The long battle over the constitutionality of Louisiana's medical liability damages cap continues. In 2006, the state's intermediate appellate court, the 3^rd Circuit Court of Appeals, struck down the state's total damages cap of $500,000, excluding future medical expenses, as unconstitutionally burdening patients' access to recovery and ruled that in today's dollars, the cap is worth only $160,000. Arrington v. ER Physicians Group, APMC; Taylor v. Richard J. Clements, M.D., Louisiana Patient's Compensation Fund.

On February 24^th, the Louisiana Supreme Court ruled that the constitutional issue over the value of the cap in today's dollars was not raised at the intermediate appellate level and could not be decided. It therefore vacated the two cases consolidated for appeal and instructed the 3^rd Circuit Court of Appeals to address the issues originally raised, to wit:

1. Whether the cap violates patients' due process rights by predetermining the amount they can recover;

2. Whether the cap violates the constitutional separation of powers and the authority of the courts by allowing the legislature to decide an award limit; and

3. Whether the cap is an unconstitutional special law that applies only to medical liability cases.

Although the February 24^th decision simply avoided the merits of the constitutional issues, many in the medical community in Louisiana are praising the decision if for no other reason than for its effect in delaying a ruling on the substance of the issues which effectively leaves the cap intact. The justices of the Supreme Court gave no indication in their opinion as to how they would ultimately rule on the constitutional issues raised by the plaintiffs.

According to the intermediate appeals decision giving rise to the appeal decided on February 24^th, the present value of the $500,000 cap established in 1975 should be between $1.6 and $1.7 million. Although the state legislature has taken no action to increase the cap since its enactment, some hold out hope that the Louisiana legislature will preempt the protracted appeals process that will continue as a result of the remand and will amend the cap to adjust upward the limits of liability. Whether any such amendment will end the appeals in this case is questionable, particularly if the legislation is proactive and not retroactive in its application.

The Maryland Court of Special Appeals today ruled in Murray v. Murray (No. 2432, Sept. Term 2007 (reported)) that a determination of whether a plaintiff's recovery for employment discrimination constitutes marital property for divorce distribution purposes hinges on the classification of the damages awarded by the judge or jury. The Court embraced the "Analytical Approach," under which a judge must determine "what the award, settlement, or judgment was intended to replace" and must consider "the nature of the personal injury award or settlement to explain why the property is the separate asset of a spouse or why it should be considered marital subject to equitable distribution." The Court rejected other approaches that consider the timing of the underlying claim or settlement/award.

In adopting the analytical approach, the Court reviewed four appellate decisions adopting the same approach:  Blake v. Blake, 341 Md. 326, 346-47 (1996 (damage award for personal injuries arising during the marriage); Queen v. Queen, 308 Md. 574 (1987) (workers' compensation benefit payment received during the marriage for injuries occurring during the marriage); Lowery v. Lowery, 113 Md. App. 423 (1997) (workers' compensation lump sum benefit payment received during the marriage for injuries occurring prior to the marriage); and Newborn v. Newborn, 133 Md. App. 64 (2000) (proceeds of a personal injury settlement received by the husband for injuries occurring during marriage).

Ultimately, the Court concluded that the "portion of such claim proceeds which compensates the claimant spouse for lost wages or earning capacity during the marriage, medical expenses paid from marital funds, or for joint loss of consortium, is marital property subject to equitable distribution." By contrast, the Court held that any proceeds awarded or intended "to compensate the injured spouse for future postmarital wages, bodily injury, or pain and suffering [. . .] constitute the non-marital property of the recipient spouse."

On February 19, 2010, Maryland's highest court issued its decision in the case of Houghton v. Forrest, holding that a Baltimore City police officer cannot claim immunity from suit for intentional acts of assault, battery, false arrest and false imprisionment.  This ruling is an important victory for Maryland citizens who are subjected to these types of harm at the hands of a public official.

In the Houghton case, the officer had witnessed a drug sale in Baltimore City while monitoring a security camera feed.  One of the participants in the drug deal was a woman wearing a black jacket, dark jeans and was carrying a red umbrella.  Houghton instructed another officer to arrest the alleged drug sale participants. He lost sight of the woman during the arrest. While continuing to scan the video feed, Houghton saw a woman standing at a bus stop, wearing different colored pants and jacket, but carring a red umbrella.  Even though this woman clearly did not match the description of the woman first identified in the video, Houghton instructed the officer to arrest her.  She was evenutually released from custody and subsequently filed suit against Houghton and the Baltimore City Police Department, alleging both negligence and a variety of intentional torts.  A jury awarded her more than $180,000.00 in damages.  The officer appealed the verdict, arguing that he was immune from suit for intentional tort  and because there was not sufficient evidence presented that he had acted with malice, which he argued is a necessary element to prove intentional harm.

The Court of Special Appeals, Maryland's intermediate appellate court, disagreed with Houghton, finding that a public official is not immune from suit for intentional torts, but also found that there was not sufficient evidence presented to find the officer acted with malice. Both parties appealed this decision

The Court of Appeals made clear in its decision that public officials, like this police officer, cannot seek immunity from suit if their actions are found to be intentional.  The Court did not specifically decide the issue as to whether sufficient evidence was presented to prove malice because the Court found that under the Local Government Tort Claims Act, the government is responsible to pay any judgment against the officer so long as the judgment did not include punitive damages, which requires a finding of malice.  In this case, the jury did not award punitive damages.

This case is important for the citizens of Maryland.  Victims of police brutality and misconduct may recover damages from these officers without the possiblity that the officers will try to hide behind the "immunity shield".

