Personal Injury Law

Maryland injury law: Court of Appeals will review noneconomic damages cap

By Jack Lebowitz, Esq. and Vadim Mzhen, Esq.

Maryland?s highest court is going to review the constitutionality of the state?s personal injury noneconomic damages cap. This court hasn?t done this since 1995. Currently, the cap for a plaintiff?s pain and suffering is $725,000.

The Maryland wrongful death case that brings the noneconomic damages cap issue to the state?s highest court is the one involving the parents of 5-year-old Connor Freed. The young boy drowned in 2006 in a country club swimming pool in Anne Arundel County in 2006.

A jury awarded his parents, Debra Neagle Webber and Thomas Freed, over $2 million for his drowning death. Because of the Maryland personal injury cap, which was $665,000 when their son died, their wrongful death award would go down to $1.3 million.

The judge presiding over the Anne Arundel County wrongful death case wouldn?t let the jury consider whether the boy experienced ?conscious pain and suffering? before his death. The Court of Special Appeals, however, reversed the decision.

While the Court of Appeals hasn?t reviewed the noneconomic damages gap for some time now, the court recently rejected a claim that the cap does not apply to cases filed under Maryland?s Consumer Protection Act. In November, it will look at the cap for medical malpractice compensation in the wake of a Montgomery County judge?s decision that it only applies to cases filed through the arbitration process.

The latter case involves the $5.8 million Montgomery County medical malpractice verdict awarded over Richard H. Semsker?s wrongful death. If Semsker?s melanoma had been treated when it was just a small mole on his back, the cancer might not have gone to his brain. Instead, doctors failed to treat the growth for years.

If the Court of Appeals were to reject the argument that Maryland?s medical malpractice cap only applies to cases that went through voluntary arbitration, then the Montgomery County wrongful death verdict awarded to Semsker's family would go down by more than $2 million.

Court of Appeals takes cap battle, The Daily Record, October 5, 2009

Medical jeopardy, Baltimore Sun, October 18, 2009

Related Web Resources:
Judge: Malpractice Caps Don't Apply to Jury Trials, Renalandurologynews.com, July 20, 2009

Medical Malpractice, Justia

Full post as published by Maryland Accident Law Blog on October 19, 2009 (boomark / email).