Ohio Appellate Court addresses “Permanent and Substantial Deformity”


By: Doug Holthus

Ohio Revised Code §2315.18 imposes certain limits upon the available recovery of personal injury compensatory (non-economic) and punitive damages awards. An exception to the cap on non-economic damages exists where the plaintiff can establish that the injury complained of constitutes a “(P)ermanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activities.” R.C. 2315.18(B)(3). The Ohio Supreme Court has found that the “permanent physical injury” damages cap in R.C. 2315.18(B)(3) requires “extreme qualifications.” Simpkins v. Grace Brethren Church of Delaware, Ohio, 149 Ohio St.3d 307, 2016-Ohio-8118, ¶ 43, 75 N.E.3d 122, quoting Weldon v. Presley, N.D.Ohio No. 1:10 CV 1077, 2011 U.S. Dist. LEXIS 95248, 2011 WL 3749469, *6 (Aug. 9, 2011).

The Court has also stated that the cap will be lifted only for “catastrophic injuries.” Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, ¶ 47, 880 N.E.2d 42. This issue was recently addressed by the Ohio Twelfth District Court of Appeals in Poteet v. MacMillan, 2022-Ohio-876. In Poteet, the plaintiff had suffered a leg fracture necessitating the placement of internal medical hardware. A treating physician testified that the plaintiff “had some scarring but no visible deformity.” The physician also testified that the surgical wound was properly classified as a “Grade 1 injury”, that the open wound was only one centimeter in length, that the fracture had “fully healed”, that there had not been any shortening of the plaintiff’s leg as a result of the hardware, and that the plate and screws in the plaintiff’s ankle were “intended to be permanent.”

Upon appeal challenging the trial court’s imposition of the non-economic damages cap, the Ohio Twelfth District Court of Appeals determined as follows: “There is no question that Poteet has a malunion. It is also apparently undisputed that Poteet will retain the metal plate and screws in her ankle permanently. However, there was no testimony that the malunion or internal hardware misshaped any part of her body in any noticeable way. There was no evidence as to the extent or severity of any scarring, no testimony as to the present appearance of any scarring, nor testimony describing any scarring as a substantial deformity. Poteet relied on photographs taken in close proximity to the surgery, before her wounds had healed, inviting the jury to speculate. The absence of evidence as to Poteet’s scarring prohibits the jury from considering whether it constituted a permanent and substantial physical deformity. Likewise, with no evidence the malunion created an outward deformity, or that it was substantial in nature, the jury should not have been placed in a position to speculate that Poteet’s malunion constituted a substantial physical deformity. Finally, there is no evidence that the internal hardware created or contributed to a deformity, let alone a substantial deformity.” Id at ¶23.

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