Ohio's Caps on Pain-and-Suffering Damages, Explained

Published November 29, 2010 · Injury Law Basics

A semi crosses the center line on U.S. 35 and a Xenia woman spends four months learning to walk again. Her medical bills come to $180,000, and a jury that hears what her life has been like for the past year might well decide her pain and suffering are worth a million dollars. Under a law that has been on the books in Ohio since 2005, she will not collect that million, no matter what the jury says.

Most injured people have never heard of the cap until it is applied to their case. This post explains what the cap is, how the numbers work, who is exempt from it, and why it changes the way a serious-injury case has to be built from the first day.

Two kinds of damages

Ohio law divides the damages in an injury case into two categories, and the cap applies to only one of them.

Economic loss is money you can count: lost wages and lost earning capacity, medical and rehabilitation expenses, and other out-of-pocket costs caused by the injury. R.C. 2315.18 places no limit on economic damages. If a jury finds your past and future medical care will cost $2 million, the judgment is $2 million.

Noneconomic loss is everything else: pain and suffering, mental anguish, disfigurement, loss of companionship with a spouse, and the loss of the ability to enjoy life. These are real losses, often the largest a seriously injured person suffers, but they do not come with a receipt. The cap applies to these.

The numbers

Under R.C. 2315.18(B)(2), as enacted by Senate Bill 80 in the 125th General Assembly and effective April 7, 2005, noneconomic damages in a tort action are limited to the greater of:

• $250,000, or
• three times the plaintiff's economic loss,

subject to a maximum of $350,000 per plaintiff and $500,000 per occurrence (that is, for all plaintiffs hurt in the same event).

Working through the Xenia example: her economic loss is $180,000. Three times that is $540,000, but the per-plaintiff ceiling is $350,000, so her noneconomic damages are capped at $350,000. If her economic loss had been $50,000, three times that is $150,000, which is less than $250,000, so she would get the $250,000 floor. The jury is not told about the cap. It returns its verdict, and the judge reduces it afterward.

The exceptions: catastrophic injuries

The General Assembly exempted the most severe injuries from the cap entirely. Under R.C. 2315.18(B)(3), there is no limit on noneconomic damages if the plaintiff suffered either of the following:

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

A paralyzed person, an amputee, a burn victim with permanent disfigurement, or a person whose kidneys or bowel no longer function falls on the uncapped side of the line. A person with chronic back pain, a healed fracture, or a surgically repaired knee generally does not, however real and lasting the pain.

Whether an injury qualifies for an exception is one of the most contested questions in serious-injury litigation today, and it is usually a question of medical proof. The difference between "permanent and substantial physical deformity" and "a bad scar" is argued with surgeons, photographs, and expert testimony, and it can be the difference between a $350,000 recovery and a seven-figure one.

Cases the cap does not reach

The statute carves out several categories by its own terms:

• Wrongful death. R.C. 2315.18 states that it does not apply to wrongful-death actions under Chapter 2125. When a family brings a claim for the death of a loved one, the survivors' loss of companionship and the decedent's conscious pain are not subject to this cap.
• Claims against the state in the Court of Claims. The statute excludes those actions. The multi-million-dollar Court of Claims decision I wrote about in September, involving an inmate paralyzed in a prison football game, is a reminder that noneconomic awards against the state are evaluated under different rules.
• Certain claims against political subdivisions under Chapter 2744, which has its own limitations.

Medical-negligence claims are governed by a separate cap statute with a similar structure, and punitive damages are limited separately. Each of these is its own subject.

The Supreme Court upheld the cap

Plaintiffs' lawyers across Ohio hoped the cap would meet the fate of earlier tort-reform efforts the Supreme Court had struck down. It did not. In Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, decided December 27, 2007, the court held that R.C. 2315.18 does not violate the right to a jury trial, due process, the right to a remedy, the open-courts guarantee, or equal protection. The court emphasized that economic damages remain unlimited and that catastrophically injured plaintiffs are exempt, and it deferred to the legislature's judgment about the remaining cases.

As of today, then, the cap is the law, and every serious-injury case in Ohio has to be evaluated with it in mind.

How the cap changes the way a case is built

Because noneconomic damages are limited and economic damages are not, the cap shifts the center of gravity in a serious case toward proof of economic loss and toward the catastrophic-injury exceptions. In practice that means:

1. Documenting every dollar of economic loss. Future medical care, future lost earnings, household services the injured person can no longer perform, vocational retraining: each of these is uncapped and each has to be proven with records and experts. Note, too, that the "three times economic loss" formula means that every dollar of proven economic loss can raise the noneconomic cap as well, up to the $350,000 ceiling. How medical bills are presented matters here, a point I discussed in Billed vs. Paid.
2. Developing the exception evidence early. If there is any basis to argue permanent deformity, loss of use of a limb, or loss of an organ system, the medical proof for it has to be gathered deliberately, not left to chance.
3. Identifying every plaintiff. The cap is per plaintiff. A spouse's loss-of-consortium claim is a separate claim with its own cap, which the statute's per-occurrence limit then constrains.
4. Finding every defendant and every policy. In a commercial truck case, for example, the carrier, the driver, the shipper, and the maintenance contractor may each bear fault, and the available insurance usually dwarfs what is available in a typical car crash.

What this means for you

If you have been seriously hurt, the cap does not mean your case is not worth pursuing. It means the case has to be built around the parts of the law that remain unlimited: economic damages, the catastrophic-injury exceptions, and wrongful-death claims. That is detailed, expert-driven work, and it goes better when it starts early, while the medical picture is still developing and the records can be shaped by the right questions.