An Analysis of Current Medical Negligence Case
Law Pending in Maryland and Other Jurisdictions by Bruce M. Bender
In a special session of the Maryland legislature convened
by then Governor Ehrlich in the winter of 2004, the Mary- land General Assembly passed legislation enacting a cap on non-economic damages applicable to Plaintiffs in medical negligence cases only. This legislation was enacted in response to intense lobbying from physicians asserting that there was a “malpractice crisis.” The essence of the legislation1
was to limit non-economic
damages to an aggregate of $650,000 for all medical malpractice causes of action;2
however, if there are multiple wrongful death
plaintiffs, then the cap is $812,500 for all claims, irrespective of the number of causes of action or number of plaintiffs (i.e. 125% of the $650,000 whether there are two or greater plaintiffs). For purposes of this article, the focus is on cases in which
alleged acts of medical negligence have caused death. In such cases, two causes of action arise: 1) A Survival Cause of Action brought by the Personal
Representative of the Estate of the decedent for the decedent’s pre-death pain and suffering incurred after negligence as well as other economic damages; 2) A Wrongful Death Cause of Action for the surviving
spouse or parents and children (both adult and minor) to bring a solatium claim for their grief, loss of companionship, comfort, affection etc. Of course, other economic claims can be brought as well.
1
The statute states in pertinent part in ’3-2A-09(b) of the Courts and Judicial Proceedings Article: (b)(1)(i) Except as provided in paragraph (2)(ii) of this subsec-
tion, an award or verdict under this subtitle for non-economic damages for a cause of action arising between January 1, 2005, and December 31, 2008, inclusive, may not exceed $650,000Y (b)(2)(i) Except as provided in subparagraph (ii) of this para-
graph, the limitation under paragraph (1) of this subsection shall apply in the aggregate to all claims for personal injury and wrongful death arising from the same medical injury, regardless of the num- ber of claims, claimants, plaintiffs, beneficiaries, or defendants. (b)(2)(ii) If there is a wrongful death action in which there are
two or more claimants or beneficiaries, whether or not there is a personal injury action arising from the same medical injury, the total amount awarded for non-economic damages for all actions may not exceed125% of the limitation established under paragraph (1) of this subsection, regardless of the number of claims, claimants, plaintiffs, beneficiaries, or defendants. Md. Code. Cts & Jud. Proc., ’3-2A-09(b)(1) and (2).
2
In addition to creating the cap for medical malpractice death claims discussed in this article, the statute also caps all non-economic damages in medical negligence claims at $650,000 for a four year period of time between 2005 and 2008. Prior to this legislation, the cap increased $15,000 per year starting in 1994.
Winter 2009 Trial Reporter Pre Settlement Funding • Law Firm Financial Products
In November 2008, a jury in the Circuit Court for Mont-
gomery County in the case of Barbara Semsker, et. al. v. Norman Lockshin, M.D. et. al., Civil No. 283674-V awarded the Plaintiffs a verdict of $5,805,000 which included a verdict of $3,000,000 for the four claims for non-economic damages. These included: • $1 million in non-economic damages for the Estate of the decedent under the Survival Cause of Action
• $1 million in non-economic damages for the surviving spouse’s Wrongful Death Cause of Action
• $500,000 each in non-economic damages to the decedent’s two surviving children for their Wrongful Death Causes of Action
Promptly, after the verdict, the trial judge, Hon. John W.
Debelius III, reduced the verdict to conform to the above cap statute from $3 million dollars in non-economic damages to the cap of $812,500 for all four claims. However, in December 2008, the Semsker’s counsel, Patrick
John Friedson President
P.O. Box 1339
Rockville, Maryland 20849 (301) 984-0600 Fax: (301) 984-0719
email:
john@creativefinancingsolutions.com www.creativefinancingsolutions.com
47
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76