Permanent Injury and the 'Catastrophic' Exception to Ohio's Damages Caps

Published May 17, 2018 · Injury Law Basics

A man in his forties loses his leg below the knee after a semi runs a red light. A young mother suffers a spinal-cord injury that leaves her needing help to dress, bathe, and get out of bed. A teenager is badly burned and scarred across her face and arms.

For families facing injuries like these, one of the most important questions in the case is one most people have never heard of: does Ohio's cap on pain-and-suffering damages apply, or does the injury fall within the exception for catastrophic harm? The answer can be the difference between a recovery measured in hundreds of thousands of dollars and one measured by what a jury believes the injury is truly worth.

The cap, in plain terms

Since April 7, 2005, R.C. 2315.18 has limited "noneconomic" damages in most Ohio injury cases. Noneconomic damages compensate for losses that do not come with a receipt: pain and suffering, loss of enjoyment of life, disfigurement, mental anguish, and similar harms. I gave an overview of the cap in a 2010 post on pain-and-suffering caps.

Under R.C. 2315.18(B)(2), noneconomic damages are limited to the greater of $250,000 or three times the plaintiff's economic loss, up to a maximum of $350,000 per plaintiff, or $500,000 per occurrence.

Three features of the law are worth knowing:

• Economic damages are not capped. R.C. 2315.18(B)(1) places no limit on medical expenses, lost wages, and other financial losses. That is one reason documenting the full economic loss, including lost earning capacity, is so important. See my post on lost wages and earning capacity.
• The jury is not told about the cap. Under R.C. 2315.18(F)(2), neither the judge nor the lawyers may tell jurors about it. The jury decides what the injury is worth, and the court applies the limit afterward.
• Some claims are outside the cap entirely. R.C. 2315.18(H) excludes wrongful-death actions, and claims against the State in the Court of Claims and against local governments under Chapter 2744 are governed by their own damages rules instead. Medical-malpractice claims are subject to a separate statute.

The exception: when there is no cap

R.C. 2315.18(B)(3) removes the cap entirely when the plaintiff's noneconomic losses are for either:

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

When the Ohio Supreme Court upheld the cap against a constitutional challenge in Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, it relied heavily on this exception. The Court reasoned that the statute avoided unfairly burdening the most seriously injured by "allowing for limitless noneconomic damages for those suffering catastrophic injuries." In other words, the exception is not a loophole. It is part of the reason the cap survived.

The exception is real, but it is demanding

The Supreme Court revisited the caps in December 2016 in Simpkins v. Grace Brethren Church of Delaware, Ohio, 149 Ohio St.3d 307, 2016-Ohio-8118, a case I discussed in a post on the Simpkins decision. A teenager's $3.65 million verdict for the psychological harm of sexual abuse was reduced under the cap, because her injuries, devastating as they were, were not the kind of physical injuries the exception lists.

The lead opinion in Simpkins also noted that the exceptions require "extreme qualifications," pointing to a federal case in which the loss of sight in one eye was found not to be the loss of a "bodily organ system" because the plaintiff could still partly see with the other eye. That is a sobering example, and it shows why the exception has to be proven carefully, not assumed. The lead opinion did leave open, for a future case, whether applying the cap to emotional injuries as severe as the listed physical injuries could ever be unconstitutional.

Injuries that may qualify

Every case turns on its own medical facts, but the exception is most often at issue in cases involving:

• Amputations and injuries that permanently destroy the use of an arm, hand, or leg.
• Spinal-cord injuries causing paralysis, loss of bowel or bladder control, or permanent loss of function. My post on spinal injuries after a crash discusses how these are documented.
• Severe traumatic brain injuries that leave a person unable to live independently.
• Serious burns and disfiguring scars that are permanent and substantial.
• Loss of an organ system, such as permanent loss of kidney function or complete loss of vision.

These are the injuries we see most often in truck crashes, high-speed collisions, and industrial incidents.

How the exception is proven

Because the exception depends on permanence and severity, the evidence has to be medical, specific, and forward-looking:

• Treating physicians' opinions that the injury is permanent, stated to a reasonable degree of medical certainty, and describing exactly what function has been lost.
• Specialists such as physiatrists, neurologists, and plastic surgeons who can explain the injury in terms that match the statute's language: deformity, loss of use, loss of an organ system, inability to care for oneself.
• Life-care plans that document the help the person will need for daily activities, such as bathing, dressing, eating, and mobility, for the rest of his or her life.
• Functional evidence from occupational and physical therapists, and from family members who now provide care.
• Photographs and video that let the jury see disfigurement and daily limitations for themselves.

Timing matters too. Under R.C. 2315.18(E)(2), any party may ask the court before trial to decide the nature of the injury for purposes of the cap. Insurers use that procedure to try to lock in the cap early. A plaintiff's case for the exception needs to be built from the start, not assembled on the eve of trial.

What this means for you

If you or someone in your family has suffered a permanent, life-altering injury, the value of the claim may depend on whether it fits within the catastrophic-injury exception. Insurers know that, and their early settlement offers often assume the cap applies. Do not accept that assumption without having your medical evidence reviewed by someone who knows what the statute requires. Our personal injury practice works with treating doctors and specialists to document permanent injuries thoroughly.