Cap on jury awards could be in jeopardy in Montgomery case
Judge says law was written to cover only arbitration
Lawyers for a Silver Spring dermatologist are appealing a Montgomery County judge's ruling that the state has no limits on jury awards in medical malpractice cases.
The ruling, from Circuit Court Judge John W. Debelius III, found that when the legislature imposed caps on noneconomic damages, which was part of a much-ballyhooed special legislative session in 2004, it did so only for cases that first pass through a state arbitration board.
As a result, the caps do not apply to the case against Dr. Norman A. Lockshin, the judge ruled.
In November, a jury awarded the Semsker family of Rockville $5.8 million because a dermatologist working for Lockshin failed to remove a mole from the back of Richard Semsker.
Semsker eventually died in October 2007 of melanoma.
If the caps applied, Debelius said the award would have been reduced to about $3.5 million.
"We disagree with Judge Debelius and look forward to bringing that and other issues related to the court's decision before the appellate courts," said Mitchell Mirviss, Lockshin's attorney.
Mirviss said the appeal will focus on the judge's decision not to follow the intent of the General Assembly.
"I know what the intent was, and the intent was that it cover all medical malpractice cases, not ones that went before the arbitration panel," said Sen. Brian E. Frosh (D-Dist. 18) of Bethesda. "If it read that way, the law would cause a huge disincentive for any plaintiff to go to arbitration."
Chairman of the Judicial Proceedings Committee, Frosh was one of the architects of the legislation.
The session became a partisan boiling point. Robert L. Ehrlich Jr., the Republican governor at the time, had traveled the state drumming up support for tighter controls on medical malpractice, claiming doctors were moving their practices out of state because of rising insurance rates.
The Democratic legislature tossed his proposal aside in favor of its own measure, which helped defray insurance costs through a tax on HMO payments. Ehrlich vetoed the legislation, but the Democrats overturned his veto.
Senate Minority Leader Allan H. Kittleman also said the intent was to cap all medical malpractice cases.
"Either whoever drafted that bill unintentionally gave us not what we wanted, or the judge misinterpreted it," said Kittleman (R-Dist. 9) of West Friendship.
Patrick Malone, the Semskers' attorney, said a judge must follow the meaning of the law.
"The judge is not free to rewrite the statute when there's a plain and obvious meaning of the statute," Malone said.
Lockshin would be responsible for about half the jury award, or $2.8 million. Another defendant, Semsker's primary care doctor, settled out of court for an undisclosed sum.
Maryland has had a cap on damages for years. In his ruling, Debelius said the legislature specifically changed a law on the books since 1986 that applied the cap generally to only cases that pass through the Health Claims Arbitration Panel.
The appeal has drawn the support of MedChi, the Maryland state medical society, and the Medical Mutual Liability Insurance Society of Maryland, the largest insurer of physicians in the state.