State malpractice damage cap shields radiologist from $5M jury award
An Ohio radiologist recently was successful in advocating for his state’s malpractice damages cap to quash a $5.15 million jury award.
Patient Thomas McNalley previously sued Toledo Radiological Associates and Vincent Keiser, MD, alleging the physician failed to diagnose a blood clot in his abdomen. This purportedly led to the necrosis of a large portion of his intestine, requiring its removal and leaving him with short gut syndrome.
A jury last year sided with McNalley, with the award including about $4.5 million in non-economic damages. However, the Ohio radiologist and his practice are avoiding paying the seven-figure sum, according to a recap of the case published Feb. 25 by Philadelphia law firm Marshall Dennehey.
Plaintiff attorneys had charged that the non-economic damages cap is illegitimate but couldn’t convince Ohio’s Sixth District Court of Appeals.
“McNally purported to challenge the constitutionality of [the damages cap] as applied,” according to the decision, handed down in December. “However, he failed to articulate clear and convincing evidence of a presently existing set of facts showing that the statute is unreasonable and arbitrary as applied to him.”
Prior to the appeal, Dr. Keiser and his attorneys had advocated for the application of the cap, which limits recovery to $500,000 for plaintiffs who have suffered catastrophic injuries. Meanwhile, McNalley had opposed the motion, charging that the statute violated due process and equal protections as applied to him, the blog poster noted.
Attorney Michael P. Vigorito, who wrote the piece, charged that the patient needed to show “clear and convincing, case-specific facts” supporting that Ohio’s statute was unreasonable or arbitrarily applied to him.
“Instead, his arguments—like those relied upon by the trial court—amounted to a broader attack on the statute’s treatment of all catastrophically injured medical malpractice plaintiffs…and he did not meet the heightened standard,” wrote Vigorito, who cited the radiologist’s case in the context of other attorneys arguing against the constitutionality of Ohio’s damage cap.
Marty Stempniak has covered healthcare since 2012, with his byline appearing in the American Hospital Association's member magazine, Modern Healthcare and McKnight's. Prior to that, he wrote about village government and local business for his hometown newspaper in Oak Park, Illinois. He won a Peter Lisagor and Gold EXCEL awards in 2017 for his coverage of the opioid epidemic.