Personal Injury Law

Montgomery County, Maryland Judge Refuses to Cap Multimillion-dollar Medical Malpractice Award for Patient?s Skin Cancer Death Caused by Delayed Diagnosis

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

In Maryland, Montgomery County Judge John W Debelius III refused to cap the medical malpractice noneconomic damages received by the surviving family members of attorney Richard H. Semsker who died after a mole that was not treated became skin cancer and spread to his brain. Last year, his wife and two children were awarded $5.8 million for his wrongful death.

The Maryland medical malpractice lawsuit says that in 1998, Dr. Lokshin in Silver Springs examined Semsker?s back. He noticed that there was a 6 millimeter mole and recommended that Dr. Lawrence Marcus, the patient?s primary care physician, remove the mole.

The complaint claims that each doctor thought that the other physician had tended to the mole. In 2004, Semsker underwent another skin checkup. Dr. Michael Albert noted that there was an atypical mole and two cysts. Albert recommended the removal of the atypical mole but didn?t know that the other mole (documented in 1998) had doubled in size because he didn?t have access to Lokshin?s medical report, which under Maryland law could be destroyed after five years.

It wasn?t until 2006 that the mole was removed after Semsker?s wife saw that the mole had changed color. The delayed diagnosis led to Semsker being diagnosed with skin cancer that had now moved to other parts of his body. Semsker had to undergo surgery, radiation, and chemotherapy. He died in 2007.

Included in the verdict was $3 million for the anguish that Semsker and his family experienced while he was sick and after he died. If the judge had applied the cap, that portion of the award would have been reduced to $812,000. Judge Debelius, however, said the cap, under the 2004 Maryland Patient?s Access to Quality Health Care Act, provides exceptions for cases that were not first pursued through voluntary arbitration. He did, however, lower the award to $2.8 million because of a Maryland medical malpractice settlement that Semsker?s family reached with Dr. Marcus. Debelius?s decision does not bind other judges dealing with other cases.

Current Maryland medical malpractice cap:

? $665,000 for cases with one claimant
? $831,250 for cases with two claimants

Ruling: No cap applies, The Daily Record, April 21, 2009

Family wins malpractice suit against Silver Spring dermatologist, Gazette.net, November 19, 2008

Related Web Resource:
Skin Cancer Foundation

Is It Skin Cancer?, Skin Cancer Guide

Full post as published by Maryland Accident Law Blog on May 05, 2009 (boomark / email).