create “trickle-down” savings on insur- ance premiums for physicians. To the families of victims of medical negligence, this is scant justification for a legislative determination that the incredible pain and suffering caused by the avoidable death of a dearly-loved child, spouse or parent is somehow worth less because the act of negligence causing the death occurred in the context of medical treat- ment. Federal and state constitutional challenges to these legislative caps have met with uneven success. Some state Courts have reached the conclusion that caps singling out victims of medi- cal malpractice are unconstitutional. See, e.g., Ferdon v. Wis. Patients Comp. Fund, 284 Wis. 2d 573, 701 N.W. 2d 440 (2005); Moore v. Mobile Infirmary Ass’n, 592 So. 2d 156, (Ala. 1992); Brannigan v. Usitalo, 134 N.H. 50, 587 A.2d 1232
(1991), aff ’g Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980). Some legisla- tive caps singling out victims of medical malpractice have been upheld. See, e.g. Judd v. Drezga, 103 P.3d 135 (Utah 2004); Zdrojewski v. Murphy, 254 Mich. App. 50, 657 N.W.2d 721 (Mich. Ct. App. 2003); University of Miami v. Echarte, 618 So.2d 189 (Fla. 1993). The unequal treatment accorded victims of wrongful conduct with similar injuries – based only on the status of the tortfeasor as a health care provider – will undoubtedly provoke future constitutional challenges and review of the legislative merits of the new cap. On the legislative front, a number of
proposals regarding the cap on recovery for noneconomic damages in medical- negligence actions are pending before the Maryland Legislature. Some of these
seek to “freeze” the cap at existing levels, including the 125-percent limitation for multiple wrongful-death claimants. Other pending legislation seeks to restore the cap to the levels before the “reforms” effective Jan. 1, 2005, including restora- tion of the $15,000 per annum increase the restoration of a separate cap for wrongful-death actions and a return to the 150-percent limitation in cases with multiple wrongful-death claimants. n
About the Authors
Robert R. Michael, of Shadoan, Michael & Wells, LLP in Rockville, Maryland, received his J.D. from The George Washington University in 1971. He is a member of the very prestigious Inner Circle of Advocates and the Interna- tional Academy of Trial Lawyers. Mr. Michael is also a Fellow in the
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American College of Trial Lawyers; a member of the select American Board of Trial Advocates; and has been listed since 1986, in the publications Best Lawyers in America; in Washingtonian Magazine as one of Maryland’s top medical malprac- tice lawyers; and as one of Maryland’s Top 10 Lawyers in the 50 Maryland Super Lawyers. Mr. Michael is a past president of the
Maryland Trial Lawyers Association; is a founder and was the first attorney president of the Montgomery County Chapter of the American Inns of Court in 1991. In 2004, he received the “Trial Lawyer of the Year” award from the Trial Lawyers Association of Metropolitan Washington, D.C.
Kathleen Howard Meredith is a princi- pal in the law firm of Iliff & Meredith, P.C. She is past Chair of the Medicine and Law Committee of the American Bar Association, past Chair of the Liti- gation Section Council of the Maryland State Bar Association, Current Chair of the Membership Committee of the Maryland State Bar Association, and a Fellow of the American College of Trial Lawyers.
26
Trial Reporter
Spring 2008
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