2006 Ohio Revised Code - 2323.43. Limits on compensatory damages representing noneconomic loss.

§ 2323.43. Limits on compensatory damages representing noneconomic loss.
 

(A)  In a civil action upon a medical, dental, optometric, or chiropractic claim to recover damages for injury, death, or loss to person or property, all of the following apply: 

(1) There shall not be any limitation on compensatory damages that represent the economic loss of the person who is awarded the damages in the civil action. 

(2) Except as otherwise provided in division (A)(3) of this section, the amount of compensatory damages that represents damages for noneconomic loss that is recoverable in a civil action under this section to recover damages for injury, death, or loss to person or property shall not exceed the greater of two hundred fifty thousand dollars or an amount that is equal to three times the plaintiff's economic loss, as determined by the trier of fact, to a maximum of three hundred fifty thousand dollars for each plaintiff or a maximum of five hundred thousand dollars for each occurrence. 

(3) The amount recoverable for noneconomic loss in a civil action under this section may exceed the amount described in division (A)(2) of this section but shall not exceed five hundred thousand dollars for each plaintiff or one million dollars for each occurrence if the noneconomic losses of the plaintiff are for either of the following: 

(a) Permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system; 

(b) Permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life sustaining activities. 

(B)  If a trial is conducted in a civil action upon a medical, dental, optometric, or chiropractic claim to recover damages for injury, death, or loss to person or property and a plaintiff prevails with respect to that claim, the court in a nonjury trial shall make findings of fact, and the jury in a jury trial shall return a general verdict accompanied by answers to interrogatories, that shall specify all of the following: 

(1) The total compensatory damages recoverable by the plaintiff; 

(2) The portion of the total compensatory damages that represents damages for economic loss; 

(3) The portion of the total compensatory damages that represents damages for noneconomic loss. 

(C) (1)  After the trier of fact in a civil action upon a medical, dental, optometric, or chiropractic claim to recover damages for injury, death, or loss to person or property complies with division (B) of this section, the court shall enter a judgment in favor of the plaintiff for compensatory damages for economic loss in the amount determined pursuant to division (B)(2) of this section, and, subject to division (D)(1) of this section, the court shall enter a judgment in favor of the plaintiff for compensatory damages for noneconomic loss. In no event shall a judgment for compensatory damages for noneconomic loss exceed the maximum recoverable amount that represents damages for noneconomic loss as provided in divisions (A)(2) and (3) of this section. Division (A) of this section shall be applied in a jury trial only after the jury has made its factual findings and determination as to the damages. 

(2) Prior to the trial in the civil action, any party may seek summary judgment with respect to the nature of the alleged injury or loss to person or property, seeking a determination of the damages as described in division (A)(2) or (3) of this section. 

(D) (1)  A court of common pleas has no jurisdiction to enter judgment on an award of compensatory damages for noneconomic loss in excess of the limits set forth in this section. 

(2) If the trier of fact is a jury, the court shall not instruct the jury with respect to the limit on compensatory damages for noneconomic loss described in divisions (A)(2) and (3) of this section, and neither counsel for any party nor a witness shall inform the jury or potential jurors of that limit. 

(E)  Any excess amount of compensatory damages for noneconomic loss that is greater than the applicable amount specified in division (A)(2) or (3) of this section shall not be reallocated to any other tortfeasor beyond the amount of compensatory damages that that tortfeasor would otherwise be responsible for under the laws of this state. 

(F) (1)  If pursuant to a contingency fee agreement between an attorney and a plaintiff in a civil action upon a medical claim, dental claim, optometric claim, or chiropractic claim, the amount of the attorney's fees exceed the applicable amount of the limits on compensatory damages for noneconomic loss as provided in division (A)(2) or (3) of this section, the attorney shall make an application in the probate court of the county in which the civil action was commenced or in which the settlement was entered. The application shall contain a statement of facts, including the amount to be allocated to the settlement of the claim, the amount of the settlement or judgment that represents the compensatory damages for economic loss and noneconomic loss, the relevant provision in the contingency fee agreement, and the dollar amount of the attorney's fees under the contingency fee agreement. The application shall include the proposed distribution of the amount of the judgment or settlement. 

(2) The attorney shall give written notice of the hearing and a copy of the application to all interested persons who have not waived notice of the hearing. Notwithstanding the waivers and consents of the interested persons, the probate court shall retain jurisdiction over the settlement, allocation, and distribution of the claim. 

(3) The application shall state the arrangements, if any, that have been made with respect to the attorney's fees. The attorney's fees shall be subject to the approval of the probate court. 

