Court of Appeals of Ohio, Eighth District, Cuyahoga
ALIJAH JONES, ET AL. PLAINTIFFS-APPELLANTS/ CROSS-APPELLEES
METROHEALTH MEDICAL CENTER, ET AL. DEFENDANTS-APPELLEES/ CROSS-APPELLANTS
See Vacated Opinion at 2016-Ohio-4858.]
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANTS/CROSS-APPELLEES Michael F. Becker
The Becker Law Firm Co., L.P.A. Paul W. Flowers Paul W.
Flowers Co., L.P.A. Pamela E. Pantages Nurenberg Paris Heller
ATTORNEYS FOR APPELLEES/CROSS-APPELLANTS For MetroHealth
Medical Center, et al. Leslie Moore Jenny Jason P. Ferrante
Marshall, Dennehey, Warner, Coleman & GogginSusan M.
Audey Irene Keyse-Walker Tucker Ellis L.L.P.
Ohio Hospital Association, et al. Anne Marie Sferra Bricker
& Eckler L.L.P.
BEFORE: Stewart, J., Kilbane, P.J., and Boyle, J.
J. STEWART, JUDGE.
A jury awarded plaintiff-appellant Stephanie Stewart, as
mother and next friend of her son, plaintiff-child Alijah
Jones, a combination of past and future economic damages, and
non-economic damages in the amount of $14.5 million on their
medical malpractice action against defendants-appellees
MetroHealth Medical Center and Steven Weight, M.D. In
post-trial proceedings, and over Stewart's objections,
the trial court ordered statutory offsets of collateral
sources for political subdivisions as required by R.C.
2744.05(B)(1) and damage caps on non-economic damages as
required by R.C. 2744.05(C)(1). The court's offsets
reduced the total award to $3.451 million.
In this appeal, Stewart argues that MetroHealth did not prove
its political subdivision status as a predicate for asserting
its right to statutory offsets. She also argues that because
there were no interrogatories submitted to the jury from
which it could be determined what amount of the damages award
was an amount for lost wages as opposed to loss of services,
the court had to speculate on the composition of the award
and could not have determined MetroHealth's right to an
offset to a reasonable degree of certainty. Stewart also
maintains that the court misconstrued the evidence relating
to both past and future economic damages and speculated on
the jury's intent to award damages only on a life care
plan to the exclusion of all other future damages components.
Finally, Stewart raises an as-applied constitutional
challenge to the enforcement of the collateral source
setoffs, as well as constitutional challenges based on due
process, equal protection, separation of powers, and the
right to a trial by jury.
MetroHealth raises a conditional cross-appeal, to be
considered only in the event our disposition of Stewart's
appeal reverses or modifies the court's order offsetting
economic damages or limiting non-economic damages.
We conclude that R.C. 2744.05 is constitutional in all
respects. We also conclude that the court did not err by
conducting a post-trial hearing to determine
MetroHealth's right to a statutory offset. We do,
however, conclude that the offset ordered by the court was
error. We reject in whole MetroHealth's cross-appeal.
The jury's verdict and the damages it awarded resulted
from a finding that Dr. Weight and MetroHealth failed to
adhere to the applicable standard of care when managing
Stewart's pregnancy and supervising the birth of her son.
Those failures resulted in the child being born at 25 weeks
by way of Caesarean section. The child suffers from cerebral
palsy, developmental delays, and visual impairment. The
medical experts agreed that Stewart's son will need
24-hour attendant care for the remainder of his life. The
jury specified the damages award as follows: to the child -
$500, 000 for past economic damages, $5 million in
non-economic damages, and $8 million for future economic
damages; to Stewart - $1 million for non-economic damages.
Before trial concluded, MetroHealth filed a motion asking the
court to conduct a post-verdict hearing to determine the
amount of any collateral benefits to be offset from a jury
award against it as required by R.C. 2744.05(B)(1) . In
post-trial motions, MetroHealth asked the court to enforce
the $250, 000 cap on non-economic damages pursuant to R.C.
