Damage Cap (Continued from page 48)


tion on special legislation. The Defendant’s counsel in Semsker argues in response that


there is a rational basis for the legislation: “the cap’s objective of reducing the size of medical malpractice judgments and thereby stabilizing the costs of medical malpractice insurance is rationally related to the per-incident aggregation approach of the cap and therefore is constitutional.” (Defs Response to Motion to Alter and Amend in Semsker at 3). Further, the Defendants in Semsker argue that since the cap is not “directed at a particular named party or an individual case,” it does not violate the prohibition against special legislation. (Semsker Defs. Response at 3). Although the trial judge has not ruled yet in Semsker,6


it is


likely that this matter will have to be decided in the future by the Maryland Court of Appeals as the arguments raised by the Semsker Plaintiffs are a matter of first impression. However, it is noteworthy that numerous state courts have found similar statutes to be constitutionally infirm and violative of equal protection guarantees or special legislation prohibitions. Thus there is significant precedential support to have the medical malpractice cap overturned.


6 A hearing is set on the motion in April 2009


As early as 2000, the Florida Supreme Court in St. Mary’s


Hospital Inc. v. Phillipe, 769 So. 2d 961 (Fla. 2000), found that Florida’s cumulative $250,000 per incident cap on non- economic damages had to be applied per claimant in order to withstand constitutional muster. In other words, in order for


Does the Damage Cap In Death Claims, Applicable to Medical Negligence Cases Enacted in 2004 By the Maryland Legisla- ture, Violate the Maryland Constitution?


Us


Local Banks


Advocate Capital, Inc.: Law firm financing at an annual cost of Less than 2%*


Your local bank: Law firm financing at an annual cost of About 5%-8%


Which would you choose? To learn more contact us toll free


1.877.894.9724


Or visit us at www.AdvocateCapital.com


NEW! Also offering settlement funding. Strategic Finance for Law Firms®


* See website for further details.


the cap statute to be constitutional, it should treat all similarly situated persons equally. In Phillipe, the decedent’s survivors included the surviving spouse and four minor children. The Florida Supreme Court explained that if the cap was applied per incident, then the death of a wife who only leaves a sur- viving spouse is not equal to the death of a wife who leaves a surviving spouse and four children. The court held that such a classification treating multiple claimants differently than a single claimant was unconstitutional. The Court stated: “Differentiating between a single claimant and multiple claimants [asserting consortium claims] bears no rational relationship to the Legislature’s stated goal of alleviat- ing the financial crisis in the medical liability insurance industry. We fail to see how this classification bears any rational relationship to the Legislature’s stated goal of alle- viating the financial crisis in the medical liability industry. Such a categorization offends the fundamental notion of equal justice under the law and can only be described as purely arbitrary and unrelated to any state interest.” Id. at 971-72. In addition, the Wisconsin Supreme Court in 2005 invali-


dated a similar cap on non-economic damages which limited all claimants to $350,000. The Court held that such a statute was violative of equal protection. Ferdon ex. Rel. Petrucelli, v. Wisc. Patients Comp. Fund, 284 Wisc. 2d 573, 584, 701 N.W. 2d 440, 466 (2005). Further, in 2008, a judge in the Superior Court in Fulton


County, Georgia, in Park v. Wellstar Health System, Inc et. al., Civil Action HLE, 2007 CV 135208, invalidated Georgia’s cap on non-economic damages in medical malpractice claims on equal protection grounds. The Court in Park held that the cap of $350,000 for individual defendants and $700,000 for multiple defendants in medical malpractice cases only, violated equal protection for two major reasons: 1) the cap statute only applied to medical malpractice actions and not all personal injury cases; 2) the cap “effectively puts substantial limitations on the rights of the poor and middle class to recovery while leaving the right to virtually unlimited recoveries unimpeded for the wealthy.”


50 Trial Reporter Winter 2009


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