Jones v. MetroHealth Med. Ctr.

2016 Ohio 4858

• Court: Ohio Court of Appeals
• Decided: July 7, 2016
• Docket: 102916
• Status: Published

Opinion

[Cite as Jones v. MetroHealth Med. Ctr., 2016-Ohio-4858.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102916

ALIJAH JONES, ET AL. PLAINTIFFS-APPELLANTS/ CROSS-APPELLEES

vs.

METROHEALTH MEDICAL CENTER, ET AL. DEFENDANTS-APPELLEES/ CROSS-APPELLANTS

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-11-757131

BEFORE: Stewart, J., Kilbane, P.J., and Boyle, J.

RELEASED AND JOURNALIZED: July 7, 2016 ATTORNEYS FOR APPELLANTS/CROSS-APPELLEES

Michael F. Becker Pamela E. Pantages The Becker Law Firm Co., L.P.A. 134 Middle Avenue Elyria, OH 44035

Paul W. Flowers Paul W. Flowers Co., L.P.A. Terminal Tower, Suite 1910 50 Public Square Cleveland, OH 44113

ATTORNEYS FOR APPELLEES/CROSS-APPELLANTS

For MetroHealth Medical Center, et al.

Leslie Moore Jenny Jason P. Ferrante Marshall, Dennehey, Warner, Coleman & Goggin 127 Public Square, Suite 3510 Cleveland, OH 44114

Susan M. Audey Irene Keyse-Walker Tucker Ellis L.L.P. 950 Main Avenue, Suite 1100 Cleveland, OH 44113

For Ohio Hospital Association, et al.

Anne Marie Sferra Bricker & Eckler L.L.P. 100 South Third Street Columbus, OH 43215 Sean McGlone Ohio Hospital Association, Inc. 155 East Broad Street, Suite 301 Columbus, OH 43215 MELODY J. STEWART, J.:

{¶1} 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). This reduced the total award to $3.451 million.

{¶2} 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.

{¶3} 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.

{¶4} 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 and the amount of that offset. We do, however,

conclude that the amount of offset ordered by the court was not determined to a

reasonable degree of certainty because the court failed to consider the extent to which the

jury’s award may have included damages for future loss of income. We reject in whole

MetroHealth’s cross-appeal.

I. The Appeal

{¶5} 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.

{¶6} 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).

{¶7} 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 one person.”

{¶8} 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.

{¶9} 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.

{¶10} 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 $2,951,291. A. Statutory Offset

{¶11} 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 immunity.

{¶12} 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 not law.

{¶13} 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.

{¶14} 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.1

{¶15} 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.

{¶16} 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 Dist.).

Stewart offers no argument on appeal that MetroHealth is not a political subdivision for 1

purposes of R.C. 2744.05. {¶17} 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.

{¶18} What is more, although non-binding, the lead opinion in Buchman 2

understood 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 (1970).

{¶19} 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.

Only the syllabus to Buchman received a majority of votes, so nothing contained in the 2

Buchman opinion is binding law. 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 the court.

{¶20} 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 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.

{¶21} 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.

{¶22} 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. 2744.05.

{¶23} 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.

{¶24} 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. “It 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.

B. Past Economic Loss

{¶25} 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.

{¶26} 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. {¶27} 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

appeal.

{¶28} 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.

{¶29} 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.

{¶30} 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.

{¶31} 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.

{¶32} 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.

{¶33} 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 of past economic damages under R.C.

2744.05(B)(1).

C. Future Economic Loss

{¶34} 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.

{¶35} 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.

{¶36} 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).

{¶37} The court erred because it could not have concluded to a reasonable degree

of certainty that the $8 million award for future economic damages comprised 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.

{¶38} Before addressing Stewart’s argument, 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.

{¶39} 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 Plaintiff’s 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 medical care forces the

conclusion that the jury 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 plans 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.

{¶40} 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 request more 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.

2744.05(B)(1), had the burden of showing its entitlement to offset. Buchman, 73 Ohio

St.3d 260, 652 N.E.2d 952 (1995), at paragraph five of the syllabus.

{¶41} Stewart argues that MetroHealth’s failure to offer specific interrogatories in

this case means that no offset whatsoever can be made. We implicitly rejected this

argument in Jontony v. Colegrove, 2012-Ohio-5846, 984 N.E.2d 368 (8th Dist.), where

we considered a similar case in which a political subdivision sought an R.C.

2744.05(B)(1) offset of a $250,000 award for combined “lost wages and loss of services.”

The political subdivision sought offset based on Jontony’s receiving or being entitled to receive Social Security disability benefits that would exceed the jury award. Noting that

the damages award did not apportion the specific amount allocated to either lost wages or

loss of services, we held that the general jury award “fail[ed] to sufficiently separate lost

wages and loss of services to determine what amount the jury apportioned for ‘lost

wages’ and ‘loss of services.’” Id. at ¶ 50. We agreed, however, that evidence offered at

trial allowed the trial court to determine lost wages from lost services given evidence that

Jontony’s expert testified to a specific dollar amount of lost services suffered by Jontony.

Id. at ¶ 53. That evidence permitted the trial court to deduct those lost services from the

overall award, with the remaining amount constituting lost wages that could be offset by

Social Security disability benefits. Id. at ¶ 54.

{¶42} Jontony dispels Stewart’s contention that the failure to offer specific

interrogatories means that nothing can be offset from the award of future economic

damages, although it does support her contention that a failure to submit interrogatories

reducing the constituent parts of an economic damages award to specific dollar numbers

can be an impediment to offset. We found that Jontony offered proof of “loss of

services” — a category of loss that was not subject to offset — in the amount of

$210,141. Id. at ¶ 52. We thus deducted that amount from the $250,000 award to find

that the remainder — $48,849 — could be attributed to lost wages and subject to offset.

Id. at ¶ 55.

{¶43} Left unstated in Jontony was the amount of damages requested for loss of

income in that case. This is important because a stated amount could have affected the offset. For example, suppose that in addition to the $210,000 requested for loss of

services, Jontony asked for an additional award of $200,000 for loss of income, yet the

amount awarded totaled $250,000. In this example, it could not be said with the same

degree of reasonable certainty that the award for loss of services made up the bulk of the

total damages award.

{¶44} That hypothetical is similar to the fact pattern currently before us. We

resolve the dilemma by considering the extraordinary statutory purpose behind R.C.

2744.05(B)(1) in conjunction with the consequences attendant to a political subdivision’s

failure to inquire into the specific composition of a damages award. R.C. 2744.05(B)(1)

is extraordinary because the right to offset cannot be waived — if a claimant receives or

is entitled to receive benefits for injuries or loss from any 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.” (Emphasis added.) But the

right to offset is contingent on there being an amount for a collateral benefit “actually

included in the jury’s award.” Buchman, 73 Ohio St.3d 260, 652 N.E.2d 952 (1995), at

paragraph four of the syllabus.

{¶45} The award of $8 million for future economic damages could have contained,

at a minimum, $1.7 million for loss of future income. That is the lowest amount for loss

of income suggested by the child’s economist. Stewart argues that the child should be

entitled to a finding that the jury could have awarded as much as $2.9 million for loss of

future income: that figure representing the highest amount for loss of income in the range set forth by the economist. As we previously noted, at trial, counsel for the child asked

the jury to award $8 million for the life care plan and $2 million for lost wages. Counsel

also stated to the jury that it could award more or less than the amounts requested.