2744.05(C)(1) and Stewart raised a constitutional challenge
to both R.C. 2744.05(B)(1) and 2744.05(C)(1).
R.C. 2744.05(B)(1) states that if a claimant is entitled to
receive or does receive benefits for injury or loss from
insurance or other sources, "the amount of the benefits
shall be deducted from any award against a political
subdivision recovered by that claimant." R.C.
2744.05(C)(1) states that "damages that arise from the
same cause of action, transaction or occurrence, or series of
transactions or occurrences and that do not represent the
actual loss of the person who is awarded the damages shall
not exceed two hundred fifty thousand dollars in favor of any
After conducting a post-trial hearing on MetroHealth's
motion, the court issued a written decision granting the
motion. Under authority of R.C. 2744.05(C)(1), the court
capped the child's $5 million non-economic damages award
at $250, 000 and likewise capped Stewart's $1 million
non-economic damages award at $250, 000.
The court considered two separate offsets for collateral
sources as required by R.C. 2744.05(B)(1): one for the
child's $500, 000 award for past economic damages; the
other for his $8 million award for future economic damages.
The court found, over Stewart's objection, that all of
the child's past medical bills were included in the award
for past economic damages. It reached this conclusion based
on uncontradicted testimony from an expert who testified that
neither Stewart nor the child had any out-of-pocket expenses
because the medical bills had been paid in full by Medicaid
and Social Security.
The court ordered an offset of future economic damages for
all medical expenses that the child would incur after his
20th birthday. It found it undisputed that the child would
qualify for Medicare on his 20th birthday because of his
father's disability, and that Medicare would pay all
future medical expenses from that point in time forward.
Looking only at the eight-year period between the child's
age at the time of the post-trial hearing (12 years old) and
his eligibility for Medicaid at age 20, the court concluded
that the child could obtain medical insurance under the
Affordable Care Act until he became eligible for Medicare.
The court determined that the child's maximum expenses
for the eight-year period would be $116, 000: a maximum $8,
000 per year premium for medical insurance and a yearly,
maximum out-of-pocket expense of $6, 500. The court concluded
that expenses allocated in the life care plan should be
offset in their entirety (excepting costs for transportation,
home care, and housing) and that the remaining amount should
be offset by 80 percent to account for what Medicare would
cover. After making these deductions, the court reduced the
child's award for future economic damages to $2, 951,
In her first assignment of error, Stewart complains that the
court erred by applying the damages cap and offset provisions
of R.C. 2744.05 to MetroHealth because no immunity was
available to attach to a political subdivision. Stewart
argues that sovereign immunity - the concept that the state
cannot commit a legal wrong and is immune from civil suit or
criminal prosecution - applies only to the state of Ohio and
not to political subdivisions. Noting that Section 16,
Article I, of the Ohio Constitution states that,
"[s]uits may be brought against the state, in such
courts and in such manner, as may be provided by law, "
Stewart maintains that the state waived immunity, but that
waiver does not apply to political subdivisions due to R.C.
2743.01(B), which defines "political subdivisions"
as municipal corporations and bodies politic "to which
the sovereign immunity of the state attaches." By
Stewart's reckoning, if the state has waived immunity
from suit, political subdivisions can have no immunity of
their own because their immunity is based on the state's
Stewart's argument is essentially taken from dicta in the
lead opinion in Butler v. Jordan, 92 Ohio St.3d 354,
750 N.E.2d 554 (2001). The proposition on which she relies is
In O'Brien v. Olmsted Falls, 8th Dist. Cuyahoga
Nos. 89966 and 90336, 2008-Ohio-2658, we reached this same
conclusion and noted the many appellate districts that have
"refused to declare R.C. [Chapter] 2744 unconstitutional
despite the plurality's pronouncement in
Butler." Id. at ¶ 26 (collecting cases).
Stewart has provided no compelling reason for us to depart
from our precedent and that of other appellate districts.
Stewart next argues that MetroHealth failed to offer evidence
at trial that it is a qualifying hospital under R.C. 2744.05.
