Naval Academy, his past and future medi- cal expenses were assumed by the United States Government (Government). The Government, pursuant to 42 U.S.C. §§ 2651 – 2653 (The Medical Care Recov- ery Act), sought to recover the amounts spent on Piquette’s medical care. The Government ultimately settled its claim directly with Steven’s insurer. Piquette filed suit in the Circuit Court for Anne Arundel County against Stevens and his employer, T.M. Branzell & Sons, Inc. (Branzell). Branzell was dismissed as a defendant, leaving Stevens as the sole defendant. Prior to trial, Piquette filed a motion in limine seeking to present his medical expenses as damages. This mo- tion was granted.


The case was tried before a jury.


Stevens asserted the defenses of contribu- tory negligence and assumption of the risk. The jury returned a verdict in Piquette’s favor and awarded him $759,5000 in damages. Stevens then filed a motion for judgment notwithstanding the verdict (JNOV), or in the alternative, for a new trial, or to revise judgment. The court granted the motion for JNOV on the ground that Piquette had assumed the risk as a matter of law.


In addition, the court granted the motion for a new trial.


Held: Reversed. When reviewing a mo- tion for JNOV, if there exists any legally competent evidence for the jury to find as it did, a trial court’s grant of the mo- tion for JNOV must be reversed.


In


Maryland, to establish the defense of as- sumption of risk, defendant must show that plaintiff: (1) had knowledge of the risk of danger; (2) appreciated that risk; and (3) voluntarily confronted the risk of danger. At trial, Piquette testified that he observed Steven’s truck approaching along Crownsville Road. Piquette at- tempted his turn nonetheless. The jury could have reasonably inferred that Piquette did not believe himself to be in danger from the approaching vehicle. Therefore, because there was legally com- petent evidence for the jury to have found that Piquette had not assumed the risk, the court erred when it granted the mo- tion for JNOV. The Court also held that Piquette could not recover compensation for medi- cal expenses incurred by the Government after the Government had compromised and settled its claim for those same ex- penses pursuant to the Medical Care Recovery Act. The Act was passed by Congress in 1962 in order to permit the Government to recover medical expenses gratuitously provided to military person- nel injured by third party tortfeasors. Congress clearly envisioned that if the Government sought to recover medical


Spring 2000


expenses gratuitously afforded an injured party, the injured party would be pre- cluded by the Act from recovering such expenses under the collateral source doc- trine. Where the Government chooses not to pursue a recovery of its medical expenses, however, the injured party may then recover them.


Frederick W. Piquette v. Seth Herman Stevens, et al., No. 5066, Sept. Term 1998, Filed October 28, 1999. Opinion by Wenner, J.


________


Damages – medical malpractice – excep- tion to the Collateral Source Rule – pursuant to Courts and Judicial Proceed- ings Article §3-2a-06 (F), a medical malpractice defendant can request that damages be reduced by the sum of plaintiff ’s collateral source benefits. A reduction pursuant to this statute would eliminate the subrogation and reim- bursements rights of the collateral source


Facts: Ann Bailey’s medical malpractice action against Dr. Vijay Narayen was tried before a jury in the Circuit Court for Bal- timore City, that awarded Ms. Bailey $787,613.20 in damages. Dr. Narayen filed a Motion for Remittitur, or in the Alternative, for a New Trial, to request a reduction of damages because Ms. Bailey’s insurer, Blue Cross and Blue Shield of Maryland (“BCBSM”), paid $399,539.00 for her medical expenses.


This motion was filed pursuant to


Courts and Judicial Proceedings Article (“CJP”) §3-2A-06 (f), which permits the introduction of collateral source evidence in medical malpractice cases after an award of damages. Dr. Narayen claimed the damages were excessive in that BCBSM had already paid $399,539.00 for her medical expenses. The statute pro- vides the trial court with discretion to deny this motion, to grant a new jury trial on damages, or to grant a remittitur, with the plaintiff’s consent. The trial court denied Dr. Narayen’s motion, without a hearing, because BCBSM had a subrogation lien against any judgment for Ms. Bailey. The court


concluded that if the damages were re- duced by the collateral source payment, BCBSM could still seek reimbursement form Ms. Bailey.


Held: Vacated and Remanded to the


Circuit Court for Baltimore City for fur- ther proceedings. The Courts of Special Appeals held that the trial court miscon- strued CJP §3-2A-06 (f), by concluding that BCBSM’s subrogation rights would survive a reduction of damages. The Court explained that if the trial court had reduced Ms. Bailey’s damages by the amount she received from her insurer, BCBSM would not be able to seek reim- bursement from Ms. Bailey or from Dr. Narayen. CJP §3-2A-06 (f) provides: “no person may recover from the claimant or assert a claim of subrogation against a defendant for any sum included in a re- mittitur or awarded in a new trial on damages granted under this subsection.”


The court noted that the General Assem- bly enacted this statute in response to the medical malpractice insurance crisis of the 70’s that affected the cost and availability of insurance for doctors. The legislature purposely combined an exception to the collateral source rule with the elimination of subrogation/reimbursement rights, in order to spread the costs of these cases among the medical insurers. These rights are only eliminated when the damages awarded by the judge or jury have been reduced due to collateral source benefits. As the court explained, such a reduction is not mandatory, but remains a discre- tionary matter for the trial court.


Narayen v. Bailey, No. 5394, Sept. Term, 1998, decided March 2, 2000 Opinion by Wenner, J.


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Medical malpractice – limitations – Maryland Contribution Among Joint- Tortfeasors Act Evidence – rehabilitation – jury instruc- tions – apparent agency


(Continued on page 34)


Trial Reporter


35


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