{¶46} The parties agree that the child will not receive any qualifying benefits for

loss of future income, so any amount that the jury could have awarded for lost wages is

not subject to any setoff. We conclude that the court should have excluded at least $1.7

million in lost future income from its consideration of the amount to be offset pursuant to

R.C. 2744.05(B)(1). Stewart’s expert offered a range of possible income loss, and $1.7

million was the minimum amount offered into evidence. We come to the decision to

exclude this amount from offset for two reasons: first MetroHealth did not contest any of

the expert’s calculations for lost future income; second, excluding from offset the

minimum amount that the jury could have awarded based on the evidence best effectuates

the statutory intent behind R.C. 2744.05(B)(1) to preserve fiscal resources.

{¶47} Of course the jury could have awarded more than the $1.7 million based on

the expert testimony. But it also could have awarded less based on counsel’s proviso that

the jury could award more or less than the amount requested. Without the benefit of jury

interrogatories, neither Stewart nor MetroHealth can be heard to complain that the figure

at which we have arrived should be any different. We therefore exclude $1.7 million

from offset. The remaining $6.3 million would then consist of compensation for the life

care plan and was subject to offset. {¶48} The next question we consider is whether the court erred by offsetting the

damage award based on the child’s present and future access to Social Security and

Medicaid benefits.

{¶49} There appears to be no genuine dispute that, upon reaching 20 years of age,

the child’s medical expenses will be paid in full by Medicare. The court found that to the

extent that Stewart’s son is eligible for benefits upon reaching age 20, MetroHealth is

entitled to an offset for those benefits directly paid by Medicare.

{¶50} Stewart argues that the court erred by offsetting future benefits because the

continued viability of Medicare is subject to political whim, so it was not a benefit that

could be said to be reasonably certain to exist in the future. While the vagaries of

politics sometimes give rise to concerns about the continued existence of social welfare

programs, Stewart gives no plausible basis for us to conclude that Medicare will cease to

exist in the near future. Her argument attempts to show that the court could not

determine, to the requisite degree of reasonable certainty, MetroHealth’s entitlement to an

offset by casting doubt on the future of certain social welfare programs. Accepting

Stewart’s argument at face value would effectively bar all offsets because of the

possibility that government programs might, someday, end. Receiving, or being eligible

to receive, such benefits are at the heart of R.C. 2744.05. Accepting Stewart’s argument

would effectively nullify the statute.

{¶51} We also reject Stewart’s assertion that the size of the damage award in this

case might affect her son’s eligibility for Social Security or Medicaid. It is true that her son’s entitlement to future Medicaid benefits is complicated by the damages award —

Medicaid is a needs-based program and the multi-million dollar damages award would

easily render him ineligible. A person in the child’s position has the option of creating a

special needs trust that would place the damage award in trust in a way that would not

affect his eligibility for Medicaid benefits. As we understand it, the trust would be

established by the probate court and used for necessities not provided by Medicaid.

Upon the death of the trust beneficiary, Medicaid would be entitled to seek

reimbursement for Medicaid expenses from the trust corpus.

{¶52} Stewart’s argument, however, about the continued eligibility for Medicaid is

irrelevant because the court did not fashion its ruling based on her son’s continued

eligibility for Medicaid. The parties agreed that upon reaching 20 years of age, the child

would qualify for Medicare benefits, regardless of his financial need. R.C.

2744.05(B)(1) provides for offset not on the basis of the amount of damages awarded, but

on the claimant receiving or being entitled to receive benefits for injury or loss from “any

other source.” The child’s disability qualifies him to receive governmental benefits.

For purposes of R.C. 2744.05(B)(1), those benefits exist in isolation from monetary

eligibility requirements. This conclusion is compelled by Stewart’s argument relating to

a special needs trust: if the child can establish the special needs trust, he will receive the

government benefits. So he is entitled to receive those benefits regardless of his

financial situation and the statute permits an offset.3

At the post-trial hearing, Stewart tried to show that the Probate Division of the Cuyahoga 3 {¶53} It follows that eligibility for benefits is something that has to be considered

without reference to any award entered against a political subdivision. Buchman

reinforces this conclusion by referring to collateral benefits, “to the extent they can be

determined” that are subject to offset. Buchman, 73 Ohio St.3d 260, 652 N.E.2d 952, at

paragraph three of the syllabus. In this case, the parties appear to agree that absent any

damage award, the child would continue to be eligible for benefits.

{¶54} With the child’s eligibility for future health benefits established starting

when he turns 20, the court found, consistent with evidence heard at the post-trial hearing,

that “Medicare covers 80% of customary and ordinary care.” This fact caused the court

to exclude from offset 20 percent of the total award.

{¶55} The court next considered the eight-year period starting with the child’s age

at the time he received the damage award (12 years) and his eligibility for Social Security

at age 20. The court ruled that even if the child was not covered by Medicaid during this

interim period because the damage award rendered him ineligible, he could obtain health

insurance from the federal government. The court determined that the maximum amount

of the child’s premium for health care would be $8,000 per year, with a maximum

out-of-pocket expense of $6,500 per year. Multiplying those expenses over the

eight-year period, the court determined that the most the child would spend in the

County Court of Common Pleas has in the past refused to establish special needs trust and that it was unclear whether any court in Ohio had established that kind of trust with a similarly sized damages award. Whether this is true or not has no effect on our conclusion that it is the disability itself that qualifies the child for benefits. eight-year period for medical expenses would be $116,000 ($8,000 + $6,500 x 8 =

$116,000).

{¶56} Stewart does not dispute the court’s conclusion that the child could obtain

health insurance from the federal government or its calculation of the maximum

out-of-pocket expense for that insurance. She does argue that Medicaid, Medicare, and

the Affordable Care Act are political targets subject to privatization, budget cuts, and

even repeal, but those are the same arguments we earlier rejected and need not repeat.

{¶57} Finally, the court recognized that some categories of the life care plan for

transportation, home care, and housing should be separated from the statutory offset in

their entirety because they were categories of expenses that were not encompassed by the

benefits that the child would receive. Stewart argues that the court erred by finding that

the costs for transportation, home care, and housing could be determined with any degree

of certainty given that the jury did not return specific interrogatories on those costs. This

argument fails to take into account the specific nature of what Stewart requested in her

life care plan. That plan gave a specific cost breakdown by category, so the court could

find that the jury awarded damages based on those costs and exclude from offset the

amounts requested. Stewart maintains that the court could not have determined these

costs to the requisite degree of certainty because the jury may have intended to provide

more money in damages for expenses that were not subject to offset. But that argument

is speculation given the very specific nature of those costs contained in the life care plan.

D. Constitutional Challenges {¶58} In her second assignment of error, Stewart raises a number of constitutional

challenges to the application of R.C. 2744.05(B)(1) and (C)(1). She argues that R.C.