(G)  This section does not apply to any of the following: 

(1) Civil actions upon a medical, dental, optometric, or chiropractic claim that are brought against the state in the court of claims, including, but not limited to, those actions in which a state university or college is a defendant and to which division (B)(3) of section 3345.40 of the Revised Code applies; 

(2) Civil actions upon a medical, dental, optometric, or chiropractic claim that are brought against political subdivisions of this state and that are commenced under or are subject to Chapter 2744. of the Revised Code. Division (C) of section 2744.05 of the Revised Code applies to recoverable damages in those actions; 

(3) Wrongful death actions brought pursuant to Chapter 2125. of the Revised Code. 

(H)  As used in this section: 

(1) "Economic loss" means any of the following types of pecuniary harm: 

(a) All wages, salaries, or other compensation lost as a result of an injury, death, or loss to person or property that is a subject of a civil action upon a medical, dental, optometric, or chiropractic claim; 

(b) All expenditures for medical care or treatment, rehabilitation services, or other care, treatment, services, products, or accommodations as a result of an injury, death, or loss to person or property that is a subject of a civil action upon a medical, dental, optometric, or chiropractic claim; 

(c) Any other expenditures incurred as a result of an injury, death, or loss to person or property that is a subject of a civil action upon a medical, dental, optometric, or chiropractic claim, other than attorney's fees incurred in connection with that action. 

(2) "Medical claim, dental claim," "optometric claim," and "chiropractic claim" have the same meanings as in section 2305.113 [2305.11.3] of the Revised Code. 

(3) "Noneconomic loss" means nonpecuniary harm that results from an injury, death, or loss to person or property that is a subject of a civil action upon a medical, dental, optometric, or chiropractic claim, including, but not limited to, pain and suffering, loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education, disfigurement, mental anguish, and any other intangible loss. 

(4) "Trier of fact" means the jury or, in a nonjury action, the court. 
 

HISTORY: 149 v S 281. Eff 4-11-2003.
 

Not analogous to former RC § 2323.43 (RS § 5350; S&C 1117; 51 v 57, § 553; GC § 11627; Bureau of Code Revision, 10-1-53; 125 v 903), repealed 133 v H 1201, § 1, eff 7-1-71.

The provisions of §§ 3, 5, 6, 7, and 8 of SB 281 (149 v  - ) read as follows: 

SECTION 3. The General Assembly makes the following statement of findings and intent: 

(A) The General Assembly finds: 

(1) Medical malpractice litigation represents an increasing danger to the availability and quality of health care in Ohio. 

(2) The number of medical malpractice claims resulting in payments to plaintiffs has remained relatively constant. However, the average award to plaintiffs has risen dramatically. Payments to plaintiffs at or exceeding one million dollars have doubled in the past three years. 

(3) This state has a rational and legitimate state interest in stabilizing the cost of health care delivery by limiting the amount of compensatory damages representing noneconomic loss awards in medical malpractice actions. The overall cost of health care to the consumer has been driven up by the fact that malpractice litigation causes health care providers to over prescribe, over treat, and over test their patients. The General Assembly bases its finding on this state interest upon the following evidence:

(a) The Superintendent of Insurance has stated that medical malpractice insurers' investments are not to blame for the increase in medical malpractice insurance premiums. The vast majority of these insurers' assets are invested in bonds and other fixed income investments, not in stocks. Investment income declined by less than one per cent from 1996 to 2001. 

(b) Many medical malpractice insurers left the Ohio market as they faced increasing losses, largely as a consequence of rapidly rising compensatory damages and noneconomic loss awards in medical malpractice actions. The Department of Insurance reports that only six admitted carriers continue to actively write coverage in Ohio at this time. 

(c) As insurers have left the market, physicians, hospitals, and other health care practitioners have had an increasingly difficult time finding affordable medical malpractice insurance. Some health care practitioners, including a large number of specialists, have been forced out of the practice of medicine altogether as a consequence. The Ohio State Medical Association reports fifteen per cent of Ohio's physicians are considering or have already relocated their practices due to rising medical malpractice insurance costs. 

(d) As stated in testimony provided by Lawrence E. Smarr, President of the Physician Insurers Association of America, medical malpractice costs have increased even while sixty-one per cent of all claims filed against individual practitioners are dropped or dismissed by the court and even while the defendants win eighty per cent of all claims that are continued through trial to verdict. 

(e) The U.S. Department of Health and Human Services published a report in 2002 stating that health care practitioners in states with effective caps on noneconomic damages are experiencing premium increases in the twelve to fifteen per cent range, as compared to an average forty-four per cent increase in states that do not cap noneconomic damage awards. 

