Law limits kidney suit damages

UTMC’s liability in case smaller than a private hospital’s

8/3/2013

COLUMBUS — If Sarah A. Fudacz and her kidney donor brother, Paul Jr., had been in the operating room of a private hospital when a nurse inadvertently threw away the transplant organ, they and their family could have potentially sued the hospital for as much as $1 million for pain and suffering.

But because the incident occurred in the operating room of the University of Toledo Medical Center, considered to be an arm of state government, the most the siblings could collect is $250,000 each. Punitive damages against the school are also not an option, unlike a case involving a private institution.

“It’s totally unfair to both the injured patient and to the taxpayers, because the cap will limit the recovery for the person severely injured and because taxpayers will have to pay for both the legal defense and the costs of the award,” said John Van Doorn, executive director of the Ohio Academy of Justice representing plaintiff attorneys.

A 1987 law, which predates the state’s broader medical malpractice law by nearly two decades, caps noneconomic damages for harder-to-quantify things like pain, suffering, and emotional distress at $250,000 per person.

Since the state of Ohio is essentially the unnamed defendant in the case, the lawsuit will be heard by an Ohio Court of Claims judge in Columbus instead of a local court jury.

The 1987 law had bipartisan support. It was passed by a Democratic House and Republican Senate and signed into law by Democratic Gov. Richard Celeste.

“That law was sold as protecting the universities because they’re public entities and not private businesses,” said Lou Blessing, a Cincinnati Republican, attorney, and lobbyist who was in the Ohio House at the time. “They needed some protection. Tuition was going up, things like that.

“The problem you have is that, in 1987, $250,000 was a lot more money than it is today,” he said. “The problem with setting limits like that is you never change them. You need to index for inflation or something. That’s pretty low for something like this.”

He suggested lawmakers should consider revisiting the law.

Mr. Fudacz’s kidney was found to be a close match for his older sister, who suffered from end-stage renal disease and needed a transplant. Last August, her brother underwent surgery to have his right kidney removed, but a nurse inadvertently disposed of the kidney as medical waste before it could be transplanted.

His sister’s surgery was canceled while their parents waited in the recovery room wondering what had gone wrong. Ms. Fudacz received a transplant about three months later in Colorado.

There is no limit when it comes to awards for lost wages, medical bills, and other measurable out-of-pocket expenses under either the 1987 public university law or the 2005 medical malpractice law that applies to other cases.

The Fudacz lawsuit filed Wednesday does not specify a specific economic damage demand beyond the routine “in excess of $25,000.”

The siblings, however, are also suing for unspecified noneconomic damages — pain, suffering, loss of companionship, and mental and emotional distress — that would be capped at $250,000 for each of them under the 1987 law.

Their parents and their four other children are also suing for emotional distress and loss of companionship.

If the case were tried under the broader 2005 medical malpractice law as a catastrophic case in which the victim loses a bodily organ system, the noneconomic damages could go as high as $500,000 per plaintiff, with the hospital’s total liability for noneconomic damages capped at $1 million.

Even if it were not considered a catastrophic case, they could have collected up to $350,000 for an individual, with a total noneconomic liability to the hospital of $500,000 under the 2005 law, still potentially higher than under the 1987 law.

The university, which temporarily suspended its transplant program, did pay expenses related to Ms. Fudacz’s subsequent transplant.

“They did assist her with expenses in going back and forth to Colorado and in the way of housing,” said James Arnold of Columbus, one of the family’s attorneys. “But those expenses are things they would have been held accountable for anyway.”

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.