2744.05 violates due process; denies equal protection of the law; denies the right to a trial

by jury; and that legislatively imposed remittiturs violate the doctrine of separation of

powers. These challenges have been resolved in some context contrary to Stewart’s

position notably, in Oliver v. Cleveland Indians Baseball Co. Ltd. Partnership, 123 Ohio

St.3d 278, 2009-Ohio-5030, 915 N.E.2d 1205. In Oliver, the Ohio Supreme Court held:

“The limit on non-economic compensatory damages in R.C. 2744.05(C)(1) does not

violate the right to a jury trial or the right to equal protection under the law.” Stewart

concedes that Oliver rejected facial challenges to R.C. 2744.05, but maintains that she is

raising an “as-applied” challenge to R.C. 2744.05. She argues that unlike previous

legislative attempts to enact tort reform, the General Assembly failed to include

exceptions and allowances in R.C. 2744.05, so that law remains “absolute and

uncompromising.”

{¶59} There are two primary ways to challenge the constitutionality of a statute: by

facial challenge or through an “as-applied” challenge. Harrold v. Collier, 107 Ohio

St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37.

{¶60} In a facial challenge to the constitutionality of a statute, the claimant must

show that there are no set of facts under which the challenged statute is constitutional.

An as-applied challenge alleges that a particular application of a statute is

unconstitutional. “Facial challenges present a higher hurdle than as-applied challenges because, in general, for a statute to be facially unconstitutional, it must be

unconstitutional in all applications.” State v. Romage, 138 Ohio St.3d 390,

2014-Ohio-783, 7 N.E.3d 1156, ¶ 7, citing Oliver at ¶ 13. In other words, to prevail on a

facial challenge, the challenger must establish that there are no set of facts under which a

statute might be valid. Id.

{¶61} An as-applied challenge, is premised on the challenger’s contention that

“‘application of the statute in the particular context in which he has acted, or in which he

proposes to act, [is] unconstitutional.’” State v. Lowe, 112 Ohio St.3d 507,

2007-Ohio-606, 861 N.E.2d 512, ¶ 17, quoting Ada v. Guam Soc. of Obstetricians &

Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Scalia, J.,

dissenting). This type of challenge puts the burden on the challenger to demonstrate “a

presently existing state of facts that make the statute unconstitutional under the

appropriate level of scrutiny.” Eppley v. Tri-Valley Local School Dist. Bd. of Edn., 122

Ohio St.3d 56, 2009-Ohio-1970, 908 N.E.2d 401, ¶ 13, citing Belden v. Union Cent. Life

Ins. Co., 143 Ohio St. 329, 55 N.E.2d 629 (1944).

{¶62} Regardless of the manner in which the constitutionality of a statute is raised,

we employ a strong presumption that the statute is constitutional. Arbino v. Johnson &

Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 25. For this reason, it

must appear beyond a reasonable doubt that the statute and constitutional provision are

incompatible before a court can declare a statute unconstitutional. State ex rel. Dickman

v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. {¶63} Stewart first argues that R.C. 2744.05 violates her right to due process. She

maintains that if the court’s offset calculations are upheld, her son will recover nothing

for his lost earning capacity and will be denied his “fundamental right to a meaningful

remedy.” Given our disposition of the first assignment of error in which we removed

from the offset calculations the minimum amount that the jury might have awarded her

son for lost future income, this argument is now moot.

{¶64} Stewart next argues that the R.C. 2744.05(C)(1) non-economic damages cap

of $250,000 per person violates her right to substantive due process because it is not

necessary to “protect political subdivisions from financial ruin.” Appellant’s brief at 28.

She claims that MetroHealth has a “substantial insurance policy paid for at taxpayer

expense and sufficient to cover the jury’s verdict.” Id.

{¶65} Article I, Section 16 of the Ohio Constitution states: “All courts shall be

open, and every person, for an injury done him in his land, goods, person, or reputation,

shall have remedy by due course of law, and shall have justice administered without

denial or delay.”

{¶66} Broadly stated, substantive due process claims tend to challenge the policy

behind legislative enactments. Although the General Assembly has broad power under

Article II, Section 1 of the Ohio Constitution to enact legislation (“the legislative power

of the state shall be vested in a general assembly”), that authority is not absolute. Due

process of law requires all legislation to have a real and substantial relation to the public

health, safety, morals, or general welfare and not be unreasonable or arbitrary. See Mominee v. Scherbarth, 28 Ohio St.3d 270, 274, 503 N.E.2d 717 (1986); In re Adoption

of H.N.R., 145 Ohio St.3d 144, 2015-Ohio-5476, 47 N.E.3d 803, ¶ 25. This is known as

the “rational basis” test and it applies unless the challenger argues that the contested

legislation implicates a fundamental right. Eppley, 122 Ohio St.3d 56, 2009-Ohio-1970,

908 N.E.2d 401 at ¶ 15. Stewart does not assert that R.C. 2744.05 implicates a

fundamental right.

{¶67} In Arbino, the Ohio Supreme Court rejected a due process constitutional

challenge to R.C. 2315.18, a statute that limits compensatory damages for non-economic

loss in tort actions. The Supreme Court concluded that “tort reform” as implicated by the

limits on compensatory damages for non-economic loss showed “a clear connection

between limiting uncertain and potentially tainted noneconomic-damages awards and the

economic problems demonstrated in the evidence.” Arbino, 116 Ohio St.3d, 468,

2007-Ohio-6948, 880 N.E.2d 420 at ¶ 56. The Supreme Court also concluded that the

legislature acted neither arbitrarily nor unreasonably by setting limits on non-economic

damages because those limits could be obtained “without limiting the recovery of

individuals whose pain and suffering is traumatic, extensive, and chronic * * * .” Id. at ¶

61.

{¶68} Stewart makes no convincing argument that R.C. 2744.05 is unreasonable or

arbitrary as applied to her and her son. As Arbino concluded, an award of non-economic

damages does nothing to compromise the compensation that a plaintiff receives for the

actual injury caused by the defendant. It has long been understood that non-economic or punitive damages “go beyond” compensation for injury or loss, Roberts v. Mason, 10

Ohio St. 277 (1859), and are designed to “punish the offending party and to set him up as

an example to others, thereby deterring others from similar behavior.” Cabe v. Lunich,

70 Ohio St.3d 598, 162, 640 N.E.2d 159 (1994). However, when a tortfeasor is a

political subdivision, that “punishment” is one meted out against all constituents of the

political subdivision regardless of individual fault. For this reason, Stewart’s argument

that the public purse constitutes an “insurance policy” does nothing to advance the

argument that R.C. 2744.05 violates substantive due process as applied to her. Whether

a political subdivision can afford to pay the entire amount of a non-economic damages

award says nothing about why a cap on non-economic damages violates due process as

applied to her. The legislature’s decision to limit recovery of non-economic damages

against political subdivisions in R.C. 2744.05 appears equally as justified as it was in

Arbino.

{¶69} Stewart also maintains that the application of the non-economic damages

cap in R.C. 2744.05(C)(1) violates her right to equal protection of the law as guaranteed

under Article I, Section 2 of the Ohio Constitution. She complains that R.C. 2744.05

permits unfair and disparate outcomes where those injured by political subdivision

tortfeasors have their non-economic damages capped at $250,000 while those injured by

tortfeasors who are not political subdivisions have their non-economic damages capped at

$500,000. {¶70} Equal protection of the law is the constitutional guarantee that no person or

group will be denied the protection under the law that is enjoyed by similar persons or

groups. Colgate v. Harvey, 296 U.S. 404, 422-423, 56 S.Ct. 252, 80 L.Ed. 299 (1935).

