.

Legal Updates for Health Care Liability

Ohio 8th District Court of Appeals Affirms Trial Court Ruling that Non-Economic Damages Cap on Catastrophic Injuries Is Unconstitutional as Applied

Legal Updates for Health Care Liability – February 25, 2025

February 25, 2025

by Gabriella M. Wittbrod

On January 30, 2025, the Ohio 8th District Court of Appeals held that Ohio’s medical malpractice non-economic damages cap is unconstitutional as applied to the plaintiff-appellee who permanently lost his eye as the result of an infection he contracted after cataract surgery. The statute, R.C. 2323.43(A)(3), states that the amount recoverable for non-economic loss in a medical claim shall not exceed $500,000 if the loss includes a permanent and substantial physical deformity or loss of bodily organ system or a permanent physical functional injury.

Paganini v. Cataract Eye Center of Cleveland, 2025-Ohio-275 (8th Dist.), involves a 90-year-old man who received routine cataract surgery from the defendants-appellants. The morning after his surgery, Mr. Paganini was experiencing some pain, blurry vision and floaters. He was seen by one of the defendants, Dr. Louis, who misdiagnosed him with a vitreous hemorrhage. Ultimately, Mr. Paganini was diagnosed with an infection that caused him to permanently lose his eye. 

He filed a lawsuit, claiming Dr. Louis failed to diagnose the infection and should have referred him to a retina specialist sooner. The trial court (Cuyahoga County Common Pleas, CV-22-971901) found in favor of Mr. Paganini and awarded him $1,487,500.00. After the verdict, Mr. Paganini requested the court not apply the R.C. 2323.43 damages cap on the grounds that the statute was unconstitutional as applied him.1 The trial court agreed, and the defendants appealed that decision. 

The trial court found that 2323.43(A) was unconstitutional as applied because it violates Ohio’s due process clause. Applying the rational-basis test, the 8th District Court considered whether the statute “bears a real and substantial relation to the public health, safety, morals, or general welfare of the public” and whether it is unreasonable or arbitrary. They cited Morris v. Savoy, 61 Ohio St.3d 684 (1991), where the Ohio Supreme Court held that a $200,000 cap on general damages in medical malpractice cases was unconstitutional because it did not bear a real and substantial relation to the general health and welfare of the public and because it was unreasonable and arbitrary. 

The 8th District Court also cited the General Assembly that enacted 2323.43, stating the statute was designed to “stabiliz[e] the cost of health care delivery by limiting the amount of compensatory damages representing noneconomic loss awards in medical malpractice actions.”2 Yet, the court was not convinced that the damages cap in 2323.43(A) has a significant impact on lowering the cost of health care in Ohio. The court stated: “The legislature has failed to demonstrate how capping noneconomic damages for a very small group of highly injured people, which includes Paganini, will have any impact on malpractice insurance rates beyond those provided by the cap on less severe injuries.” Therefore, the court held that for Mr. Paganini, 2323.43 does not bear a real and substantial relationship to malpractice insurance rates. 

In determining whether the statute is arbitrary and unreasonable, the 8th District applied the following analogy from Arbino v. Johnson & Johnson, 116 Ohio St.3d 468 (2007):

"If a man’s leg were cut off by a doctor in surgery and he sought non-economic for the catastrophic injury, the damages would be limited to $500,000 under R.C. 2323.43(A)(3). Yet, if the same man were to be run over and lose his leg by the same doctor on the way home from the hospital after a successful surgery, that man could recover all non-economic damages for his catastrophic injury because R.C. 2315.18 has no additional limit. This is not reasonable or logical. The exact same injury inflicted by the same person should yield the exact same damages, but under the current statutory scheme it does not."

The 8th District reasoned that R.C. 2323.43(A)(C) burdens those who are severely injured by medical malpractice by attempting to “provide some unrealized benefit to the general public.” Thus, the court held that the statute is arbitrary and unreasonable as applied to Mr. Paganini.

This ruling is currently controlling precedent for those defending actions in Cuyahoga County. It is anticipated that the defendants-appellants will appeal to the Ohio Supreme Court.

____________________________________________
 

[1] A party may challenge the constitutionality of a statute in two ways: facially or as applied. A facial challenge applies to every conceivable circumstance in which the statute would be valid. An as-applied challenge only applies to the specific set of circumstances in the current matter. An as-applied challenge does not render the statute unconstitutional as a whole. In Paganini, plaintiff-appellee asserts that the statute is unconstitutional as applied.

