A. Malone, of Washington D.C. filed a Motion to Alter, Amend and Revise the Judgment requesting the trial judge to reinstate the full verdict of the $3 million dollars in non-economic damages awarded. One of the two arguments raised by the Plaintiffs in Semsker is that the medical malpractice cap statute is violative of the Equal Protection Guarantee in Article 24 of the Maryland Constitution’s Declaration of Rights.3 Additionally, the Semsker Plaintiffs argue that the medical


malpractice cap violates the Constitution’s prohibition against special legislation found in Article III. ’33 of the Maryland constitution’s Declaration of Rights. 4 The essence of the Equal Protection challenge is that the


medical malpractice cap statutes noted above, limit non- economic damages to either $650,000 or $812,500 cumulatively (i.e. a cumulative cap for both survival and wrongful death causes of action) irrespective of the number of wrongful death plaintiffs who have an individual cause of action for solatium


3


Md. Const. Decl. of Rights Article 24 provides in full: That no man ought to be taken or imprisoned or diseased of his


freehold, liberties or privileges, or outlawed, or exiled, or, in any manner destroyed, or deprived of his life, liberty or property, not by the judgment of his peers, or by the Law of the land. “Athough the Maryland Constitution contains no express equal


protection clauseY it [is] settled that this concept of equal treat- ment is embodied in the due process requirement of Article 24.” Attorney General of Maryland v. Waldron 289 Md. 683,704, 426 A.2d 929,940-41 (1981).


damages. The Semsker Plaintiffs argue that cap figures are “ar- bitrary and cannot be regarded as a rational means of satisfying any legislative purpose, regardless of how important or well established.” (Semsker, Mem. In Support of Motion to Alter or Amend (hereinafter “Semsker Mem.” at 11). Further, they point out how illogical the cap as it stands now is. They argue the current statute it particularly punishes wrongful death plaintiffs if there are a greater number than two because the larger number of plaintiffs injured, the less each plaintiff can receive, even though they have separate causes of action. The Semsker Plaintiffs argue: “Because ’3-2A-09 treats similarly situated claimants dif-


ferently, solely on the basis of how many people may make claims arising out of the same nucleus of operative fact, that cap presents a classic violation of the equal protection guaranteed by Article 24 of the Maryland Constitution, under either the deferential ‘rational basis test,’ citing, Neifert v. Dept of Environment, 395 Md. 486, 506, 910 A.2d 1100, 1112 (2006)(other citations omitted) or the ‘heightened scrutiny’ analysis applied to statutes, which affect important personal interests or work a significant interference with liberty or a denial of a benefit vital to the individual.” Citing, Maryland v. Waldron, 289 Md. 683, 711, 426 A.2d 929,944 (1981)(other citations omitted) (Semsker Mem. At 12).


The Semsker Plaintiffs also argue that the medical mal-


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practice cap statute is violative of the prohibition on special legislation for the same reasons: because it is arbitrary and ir- rational. Unlike ’11-108 of the Courts and Judicial Proceedings Article, which establishes the cap on non-economic damages for all plaintiffs and was found to be constitutionally proper because it applies to all plaintiffs,5


the provision at issue only


applies to a certain small sub-class of tort victims and “capri- ciously benefits only a sub-set of all tortfeasors.” (Semsker Mem. at 13). Thus, the Semsker Plaintiffs argue the Maryland cap at issue is violative of the Maryland constitution’s prohibi-


(Continued on page 50) 4


Md. Const. Art. III, Section 33 provides in full: The General Assembly shall not pass local, or special Laws, in


any of the following enumerated cases, viz: For extending the time for the collection of taxes; granting divorces, changing the name of any person, providing for the sale of real estate, belonging to minors, or other persons laboring under legal disabilities, by executors, administrators, guardians or trustees, giving effect to informal, or invalid deeds or wills; refunding money paid into the State treasury, or releasing persons from their debts, or obligations to the State, unless recommended by the Governor, or officers of the Treasure Department, And The General Assembly shall pass no special Law, for any case , for which provision has been made, by an existing General Law. The General Assembly at its first Session after the adoption of this Constitution , shall pass General Laws, providing for the cases enumerated in this section, which are not already adequately provided for, and for all other cases, where a General Law can be made applicable.


See Univ. of Maryland Medical System Corp, v. Malory, 141 Md. App. 327, 354, 795 A.2d 107, 122 (2001)


Trial Reporter Winter 2009


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