She maintains that not every hospital owned by the government
is entitled to political subdivision status - that status
attaches only if the county hospital commission is appointed
pursuant to R.C. 339.14. According to Stewart, this was a
fact that MetroHealth had the burden of establishing at trial
and the court erred by accepting evidence from MetroHealth on
the issue in a post-trial hearing.
R.C. 2744.05 applies to actions against "a political
subdivision" to recover damages for injury, death, or
loss to person or property caused by an act or omission in
connection with a governmental or proprietary function. A
"political subdivision" is defined as, among other
things, "a county hospital commission appointed under
section 339.14 of the Revised Code[.]" R.C. 2744.01(F).
R.C. 339.14(A) allows a board of county commissioners to
appoint a hospital commission preparatory to establishing a
general hospital or hospital facility.
The question of whether a political subdivision is immune
from civil liability is a question of law. Conley v.
Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992);
Sampson v. Cuyahoga Metro. Hous. Auth., 188 Ohio
App.3d 250, 2010-Ohio-3415, 935 N.E.2d 98, ¶ 21 (8th
MetroHealth did not offer any evidence at trial in support of
its status as a political subdivision; however, we agree with
MetroHealth that it was not required to offer that evidence
during trial. The statutory deduction for collateral benefits
and application of damages caps is to be made by the trial
court in post-trial proceedings. This conclusion follows from
Buchman v. Bd. of Edn., 73 Ohio St.3d 260, 652
N.E.2d 952 (1995), where the third paragraph of the syllabus
states: "[p]ursuant to R.C. 2744.05(B), future
collateral benefits, to the extent they can be determined
with a reasonable degree of certainty, are deductible from
the jury's verdict against a political subdivision."
The court's "determination" cannot occur until
the jury has rendered a verdict including damages, so it is
necessarily conducted post-trial.
What is more, although non-binding, the lead opinion in
Buchmanunderstood that R.C. 2744.05
contemplated a post-trial proceeding in which evidence was
presented "both at trial and during the post-verdict
collateral benefits hearing * * *." Id. at 275.
Buchman did so by noting that R.C. 2744.05(B) does
not "abrogate that aspect of the collateral source rule
which provides that the 'receipt of [collateral] benefits
is not to be admitted in evidence, or otherwise disclosed to
the jury.'" Id. at 270, quoting Pryor
v. Webber, 23 Ohio St.2d 104, 109, 263 N.E.2d 235
We are persuaded that R.C. 2744.05(B) requires a post-trial
hearing in which the trial judge is authorized to hear
additional evidence. The text of R.C. 2744.05(B)(1) states
that if a claimant receives or is entitled to receive
benefits for injuries or loss, those benefits "shall be
disclosed to the court[.]" Although the statute does not
explicitly state who has the duty to disclose a
claimant's receipt of benefits, the claimant, as the
party in receipt of the benefits that might be subject to
offset, would be in the best position to make disclosure to
We also believe that R.C. 2744.05(B)(1) requires a post-trial
proceeding because mandatory offset implicates the collateral
source rule - the jury's knowledge that a political
subdivision might be entitled to a statutory damages
deduction could improperly affect its determination of
damages. What is more, evidence going to a political
subdivision's status at trial would be irrelevant to the
underlying action. For these reasons, we hold that R.C.
2744.05(B) sanctions a bifurcated proceeding where the court,
not the jury, decides the amount that must be offset from a
damage award against a political subdivision for any benefits
a claimant has received, or is entitled to receive, for a
loss or injury. The nature of this statutory process is such
that we reject Stewart's contention that the court erred
by hearing "new" evidence when ruling on
MetroHealth's motion for judgment notwithstanding the
verdict in which it raised for post-trial hearing its
entitlement to the R.C. 2744.05(B) offsets.
After the jury's verdict, MetroHealth asked the court to
grant it judgment notwithstanding the verdict under Civ.R.