(4)(a) The distinction among claimants with a permanent physical functional loss strikes a reasonable balance between potential plaintiffs and defendants in consideration of the intent of an award for noneconomic losses, while treating similar plaintiffs equally, acknowledging that such distinctions do not limit the award of actual economic damages. 

(b) The limits on compensatory damages representing noneconomic loss as specified in section 2323.43 of the Revised Code, as enacted by this act, are based on testimony asking the members of the General Assembly to recognize these distinctions and stating that the cap amounts are similar to caps on awards adopted by other states. 

(c) In Evans v. State (Sup. Ct. Alaska, August 30, 2002), No. 5618, 2002 Alas. LEXIS 135, one of the issues addressed by the Alaska Supreme Court is whether the caps on noneconomic and punitive damages constitute a violation of the right to a trial by jury granted by the Alaska Constitution and the Seventh Amendment to the United States Constitution. The Court held that the damages caps do not violate the constitutional right to a trial by jury and agreed with the reasoning by the Third Circuit Court of Appeals in Davis v. Omitowoju (3d Cir. 1989), 883 F.2d 1155, which interpreted the Seventh Amendment to the United States Constitution to allow damages caps. The Alaska Supreme Court relied on the holding that a damages cap did not intrude on the jury's fact-finding function, because the cap was a "policy decision" applied after the jury's determination and did not constitute a re-examination of the factual question of damages. Evans v. State, supra, at pp. 11-12.

It is the intent of the General Assembly that as a matter of policy, the limits on compensatory damages for noneconomic loss are applied after a jury's determination of the factual question of damages. 

(d) A report from the U.S. Department of Health and Human Services, Update on the Medical Litigation Crisis: Not the Result of the Insurance Cycle (Sept. 25, 2002), states that among states that have adopted a two hundred fifty thousand dollar cap on noneconomic damages are: Indiana, Colorado, California, Nebraska, Utah, and Montana. These states, as well as others that have imposed meaningful caps on noneconomic damages, report significantly lower increases in average premium rates than those states without caps. Limits on damages have been upheld by other state supreme courts, as in Fein v. Permanente Medical Group (1985), 38 Cal.3d 137, 695 P.2d 665, Johnson v. St. Vincent Hospital, Inc. (1980), 273 Ind. 374, 404 N.E.2d 585, and, Evans v. State, supra.

(5) This legislation does not affect the award of economic damages, such as for lost wages and medical care. 

(6)(a) That a statute of repose on medical, dental, optometric, and chiropractic claims strikes a rational balance between the rights of prospective claimants and the rights of hospitals and health care practitioners; 

(b) Over time, the availability of relevant evidence pertaining to an incident and the availability of witnesses knowledgeable with respect to the diagnosis, care, or treatment of a prospective claimant becomes problematic. 

(c) The maintenance of records and other documentation related to the delivery of medical services, for a period of time in excess of the time period presented in the statute of repose, presents an unacceptable burden to hospitals and health care practitioners. 

(d) Over time, the standards of care pertaining to various health care services may change dramatically due to advances being made in health care, science, and technology, thereby making it difficult for expert witnesses and triers of fact to discern the standard of care relevant to the point in time when the relevant health care services were delivered. 

(e) This legislation precludes unfair and unconstitutional aspects of state litigation but does not affect timely medical malpractice actions brought to redress legitimate grievances. 

(f) This legislation addresses the aspects of current division (B) of section 2305.11 of the Revised Code, the application of which was found by the Ohio Supreme Court to be unconstitutional in Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54. In Dunn v. St. Francis Hospital, Inc. (Del. 1982), 401 Atl.2d 77, the Delaware Supreme Court found the Delaware three-year statute of repose constitutional as not violative of the Delaware Constitution's open courts provision.

(B) In consideration of these findings, the General Assembly declares its intent to accomplish all of the following by the enactment of this act: 

(1) To stem the exodus of medical malpractice insurers from the Ohio market; 

(2) To increase the availability of medical malpractice insurance to Ohio's hospitals, physicians, and other health care practitioners, thus ensuring the availability of quality health care for the citizens of this state; 

(3) To continue to hold negligent health care providers accountable for their actions; 

(4) To preserve the right of patients to seek legal recourse for medical malpractice. 

