A win is a win, right? Well, when that “win” comes in the form of reducing a million dollar judgment to $250,000 through Ohio's tort reform damage caps structure, when it might have been $175,000, it might not feel that way.
In Guiliani v. Shehata, 2014-Ohio-4240, the plaintiff in a failure-to-diagnose type medical malpractice action won big at trial, to the tune of a one million dollar verdict for noneconomic damages. In the process, the jury apportioned liability between the doctor and the plaintiff, 70/30 respectively. The trial court reduced the judgment to $700,000 and then applied the $250,000 damage cap pursuant to R.C. 2323.43(A)(2). Both the doctor and the plaintiff disagreed with the trial court’s application of the damages cap.
The plaintiff argued that he sustained a catastrophic injury, entitling him recover $500,000 pursuant to R.C. 2323.43(A)(3). The plaintiff claimed that he presented expert testimony demonstrating he had to suffer a pelvic exteneration and removal of his bladder and a large part of his colon, so the trial court could determine the catastrophic injury damage cap applied. The First District held that the plaintiff’s failure to submit a specific interrogatory, enabling the jury to make the finding, that the plaintiff suffered a catastrophic injury, precluded access to the higher damage cap. The jury is required to make the finding, not the trial court after the judgment is rendered. This is an important consideration in any trial where R.C. 2323.43 damage caps are at play.
After winning on the damage cap issue, the defendant asked for too much, claiming that the apportionment of liability, 70/30 should be applied to the damage cap of $250,000 and therefore, the judgment should have been even more limited. The First District disagreed, in short, holding that if the legislature intended the comparative-negligence statute to apply after the damage-cap statute was imposed, it would have explicitly provided for that in the statutes. The court affirmed the trial court’s decision to apply the cap to the $700,000 damage award, meaning the plaintiff recovered the maximum amount of $250,000 under the damage cap statute.
Guiliani, is a cautionary tale for trial practice in handling the jury finding of a catastrophic injury. The jury must make that determination and a specific interrogatory will be necessary. Beyond that, it is a good resource in applying the damage caps secondarily, ensuring that plaintiffs receive as much of their award as is possible under the limited recovery afforded by Ohio’s tort reform statutes. Sometimes the good comes hiddin within the bad.
