AMCNO Files an Amicus Brief with the Ohio Supreme Court on Important Tort-Reform Issue

One of the many ways the AMCNO furthers the interests of its medical-provider members is by making their voices known on important issues of tort reform that are before the Supreme Court of Ohio. One such tort-reform issue—caps on non-economic or “pain and suffering” damages—is right there at the top of the list. And right now before the Court is a case challenging the constitutionality of a damage-cap statute very similar to the statute that limits the same kind of damages in medical-malpractice cases.

The case is Simpkins v. Grace Brethren Church of Delaware, Ohio, and the AMCNO made its interests and positions known by filing an amicus “friend of the court” brief. The case involves the statute capping non-economic damages for general torts, R.C. 2315.18. The general tort in Simpkins—negligence against a church for promoting a pastor who ultimately raped 15-year-old Jessica Simpkins during a church “counseling” session—is similar to the medical-malpractice statute capping non-economic damages, R.C. 2323.43. Both statutes cap non-economic damages at the greater of $250,000 or an amount equal to three times the economic loss to a maximum of $350,000 for each plaintiff or a maximum of $500,000 for each occurrence. The jury in Simpkins awarded the plaintiff $3.5 million in total non-economic damages and $150,000 in economic damages. Although the plaintiff argued the damage-cap statute was unconstitutional “as applied” to her, the trial court disagreed and entered judgment for the capped amount: $500,000, which consisted of the $350,000 cap for non-economic loss (based on three times the $150,000 non-economic loss) and $150,000 for economic loss. The court found no reason for any different result based on its earlier decision in Arbino v. Johnson & Johnson, which upheld the constitutionality of the damage-cap statute “on its face” back in 2008. The Fifth District Court of Appeals agreed on that issue and affirmed that part of the trial court’s judgment. The Supreme Court of Ohio agreed to hear the issue of whether the damage-cap statute is unconstitutional “as applied” to minor victims of sexual assault.

The importance of this case is two-fold. The constitutionality of a statute is typically challenged in one of two ways: either “facially” or “as applied” to a certain set of facts. A successful “facial” challenge effectively invalidates the statute challenged for anyone under any set of facts. An “as applied” challenge, on the other hand, invalidates the statute only as that particular plaintiff under a particular set of facts. Recall that Arbino—the seminal case on the constitutionality of this statute and the basis upon which constitutionality is measured in Ohio—had already found the damage-cap statute constitutional “on its face.” Plaintiffs would have a hard time getting around that clear pronouncement of the law. Consequently, plaintiffs have been increasingly challenging the constitutionality of tort-reform statutes “as applied,” even though they appear to raise the very same arguments that would be raised in a facial challenge. Of course, the Supreme Court of the United States has not been entirely clear in its analyses of these kinds of challenges either, which has only furthered the confusion in the analyses there and in state courts. What the Academy did in its brief, however, was offer the Court a clearer path to analyzing “as applied” challenges, especially when the Court has already determined the same statute is constitutional “on its face.” As an alternative, it urged a very narrow carve-out for victims of sexual assault would limit Simpkins to its facts.

The analysis the Court ultimately adopts is also important for a second reason. Simpkins also argued that the “occurrence” language in the damage-cap statute should be read so that the caps apply to each act of rape—here, vaginal and oral—as they would be considered in the criminal context. Of concern to the medical community is that plaintiffs would use this same language from the medical-malpractice statute to say that each visit to a medical provider is an “occurrence” and thus each visit would be entitled to a separate damage cap. The AMCNO pointed out in its amicus brief the faulty reasoning for such a construction because that language speaks to multiple plaintiffs not multiple acts.

The Academy’s brief supporting the Church was only recently filed and Simpkins has the opportunity to respond with one more brief. The Court will likely hear argument sometime in the first half of 2016 and a decision would be forthcoming sometime after.

As always, the AMCNO is working hard to protect its members’ interests in upholding commonsense interpretations of tort-reform law, as that law is enacted by those we elect into the Ohio General Assembly. The Academy is happy to discuss this case in more detail with anyone interested. A link to the Academy’s brief can be found here.



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