(5)(a) To abrogate the common law collateral source rules as adopted by the Ohio Supreme Court in Pryor v. Webber (1970), 23 Ohio St.2d 104, and reaffirmed in Sorrell v. Thevenir (1994), 69 Ohio St.3d 415;

(b) To address the aspects of former section 2317.45 of the Revised Code that the Supreme Court found in Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, May v. Tandy Corp. (1994), 69 Ohio St.3d 415, and DePew v. Ogella (1994), 69 Ohio St.3d 610, to be unconstitutional as being violative of the equal protection provision of Section 2, the right to a trial by jury provision of Section 5, and the due course of law, right to a remedy, and open court provision of Section 16 of Article I of the Ohio Constitution.

(C)(1) The Ohio General Assembly respectfully requests the Ohio Supreme Court to uphold this intent in the courts of Ohio, to reconsider its holding on damage caps in State v. Sheward (1999), Ohio St.3d 451, to reconsider its holding on the deductibility of collateral source benefits in Sorrel v. Thevenir (1994), 69 Ohio St.3d 415, and to reconsider its holding on statutes of repose in Sedar v. Knowlton Constr. Co. (1990), 49 Ohio St.3d 193, thereby providing health care practitioners with access to affordable medical malpractice insurance and maintaining the provision of quality health care in Ohio.

(2) The General Assembly acknowledges the Court's authority in prescribing rules governing practice and procedure in the courts of this state as provided by Section 5 of Article IV of the Ohio Constitution. 

SECTION 5. (A)(1) In recognition of the statewide concern over the rising cost of medical malpractice insurance and the difficulty that health care practitioners have in locating affordable medical malpractice insurance, the Superintendent of Insurance shall study the feasibility of a Patient Compensation Fund to cover medical malpractice claims, including, but not limited to the following: 

(a) The financial responsibility limits for providers that are covered in Am. Sub. Senate Bill 281 of the 124th General Assembly, and the Patient Compensation Fund; 

(b) The identification of methods of funding, excluding any tax on consumers; 

(c) The operation and administration of such a fund; 

(d) The participation requirements. 

(2) The Superintendent shall submit a copy of a preliminary report by March 3, 2003, with a final report by May 1, 2003, to the Governor, the Speaker of the Ohio House of Representatives, the President of the Ohio Senate, and the chairpersons of the committees of the General Assembly with jurisdiction over issues relating to medical malpractice liability. The final report shall include the Superintendent's recommendations for implementing the Patient's Compensation Fund. 

(B) The Superintendent of Insurance shall make recommendations for the operation of a Patient's Compensation Fund designed to assist health care practitioners in satisfying medical malpractice awards above designated amounts. The purpose of the study shall be to consider the feasibility of the Fund satisfying that portion of the awards for damages for noneconomic loss under division (A)(2) of section 2323.43 of the Revised Code resulting from medical malpractice claims against hospitals, physicians, and other health care practitioners in excess of three hundred fifty thousand dollars to a maximum of five hundred thousand dollars. The recommendations shall also provide for the satisfaction of the awards for damages for noneconomic loss under division (A)(3) of section 2323.43 of the Revised Code resulting from medical malpractice claims against hospitals, physicians, and other health care practitioners in excess of five hundred thousand dollars to a maximum of one million dollars. 

(C) The Superintendent's recommendations shall include sources of revenues for the Fund and a mechanism for making, and the assessment of, claims against the Fund. 

SECTION 6. (A) Sections 1751.67, 2117.06, 2305.11, 2305.15, 2305.234, 2317.02, 2317.54, 2323.56, 2711.21, 2711.22, 2711.23, 2711.24, 2743.02, 2743.43, 2919.16, 3923.63, 3923.64, 3929.71, and 5111.018 of the Revised Code, as amended by this act, and sections 2303.23, 2305.113, 2323.41, 2323.42, 2323.43, and 2323.55 of the Revised Code, as enacted by this act, apply to civil actions upon a medical claim, dental claim, optometric claim, or chiropractic claim in which the act or omission that constitutes the alleged basis of the claim occurs on or after the effective date of this act. 

(B) As used in this section, "medical claim," "dental claim," "optometric claim," and "chiropractic claim" have the same meanings as in section 2305.113 of the Revised Code. 

SECTION 7. If any item of law that constitutes the whole or part of a section of law contained in this act, or if any application of any item of law that constitutes the whole or part of a section of law contained in this act, is held invalid, the invalidity does not affect other items of law or applications of items of law that can be given effect without the invalid item of law or application. To this end, the items of law of which the sections contained in this act are composed, and their applications, are independent and severable. 

SECTION 8. If any item of law that constitutes the whole or part of a section of law contained in this act, or if any application of any item of law contained in this act, is held to be preempted by federal law, the preemption of the item of law or its application does not affect other items of law or applications that can be given affect. The items of law of which the sections of this act are composed, and their applications, are independent and severable.