50(B). A Civ.R. 50(B) motion for judgment notwithstanding the
verdict tests the legal adequacy of the evidence,
O'Day v. Webb, 29 Ohio St.2d 215, 280 N.E.2d 896
(1972), paragraph two of the syllabus, so it is based solely
on the evidence produced at trial. MetroHealth did, in fact,
raise substantive arguments in support of a judgment
notwithstanding the verdict, but in addition to those
arguments, it sought to invoke the court's post-trial
jurisdiction to commence the proceeding envisioned by R.C.
2744.05(B). It stated its intention to do so prior to trial.
We express no opinion on whether using a Civ.R. 50 motion for
judgment notwithstanding the verdict is the most appropriate
vehicle for seeking a statutory offset, but we acknowledge
that the motion invoked the court's post-trial
jurisdiction. And given that MetroHealth gave notice prior to
trial that it intended to seek an offset of damages and the
application of caps on non-economic damages, Stewart cannot
complain that she was surprised by MetroHealth's motion.
Regarding Stewart's argument against the court's
ruling that MetroHealth was a political subdivision for
purposes of R.C. Chapter 2744 immunity, the United States
Court of Appeals for the Sixth Circuit has recognized that
MetroHealth is a political subdivision. See Johnson v.
Ohio Supreme Court, 156 Fed.Appx. 779, 779 (6th
Cir.2005). And other county hospitals have been recognized as
political subdivisions. See, e.g., Hall v. Mem. Hosp. of
Union Cty., 3d Dist. Union No. 14-06-03, 2006-Ohio-4552,
¶ 12 (noting that parties did not dispute that Memorial
Hospital of Union County was a political subdivision).
Stewart's argument rests on the technicality that
MetroHealth did not prove its political subdivision status at
trial, not on any assertion that MetroHealth is not actually
a county hospital recognized as a political subdivision.
Having concluded that the court can hear additional evidence
at a R.C. 2744.05 post-trial hearing, the court did not err
by concluding, post-trial, that MetroHealth is a county
hospital and a political subdivision for purposes of R.C.
Stewart next argues that the court failed to adhere to the
strict Buchman standard of a "reasonable degree
of certainty" when determining the extent to which
future collateral benefits were deductible from the
jury's verdict. She concedes that the court stated its
findings in terms of a reasonable degree of certainty, but
claims that it could not possibly have done so within the
spirit of the law because the jury's award of future
economic damages was not tested by interrogatories that
apportioned specific categories of loss like lost wages or
lost services. In other words, Stewart argues that in the
absence of the jury breaking down how the damages were
apportioned, the court could only guess at what amount of the
general verdict was made up of damages covered by a
collateral source, belying the court's assertion that
those amounts subject to offset were proven to a reasonable
degree of certainty.
When a political subdivision is found liable to pay damages
caused by any injury resulting from an act or omission in
connection with a governmental or proprietary function, R.C.
2744.05(B)(1) permits the court to offset from those damages
future collateral benefits received by the claimant:
If a claimant receives or is entitled to receive benefits for
injuries or loss allegedly incurred from a policy or policies
of insurance or any other source, the benefits shall be
disclosed to the court, and the amount of the benefits shall
be deducted from any award against a political subdivision
recovered by that claimant. No insurer or other person is
entitled to bring an action under a subrogation provision in
an insurance or other contract against a political
subdivision with respect to those benefits.
is the political subdivision's burden to prove the extent
to which it is entitled to an offset under R.C. 2744.05(B),
" but "only to the extent that the loss for which
it compensates is actually included in the jury's
award." Buchman, 73 Ohio St.3d 260, 652 N.E.2d
952 (1995), at paragraphs four and five of the syllabus. Jury
interrogatories are not required to quantify the categories
of damages that make up the general verdict, although they
are typically the "most efficient and effective
method" of doing so. Id. at 270.
The court completely offset the $500, 000 award for past
economic damages under R.C. 2744.05(B)(1) because testimony
heard at the post-trial hearing showed that Stewart paid
nothing out-of-pocket for the child's medical bills.
Stewart argues that the court erred by relying on evidence
not heard by the jury when deciding that the $500, 000 award
of past economic damages must be offset in full because they
consisted of medical expenses that had been paid. She claims
that MetroHealth should not have been allowed to present a
registered nurse in the post-trial hearing to testify
regarding the amount of the medical bills and that those
bills were paid in full by Medicaid.
