Belsky Weinberg & Horowitz, LLC A Personal Injury & Workers’ Compensation Law Firm

Maryland's Damage Cap for Malpractice Awards is Unfair and Must Be Changed

Did you know that in late 2005, the Maryland General Assembly in response to cries from the insurance industry substantially lowered the cap for noneconomic (pain and suffering) recovery for medical malpractice victims? The amendment is particularly unfair in circumstances where the victim dies from negligent care and leaves two or more surviving beneficiaries holding wrongful death claims. Today, a person who is severally injured or killed in an automobile or slip and fall accident will recover considerably more than will a victim of medical malpractice.

Under the provisions of the cap which predated the 2005 change, the maximum amount of noneconomic loss recoverable by both the estate of the decedent and his surviving heirs no matter what type of personal injury was sustained was approximately $1,625,000. After the amendment, the maximum noneconomic loss award for medical malpractice claims is $812,500. Under the amendment, the estate of the dedecent holds a maximum claim of $650,000 and the wrongful death beneficiaries, no matter how many (provided there are more than two) can now receive only $162,500.

Wrongful death damages are intended to compensate the decedent's beneficiaries for loss of companionship, affection, support and other intangible attributes of a loving, supportive relationship lost due to the untimely death of their loved one. To value such a claim at a mere $162,500 is absurd and unfair.

The idea of tort law is to adequately compensate the injured victim while also serving as a deterrent against future negligent conduct. In theory, individuals are more likely to conform their behavior to avoid risks of harmif they are faced with the possibility of large monetary awards for their mistakes. Under the laws of evidence, a tortfeasor may change his or her behavior without fear that such "subsequent remedial measures" can be introduced as evidence of negligence since many might assume that the after-the-fact correction of a problem is evidence that the problem existed and was known on the date of injury.

What makes little sense is that medical providers are in a far superior position to understand the risks of their actions and inactions and have a far superior ability to conform their behavior to avoid harm than does the motorist whose acts and omissions resulting in an accident frequently involve little to no deliberation or high risk behavior. Indeed, the sophistication of the medical community makes the deterrent effect of tort law much more important and likely to achieve the desired goal of encouraging the rendition of more careful medical care.

The Maryland General Assembly should take a carefullook at the changes it made in haste during the emergency session in December 2005 and should consider the impact the new cap has on the families of those who are severally injured or killed as a result of avoidable medical errors. At minimum, victims of malpractice should receive no less than the victims of other types of personal injury.

The attorneys at Belsky, Weinberg & Horowitz frequently resolve cases where the various caps on noneconomic loss come into play. We continue to fight for the rights of our clients to ensure they receive equal justice under the law. The Court of Appeals of Maryland is considering several cap cases which have or will be summarized in upcoming posts. We will monitor the arguments and outcomes of those cases and report on important events as they arise. For more information about our firm, please contact us.

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