An effort to overturn Maryland’s unfair malpractice damages “cap” has been scotched by Maryland’s highest court. The case involved Richard Semsker, a deceased Rockville attorney whose family was represented in a wrongful death lawsuit by Patrick Malone & Associates. The Maryland Court of Appeals has ruled that the jury’s verdict must be reduced to account for the damages ceiling imposed by the state legislature.
An article in the Montgomery County Gazette discusses the decision and quotes the Semskers’ attorney, Patrick Malone, who said:
“We had the entire Maryland medical establishment against us. While we have the better of the issue on the moral ground – damage caps are a terrible imposition upon victims of proven malpractice – on the other hand the establishment was against us on that.”
While little understood by the general public, which often responds to vaguely worded public opinion polls by favoring some forms of “tort reform,” including damage “caps,” these arbitrary limits on damage awards impose a tax on the most severely injured victims of provable malpractice. Victims who have lesser injuries are not affected by the damage caps.
In the Semsker case, for example, no one challenged as unreasonable the jury’s decision to pay Mr. Semsker’s widow $1 million for loss of the husband to whom she had been married 21 years, and to pay each of his twin teenaged daughters $500,000 for the loss of their father. The jury heard evidence about how close the Semsker family was and how devoted Mr. Semsker was to his daughters and wife. The jury also ruled that the defendants should have to pay $1 million for Mr. Semsker’s suffering in the last year of his life, which included multiple surgeries, radiation, and highly toxic chemotherapy — all to treat a skin cancer that, according to the undisputed testimony, would have been 100% curable if his dermatologists had caught it in time.
But while the jury acted reasonably based on the evidence, the statutory damage cap required a rollback of the verdict for these “non-economic” damages from a total of $3 million to a total of $812,500. That is the “one size fits all” number that the legislature came up with in 2005 as a limit on all non-economic damages in all wrongful death lawsuits for malpractice.
Even worse, the damage cap discriminates against malpractice victims specifically, as compared to victims of other types of injuries. If the same physicians had run over Mr. Semsker with their car, that would have been a non-malpractice case and the damage cap would have been around $1.6 million instead of $812,500.
The Semsker case is also discussed in Mr. Malone’s book, The Life You Save: Nine Steps to Finding the Best Medical Care — and Avoiding the Worst, an excerpt of which can be read here.
The Semskers had persuaded the judge who presided over the trial that the damage cap statute was written in such a way that its language excluded their case from imposition of the cap. But this week, the Court of Appeals reversed that decision and imposed the cap.