This is not to say that states cannot, in the exercise of legislative authority, classify

persons for the purposes of legislation. A statutory classification made in the proper

exercise of police power will be upheld if the classification “bears a rational relationship

to a legitimate governmental interest.” Menefee v. Queen City Metro, 49 Ohio St.3d 27,

29, 550 N.E.2d 181 (1990). However, if the classification involves either a suspect class

or a fundamental right, it will be upheld only if the challenged classification serves a

compelling state interest and the classification is necessary to serve that interest.

Cleveland v. McCardle, 139 Ohio St.3d 414, 2014-Ohio-2140, 12 N.E.3d 1169, ¶ 11;

Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d

520 (1976).

{¶71} R.C. 2744.05(C)(1) involves neither a suspect class nor a fundamental right,

so we again apply the rational basis test to determine if the classification has some

reasonable basis. In Oliver, 123 Ohio St.3d 278, 2009-Ohio-5030, 915 N.E.2d 1205, the

Supreme Court rejected a facial challenge to R.C. 2744.05(C)(1) on grounds that it

violated equal protection, finding that “the damage limits for non-economic harm in R.C.

2744.05(C)(1) are neither unreasonable nor arbitrary, at least with regard to persons

suffering noncatastrophic injuries.” Id. at ¶ 13. {¶72} Stewart correctly notes that Oliver was limited to a facial challenge, but

makes no convincing argument why there should be a different result in her as-applied

challenge. Indeed, Oliver stated, albeit in dicta, that had an as-applied challenge been

raised in that case it would have been rejected because R.C. 2744.05(C)(1) does not

contain an across-the-board limitation on non-economic damages — the General

Assembly could not only have prohibited all awards for non-economic damages, but it

could also have prohibited all tort actions against political subdivisions. It follows that it

was not arbitrary to allow “some” recovery in tort actions against political subdivisions.

(Emphasis sic.) Id. at ¶ 15.

{¶73} The dicta in Oliver alluded to a fundamental principle of governmental

immunity — the state has the authority to determine by law the extent to which it and

political subdivisions can be held liable for their negligence in the performance or

nonperformance of an act. Haverlack v. Portage Homes, Inc., 2 Ohio St.3d 26, 29, 442

N.E.2d 749 (1982). If the state can define the scope of claims for which political

subdivisions can be sued — including barring all tort actions against political

subdivisions — it follows that the state can define the scope of damages for which

political subdivisions are liable when it does permit itself to be sued. And to the extent

that the damages caps are lower for political subdivisions than they are for private

litigants, that difference goes to the rational interest in conserving the fiscal resources of

political subdivisions. Menefee, 49 Ohio St.3d at 29, 550 N.E.2d 181; Lewis v.

Cleveland, 89 Ohio App.3d 136, 139, 623 N.E.2d 1233 (8th Dist.1993). {¶74} Stewart next complains that the court’s application of R.C. 2744.05 violates

her son’s right to a trial by jury under Article I, Section 5 of the Ohio Constitution (“The

right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to

authorize the rendering of a verdict by the concurrence of not less than three-fourths of

the jury.”).

{¶75} The specific nature of Stewart’s right-to-trial argument is obscure: she cites

R.C. 2744.05(C), a section that caps non-economic damages, but in the same paragraph of

her brief complains that the court acted without the benefit of Buchman interrogatories to

engage in fact-finding that overrode the jury’s constitutionally protected authority, an

argument that implicates the offset for economic damages under R.C. 2744.05(B)(1).

{¶76} Any argument that the R.C. 2744.05(C)(1) cap on non-economic damages

violates the right to a trial by jury is meritless. In Arbino, the Supreme Court denied a

similar challenge to R.C. 2315.18 caps on non-economic damages entered against private

litigants on grounds that the caps violated the right to a trial by jury. The Supreme Court

noted that courts have historically been allowed to alter a jury’s award of damages: an

award can be decreased by remittitur or increased by additur based on the cause of action

from which the award originates. Id., 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d

420, at ¶ 38-39. Why a statutory decrease in damages should be treated differently from

a statutory increase in damages is unexplained. Id. at ¶ 39.

{¶77} Although Arbino considered the application of R.C. 2315.18(C), the

rationale for the holding in that case is equally applicable to R.C. 2744.05(C). The two statutes are so similar in form and purpose that the minor differences between them are

inconsequential. On authority of Arbino, we find that the cap on non-economic damages

contained in R.C. 2744.05(C) does not violate the right to a trial by jury.

{¶78} We likewise reject the argument that the offset required by R.C.

2744.05(B)(1) violates the right to a trial by jury. In our discussion of the procedure to

be followed by the court when addressing an R.C. 2744.05(B)(1) claim for offset, we

concluded that the statute requires a post-trial proceeding in which the court examines the

benefits for injuries or loss that a plaintiff has received from insurance or any other

source. This post-trial proceeding does not involve any alteration of the jury’s award

— the court merely examines the jury award to determine “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, at paragraph four of the syllabus. This offset is applied only to the

extent that the court can find with a reasonable degree of certainty that collateral benefits

are deductible from the jury’s verdict against a political subdivision. The reasonable

degree of certainty required before an offset can be made ensures that the court does not

violate the jury’s fact-finding function. The offset itself is nothing more than a

mechanical deduction that has no relevance to the jury’s function.

{¶79} Finally, Stewart argues that R.C. 2744.05 violates Article II, Section 32 of

the Ohio Constitution (“The general assembly shall grant no divorce, nor exercise any

judicial power not herein expressly conferred”) and its recognition of the separation of powers principle because it legislatively forces a judicial remittitur in any non-economic

damage award in excess of $250,000 against a political subdivision.

{¶80} It is unclear whether Article II, Section 32 of the Ohio Constitution provides

a basis for a separation of powers argument. In S. Euclid v. Jemison, 28 Ohio St.3d 157,

158-159, 503 N.E.2d 136 (1986), the Supreme Court stated that “Ohio, unlike other

jurisdictions, does not have a constitutional provision specifying the concept of separation

of powers[.]” But in Arbino, the Supreme Court addressed a separation of powers

argument under Article II, Section 32 of the Ohio Constitution. Arbino, 116 Ohio St.3d

468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 73-76. Just three years later, however, in

State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, the Supreme

Court quoted with approval the language in Jemison, that Ohio does not have a

constitutional provision specifying the concept of separation of powers. Id. at ¶ 42.4

{¶81} The discrepancy is of no consequence because the Supreme Court has

determined that the doctrine of separation of powers “is implicitly embedded in the entire

framework of those sections of the Ohio Constitution that define the substance and scope

of powers granted to the three branches of state government.” Jemison at 159. In State

v. Hochhausler, 76 Ohio St.3d 455, 463, 668 N.E.2d 457 (1996), the Supreme Court

found that the principle of separation of powers is “embedded” and “inherent” in the

constitutional framework of Ohio’s state government. So we consider Stewart’s

In well over 100 cases addressing the separation of powers, Article II, Section 32 of Ohio 4

Constitution has been cited only eighteen times by the Ohio Supreme Court (one of those cites appeared in a dissenting opinion). separation of powers argument not in the context of Article II, Section 32 of the Ohio

Constitution, but under well-established precedent interpreting the inherent divisions of

power under tripartite systems of government.

