A $1 Million Cincinnati Malpractice Verdict Cut to $250,000: How Ohio's Damage Caps Really Work (Guiliani v. Shehata)

Published October 21, 2014 · Ohio Appeals Courts

A radiologist's report flagged a suspicious mass next to a Cincinnati man's colon and recommended follow-up. The doctor who ordered the scan never told him. Seven months later the mass was "huge," and the surgery to save his life removed his bladder, his ureters, his rectum, and much of his colon, leaving him with a permanent colostomy and urostomy. A Hamilton County jury awarded him $1 million for his pain and suffering. His judgment was $250,000. On September 26, the First District Court of Appeals explained why, and the explanation holds two lessons every medical-malpractice plaintiff in Ohio needs to understand.

The facts

According to Guiliani v. Shehata, 2014-Ohio-4240 (1st Dist.), Philip Guiliani was 60 when he was diagnosed with prostate cancer in 2009. He chose brachytherapy, the implantation of radioactive seeds, and was referred to Dr. Wagih Shehata, a radiation oncologist. As part of the September 8, 2009 seed-implant procedure, Dr. Shehata ordered a CT scan. The radiologist who read it reported a low-density mass in the mid-pelvis abutting the colon and suggested further evaluation.

Dr. Shehata never presented those results to Mr. Guiliani. He testified he never received the report, though a hospital technician testified that someone using his password had accessed it a week later. Dr. Shehata's position was that the scan was ordered to map seed placement, not to diagnose, so he was not interested in the radiologist's interpretation.

Over the following months Mr. Guiliani developed abdominal symptoms. A CT scan in April 2010 showed a large pelvic mass involving the sigmoid colon, with involvement of the kidneys, ureters, and bladder. His colorectal surgeon testified that the tumor had grown from "tiny to huge" in those seven months, and that if he had been referred after the September scan, the tumor could have been removed without the loss of his bladder and rectum. We wrote in an earlier post about how Ohio treats a missed cancer diagnosis as a real, compensable injury; this case shows what the delay can cost.

The defense had its own story. Mr. Guiliani had delayed a recommended prostate biopsy by 18 months, had not returned for a follow-up colonoscopy after a polyp was found years earlier, and had seen a primary-care doctor for rectal bleeding in August 2009 who said he set up a colonoscopy that never happened.

The verdict, and the two reductions

The jury found Dr. Shehata negligent and found that his negligence proximately caused injury. It awarded $1,000,000 in noneconomic damages. It also found Mr. Guiliani 30 percent at fault and Dr. Shehata 70 percent.

The trial court then did two things. First, under Ohio's comparative-negligence statute, R.C. 2315.35, it reduced the award by Mr. Guiliani's 30 percent share, to $700,000. We explained how comparative fault works in our post on being partly at fault. Second, it applied Ohio's cap on noneconomic damages in medical claims, R.C. 2323.43, and entered judgment for $250,000.

Lesson one: the medical cap is its own statute, with two tiers

Readers who followed our post last month on the Simpkins church-abuse verdict know that R.C. 2315.18 caps noneconomic damages in general injury cases. Medical claims against doctors, hospitals, and nurses are governed by a different statute, R.C. 2323.43, enacted in 2003. The structure is similar but the numbers and the mechanics differ.

Under R.C. 2323.43(A)(2), noneconomic damages in a medical claim are limited to the greater of $250,000 or three times the plaintiff's economic damages, up to $350,000 per plaintiff and $500,000 per occurrence. Under R.C. 2323.43(A)(3), a higher tier applies if the plaintiff suffered a permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system, or a permanent physical injury that prevents independent self-care. In that case the cap rises to $500,000 per plaintiff and $1 million per occurrence. Unlike the general statute, the medical cap never goes away entirely; even a catastrophic injury is capped.

Because the trial court excluded Mr. Guiliani's out-of-state medical bills, his economic damages did not lift the basic cap above $250,000.

Lesson two: you must ask the jury the catastrophic-injury question

Mr. Guiliani argued on appeal that he plainly qualified for the higher $500,000 tier. He had lost his bladder and rectum, which he argued was the loss of a bodily organ system, and he lives with two external bags, which he argued is a permanent and substantial physical deformity. He contended the judge should have applied the higher cap on that evidence.

The First District disagreed, not because his injuries were not catastrophic, but because the jury had never been asked. R.C. 2323.43(C)(1) says the cap is applied in a jury trial "only after the jury has made its factual findings," and the court held that whether a plaintiff's injury falls within the catastrophic category is one of those factual findings. Because Mr. Guiliani's lawyers did not submit a jury interrogatory asking the jury to decide whether he suffered a permanent and substantial physical deformity or lost a bodily organ system, the judge had no finding to work with and could apply only the basic $250,000 cap.

In plain terms, a man who lost his bladder and rectum was held to the lowest cap because a question was not put to the jury. That is a $250,000 difference on the face of the verdict. It is a brutal practice point, and it is why the lawyer who tries a medical case must know the cap statute as well as the medicine.

The one argument the plaintiff won

Dr. Shehata cross-appealed, arguing the trial court should have applied the cap first and then subtracted the 30 percent, which would have produced a judgment of $175,000 instead of $250,000. The First District rejected that, holding for the first time in Ohio that comparative negligence is applied to the jury's full verdict before the cap. The reasoning is that the statute refers to the damages "recoverable" as found by the jury, that the jury is forbidden from being told about the cap, and that if the legislature wanted the cap applied first it could have said so. That holding helps every partially-at-fault medical-malpractice plaintiff in Ohio, and it is the one piece of this decision that moved in the right direction.

The court also upheld the trial court's decision to let a board-certified medical oncologist testify about the standard of care for a radiation oncologist, reaffirming that an expert need not practice the identical specialty if the fields overlap. We discussed Ohio's expert requirements in our post on informed consent and expert proof.

What this means for you

If you or a family member was harmed by a delayed diagnosis, a missed test result, or a surgical error, understand that Ohio has already decided, by statute, how much of your suffering the law will pay for. Within those limits, the difference between the basic cap and the higher cap, and between a cap applied before or after comparative fault, is measured in hundreds of thousands of dollars. Those differences are won or lost by preparation: proving economic damages with admissible expert testimony, requesting the right jury interrogatories, and anticipating the defense's comparative-fault story about what the patient did or did not do.

The insurance companies that defend doctors know every word of R.C. 2323.43. The patient's lawyer has to know it better. Learn more about how we approach serious injury and malpractice claims.