Cleveland Appeals Court Refuses to Cut a Malpractice Jury Award by Two-Thirds

Published February 13, 2025 · Ohio Appeals Courts

A man goes in for routine cataract surgery. The next morning he is seeing black spots, his vision is fogging, and his eye hurts. He calls the doctor's office, goes in, and is sent home with the wrong diagnosis. Within weeks he has permanently lost the sight in that eye, and eventually the eye itself.

A Cuyahoga County jury heard that story and awarded him $1,487,500 for his pain, suffering, and loss. Ohio's medical-malpractice damages cap would have cut that award to $500,000. On January 30, 2025, the Eighth District Court of Appeals in Cleveland said no. The decision is Paganini v. Cataract Eye Center of Cleveland, 2025-Ohio-275 (8th Dist.), and it matters for every Ohioan with a catastrophic injury caused by a medical mistake.

What happened

According to the opinion, John Paganini had cataract surgery on December 9, 2021. Early the next morning he called his surgeon's after-hours line to report black dots in his vision that he had not seen before. At his appointment later that morning he reported aching around the eye, blurry vision, and "a ton of floaters." The surgeon saw signs he later admitted at trial could indicate endophthalmitis, an aggressive infection inside the eye that can destroy vision and, ultimately, the eye. He diagnosed bleeding in the eye instead and sent Mr. Paganini home.

The next day the pain was worse. A retina specialist diagnosed acute endophthalmitis and started antibiotics, and Mr. Paganini had surgery to treat the infection. It was too late. By late December his retina had detached and the vision loss was permanent. He later lost the eye, which became permanently deformed and will need to be replaced with a prosthetic.

The jury found the eye practice and surgeon negligent, in part because important information about how his symptoms progressed that morning never reached the surgeon before the exam. It also found that his injury was the loss of a "bodily organ system" and a "substantial physical deformity."

How Ohio's malpractice cap works

To understand why the appeal mattered, you need to know that Ohio has two different caps on "noneconomic" damages, meaning compensation for pain, suffering, disfigurement, lost enjoyment of life, and other harms that do not come with a receipt.

For most injury cases, such as car crashes, truck wrecks, and falls, R.C. 2315.18 caps noneconomic damages, but R.C. 2315.18(B)(3) removes the cap entirely for the most catastrophic injuries: permanent and substantial physical deformity, loss of use of a limb, loss of a bodily organ system, or a permanent injury that leaves someone unable to care for themselves. The Supreme Court of Ohio upheld that statute on its face in Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, and relied on that exception to do it, noting that the law allows "limitless noneconomic damages for those suffering catastrophic injuries."

For medical-malpractice cases, a different statute applies. R.C. 2323.43(A)(2) caps noneconomic damages for most patients at $250,000 to $350,000. R.C. 2323.43(A)(3) then covers the same catastrophic categories, but instead of removing the cap, it raises it only to $500,000 per patient.

Put plainly: if a careless driver causes you to lose a limb, Ohio law allows a jury's full award for your suffering. If a careless surgeon causes the same loss, the statute says you get no more than $500,000 for it, no matter what the jury decides. In Mr. Paganini's case, the cap would have erased about two-thirds of the award; the court put it at 66.4 percent.

What the court decided

The trial court refused to apply the cap, and the Eighth District affirmed in a unanimous opinion by Judge Eileen T. Gallagher. The court described the question as one of first impression for it, and it treated Mr. Paganini's challenge as an "as-applied" challenge, meaning he argued the cap was unconstitutional as applied to his particular situation rather than in every case.

The court applied the Ohio Constitution's guarantee that every injured person "shall have remedy by due course of law," and it asked two questions: does the cap bear a real and substantial relation to the public welfare, and is it unreasonable or arbitrary?

On the first question, the court accepted that lowering malpractice insurance costs is a legitimate public goal. But it found nothing in the legislative record showing how capping awards for this very small group of catastrophically injured patients actually lowers insurance rates, beyond what the lower cap on less severe injuries already does. It pointed to a state insurance report showing that only 30 Ohio malpractice verdicts between 2005 and 2019 exceeded the caps at all.

On the second question, the court relied on Morris v. Savoy, 61 Ohio St.3d 684 (1991), in which the Supreme Court of Ohio struck down an earlier $200,000 malpractice cap. Morris held that it is "irrational and arbitrary" to make the most severely injured malpractice victims alone pay for a benefit meant for the general public. The Eighth District concluded that the $500,000 catastrophic-injury cap does the same thing, and that Mr. Paganini had proven by clear and convincing evidence that applying it to him violated his constitutional rights. The full verdict stands.

The court also rejected the defendants' request to throw out the verdict or order a new trial based on the jury's written answers to special questions, holding those answers were consistent with the expert testimony and the verdict.

What this decision does and does not do

This is an important ruling, and it should be read carefully. It is a decision of one appellate district. It does not strike R.C. 2323.43 from the books, and other Ohio appeals courts are not bound by it. The defendants may seek review in the Supreme Court of Ohio, and as of today that court has not decided whether the malpractice cap can constitutionally be applied to catastrophic injuries.

It builds on a trend. In Brandt v. Pompa, 171 Ohio St.3d 693, 2022-Ohio-4525, the Supreme Court held the general damages cap unconstitutional as applied to a survivor of childhood sexual abuse, which we discussed in our 2023 post on that decision. Courts are increasingly willing to look at what a cap actually does to a real person. For the long history of how these caps have reduced Ohio verdicts, see our earlier post on a $1 million Cincinnati malpractice verdict cut to $250,000.

What this means for you

An as-applied challenge is won or lost on evidence. Mr. Paganini's lawyers raised the constitutional issue in the original complaint, the jury made specific findings that his injury fit the catastrophic categories, and the challenge was presented to the trial court before judgment was entered. None of that happens by accident.

If you or a family member suffered a permanent injury after a missed diagnosis, a surgical error, or a delayed referral:

• Act quickly. Medical claims in Ohio carry shorter deadlines than crash cases. Our guide chapter on why you should talk to a lawyer early explains why waiting costs more in these cases than almost any other.
• Document the permanence. Whether an injury is a "loss of a bodily organ system" or a "permanent and substantial physical deformity" is a medical and legal question that must be built into the record from the start. Our chapter on what your case is worth explains how caps and their exceptions work.
• Do not assume the cap is the last word. It may be, or it may not, depending on the injury and the evidence.