[2] The General Assembly also found: “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 8th District reasoned that the “reduced risk of large noneconomic damage awards is aimed at keeping medical malpractice insurers in Ohio and thus also keeping good doctors in Ohio. Obviously, the goal of lowering medical malpractice insurance rates is related to the general welfare of the public.” 

 

Legal Updates for Health Care Liability – February 25, 2025, has been prepared for our readers by Marshall Dennehey. It is solely intended to provide information on recent legal developments and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved.

Firm Highlights

Portrait of Carolyn Schweizer, with text below: Philadelphia Office Managing Attorney

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

Thought Leadership

Featured Conversations... Key Takeaways from A.M. Best’s Webinar on the Misuse Defense in Product Liability Claims, Featuring Michael Salvati

Michael Salvati, shareholder in our Philadelphia office, was a panelist for the April A.M. Best webinar, “The Misuse Defense: Strategic Approaches to Defending Product Liability Claims for Insurers.” During the program, Michael and his fellow panelists offered practical, jurisdiction‑specific guidance on how misuse and failure‑to‑warn theories intersect in modern product liability litigation. Michael emphasized the unique challenges these claims present—particularly in states like Pennsylvania, where evidentiary rules diverge sharply from those applied in many other jurisdictions. Failure to Warn as the “Flip Side” of Misuse Salvati explained that failure‑to‑warn allegations often arise as a direct counter to a misuse defense. As he noted, “If our misuse defense is that the plaintiff didn't use a product properly or safely, then the failure to warn claim is that we didn't tell them how to use it properly.” He emphasized that these claims can stem from either the absence of warnings or criticisms of existing warnings, such as insufficient specificity or lack of clarity about risks. Pennsylvania’s Unique Evidentiary Landscape One of Salvati’s most notable points was the stark difference in how Pennsylvania treats evidence of compliance with industry standards. He highlighted that Pennsylvania is “one of the only states…where that evidence is not admissible” in strict liability cases. Manufacturers cannot rely on compliance with ANSI, UL, ISO, or even federal safety standards to defend the product against a strict liability claim—because the focus is solely on the product itself, not the manufacturer’s conduct. Salvati acknowledged the challenge this creates for defense counsel and clients who expect such compliance to carry weight. Understanding the Three Defect Theories Salvati also walked through the three primary defect theories recognized in many jurisdictions: - Design defect – a flaw in the product’s intended design - Manufacturing defect – a deviation affecting a specific unit - Failure to warn – inadequate instructions or warnings He noted that warnings claims are increasingly significant and sometimes stand alone when design or manufacturing theories are weak. As he put it, plaintiffs often default to warnings claims because “the default position seems to be, ‘If I got hurt, there must be something wrong.’” Warranties and State‑by‑State Variations Salvati addressed how breach‑of‑warranty claims fit into the broader framework, explaining that implied warranties—such as merchantability—often overlap with strict liability in Pennsylvania. He emphasized the importance of understanding local nuances, as warranty law and admissibility rules vary widely across states. Looking Ahead: The Growing Importance of Warnings In his closing remarks, Salvati stressed that warnings should never be treated as an afterthought in product liability defense. He observed that warnings‑only claims are becoming more common and urged manufacturers and insurers to continually evaluate the clarity and completeness of their instructions and warnings. His takeaway: “We should always be talking about what are the instructions that come with our products…to bolster a misuse defense.” Listen to the complete webinar here: https://www3.ambest.com/conferences/events/eventregister.aspx?event_id=WEB1074.

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

Unanimous Verdict Obtained in a Medical Malpractice Matter in Bergen County, New Jersey

Result

Unanimous Verdict Obtained in a Medical Malpractice Matter in Bergen County, New Jersey

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Casey Alan Coyle Joins Marshall Dennehey's PA Appellate Practice as a Shareholder in Harrisburg and Philadelphia

News

Marshall Dennehey Expands Leading Pennsylvania Appellate Practice With Addition of Shareholder Casey Coyle

