Simply stated, this court is without authority to amend the statute to reinstate language deleted from a draft version of the legislation, or to insert new words to the same effect, whether consistent with the perceived legislative intent or otherwise.
Semsker, supra, slip op. at 9-10. Adopting the plaintiffs’
arguments, therefore, Judge Debelius held that “§ 3-2A-09 does not apply to the case at bar.” Semsker, supra, slip op. at 10.
Implications Despite its potential significance, the trial court’s decision
in Semsker has little, if any, precedential value. It is not known whether other trial judges would concur with the holding reached by Judge Debelius, nor has an appellate court considered the applicability of § 3-2A-09 in any published (or unpublished) opinion. Litigants, lawyers and legislators eager to construe the trial court’s ruling in Semsker as the death knell for the cap in medical malpractice cases are gently reminded that the trial court in Murphy v. Edmonds, 325 Md. 342, 350, 601 A.2d 102, 105 (1992), held that the old cap, § 11-108, was unconstitutional. To date, no other trial or appellate court in Maryland
has considered the applicability of § 3-2A-09 in the same context as the trial court in Semsker. On May 22, 2009, the Defendants filed their Notice of Appeal, and on June 4, 2009, the Semskers filed a Petition for Writ of Certiorari with the Court of Appeals, pursuant to Md. Rules 8-301(a)(3) and 8-302(a), seeking an expedited review. At press time, no decision had been made with respect to that Petition.
Moreover, because the decision was issued after the close of the legislative session, no opportunity existed during the 2009 General Assembly to respond to the trial court’s holding. Historically, the General Assembly has waited to act in response to isolated trial court decisions, even with respect to very controversial issues, opting instead to defer to the Court of Appeals.
Biography George S. Tolley, III,Dugan, Babij & Tolley, LLC, received
his J.D. from New York University School of Law in 1991. Before entering private practice, he served for two years as law clerk to the Hon. Herbert F. Murray of the United States District Court for the District of Maryland. He is a member of the MAJ’s President’s Club, as an Eagle. A member of the Bar in Maryland, West Virginia and the District of Columbia, Mr. Tolley has litigated complex medical malpractice and personal injury cases in state and federal courts in those jurisdictions, as well as in the courts of Delaware, Pennsylvania, North Carolina, South Carolina and Georgia. In addition to MAJ, he is a member of the Association of Trial Lawyers of America, the West Virginia Trial Lawyers Association, the Pennsylvania Trial Lawyers Association, the American Bar Association, the Federal Bar Association, the West Virginia Bar Association, the District of Columbia Bar, and the Bar Associations of several local jurisdictions in Maryland. His practice is focused on medical malpractice, wrongful death, and catastrophic personal injury matters.
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