This page contains a Flash digital edition of a book.
Semsker v. Lockshin:

An Amended Understanding of the Noneconomic Damages Cap in Medical Malpractice Action

George S. Tolley, III “I want to be honest with you,” [President Barack Obama] said.

“I'm not advocating caps on malpractice awards, which I personally believe can be unfair to people who've been wrongfully harmed.”

-- Ceci Connolly, “In Pitch to AMA, Obama Paints a Mixed Picture,” published in Te Washington Post, June 16, 2009.

In June 2009, President Barack Obama spoke a truth

long known to judges, lawyers and litigants in Maryland -- that arbitrary caps on damages treat the victims of medical malpractice unfairly. Two months earlier, in a thoughtfully written memorandum decision, a Montgomery County trial judge much more quietly challenged many common assumptions about our own noneconomic damages cap and its application in medical malpractice actions. Semsker v. Lockshin, Civil Action No. 283674 (Montgomery County Apr. 20, 2009). Tis article will consider the decision in Semsker, and several of its potential implications.

The Pertinent Underlying Facts In September 2004, Richard Semsker presented to the

dermatology offices of Norman A. Lockshin, M.D., in Silver Spring for examination of painful boils (cysts) on his upper back and for a full body skin check. After an exam, Michael Albert, M.D, an associate doctor, recorded the presence of two cysts and an atypical mole on Mr. Semsker’s upper back, all of which he recommended be removed, as well as a suspicious mole on his lower back, which Dr. Albert did not recommend for removal. In keeping with the dermatologist’s advice, all of the growths were removed from Mr. Semsker’s upper back, but the mole was allowed to remain. Te mole on Mr. Semsker’s lower back in 2004 measured 13 mm in diameter, which was more than double its size in 1998, when Norman Lockshin, M.D., previously had noticed the mole and recommended its removal. Over the following two years, the mole on Mr. Semsker’s lower back became a malignant melanoma. Mr. Semsker’s wife Barbara noticed in August 2006 that the mole had turned color, and Mr. Semsker promptly returned to the dermatology office, where the mole was excised. Unfortunately, dozens of lymph nodes in Mr. Semsker’s groin and lower abdomen were positive for metastatic malignant melanoma. Cancer treatments, including radiation, surgery, and experimental chemotherapy, were not successful; the cancer spread to Mr. Semsker’s brain, causing his death in October 2007. Mr. Semsker was survived by his wife, Barbara, and their twin teenage daughters, Meryl and Julia Semsker.

The Special Session During the Special Legislative Session in 2005, a full

day was devoted to testimony concerning to three divergent legislative proposals: one from Governor Robert L. Ehrlich, one from the House of Delegates, and one from the Senate.

Tese competing legislative proposals, to varying degrees, amended statutes governing insurance law, tort law, and medical practice. Te following day, those proposals were debated and amended, and two very different versions of legislation passed the House of Delegates and the Senate, requiring a hastily-formed conference committee to negotiate and reconcile the differences. Little can be said with certainty about the manner in which those negotiations progressed, because there is no official record of the activities of the conference committee, other than the resulting legislation itself, known as House Bill 2, which can be examined to see what was added and what was removed. As finally configured and enacted (over a gubernatorial

veto), House Bill 2 did many things, most of which are beyond the scope of this article. One important provision in House Bill 2, however, repealed the noneconomic damages cap for medical malpractice actions.

A Brief History of the Cap Beginning July 1, 1986, Maryland law imposed an unfair

cap on noneconomic damages greater than $350,000.00 in personal injury actions. Md. Cts. & Jud. Procs. Code Ann. § 11-108 (hereinafter “§ 11-108” or “the old cap”). Te statute was “aimed at reducing high noneconomic damage awards that will have to be paid by medical malpractice and automobile liability insurance carriers” in personal injury actions. United States v. Streidel, 329 Md. 533, 554 (1993) (Chasanow, J., concurring). In Streidel, however, the Court of Appeals held that wrongful death actions were not technically “actions for personal injury,” and therefore, § 11-108 did not apply at all to wrongful death actions. Tis

holding challenged many of the common

assumptions held by lawyers and legislators at that time about the noneconomic damages cap. For a brief period of time, as a result of the Court’s holding, wrongful death actions in Maryland were not subject to any cap on noneconomic damages. Effective October 1, 1994, the Legislature amended the

old cap so that it would apply to wrongful death actions, and simultaneously increased the old cap to $500,000.00 with annual increases of $15,000.00. In October 2004, the old cap had reached $650,000.00. As noted above, the old cap was amended again during

the 2004 Special Session, adding a subsection that effectively repealed the old cap with respect to medical negligence actions:

Trial Reporter / Summer 2009 9

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