Thought Leadership

Legal Update for Special Education Law: Recent Positive Outcomes From the Group

Hearing Officer Confirms District Acted Appropriately Under IDEA and Section 504 William J. McPartland (Scranton) obtained a finding in favor of our client, a school district, on all issues following a due process hearing. The parent had filed a due process complaint alleging that the school district had breached its child find duty under the IDEA and Section 504, that the school district had discriminated against the student on the basis of disability in violation of Section 504, and that the school district had denied a free and appropriate public education to the student both by developing inadequate IEPs and via an actionable procedural violation.  Specifically, the student had received a Section 504 evaluation in October 2023, after a number of behavioral infractions culminating in a fight in September 2023, was identified as having anxiety and a sleep disorder, and received appropriate Section 504 accommodations. The student had never previously demonstrated signs of a learning disability, and the parent denied the school district permission to evaluate the student for special education needs in November 2023, and January 2024. The parent granted the district permission to evaluate the student in October 2024, after a private psychologist diagnosed the student with Attention Deficit Hyperactivity Disorder, possible Oppositional Defiance Disorder, a learning disorder, and anxiety. The school district issued a special education evaluation report in December 2024, finding that the student had an emotional disturbance and other health impairment, and an IEP providing an itinerant level of emotional support, as well as instruction in academics and social skills, was issued in January 2025, and amended in February, March, and April 2025. The student withdrew from the school district in April 2025, to attend a cyber charter school. The hearing officer determined that the school district had not violated its child find duty to the student in violation of either the IDEA or Section 504 where the district developed a Section 504 plan for the student within a month and a half of the parent’s first request for a Section 504 evaluation and where the parent repeatedly denied consent to conduct an IDEA evaluation of the student. The hearing officer noted that the student’s sporadic record of behavioral infractions prior to September 2023, did not suggest that the student had a disability prior to the parent’s initial request for an evaluation. The hearing officer further determined that no evidence had been produced to suggest that the student was discriminated against on the basis of disability in violation of Section 504. Additionally, the hearing officer determined that the IEP offered to the student was substantively adequate and that, to the extent the social and emotional programming offered by the school district was not received by the student, this resulted from the parent’s refusal to accept the same. The hearing officer finally determined that the school district did not commit an actionable procedural violation by delaying development of an IEP for the student where the parent repeatedly denied consent to evaluate the student. Court Dismisses Three of Four Claims Against School District Christopher J. Conrad and Daniel P. McGannon (Harrisburg) achieved a significant early victory on behalf of a school district client in. The team successfully obtained dismissal of three of the four claims asserted in the plaintiff’s amended complaint. The former district superintendent brought multiple claims arising out of his alleged “forced resignation,” including age discrimination under the ADEA, a Section 1983 Equal Protection claim, a Pennsylvania Whistleblower claim, and breach of contract. On behalf of the district, the defense team moved to dismiss the complaint in part, arguing: The plaintiff failed to plead sufficient facts to support a prima facie case of age discrimination. The equal protection claim was barred because the ADEA provides the exclusive federal remedy for age-based employment claims. The breach of contract claim could not stand because the underlying employment agreement had expired prior to the alleged breach. The court agreed, dismissing the ADEA, equal protection, and breach of contract claims in their entirety. As a result, only a single claim under the Pennsylvania Whistleblower Law remains pending. This outcome substantially narrows the scope of the litigation and positions the client for a more efficient defense moving forward.

Thought Leadership

Vendor Cyber Attack Compromises PII of More Than 3 Million Hunting and Fishing License Holders in Texas

The Texas Parks & Wildlife Department (TPWD) announced earlier this month that one of its vendors which handles the sale of state hunting and fishing licenses was the victim of a cybersecurity attack. The threat actor appears to have exfiltrated personal driver’s license information, passport numbers, email addresses, phone numbers and addresses of over 3 million hunting and fishing license holders.  The State Parks Department advised that the attack did not compromise social security numbers, dates of birth or financial information. Texas Cyber Command, the state’s new cybersecurity authority formed to protect critical infrastructure and coordinate threat responses across state and local government, reportedly assisted in detecting and containing the attack. TPWD has already set up free credit monitoring for those impacted through Kroll.  According to press reports, no specific group has yet been identified as the perpetrator of the theft. TPWD also advised that business has not been interrupted and license sales were continuing. This incident once again demonstrates that cybersecurity is only as strong as the weakest link in the supply chain. Businesses must prioritize security across their own environments and those of their vendors and contractors as well.

Congratulations to our 2026 Florida Super Lawyers & Rising Stars: Elizabeth Ferguson, A.C. Nash, Taylor Naughton, Sophia Philor, Amara Rodriguez

News

Marshall Dennehey Announces 2026 Florida Super Lawyers & Florida Rising Stars

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict.