On April 20, 2009 the Circuit Court for Montgomery County, Maryland essentially ruled that Maryland's cap on non-economic damages in medical negligence cases does not exist for cases arising after January 1, 2005. By way of history, Maryland has had a cap on non-economic damages in personal injury cases since 1986. That cap was always codified at 11-108 of the Courts & Judicial Proceedings Article of the Maryland Code. In 2004/2005 the Maryland Legislature called a special session in order to enact tort reform measures with regard to medical malpractice cases to address a purported medical malpractice crisis concocted by the insurance industry. Maryland medical malpractice cases were excluded from Section 11-108, and a separate lower medical malpractice cap was placed in a different spot in the Maryland Code--at 2-3A-09. Judge Debelius's recent ruling in Barbara S. Semsker v. Norman Lockshin, MD held that the newly enacted medical malpractice cap at 2-3A-09 of did not apply to the case because the new medical malpractice cap enacted in 2004/2005 only applied to cases arbitrated before the Health Claims Arbitration Panel (and Judicial Review of those cases). The Court explains "If, as a literal reading would suggest, Section 3-2A-09 does not apply to the case at bar, and verdicts in medical malpractice claims are clearly excluded from the application of the general cap statute at 11-108, then no cap applies to non-economic damages in this case...Simply stated, this court is without authority to amend the statute to reinstate language deleted from a draft version of the legislation, or to insert new words to the same effect, whether consistent with the perceived legislative intent or otherwise"
While this is just a trial court opinion, and it does not yet have precedential value, it is well reasoned and is, in my opinion, likely to be upheld by the Maryland Appellate Courts. Judge Debelius relies upon precedent on statutory construction from the United States Supreme Court and the Maryland Court of Appeals. Caps on damages are a form of tort reform and are unfair because they typically discriminate against women, the poor and the elderly. It will be very interesting to see how this plays out.
The Maryland Association for Justice issued the following Press Release:
"We applaud the decision of the Circuit Court for Montgomery County limiting the non-economic damage cap in medical negligence cases. The 'one size fits all' nature of the cap resulted in discrimination against women, minorities, the poor and the most seriously injured people in our state. This misguided law padded the profits of insurance companies, and did nothing to lower doctors' premiums or keep patients safer. We are glad balance and accountability has been restored to Maryland."
Today, the Circuit Count for Montgomery County, Md. ruled that the statutory limitation on non-economic damages in medical malpractice actions does not apply to cases filed in Circuit Court except for appeals from arbitration decisions.
Under Maryland law, all medical malpractice actions must begin with the filing of a "statement of claim" with the Health Claims Alternative Dispute Resolution Office ("HCADRO"). After filing, the parties may either arbitrate their claim in the HCADRO or waive arbitration and proceed to the applicable circuit court for a jury trial on the merits.
In 2004, during a special session of the legislature, the Maryland General Assembly passed a law that established a cap on non-economic damages for medical malpractice cases that is separate and distinct from the non-economic cap that applies to all other injury actions in Maryland.
Before the Circuit Court, Semsker, et al. v. Lockshin, et al. was a medical malpractice action in which the plaintiff prevailed at trial, winning a jury verdict well in excess of the damage cap. It was argued to the judge that the language of the malpractice cap statute clearly indicated that the damage cap only applies to cases that were arbitrated, and not to cases in which the parties waived arbitration.
After carefully reviewing the language of the statute and applying longstanding Maryland precedents on statutory interpretation, which largely compel the judiciary to defer to the legislature's choice of language when a statute is clear and unambiguous on its face, Judge John W. Debelius, III, agreed with the plaintiff's argument. Moreover, Judge Debelius noted that the legislature had amended the bill prior to its enactment to eliminate broader language that would have made all medical negligence claims subject to the cap. Thus, the judge's interpretation of the statute is consistent with both the express and unequivocal language of the statute enacted by the legislature and the legislative history as reflected by the General Assembly's decision to substitute narrow language regarding the scope of the damage cap in place of broader language.