Maryland Legislators Consider Increasing Financial Recovery for Personal Injury, Creation of Birth Injury Fund

Published on Mar 17, 2014 at 3:29 pm in General Blogs.

Maryland’s politicians are considering tripling the amount of non-economic damages that can be obtained for plaintiffs in civil caseMaryland State House.jpgs involving catastrophic injuries. Maryland personal injury lawyers applaud the move. However, hospitals and the lawyers who represent doctors have already denounced the measure, with hospitals warning that higher financial recoveries will increase consumer costs.

The Maryland State Medical Society (MedChi), which represents about 8,000 physicians and their patients, opposes Senate Bill 789/House Bill 1009, alleging in a statement on its Web site that the increase would “precipitate the next malpractice crisis in Maryland.”

As explained in a previous blog, the malpractice cap was put into place by the General Assembly in response to claims by doctors and their insurers that a malpractice claims crisis was causing insurance hikes and would lead to doctors fleeing the state.

Maryland law sets caps on non-economic damages in civil actions, depending on the type of action and when the cause of action arose. The present cap for damages in a personal injury claim is $785,000. For medical malpractice claims, the cap was frozen at $650,000 until December 31, 2008, when it increased by $15,000 each year. The cap is $740,000 for injuries arising in 2014. The cap applies to all claims for personal injury and wrongful death arising from the same medical injury, regardless of the number of claims, claimants or beneficiaries or defendants.

While 21 states have caps on non-economic damages, many states have rejected the limitations on recovery. Missouri’s top court ruled in 2012 that a state law placing limits on the amount a jury can award for non-economic damages in medical malpractice lawsuits is unconstitutional because it violates the right to trial by jury created in the state’s constitution. Washington, Oregon, Alabama and Florida have similar language in their state constitutions and have concluded that limits on damages restricts the jury’s role and violates the constitutional right to trial by jury because determining damages is one of the responsibilities assigned to the jury rather than the judge.

Non-economic damages most often include compensation for pain and suffering, but they can also include compensation for emotional distress and loss of enjoyment of life.

Another medical malpractice measure under consideration by the 2014 General Assembly would create a fund that would compensate families for claims stemming from birth-related neurological injuries. The “Maryland No-Fault Birth Injury Fund” would be funded with annual fees paid by hospitals and doctors who have obstetrics and gynecological practices. The money could be used to pay medical bills, lost earnings potential and other costs.

The concept seems to be fairly new as only three other states – Virginia, Florida and New York – have birth-related neurological injury compensation plans. Those programs provide compensation for medical and certain other expenses of children with severe birth-related neurological injuries.

The Maryland measure was prompted by several recent court verdicts obtained by Maryland personal injury lawyers, including a couple awarded $55 million in a Maryland medical malpractice lawsuit involving birth injuries to their son.



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