We reject Stewart's contention for the reasons previously
stated in our discussion of the scope of a R.C. 2744.05
hearing - the court had the ability to hear, post-trial,
additional evidence on the question of whether benefits
received by the plaintiff should be offset from any award
against a political subdivision.
In addition, we find no basis for questioning the amount of
past economic damages that were subject to offset. During
trial, Stewart offered into evidence an itemized statement of
medical bills for past care totaling $518, 633.75. Stewart
testified at trial that her son's total medical bills
were "a little over $500, 000" and in closing
argument, her counsel told the jury that past medical bills
were "somewhere around half a million dollars." The
jury awarded $500, 000. Although that amount did not match
exactly with the itemized medical bills, the award was
consistent with both Stewart's testimony and the amount
trial counsel asked the jury to award. Tellingly, Stewart
made no argument post-trial that the jury erred by failing to
award her past economic damages consistent with her itemized
medical bills, nor has she separately raised the issue on
Stewart now argues, however, that the court's decision to
offset the entire $500, 000 award for past economic damages
fails to take into account that some aspect of the award
might have included compensation for expenses incurred by
Stewart and two relatives for the transportation and care of
her son when taking him to out-of-town medical appointments.
Stewart offered no evidence to document transportation and
care expenses for her son and did not ask the jury to award
damages for expenditures she and other family members
incurred. The closing argument on the value of past economic
damages consisted of this: "[The child's] past
medical bills. [Stewart] told you they're somewhere
around half a million dollars." The court instructed the
jury that it could award damages based on, among things,
"expenditures" incurred as a result of the
child's injury and loss. Based on the evidence presented,
the court could be reasonably certain that the $500, 000
award encompassed all of the child's past economic
damages requested by Stewart.
Stewart also argues that MetroHealth waived its right to
offsets under R.C. 2744.05(B)(1) by failing to offer evidence
of what her son's medical providers accepted in full
payment of what they billed. Conceding that "the amount
of paid medical expenses versus the amount billed is
irrelevant to the set-off issue before this Court, "
appellant's brief at 16, Stewart nonetheless cites
Robinson v. Bates, 112 Ohio St.3d 17,
2006-Ohio-6362, 857 N.E.2d 1195, for the proposition that
MetroHealth had to challenge the cost of past medical care or
else waive its entitlement to offset.
In Robinson, the Supreme Court held that "the
collateral-source rule does not apply to bar evidence of the
amount accepted by a medical care provider from an insurer as
full payment for medical or hospital treatment."
Id. at ¶ 1. Stewart implies that MetroHealth
had the obligation to minimize the child's past economic
damages at trial, but Robinson says nothing about
that - it discussed what a jury "may" consider in
evaluating the reasonable value of medical expenses. In other
words, both the amount charged by medical providers and the
amount accepted by those providers are admissible into
evidence. Id. at paragraph one of the syllabus. The
question of what constitutes the reasonable value of medical
care provided is left to the jury. Id. at ¶ 18.
Nothing in Robinson places the obligation on a
defendant to offer evidence of the amount accepted in payment
of medical care. In the typical medical malpractice action,
the plaintiff will want to introduce evidence of the amount
actually charged (usually the higher amount) while the
defendant will seek to introduce evidence of the amount
accepted by the medical care provider (usually the lower
amount). That Stewart is now claiming that MetroHealth had
the obligation to offer evidence of the amount accepted in
full payment by the child's medical providers underscores
her failure to offer that evidence herself at trial. In fact,
her current argument is one that could have lowered the past
economic damages award.
The court correctly determined that the entire $500, 000
award for past economic damages consisted solely of medical
expenses. Stewart does not deny that those medical expenses
were paid in full by other sources. There is no question that
those payments were benefits for injuries or loss from
"any other source" under R.C. 2744.05(B)(1).
See Buchman, 73 Ohio St.3d 260, 652 N.E.2d 952
(1995), at paragraph two of the syllabus ("Social
Security and Medicare benefits are the type of collateral
source benefits contemplated by R.C. 2744.05(B).")
