Oral Argument was held before the Court of Appeals on November 5th on the critically important case of Lockskin v Semsker, where the trial judge in a medical malpractice case ruled that the cap on noneconomic damages added by the General Assembly in its 2005 amendments to the Health Claims Malpractice Act does not apply to cases where health claims arbitration is waived and the case is transferred to the circuit court for trial. The trial court’s decision came as a surprise to the medical malpractice bar and has generated a great deal of controversy and uncertainty as to the value of claims and cases since the ruling came down.
Of the seven judges on the Court of Appeals hearing this case, many of the questions were asked by four judges– Murphy, Barbera, Adkins and Harrell. Judge Murphy made the first remark by questioning not whether the General Assembly intended to create a cap on malpractice claims, but whether it in fact did so based on the statutory language it enacted into law. The issue which appeared most problematic for the judges was the fact that the legislature during its emergency session clearly intended to create restrictions on malpractice claims but yet the trial court’s interpretation effectively eliminated the cap in nearly every such case. The judges took interest in statistics supplied by the parties that revealed that nearly all litigants waive out of arbitration before a merits hearing is held before an arbitration panel.
Counsel for the defendants who are seeking a reversal of the trial court’s rejection of the cap argued that the statute on its face is ambiguous and thus the court must look to the legislative intent and history in determining whether the General Assembly intended to impose the cap in medical malpractice cases of all types no matter where they are heard. The legislature, according to defense counsel, was very clear in its intent to “tamp down” malpractice claims and awards. He also argued under the “absurdity doctrine” that it would be absurd for the legislature to have created a section on caps within the Health Claims Malpractice Act specific to malpractice claims only for it not to apply to the vast majority of malpractice cases which are not arbitrated to conclusion.
According to the defendants, based on the rarity of an arbitration award (which was and remains a well known phenomenon), the legislature clearly could not have intended for the cap to apply onlyto the very small subset of arbitrated cases. Otherwise, every person with a malpractice claim would waive out of arbitration to avoid the cap and the arbitration process would effectively be abrogated by judicial interpretation.
Counsel for the plaintiff who prevailed at the trial level in convincing the judge to reject the cap argued that the language of the statute was plain and that, even if a mistake in drafting was made, it was for the legislature and not the Court to correct. He noted that this kind of drafting problem had arisen in other cases involving the cap in wrongful death cases, and also arose in connection withcriminal cases, where the Court refused to rewrite the legislation that was plain on its face, but yet resulted in an unintended application of the statutes. In both cases, the legislature amended the statutes after the Court of Appeals’ rulings.
Plaintiff’s counsel faced a barrage of questions about the extent that cases are arbitrated to completion, which he conceded, albeit reluctantly, was very few, and was asked whether he agreed that if the legislative history and intent was considered, that his position was untenable. He disagreed that the legislative history would change the outcome since earlier drafts of the law would reveal that the legislature once had the proper language to make the cap applicable to all medical malpractice cases, but chose to use other language instead.
The lawyers at Belsky, Weinberg & Horowitzwill continue to monitor the outcome of this case and report on all events as they arise.