How to avoid caps on pain and suffering in Ohio medical malpractice cases.

As most people know, when you sue a doctor or hospital for their negligence, you collect money for economic damages such as lost wages and medical bills, past and future. You also collect for what is called non-economic damages such as physical pain and emotional suffering. Depending on the type of case, the amount of money that should be collected for emotional pain and suffering can be in the millions or tens of millions of dollars, depending on the injury that was caused by the doctor's negligence.

For example, if a doctor fails to monitor a baby in eutero and as a result, the baby ends up with cerebral palsy from lack of oxygen, then the pain and suffering that the child will suffer over the course of its life may be worth millions of dollars. Likewise, if a doctor fails to properly evaluate a heart attack victim and as a result the heart suffers damage that could have been avoided with drugs, the quality of the patient's life may be severely decreased and the emotional pain and suffering could be worth 7 figures or even 8 figures. Same with stroke victims who have not been properly evaluated.

The problem with Ohio law is that no matter how much a jury awards for pain and suffering damages in a non wrongful death medical malpractice case, the law limits the actual recovery to only a maximum of $1,000,000.00 in the best circumstance. Ohio Rev. Code Ann. § 2323.43. This may sound like a lot of money, but go back to our examples above. A child who suffers brain damage from cerebral palsy caused by a doctor's failure to monitor may be awarded $10,000,000.00 for pain and suffering but unknown to the jury the judge must reduce it to $500,000.00. Wow, how unfair is that. Same potential result in the failure to monitor examples above of the heart attack and stroke. Pain and suffering often makes up the largest part of a medical malpractice case, and to remove it almost entirely in larger value cases is clearly unfair. To not even let the jury know it is being done is especially cruel.

All is not lost in these types of failure to monitor cases, because there is a little known federal law called the Emergency Medical Treatment & Labor Act (EMTALA). EMTALA was originally created to stop hospitals from dumping patients who could not pay for services.

EMTALA cases have no caps on pain and suffering so in a failure to evaluate or monitor case, you can collect the entire amount of pain and suffering awarded by the jury. This can mean additional millions or tens of millions of dollars to the injured person and their spouse under a loss of consortium claim.

EMTALA is a federal statute that places two obligations on hospitals. These obligations are that the emergency room or any part of the hospital that evaluates patients must use all available medical equipment and specialists to do a medical screening examination looking for an emergency medical condition, including labor. If an emergency medical condition is found, then the hospital must stabilize the patient no matter how long it takes, and if they cannot stabilize, send to a hospital that can stabilize.

Therefore, any hospital with advanced trauma center or burn center cannot turn down transfers from less technologically advanced hospitals if they have capacity to take the patient.

Failure to follow the exactly wording of the statute results in a violation, and if injury results from the violation, like it did in the above examples, then a private cause of action arises and there are not caps on pain and suffering. You even do not have to prove negligence under EMTALA, just that the letter of the statutory law was violated.

Now, EMTALA claims only arise when a hospital fails to do a properly medical evaluate, or fails to stabilize a person once a emergency medical condition is found. But when these facts arise, you can sue under both state malpractice law and federal EMTALA law, thus avoiding caps on pain and suffering and collecting the full amount awarded by the jury. Even without a jury, settlements can be much higher because the hospital knows there are no caps on pain and suffering.