Maryland Medical Malpractice Lawyer Blog

Maryland is one of the many states that cap, or limit, certain types of damages in medical malpractice cases. Under current Maryland law, medical malpractice damages for pain, suffering and emotional distress are capped at $650,000. That cap will not change until the end of this year (December 31, 2008), when the cap is scheduled to begin increasing $15,000 per year. A jury can award whatever it wants for pain, suffering and emotional distress, but if it awards more than the cap, the judge is required to reduce the verdict to no more than the cap.

The type of damages that are capped in Maryland medical malpractice cases – pain, suffering and emotional distress – are called non-economic damages. Economic damages, on the other hand, such as past and future lost wages, past and future medical expenses, and lost household services, are uncapped in Maryland.

The Maryland statute that sets forth the cap on medical malpractice cases specifically states that the jury shall not be told about the cap. Thus, everyone in the courtroom knows about the cap except for the jury that is making the decision on damages.

To determine the maximum value of a Maryland medical malpractice case, you add the maximum non-economic damages to any economic damages that can be proved to a reasonable degree of probability. For example, let’s say that a doctor fails to properly treat a young married man and causes a severe stroke. As a result, the victim can never walk again and must live in a wheelchair, and cannot work again due to moderate brain damage. That victim would have a pretty good chance of convincing a jury to award non-economic damages of at least $650,000 for all of the pain, suffering and emotional distress of having to live with the effects of a stroke and in a wheelchair for the rest of his life.

In addition, to the victim’s suffering, the victim also will have medical expenses related to the malpractice (neurology visits, urology visits, podiatry visits, pain specialist visits, etc.); care expenses related to the malpractice (such as for a home health aide to assist at home); and lost wages (because the victim can no longer work). In our example, let’s say that the case goes to trial two years after the medical malpractice, that medical and other care expenses have been One Hundred Thousand Dollars per year for the each of the last two years, and that the victim has a life expectancy of forty years. At trial, these “economic” damages will be divided into past and future damages, with the past medical and other care expenses being Two Hundred Thousand Dollars (2 x $100,000) and the future medical and other care expenses being Four Million Dollars (40 x $100,000).

In addition to the victim’s suffering and medical and other care expenses, the victim in our example also can no longer work. Let’s say the victim was earning approximately One Hundred Thousand Dollars per year in income and benefits before the malpractice, and would have worked for another 32 years, that person would have at leat Two Hundred Thousand Dollars (2 x $100,000) in past lost wages by the time the case goes to trial and future lost wages of more than Three Million Dollars (30 x $100,000). It’s actually more than that due to wage increases that would have occurred if the victim had not been injured.

Finally, we also have to consider a loss of household services. If, before the malpractice, the victim did all of the shopping, home care, lawn care and maintenance around the house, but can no longer do these things, that has a value that can be compensated. That value may be approximately Ten Thousand Dollars per year for forty years. Thus, the total lost household services is Four Hundred Thousand Dollars (40 x $10,000).

So, to figure out the maximum value of this hypothetical case, we add (1) the pain, suffering and emotional distress damages of $650,000, (2) the past medical and other care expenses of $200,000, (3) the future medical and other care expenses of $4,000,000; (4) the past lost wages of $200,000; (5) the future lost wages of $3,000,000; and (6) the lost household services of $400,000. Thus, the maximum amount of damages in this hypothetical case is $8,450,000.

The only major exception to the cap on non-economic damages relates to Wrongful Death cases in Maryland. A Wrongful Death case is a personal injury case that is brought due to the wrongful death of a person. It can be brought by a parent, spouse or child of a person who suffers a wrongful death. In a Wrongful Death case in which there are two or more claimants (a parent and child, for example), the non-economic damage cap is limited to $812,500 (125% of $650,000). That cap also will start slowly increasing at the end of this year (December 31, 2008), when the cap is scheduled to begin increasing $15,000 per year.

Over the last few years, more and more nursing homes have been requiring patients to sign binding arbitration clauses before admitting patients to the home, thereby preventing patients from later filing a medical malpractice claim in court against the nursing home, even in the case of egregious malpractice. Because arbitration is stacked against the patient, and the patients have no bargaining power to avoid the arbitration clauses, these clauses are unfair.

Finally, Congress is taking notice. Today, U.S. Senator Mel Martinez (R-FL) introduced legislation to protect dispute resolution options for residents of nursing homes. The measure is in direct response to the increasing practice of nursing home facilities requiring patients to agree to arbitration as the sole vehicle for dispute resolution prior to admittance to a facility. Joining Senator Martinez in this effort as lead-cosponsor is Senator Herb Kohl (D-WI). A copy of the press release regarding the legislation can be found here.

Many people are confused about what "medical malpractice" is and what it means in Maryland. The term medical malpractice simply means a negligence case against a health care provider, usually a doctor, nurse, hospital or nursing home. In order to bring a medical malpractice case in Maryland, the plaintiff (the party who files the case) generally must be able to prove (1) that the doctor, hospital or nursing home violated the standard of care; (2) that the doctor, hospital or nursing home was a cause of some injury or damage to the plaintiff; and (3) that the plaintiff suffered injuries and damage, and what the value is of those injuries and damages.

Another type of medical malpractice case in Maryland is an informed consent case. Generally, before a doctor provides non-emergency medical treatment to a patient, the doctor is required to explain the treatment to the patient and to warn of any material risks or dangers of the treatment, so that that patient can make an intelligent and informed decision about whether or not to go forward with the proposed treatment. A material risk is one which a doctor knows or should know would be significant to a reasonable person in the plaintiff's position in deciding whether or not to have the particular medical treatment or procedure. The doctors' duty to disclose material risks is measured by whether a reasonable person in the position of the plaintiff would have considered the risk to be a material risk. Technically, an informed consent case is not a medical malpractice case. As set forth above, in a true medical malpractice case, the plaintiff proves that the doctor, nurse, hospital or nursing home did not do something or did something improperly. In an informed consent case, however, the treatment and/or procedure may have been performed properly, but the information provided to the plaintiff was not enough for them to make an informed decision, and as a result of making that uninformed decision to have the procedure, the plaintiff was injured.

A medical malpractice case or an informed consent case in Maryland must be proved in court by what lawyers call the "preponderance of the evidence." To prove something by the preponderance of the evidence means to prove that something is more likely so that no so. In other words, the plaintiff in a medical malpractice case must prove their case to a reasonable degree of probability. A medical malpractice case is a civil case, meaning that the plaintiffs and defendants are fighting over compensation. Generally, most civil cases, such as all medical malpractice cases, must be proved by the preponderance of the evidence. A plaintiff in a medical malpractice case does not have to prove their case "beyond a reasonable doubt." That is the standard for criminal cases, where someone has been charged with a crime.

In a Maryland medical malpractice case, the plaintiff almost always must present testimony from an expert witness to support their case. An expert is someone who has special knowledge, skill, experience, training or education, and who can assist judge or jury in understanding the issues at trial. Informed consent cases are treated differently. In informed consent cases, expert testimony may come from the defendant or the defendant's experts.