{¶82} What we earlier stated about the legislature’s ability to limit damages

awards against political subdivisions applies with equal force to Stewart’s separation of

powers argument — if the General Assembly can limit the ways in which political

subdivisions can be sued, it can likewise limit the amount of damages those political

subdivisions might have to pay. Oliver, 123 Ohio St.3d 278, 2009-Ohio-5030, 915

N.E.2d 1205, at ¶ 7-8. While Oliver specifically rejected the argument that the R.C.

2744.05(C)(1) caps on compensatory damages violated the right to a trial by jury, Stewart

offers no reason why that case would not control over the issue of whether the damages

cap violates the separation of powers. If the legislature does not usurp the role of the

trier of fact by imposing damages caps, it cannot usurp the role of the trial judge by

imposing damages caps.

E. Summary

{¶83} To summarize our holding thus far with respect to the issues raised in the

appeal: even though the jury returned general awards for future economic damages, the

court could not assume for purposes of determining the statutory offset that the jury

intended to disregard substantial and uncontradicted evidence going to the child’s loss of

future income and award damages for the life care plan only. Because loss of future

income could have been a part of future economic damages, the court could not have determined to the requisite degree of certainty that the entire award should be offset.

The evidence showed that $1.7 million was the minimum amount of lost wages that could

have been awarded, so we add that amount to the $3.451 million award entered by the

court, for a total award of $5.151 million. On remand, the court shall enter judgment

accordingly. Stewart’s remaining arguments are overruled.

II. The Cross-Appeal

{¶84} MetroHealth filed a “conditional” cross-appeal, asking us to consider its

cross-assignments of error only in the event that we reverse or modify that part of the

court’s judgment granting its motion for offset of collateral benefits under R.C.

2744.05(B). Because we have modified the court’s judgment in part with respect to

future economic damages, we address the cross-assignments of error.

{¶85} MetroHealth first complains that the court erred as a matter of law by

denying its motion for a new trial. It raises three issues in this cross-assignment of error:

that the court erred by determining that an unborn fetus has an independent claim for lack

of informed consent; that the court erred by allowing Stewart to withdraw the videotaped

cross-examination of MetroHealth’s treating neonatologist after the parties agreed to

preserve that witness’s testimony by videotape; and that the judgment is against the

weight of the evidence.

{¶86} The first two issues asserted in this cross-assignment of error are raised

under Civ.R. 59(A)(9) and complain that the court erred as a matter of law. We review

those issues de novo. See Ferguson v. Dyer, 149 Ohio App.3d 380, 2002-Ohio-1442, 777 N.E.2d 850, ¶ 10 (10th Dist.). The third issue in this cross-assignment of error is

raised under Civ.R. 59(A)(6) and complains that the verdict is against the manifest weight

of the evidence. We review that issue for an abuse of discretion. Zappola v. Rock

Capital Sound Corp., 8th Dist. Cuyahoga No. 100055, 2014-Ohio-2261, ¶ 65.

A. Lack of Informed Consent

{¶87} The third count of Stewart’s complaint alleged that Dr. Weight and

MetroHealth were negligent when they failed to disclose to her son the material risks and

dangers associated with vaginal delivery in light of Stewart’s obstetric history, prenatal

course, risk status, and fetal monitoring during labor. MetroHealth filed a partial motion

for summary judgment on the informed consent claim relative to the child, arguing that an

unborn fetus had no independent claim for lack of informed consent.5 The court denied

summary judgment, holding that “an unborn minor has a claim for lack of informed

consent when a physician fails to obtain informed consent from the minor’s mother.”

MetroHealth argues that the court erred in this respect because Ohio has never recognized

an unborn fetus’s independent claim for informed consent based on what was or was not

disclosed to the fetus’s mother during labor and delivery.

{¶88} At the outset, we consider Stewart’s argument that MetroHealth’s

cross-assignment of error relating to informed consent is barred by the “two-issue” rule.

She maintains that the jury found the defendants liable on two counts — negligence and

The court granted summary judgment to MetroHealth on Stewart’s identical claim of lack of 5

informed consent because the statute of limitations for her claim had run. Stewart did not appeal that ruling. lack of informed consent — and that even if MetroHealth prevails on its informed

consent argument, the negligence verdict would remain unaffected.

{¶89} The two-issue rule states that there is no reversible error when an error

relates to one claim or defense and the verdict does not reveal whether the appellee

prevailed on that basis or another not affected by the error. Sites v. Haverstick, 23 Ohio

St. 626 (1873), paragraphs one and two of the syllabus. The two-issue rule “does not

apply where there is a charge on an issue upon which there should have been no charge.”

Ricks v. Jackson, 169 Ohio St. 254, 159 N.E.2d 225 (1959), paragraph four of the

syllabus. If the court does charge on an issue for which there should not have been a

charge, “prejudice is generally presumed.” Wagner v. Roche Laboratories, 85 Ohio St.3d

457, 461, 709 N.E.2d 162 (1999). See also Hampel v. Food Ingredients Specialties, 89

Ohio St.3d 169, 185-186, 729 N.E.2d 726 (2000). MetroHealth argues that Ohio does

not recognize an unborn minor’s claim for lack of informed consent. That is an

argument going to whether there should have been any charge at all on the issue of

informed consent. It thus falls under the Ricks exception to the two-issue rule and can be

heard on appeal.

{¶90} In Nickell v. Gonzalez, 17 Ohio St.3d 136, 477 N.E.2d 1145 (1985), the

syllabus states the elements of a claim for lack of informed consent:

The tort of lack of informed consent is established when: (a) The physician fails to disclose to the patient and discuss the material risks and dangers inherently and potentially involved with respect to the proposed therapy, if any; (b) the unrevealed risks and dangers which should have been disclosed by the physician actually materialize and are the proximate cause of the injury to the patient; and

(c) a reasonable person in the position of the patient would have decided

against the therapy had the material risks and dangers inherent and

incidental to treatment been disclosed to him or her prior to the therapy.

{¶91} The only Ohio case to mention whether an unborn child can bring an

informed consent claim is Diekman v. R. Les Murray & Samaritan Ob/Gyn, 1st Dist.

Hamilton No. C-000467, 2001 Ohio App. LEXIS 4588 (Oct. 12, 2001). In Diekman, the

First District Court of Appeals considered the dismissal of a viable fetus’s informed

consent claim premised on a doctor’s use of forceps during the birthing process. The

appellate court affirmed both the dismissal of the informed consent claim and the court’s

refusal to instruct the jury on informed consent, finding that the plaintiff offered no

“testimony relating to whether the appropriate standard of care required obtaining

informed consent from an unborn for the use and application of forceps.” Id. at 9. The

court went on to note that the plaintiff “has not provided, and we are not aware of, any

statutory or common-law basis for an unborn to bring an informed-consent claim.” Id. at

10.

{¶92} We disagree with MetroHealth’s argument that Diekman “rejected” a cause

of action for an unborn child’s claim for lack of informed consent. The primary holding

in Diekman was that there was no evidence to support the claim even if it existed. The

court of appeals thus bypassed any direct discussion of whether the informed consent claim existed. Its passing comment — that it was unaware of any statutory or common

law basis for an unborn child’s claim for lack of informed consent — was in the nature of

a parenthetical, not a direct holding. That the court was aware of no statute or case

decision that specifically acknowledged an unborn child’s right to a cause of action for

lack of informed consent is not the same as a definitive statement that the cause of action

does not exist.

