President Obama is making health care reform in this country his top priority. As part of his package, Obama has stated that he is willing to consider malpractice liability reforms if these reforms would assist physicians in their practice of medicine. Many Americans believe that the high cost of medical care in this country is linked to the nature and extent of medical malpractice lawsuits and the resulting increases in malpractice insurance. A new study, published on July 22, 2009, shows this could not be further from the truth.

The study, entitled "True Risk: Medical Liability, Malpractice Insurance and Health Care" found that the premiums that physicians pay for malpractice are at their lowest rates in over 30 years. Malpractice claims are down 45% since 2000, and malpractice claims and premiums paid in the past 30 years have never been more than 1% of this country's health care costs. Medical malpractice insurance company profits are higher than in any other area of the insurance industry.

Malpractice insurers want you to believe that unless dramatic tort reform is enacted, to include "caps" on the amount of damages that can be recovered in a lawsuit, that the high cost of insuring doctors in this country will lead to more and more physicians leaving the practice of medicine or moving to areas of the country which have enacted these caps. The facts do not bear this out. In fact, the study showed that in states without a cap on damages, malpractice premiums have actually dropped more than in states which have enacted caps and limitations on damages awards. By examining the records of every major insurer in this country, the study concluded that the amount a physician pays for malpractice insurance is directly related to how that insurance company handles its investment income and underwriting, not to claims against a policy. "Tort Reform" in this country will only limit a patient's ability to be fairly and justly compensated when a health care provider negligently causes harm.

The attorneys at Belsky, Weinberg & Horowitz, LLC are committed to obtaining justice for  victims of malpractice and will fight all attempts by organizations to mislead the public into believing that there is a "malpractice crisis" in this state.  The crisis is the failure of medical providers to afford proper treatment to patients and not the cost that comes with doing so.

In a written opinion, released on July 21, 2009 in the case of Green v. N.B.S., Inc., Maryland's highest court rejected the arguments made on behalf of a young girl who suffered lead paint poisoning that a statutory reduction of the jury's award of $2.3 million dollars was both unconstitutional and that lead paint violations are not "common-law torts" and thus not subject to the "cap" on "pain and suffering" damages.

Since 1986, the Maryland legislature has limited the amount of money a person may recover for non-economic damages that arise as a result of the negligence of a defendant. This amount increases by $15,000.00 per year. Whether or not this limitation is constitutional has been challenged in the past, without success. This most recent challenge was also rejected. The Plaintiffs argued that because the "cap" only applies to those who suffer personal injury as a result of a tort (e.g. negligence) and does not apply to any other class of Plaintiffs, it singles out injured victims and prevents them from receiving the entire award of damages. The Court of Appeals disagreed, holding that the law which sets forth the cap on damages is a "general law", not a "special law" and does not discriminate against tort victims.

The other argument made to the Court on behalf of the injured girl was that the cap should only apply to "common law torts" such as negligence, and not apply to violations of the Consumer Protection Act ("CPA"), which governs and controls the use of lead paint. Rejecting this argument, the Court found that the lead pain violations under the CPA was indeed "tortious conduct" and therefore any damages awarded are subject to the cap instituted on such damages by the Maryland legislature.

Each year, various organizations tally up a variety of facts and figures related to decisions of the Supreme Court. This year is no different, although some of the figures are surprising. We wish to attribute the following information to SCOTUSblog.com, which is an excellent resource for following events at the Supreme Court.

The Court issued 75 merit opinions in the 2008 term that ended last week. Four additional cases were summarily reversed without substantive commentary. Of those 79 cases in which opinions were issued, 60 (or 75.9%) were either reversed or vacated by the Supreme Court. Sixteen were affirmed. Needless to say, when the Supreme Court grants certiorari in a case, the appellant has historically faired much better than the appellee.

Of all of the Federal Circuit decisions before the Court this term, 16 (20.3%) were from the Ninth Circuit which covers California and several other western states. Thirteen of the 16 cases were reversed by the Court. Seven Circuits, including our very own and very conservative Fourth Circuit, had all of their decisions reversed (4^th, 6^th, 7^th, 8^th, 10^th and DC). The Eleventh Circuit was the only circuit to have all of its cases (three) affirmed.

Twenty-three opinions were 5-4 decisions. Fifteen decisions were unanimously decided. Thirteen decisions were 6-3. Of the 5-4 decisions, 69.6% or 16 decisions were along ideological lines, with the left (Justices Stevens, Souter, Breyer and Ginsburg) in the majority in five cases, and the right (Chief Justice Roberts, Justices Scalia, Thomas, Alito and Kennedy) in the majority in eleven cases. Justice Kennedy was part of the majority in eighteen of the twenty-three 5-4 decisions.  Justice Kennedy is obviously the most important "swing vote" on the Court, which is trending more conservative in the last few years, which is expected to continue even with the like appointment of Sonia Sotomayor.

The Court has recessed until September 2009. The attorneys at Belsky, Weinberg & Horowitz, LLC will continue to monitor and post all developments and opinions rendered by the Supreme Court we believe may have some impact on the clients we represent. Although the vast majority of cases involves matters of criminal and corporate law, any cases involving torts, damages, liens, bankruptcy and civil matters will be reported.

Happy Fourth of July to all!