MetroHealth was entitled to a complete offset of the entire
$500, 000 award for past economic damages under R.C.
Future Economic Loss
At trial, Stewart's attorneys argued that her son's
future economic damages consisted of two parts: (1) lost
future income, and (2) expenses associated with a life care
plan. An economist testified at trial that the amount of the
child's lost income depended upon his level of education:
if Stewart's son attended college but did not earn a
four-year degree, he could have expected to earn between $2.3
million to $2.9 million over his statistical work life
expectancy; if he only obtained a high school diploma, he
could have expected to earn $1.7 million to $2.1 million over
his work life expectancy.
The experts also proposed a "life plan" for the
child's future care. The life plan was designed to
predict the child's medical needs for the rest of his
life specific to his brain injury and allocate the
appropriate financial resources to address those needs. The
plan considered the child's need for medical surveillance
(health maintenance), spasticity management (to relieve
tightness in his joints), therapeutic modalities, counseling,
case management, transportation, housing, equipment and
supplies, and attendant care. These needs were assessed based
on alternative scenarios for at-home and facility care. The
child's economist found the present value of at-home care
to be $4.3 million and facility care to be $8.2 million. The
jury awarded $8 million for future economic damages.
In its ruling on MetroHealth's motion to offset future
economic damages, the court held that the $8 million in
damages "correspond to the same categories of future
care recommended by Plaintiff's expert, [so] this court
will not be left to speculate as to the damages that must be
set off." On that basis, the court found that the entire
$8 million award for future damages was subject to offset
under R.C. 2744.05(B)(1).
The court's findings are erroneous for two reasons.
First, the court could not have concluded to a reasonable
degree of certainty that the $8 million award for future
economic damages was comprised of only the life care plan.
The court failed to consider the possibility that at least
some part of the $8 million award consisted of lost future
wages. Secondly, the trial court accepted a setoff
calculation in the life care plan that was incorrect.
Before addressing Stewart's arguments, we first address
MetroHealth's assertion that Stewart cannot argue that
the $8 million award may have contained a loss of future
income component because she limited the scope of her claims
for future economic damages "to what can be fixed or
what can be replaced with services or equipment or
medication." MetroHealth argues that loss of future
income is not something that can be "fixed" or
"replaced with services, equipment, or medication."
We reject this assertion. During closing argument, counsel
for the child asked the jury to award $8 million for the
costs of future care and $2 million in lost income. In no
sense did Stewart "limit" the request for damages
to the cost of future care only.
The $8 million award for future economic damages closely
corresponded to the dollar amount requested by Stewart under
"the same categories of future care recommended by
Plaintiffs expert[, ]" so we understand why the court
would conclude that the award consisted solely of damages for
the life care plan. But to accept the court's finding
that the award consisted entirely of future care forces the
conclusion that the jury completely ignored uncontradicted
evidence concerning the child's lost future income and
decided to award nothing for that loss. While that could have
been a possible outcome, it is just as likely that the $8
million award consisted of an amount for the life care plan
and lost future income. The two life care plan options
presented to the jury valued at-home care at $4.3 million and
facility care at $8.2 million. While counsel for Stewart
asked the jury to award $8 million for the life care plan,
the jury may have assigned a middle value to the life care
plan consistent with testimony by one of the child's
experts who testified that the child would not necessarily
have to enter facility care immediately, but was of the firm
opinion that the child would have to enter facility care at
some future point in time. That the possibility exists that
the jury could have determined the amount of damages in that
fashion takes the court's finding out of the realm of
what is reasonably certain for purposes of offset.
The uncertainty present in apportioning the $8 million award
is the result of there being no interrogatories to determine
the specific composition of the award for future economic
damages. Of course, neither party was required to submit
specific interrogatories, but a political subdivision like
MetroHealth that makes it known it intends to seek a
post-trial offset for collateral benefits chooses to forego
offering specific interrogatories at its own peril.
MetroHealth, as the party seeking an offset under R.C.