{¶93} MetroHealth also argues that in Hester v. Dwivedi, 89 Ohio St.3d 575, 733

N.E.2d 1161 (2000), the Supreme Court held that decisions related to the course of

pregnancy and delivery comprise a legal right that belongs to Stewart, to the exclusion of

the unborn child.

{¶94} Hester was a “wrongful life” case. The parents of a child born with spina

bifida and other complications brought an action in their own name and on behalf of their

child, alleging that the defendant medical doctors did not adhere to the required standards

of care when they failed to inform the plaintiffs that prenatal tests showed positive factors

indicating that the child had birth defects. The trial court granted a motion for judgment

on the pleadings with respect to the child’s cause of action for “wrongful life” on grounds

that Ohio did not recognize a child’s claim for wrongful life (the parents’ negligence

claims were allowed to stand). On appeal, the Supreme Court stated the issue as whether

“a child may recover damages for the ‘injury’ of having been born.” Id. at 579. After

noting that “the vast majority of jurisdictions that have considered wrongful life claims similar to [the child’s] have refused to recognize them,” id. at 581, the Supreme Court

stated:

It is undisputed that [the child’s] spina bifida condition commenced at or near the time of conception, and that appellees neither caused that condition itself, nor could they have treated either [the mother] or [the child] so as to allow [the child] to be born without spina bifida. Thus, the only injury causally related to the appellees’ breach of duty was the deprivation of the chance to make a fully informed decision whether to continue the pregnancy. That decision, legally, belonged to [the mother]. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Had she been given the information at issue she would have had two options: continue the pregnancy or abort the pregnancy.

Id.

{¶95} Contrary to MetroHealth’s assertion, Hester does not rest on the principle

that an unborn child has no cause of action for lack of informed consent. The Supreme

Court made clear that the mother’s “depravation of opportunity to make an informed

choice to terminate a pregnancy” was different from the birth defects claimed as an injury

by the child. Id. at 583. The Supreme Court did not hold that an unborn child has no

cause of action for lack of informed consent, but that under the facts of the case, the issue

of informed consent had been raised only by the mother.

{¶96} With there being no binding precedent directly on point, we consider first

principles in addressing the issue of whether a cause of action exists for an unborn child’s

claim for lack of informed consent.

{¶97} The general rule for harm caused to an unborn child is stated in 2

Restatement of Law 2d, Torts, Section 869(1) (1979): “One who tortiously causes harm to

an unborn child is subject to liability to the child for the harm if the child is born alive.” {¶98} This general rule must be construed in light of Article I, Section 16 of the

Ohio Constitution, which states that “every person, for an injury done him in his land,

goods, person, or reputation, shall have remedy by due course of law * * *.” Is an

unborn child a person for purposes of seeking a legal remedy? The law relative to the

rights of succession generally held that “a child en ventre sa mere [in utero], as to every

purpose for the benefit of the child, is to be considered in esse [in being], though this rule

is not applied unless the benefit and interest of the child will thereby be promoted.”

Evans v. Anderson, 15 Ohio St. 324, 326 (1864). And in the context of tort actions,

Williams v. Marion Rapid Transit, Inc., 152 Ohio St. 114, 87 N.E.2d 334 (1949), stated at

paragraph two of the syllabus:

Injuries wrongfully inflicted upon an unborn viable child capable of existing independently of the mother are injuries “done him in his * * * person” within the meaning of Section 16, Article I of the Constitution and, subsequent to his birth, he may maintain an action to recover damages for the injury so inflicted.

{¶99} Key in this analysis is the viability of the child, for a nonviable fetus is not a

distinct human entity with rights that can be enforced. For example, an unborn child’s

right to recover for injuries suffered in utero has been established under the wrongful

death statute, R.C. 2125.01, and that right applies even if the child is stillborn. See, e.g.,

Jasinsky v. Potts, 153 Ohio St. 529, 92 N.E.2d 809 (1950), syllabus (holding that under

the wrongful-death statute the administrator of the estate of a child who, while viable,

suffered a prenatal injury through the alleged negligent act of another and who died after

birth has a cause of action against such other for damages for the benefit of the parents of such infant). In Werling v. Sandy, 17 Ohio St.3d 45, 476 N.E.2d 1053 (1985), the Ohio

Supreme Court took Jasinsky a step further to rule that “[a] viable fetus which is

negligently injured en ventre sa mere and subsequently stillborn may be the basis for a

wrongful death action pursuant to R.C. 2125.01.” Id. at syllabus. In other words, the

deciding factor was not live birth, but the viability at the time of the injury.

{¶100} MetroHealth does not dispute that a viable, unborn child has an

independent right to seek redress for injury caused by negligence. Moreover, it does not

dispute for purposes of this case that the child was viable at the time he suffered his injury

caused by the lack of informed consent.6 MetroHealth argues, however, that Ohio has

never recognized an independent claim for informed consent as to what was or was not

disclosed to a child’s mother during her labor and delivery. While no Ohio court has

expressly recognized the right, courts in other jurisdictions have.

{¶101} Shack v. Holland, 89 Misc.2d 78, 389 N.Y.S.2d 988 (1976), was arguably

the first case to find that a viable, unborn fetus could assert an independent claim for lack

of informed consent. The court first noted that New York recognized an unborn child’s

right to maintain an action for prenatal injuries. Id. at 82. The court next noted that

New York law did not treat a lack of informed consent as a battery, but had opted for a

“negligence approach” in which the torfeasor’s actions were viewed under a standard of

R.C. 2919.16(M) defines “viable” as the stage of development of a human fetus where 6

“there is a realistic possibility of the maintaining and nourishing of a life outside of the womb with or without temporary artificial life-sustaining support.” That the child has survived injuries suffered just prior to and during his birth conclusively establishes his viability. professional conduct. 7 Id. at 85. Acknowledging that New York recognized that an

unborn child had a cause of action for lack of informed consent and that the duty to

disclose foreseeable risks were grounded in negligence, the court framed the question as

whether an unborn child has a cause of action for lack of informed consent via the mother

of the child. Id. at 85. The court found that “although the obligation to disclose runs to

the mother,” the unborn child “comes within the area of persons to be protected.” Id. It

concluded:

The lack of informed consent of the mother would have its effect upon the fetus to be born for good or ill. A child in its mother’s womb is a foreseeable circumstance. Conduct, which creates a risk of harm to a woman, includes also a risk of harm to her unborn child. The standard of care imposed upon the doctor by the statute inures to the benefit of her unborn child. This is a classic example of derivative liability whereby a plaintiff may institute an action to redress a wrong done to himself which is proximately caused by a wrong done to another.

{¶102} In Hughson v. St. Francis Hosp., 92 A.D.2d 131, 459 N.Y.S.2d 814 (1983),

the appellate division of the Supreme Court of New York affirmed the underlying

premise in Shack, with one notable exception: it clarified that the “derivative liability”

At one time, courts viewed a claim of lack of informed consent as a battery. See, e.g., 7

Lacey v. Laird, 166 Ohio St. 12, 139 N.E.2d 25 (1956), paragraph two of the syllabus (“Even though a surgical operation is beneficial or harmless, it is, in the absence of a proper consent to the operation, a technical assault and battery for which the patient may recover damages, but only nominal damages, and the surgeon is entitled to have the jury so instructed.”). A theory of informed consent as a battery is problematic for an unborn child because one of the elements of a battery is a “harmful contact.” Love v. Port Clinton, 37 Ohio St.3d 98, 99, 524 N.E.2d 166 (1988). Nickell, 17 Ohio St.3d 136, 477 N.E.2d 1145, revised that law and made lack of informed consent an independent tort. referred to by Shack did not use the term “derivative” in “the strict legal sense[.]” The

Supreme Court noted that because a child is not legally competent to consent to medical

services, “[i]t is the parent who gives effective consent * * * notwithstanding that it is the

child who is the ‘patient.’” Id. at 135.

