaintiff’s economic loss, as determined by the trier of fact, to a maximum of three hundred fifty thousand dollars for each plaintiff or a maximum of five hundred thousand dollars for each occurrence.

(3) The amount recoverable for noneconomic loss in a civil action under this section may exceed the amount described in division (A)(2) of this section but shall not exceed five hundred thousand dollars for each plaintiff or one million dollars for each occurrence if the noneconomic losses of the plaintiff are for either of the following:

(a) Permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system;
(b) Permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activities.

(B) If a trial is conducted in a civil action upon a medical, dental, optometric, or chiropractic claim to recover damages for injury, death, or loss to person or property and a plaintiff prevails with respect to that claim, the court in a nonjury trial shall make findings of fact, and the jury in a jury trial shall return a general verdict accompanied by answers to interrogatories, that shall specify all of the following:

(1) The total compensatory damages recoverable by the plaintiff;

(2) The portion of the total compensatory damages that represents damages for economic loss;

(3) The portion of the total compensatory damages that represents damages for noneconomic loss.

Ohio Malpractice Lawsuits Impossible If No Economic Damages

In 2023, we get tons of calls for Ohio medical malpractice cases because there are few lawyers handling those cases in Ohio any longer.  We reject all but the most severe injury or wrongful death claims because… the cap makes bringing any malpractice cases without massive economic damages impossible.

• A look at verdict and settlement statistics in Ohio
• A look at damages in Ohio
• A look at Musgrave v. Breg, an Ohio case that looked at the retroactivity of the cap