A Baltimore City jury has awarded $812,000.00 to a former employee of the Wal Mart in Port Covington.  The jury found that Tanika Burroughs, a cashier at the store, was wrongfully accused of conspiring with shoplifters at the store in December of 2007.

Wal Mart had accused Ms. Burroughs of being complicit in a shoplifiting scheme which involved changing the pricing on items which were then presented to her as the cashier for check-out.  Ms. Burroughs claimed that she suspected the shoplifing and reported it to her supervisors.  She was arrested, and subsequently fired from Wal Mart.  Ms. Burroughs sued Wal Mart for false arrest, lander and false light and malicious prosecution.  The jury was likely swayed by the video of the incident, which showed everything that occurred during the incident.

The jury awarded $750,000.00 in compensatory damages, as well as punitive damages against the individucal and corporate defendants.

With the absence of a supermajority in the Senate, President Obama is faced with the prospect of reconciliation or compromise in order to get a healthcare bill on his desk. Trial lawyers and other interest groups, however, are urging the President not to compromise on his prior position that tort reform would not be part of any negotiations to get a healthcare bill passed. Some believe, however, the President is wavering and is heading in the direction of giving in to the Republican's top priority of getting significant tort reform measures added as part of a "bipartisan" healthcare bill.

The White House plans on posting a revised healthcare reform proposal on February 25^th, before a scheduled bipartisan healthcare summit. Many are curious as to whether this revised proposal will contain tort reform measures such as absolute caps on noneconomic damages. Many strategists believe that tort reform is the only "olive branch" that will generate significant Republican support for a healthcare bill.

According to a February 14^th article in the TheHill.com, many strategists are evaluating recent remarks by the President suggesting that tort reform could be an area of compromise in a bipartisan healthcare bill, but suggest they are uncertain exactly what the President means by a "middle ground" on such a compromise, which he has mentioned several times. Some believe he will not drastically change his position against absolute damages caps, although the President did suggest he could embrace a proposal that might "make my party a little bit uncomfortable." This would not be the first time he has gone against the will of his own party in making deals unpopular with the Democratic party.

Tort reform at the federal level is bad public policy. Many states already have in place significant reforms in the form of caps on noneconomic damages, immunity provided to certain emergency medical providers and first responders, and expert certification requirements before a plaintiff may file a medical malpractice case in a state court. Those reforms arguably place an unfair burden on the injured victim to the benefit of the tortfeasor. Many state caps are being challenged on constitiutional "separation of powers" grounds. Two weeks ago, Illinois declared its legislatively created cap on noneconomic damages unconstitutional and other states, including Maryland, have cases before their state supreme courts, which make similar challenges.

Federally instituted tort reforms will generate more challenges and litigation and will be of limited significance in the state court systems in this County. The time for wheeling and dealing healthcare reform must come to an end. It's time for Congress to get its act together and pass comprehensive healthcare reform without all the pork and add-ons being proposed.

On February 5, 2010, a Baltimore City jury returned a verdict in the amount of $250,000.00 against Johns Hopkins Hospital and in favor of the parents of a 17-year-old girl who suffered from a rare disorder which prevents her body from aging.

Brooke Greenberg had been a long-standing patient at Hopkins, which treated her regularly for her condition.  She was scheduled for surgery to replace her feeding tube in March of 2007.  Her father discovered her unattended in a swing in a hallway with inexplicable bruising. The jury was likely swayed by the conflicting testimony of the nurses called to testify, the alterations to the medical records and the photographic evidence of the injuries.

Of interest, Brooke Greenberg and her familiy had been the subjects of a documentary on The Learning Channel, entitled "Child Frozen in Time." 

On February 4, 2010, in the case of Lebron v. Gottlieb Memorial Hospital, Docket Nos. 105741 and 105745, the Supreme Court of Illinois struck down the cap on non-economic damages in medical malpractice cases, holding that the cap, which had limited damages to $500,000.00 for doctors and $1,000,000.00 for hospitals, is unconstitutional because the law violates "separation of powers by allowing lawmakers to interfere with a judge's ability to reduce verdicts."  The Supreme Court noted that such a cap impedes a jury's right to establish reasonable damages.

Illinois joins Ohio, Alabama, New Mexico, New Hampshire, Wisconsin and Kansas in declaring that caps on non-economic damages are unconstitutional.  The Court of Appeals in Maryland has thus far rejected this argument and currently, damages for pain and suffering and other, non-economic harm are capped.  The amount recoverable depends on the year in which the malpractice occurred.  The cap is raised by $15,000.00 per year.

A verdict in the amount of $5.9 million dollars was reached today in favor of a 32 year-old woman against a vending company defendant.  The Defendant had hired a crane to remove a pool table from the second floor of a bar.  To prepared for the move, a portion of a fire escape rail was removed and tied back with a section of clothesline.  Three years later, the plaintiff, attending a party at the bar, was on the fire escape landing and was shoved into the tied-on railing when a door was opened.  The railing gave way and the woman fell 15 feet onto the concrete below.  She suffered a severe spinal cord injury. The jury awarded $381,228.00 in past medical costs, $2,532,775.00 in future medical costs, $26,875.00 in lost wages, and $2,971,750.00 in pain and suffering (non-economic) damages.  The trial was presided over by Judge Evelyn Omega Cannon in Baltimore City Circuit Court.  The law firm of Fick & May represented the plaintiff. It is likely that the defendant will seek to reduce the portion of the verdict awarded for pain and suffering to comply with the maximum amount allowable for non-economic damages permitted under Maryland law, known as the "cap".