The Ohio Supreme Court hears oral arguments Tuesday concerning the application of the state’s 2003 medical malpractice tort reform law in Paganini v. Cataract Eye Center of Cleveland — a matter of first impression expected to be widely watched by plaintiff and defense attorneys alike.
After denying the plaintiff’s motion to dismiss the appeal, the Court set oral arguments for Tuesday, Feb. 10 at 9 a.m. to help it review whether a Cuyahoga County judge erred in affirming a 94-year-old Marine veteran’s $1.5 million jury verdict. In doing so, the judge struck down, as applied to the plaintiff, a legislative damages cap for medical malpractice awards.
Following a routine cataracts surgery, a medical provider’s misdiagnosis left the plaintiff, John Paganini, partially blind and without an eye. Paganini filed suit, and a Cuyahoga County jury in 2021 awarded him $1.5 million in damages — a number beyond what defense attorneys argue is permitted under Ohio law.
In appealing Paganini’s verdict, however, the defendant medical providers seek to convince the justices that the lower courts should have applied a 2003 state law ordinarily applied in medical malpractice litigation, R.C. 2323.42(A)(3), to cap Paganini’s damages award.
Enacted in part by state lawmakers to reduce healthcare costs and rising malpractice insurance rates, R.C. 2323.42(A)(3) limits what patients injured by a medical provider’s negligence can recover in non-economic damages (e.g., pain and suffering) — namely, $500,000 for catastrophic injuries and $250,000 for non-catastrophic injuries.
But the lower courts determined that the statute, which would have reduced Paganini’s verdict by 66.4%, was unconstitutional as applied to him.
As a catastrophically injured, retired senior citizen, the lower courts held that R.C. 2323.42(A)(3) posed a particularly adverse effect upon the due process rights of Paganini and similarly situated patients whose “damages are disproportionately noneconomic due to lower claims for lost income.”
In their briefings, attorneys for the defendant-appellant medical providers cautioned the Court that such an interpretation of R.C. 2323.42(A)(3) threatens to eviscerate the state’s much-needed damages caps for all catastrophically injured patients, not only Paganini and similarly situated elderly plaintiffs.
Specifically, the appellant medical providers argued that Paganini’s case reads more “like a facial challenge” than an as-applied one.
But attorney Susan Petersen, Paganini’s counsel, said she and her client aren’t looking to invalidate the statute in its entirety.
“We’re not seeking to overturn tort reform,” Petersen said in an interview with Ohio Court Watch. “We’re just seeking justice for John.”
Defendant medical providers did not respond to requests for comment.
Petersen tried to dismiss the appeal in early December on grounds that a similar appeal from the Tenth District, Lyon v. Riverside Methodist Hospital, would be more appropriate since it poses both an as-applied and facial challenge to the noneconomic damages cap. The Court, however, rejected her motion.
Preparing for her first oral argument before the Ohio Supreme Court, Petersen said she’s questioned whether Paganini, at his ripe age of 94, is the “right person” to take the case.
But because of Paganini’s background as a veteran military sharpshooter — and his resolve to stick out the appeals process, which Petersen likened to “Marine combat” — Petersen said her client has proved otherwise.
“‘Wait a minute, that Constitution I served to protect — shouldn’t it protect me back?’ That’s why I recognize now that he’s the guy to bring this challenge,” Petersen said.
Paganini’s attorneys aren’t the only legal-minded brains on his support team. His grandson, Zach Paganini, is a third-year law student at The Ohio State University’s Moritz College of Law. Zach said he’ll be among the family members flanking the Ohio Supreme Court’s gallery to cheer on his grandpa, or “Popeye.”
Although he wants to see the Court affirm jury verdict, Zach said his Popeye’s biggest priority isn’t the money.
“It’s really just about making them pay and holding them accountable,” he said. “For that, I respect him.”
The parties’ oral arguments are scheduled to begin at 9 a.m.