{¶103} This approach has been adopted in other jurisdictions. For example, in

Roberts v. Patel, 620 F.Supp. 323 (N.D.Ill.1985), the district court construed the strong

policy that Illinois had favoring the protection of a fetus and the protectable interest the

fetus had in ordinary malpractice claims to hold that a pregnant mother’s physicians owed

a duty of informed disclosure not only to the mother, but also to the child. Id. at 326.

The district court found that the risks attendant to the mother’s treatment (the child’s

mother, in labor, had been told that a Caesarean section should not be performed and that

her labor “should be temporarily halted by use of alcohol and other drugs”), “flowed

primarily to the infant.” Id. See also Draper v. Jasionowski, 372 N.J.Super. 368, 858

A.2d 1141 (Super.App.Div.2004) (holding that “New Jersey recognizes an independent

cause of action on behalf of an infant, on reaching majority, against the child’s mother’s

obstetrician, for prenatal injuries caused by the child’s vaginal delivery, arising out of the

failure of the physician to obtain the child’s mother’s informed consent, prior to the

child’s delivery.”); Morgan v. Olds, 417 N.W.2d 232 (Iowa App.1987) (“when a doctor

fails to obtain the consent of the incompetent patient’s surrogate decision maker, he

breaches his duty to the patient and is liable for any resultant damages.”); Burgess v.

Superior Court, 2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 831 P.2d 1197 (1992) (noting that any treatment for an unborn child necessarily implicates the mother’s participation since

access to the baby could only be accomplished with the mother’s consent and with impact

to her body).

{¶104} The case relied on by the court below, Miller v. Dacus, 231 S.W.3d 903

(Tenn.2007), held, similar to the above-cited authority, that an unborn child has a claim

for lack of informed consent when a physician fails to obtain informed consent from the

child’s mother. Miller noted that Tennessee law established two “clear” principles: “(1)

that a minor can recover for prenatal injuries caused by the negligence of another, and (2)

that a minor has an independent action for lack of informed consent against a medical

provider.” (Citations omitted.) Id. at 909. Miller noted that regardless of whether a

minor’s injuries were prenatal or postnatal, the minor would be unable to consent in either

circumstance, so “effective consent must be obtained from a parent or guardian.” Id.

The Miller court found it would be “arbitrary to allow a minor to recover for injuries

sustained ten minutes after delivery and to prohibit a minor to recover from injuries

sustained ten minutes before delivery.” Id. It thus held that “a minor does have an

independent action against a medical provider based on lack of informed consent for

prenatal injuries suffered during labor and delivery.” Id. at 911.

{¶105} MetroHealth challenges the logic behind Miller (and presumably the

similar cases issued from other jurisdictions) on grounds that it conflates informed

consent with medical negligence by confusing the duty to disclose in an informed-consent

claim with the duty to render medical treatment consistent with the applicable standard of care, whether before or after birth. It maintains that a physician does not owe an unborn

child any duty to inform and the child’s claims in this case are nothing more than medical

malpractice claims.

{¶106} It seems to us that it is MetroHealth that is conflating causes of action in

this case. As in Miller, there are two givens under Ohio law: unborn, viable children

have the legal right to seek redress for injuries caused in utero and there is an independent

tort claim based on the lack of informed consent. These givens lead to the question of

whether an unborn, viable child can bring an independent claim for lack of informed

consent when the child’s mother grants consent on behalf of the child based on

information provided to her. We answer that question in the affirmative because if the

cause of action exists for a child, it must exist both prenatally and postnatally. And if an

unborn, viable child has the general right to seek redress for injuries suffered in utero, the

cause of action for lack of informed consent must also be available to him.

{¶107} MetroHealth argues that the duty to inform is not divisible between a

mother and a child in utero, but fails to explain why there should be a different rule for

injuries suffered in utero versus those suffered postnatally. We do not understand

MetroHealth to argue that a child has no viable claim for a lack of informed consent

occurring after birth. Assuming the injury occurred at an age where the child lacked the

legal ability to consent, it would be the child’s parent or guardian who gave consent. But

at all events, it would be an injury done to the child because the parent or guardian is

merely the conduit through which the child’s consent flows. Both Stewart and her son have similar, but independent, claims for lack of informed consent. The court did not err

by allowing the jury to consider the child’s informed consent claim.

{¶108} The complaint alleged that a reasonable person in Stewart’s position who

received adequate informed consent would not have elected to proceed with a vaginal

delivery and that undisclosed risks and dangers attendant to a vaginal delivery

proximately caused the child’s injuries. The jury answered interrogatories finding that

the defendants failed to inform the child of the material risks and dangers associated with

his care and delivery, that the risks and dangers that should have been revealed actually

occurred and were a direct cause of injury to the child, and that a reasonable person in the

child’s position would have decided against the proposed care if the material risks and

dangers had been disclosed prior to the care. This verdict was consistent with a claim for

lack of informed consent.

B. Cross-Examination

{¶109} Prior to trial, MetroHealth identified as a witness a neonatologist who

treated the child after his birth. The neonatologist had been deposed on both direct and

cross-examination during discovery. Stewart sought, by motion in limine, to exclude the

witness because she anticipated that MetroHealth would attempt to elicit opinion

testimony from the neonatologist without filing a report as required by Loc.R. 21.1. The

court granted the motion in part to limit the witness to testimony as a treating physician.

The neonatologist was unavailable to testify at trial, so the parties played his deposition

for the jury. However, at the close of the direct testimony, Stewart asked the court to allow her to withdraw the cross-examination of the witness. The court granted the

motion over MetroHealth’s objection.

{¶110} Although the parties frame their arguments in this cross-assignment of

error as whether the neonatologist would be testifying solely as a fact witness or would be

giving opinions that were not previously disclosed, we think the actual issue is whether a

party has the obligation to cross-examine a witness.

{¶111} In criminal cases, defense counsel is not obligated to cross-examine every

witness the prosecution calls. State v. Otte, 74 Ohio St.3d 555, 565, 660 N.E.2d 711

(1996). There is no reason why a different rule would apply in a civil case. Had the

neonatologist appeared at trial as a witness for MetroHealth, Stewart would have been

under no obligation to cross-examine him. That the parties agreed that the neonatologist

would testify by videotaped deposition testimony did not change Stewart’s ability to

decide to not have the witness’s cross-examination presented to the jury. The court did

not err.

C. Weight of the Evidence

{¶112} MetroHealth’s third argument complains that the jury’s verdict is against

the manifest weight of the evidence. It argues that the greater weight of the evidence

proved that the child’s birth defects were caused by a prenatal infection, not any delay in

delivering the child.

{¶113} In State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), the Ohio

Supreme Court stated: Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.”

Id. at 387.

{¶114} The use of the term “greater amount” of credible evidence does not mean

that an appellate court reviews the facts offered at trial to make its own independent

assessment of the evidence of whether that evidence supports the judgment by a

preponderance of the evidence. The use of the word “manifest” in the standard of review

means that the trier-of-fact’s decision must be plainly or obviously contrary to all of the

evidence. This is a difficult burden for an appellant to overcome because the resolution

of factual issues resides with the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact has the superior

opportunity to view the evidence, so it is not the role of a reviewing court to assess the

credibility of the evidence. State ex rel. Consolidation Coal Co. v. Indus. Comm., 78

Ohio St.3d 176, 177, 677 N.E.2d 338 (1997). The trier of fact has the authority to

“believe or disbelieve any witness or accept part of what a witness says and reject the

rest.” State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

{¶115} Stewart alleged that her son’s birth defects were caused by his brain

bleeding in utero just hours prior to delivery and, had MetroHealth and Dr. Weight

performed a timely Caesarean section to deliver the child, the effects of the bleeding would have been minimized. MetroHealth denied that accusation and attributed the

child’s birth defects to an infection that he contracted in utero from Stewart.

{¶116} Stewart had a prior history of delivering a child early — the birth of an

older son occurred by emergency Caesarean at 32-weeks gestation. Her pregnancy in

this case took a similar course: between March 20 and March 30, 2003, Stewart had three

episodes of preterm labor. After admission to MetroHealth, medication successfully

stopped her contractions on the first two occasions, leading to her discharge from the

hospital. On the third occasion on which she was admitted with premature labor, Stewart

had dilated slightly. This dilation, in conjunction with her prior history of early delivery,

caused MetroHealth and the doctor to recommend an elective Caesarean delivery. At the

time this recommendation was made, the child had just passed 24 weeks of gestation and

was considered viable.

{¶117} Delivery by Caesarean section did not occur immediately because Stewart

had vaginal bleeding. She was transferred into MetroHealth’s antepartum unit for

observation pending cessation of the bleeding. Although the bleeding had not wholly

subsided, Weight discharged Stewart.

{¶118} Ten days later, Stewart returned to MetroHealth complaining of

contractions. An exam showed her cervix dilated to four millimeters. A fetal monitor

showed that her son had a steady heartbeat, so Weight did not immediately perform a

Caesarean section and finished his office hours. In the next four hours following

Weight’s decision not to perform an immediate delivery by Caesarean section, the child’s heartbeat became more and more erratic. Over those four hours, an attending nurse made

15 calls to Weight and to other obstetricians. When Weight returned to Stewart, he

suspected that the fetal heartbeat monitor was indicating that the child was becoming

asphyxiated. When testing confirmed that suspicion, Weight immediately delivered the

child by Caesarean section. The child was not breathing when delivered and required

nearly 30 minutes of cardio-pulmonary resuscitation.

{¶119} The fetal heartbeat monitor showed that the child’s heartbeat had

fluctuated greatly in the hours prior to his delivery. Tests conducted following his

delivery showed that the child lost almost 40 percent of his circulating blood volume in

the four hours before his delivery, the cause being the highly fluctuating heartbeat. The

cause of this fluctuation was a brain bleed, the existence of which was confirmed by the

presence of a blood clot detected in an ultrasound examination performed shortly after the

child’s birth.

{¶120} Upon delivery, the child showed the presence of “putrid secretions” in his

airways, indicating the presence of an infection. This infection was not present in

amniotic fluid examined during an amnioscentisis performed just two weeks prior to the

child’s birth, but Stewart tested positive for “group beta strep” following delivery.

MetroHealth’s experts testified that the infection reached the child’s lungs and prevented

him from breathing at birth. They theorized that the child’s brain bleeding was the

product of CPR required as a result of his clogged airways and that an earlier delivery

would not have changed that outcome. {¶121} This was not a case where there was no evidence of any kind to support

Stewart’s allegation that MetroHealth and Weight were negligent for failing to take

immediate steps to deliver the child — both Stewart and MetroHealth offered a number of

experts to support their respective theories of how and why the child suffered the brain

injury. MetroHealth argues that it offered superior evidence, but that assertion simply

underscores the reality that the experts disagreed with their counterparts. The jury heard

credible evidence from which it could find that the child’s fluctuating heartbeat in the

hours before his delivery required Weight to perform an immediate delivery by Caesarean

section. For us to agree that MetroHealth’s evidence was “superior” would be to usurp

the jury’s function as the trier of fact and substitute our judgment. The court did not

abuse its discretion by denying MetroHeatlth’s motion for a new trial on grounds that the

verdict was against the manifest weight of the evidence.

D. Installment Payments

{¶122} MetroHealth’s final argument on cross-appeal is that the court erred when

it denied MetroHealth’s motion for payment of any judgment of nonactual-loss damages

in annual installments as allowed by R.C. 2744.06(B)(2).

{¶123} R.C. 2744.06(B)(2) states:

Except as specifically provided to the contrary in this division, a court that renders a judgment against a political subdivision as described in division (A) of this section and that is not in favor of the state may authorize the political subdivision, upon the motion of the political subdivision, to pay the judgment or a specified portion of the judgment in annual installments over a period not to exceed ten years, subject to the payment of interest at the rate specified in division (A) of section 1343.03 of the Revised Code. A court shall not authorize the payment in installments under this division of any portion of a judgment or entire judgment that represents the actual loss of the person who is awarded the damages.

Additionally, a court shall not authorize the payment in installments under this division of any portion of a judgment or entire judgment that does not represent the actual loss of the person who is awarded the damages unless the court, after balancing the interests of the political subdivision and of the person in whose favor the judgment was rendered, determines that installment payments would be appropriate under the circumstances and would not be unjust to the person in whose favor the judgment was rendered. If a court makes that determination, it shall fix the amount of the installment payments in a manner that achieves for the person in whose favor the judgment was rendered, the same economic result over the period as that person would have received if the judgment or portion of the judgment subject to the installment payments had been paid in a lump sum payment.

{¶124} Because the statute uses the permissive word “may” in describing the

court’s authority to grant a motion for installment payments, we use an abuse of

discretion standard to review MetroHealth’s argument. Dorrian v. Scioto Conservancy

Dist., 27 Ohio St.2d 102, 108, 271 N.E.2d 834 (1971).

{¶125} MetroHealth did not offer a specific reason why it should be allowed to

pay the judgment in installments apart from noting that, as a county hospital, protection of

its finances is “of paramount importance.” That is a truism that could apply to everyone.

Missing from its argument is any assertion as to why, in this particular case, MetroHealth

should be allowed to make installment payments. We recognize that MetroHealth is

liable to pay a very large judgment. But that judgment is backed by the full faith and

credit of Cuyahoga County. MetroHealth makes no claim that it cannot satisfy the

judgment in whole if required to do so.

E. Summary {¶126} To summarize our holding with respect to the issues raised in the

cross-appeal: an unborn, viable child can maintain an independent claim for lack of

informed consent; the court did not err by allowing Stewart to forego cross-examination

of the witness; the jury’s verdict was not against the manifest weight of the evidence; and

the court did not abuse its discretion by denying MetroHealth’s motion for payment of

any judgment of nonactual-loss damages in annual installments.

{¶127} Judgment affirmed in part, reversed in part, and remanded.

It is ordered that the parties share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________________ MELODY J. STEWART, JUDGE

MARY EILEEN KILBANE, P.J., and MARY J. BOYLE, J., CONCUR