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."

Earlier this month, the Court of Appeals of Maryland granted certiorari in a case which raises important issues relative the sufficiency of a plaintiff's expert certification.  One issue of particular interest to the plaintiffs' bar, and which has been raised frequently at the trial level, is whether a defendant who unilaterally waives out of health claims arbitration gives up the right to complain about the sufficiency of the plaintiff's expert certification.  Arguably, since a waiver cannot occur until plaintiff files a "valid" expert certification, the defendant tacitly accepts the validity of the certification by waiving out of health claims arbitration.

Kearney, Gail A., Individually, etc., et al. v. Robert S. Berger - Case No. 125, September Term 2009.

ISSUES - STATUTORY - MEDICAL MALPRACTICE - (1) DID THE TRIAL COURT ABUSE ITS DISCRETION IN RULING THAT APPELLANTS DID NOT HAVE GOOD CAUSE FOR AN EXTENSION OF TIME UNDER MD. CODE, ANN., CPJ SECTIONS 3-2A-04(b)(5) AND 3-2A-05(j)? (2) DID APPELLEE WAIVE HIS STATUTORY RIGHT TO OBJECT TO THE SUFFICIENCY OF THE ARBITRATION PROCEEDINGS WHEN HE UNILATERALLY WAIVED ARBITRATION AND FAILED TO PLEAD ANY OBJECTION IN HIS ANSWER? (3) DID THE TRIAL COURT ERR IN DETERMINING THAT THE APPELLANTS' CERTIFICATE OF QUALIFIED EXPERT WAS INSUFFICIENT?

The Court of Appeals of Maryland has reissued its decision in University of Maryland Medical System v. Waldt, which was recalled several weeks ago after it was initially issued.  In a cursory review of the reissued opinion, it appears that Chief Judge Bell has now joined the majority on the issue of whether a retired physician who was designated as plaintiffs' expert was properly prohibited from testifying because his involvement in litigation-related matters exceeded the 20% ceiling established by Maryland statutory law. 

The majority held that the neuroradiology expert's endeavors in matters such as reading medical periodicals, observing surgeries, and consulting with other physicians could not be considered "professional activities" as defined by the statute and, therefore, his litigation-related activities when compared against his legitimate "professional activities" were higher than allowed by law.  Chief Judge Bell, who originally dissented as to this portion of the decision, has now joined the majority, changing the decision from 4-3 to 5-2 on this issue.

The Waldt opinion remains a disappointment for medical malpractice attorneys representing plaintiffs.  The disqualified expert was nationally renowned in the area of neuroradiology.  His disqualification occurred in part due to his retirement from the active practice of medicine in 2001.  He was, however, extremely knowledgeable despite his retirement and despite having never performed the coiling procedure at issue. 

The reissued opinion highlighted the expert's credentials as follows:  "Dr. Debrun was educated in France and practiced inteventional neuroradiology for 45 years before retiring in July of 2001.  He has held many positions in that field, including Chief of Neuroradiology at the University Hospital of Paris, Director of Neuroradiology at the University of London in Canada, Chairman of the Department of Radiology at Massachusetts General Hospital, Visiting Professor at Harvard Medical School, and Director of Interventional Neuroradiology at The Johns Hopkins Hospital in Baltimore. Dr. Debrun has lectured extensively and written hundreds of articles on the subject of neuroradiology. He has in the past performed over 30 coiling procedures to treat wide-neck aneurysms.  Between 10 and 15 of those aneurysms were similar in size to Mrs. Waldt''s aneurysm. Because Dr. Debrun's retirement preceded the market release of the neuroform stent, he never performed a coiling procedure using that stent."

As stated in an earlier blog on the case, very few physicians would have ever performed the subject procedure since it was contraindicated and not otherwise approved by the Food and Drug Administration.  The trial court's rationale precluding the testimony of Dr. Debrun on the issue of whether proper informed consent was given, although not "clearly erroneous" in the appellate court's view, was in some respects, in this author's opinion, unjustified despite his lack of experience with the particular coiling procedure at issue.

The attorneys at Belsky, Weinberg & Horowitz are experienced medical malpractice attorneys who are keenly aware of the hurdles that must be cleared in order to obtain justice for our clients.  Those hurdles continue to be erected by decisions like Waldt.  We understand the odds and the burdens that come with handling malpractice claims successfully.   We fight to protect the rights of all clients and other individuals injured at the hands of negligent medical providers.  Please contact us if you wish to discuss a particular case or issue with one of our attorneys.

Oral Argument was held before the Court of Appeals on November 5th on the critically important case of Lockskin v Semsker, where the trial judge in a medical malpractice case ruled that the cap on noneconomic damages added by the General Assembly in its 2005 amendments to the Health Claims Malpractice Act does not apply to cases where health claims arbitration is waived and the case is transferred to the circuit court for trial. The trial court's decision came as a surprise to the medical malpractice bar and has generated a great deal of controversy and uncertainty as to the value of claims and cases since the ruling came down.

Of the seven judges on the Court of Appeals hearing this case, many of the questions were asked by four judges-- Murphy, Barbera, Adkins and Harrell. Judge Murphy made the first remark by questioning not whether the General Assembly intended to create a cap on malpractice claims, but whether it in fact did so based on the statutory language it enacted into law. The issue which appeared most problematic for the judges was the fact that the legislature during its emergency session clearly intended to create restrictions on malpractice claims but yet the trial court's interpretation effectively eliminated the cap in nearly every such case. The judges took interest in statistics supplied by the parties that revealed that nearly all litigants waive out of arbitration before a merits hearing is held before an arbitration panel.

Counsel for the defendants who are seeking a reversal of the trial court's rejection of the cap argued that the statute on its face is ambiguous and thus the court must look to the legislative intent and history in determining whether the General Assembly intended to impose the cap in medical malpractice cases of all types no matter where they are heard. The legislature, according to defense counsel, was very clear in its intent to "tamp down" malpractice claims and awards. He also argued under the "absurdity doctrine" that it would be absurd for the legislature to have created a section on caps within the Health Claims Malpractice Act specific to malpractice claims only for it not to apply to the vast majority of malpractice cases which are not arbitrated to conclusion.

According to the defendants, based on the rarity of an arbitration award (which was and remains a well known phenomenon), the legislature clearly could not have intended for the cap to apply only to the very small subset of arbitrated cases. Otherwise, every person with a malpractice claim would waive out of arbitration to avoid the cap and the arbitration process would effectively be abrogated by judicial interpretation.

Counsel for the plaintiff who prevailed at the trial level in convincing the judge to reject the cap argued that the language of the statute was plain and that, even if a mistake in drafting was made, it was for the legislature and not the Court to correct. He noted that this kind of drafting problem had arisen in other cases involving the cap in wrongful death cases, and also arose in connection with criminal cases, where the Court refused to rewrite the legislation that was plain on its face, but yet resulted in an unintended application of the statutes.  In both cases, the legislature amended the statutes after the Court of Appeals' rulings.

Plaintiff's counsel faced a barrage of questions about the extent that cases are arbitrated to completion, which he conceded, albeit reluctantly, was very few, and was asked whether he agreed that if the legislative history and intent was considered, that his position was untenable.  He disagreed that the legislative history would change the outcome since earlier drafts of the law would reveal that the legislature once had the proper language to make the cap applicable to all medical malpractice cases, but chose to use other language instead.

The lawyers at Belsky, Weinberg & Horowitz will continue to monitor the outcome of this case and report on all events as they arise.

The Court of Appeals of Maryland has recalled its recent decision in University of Maryland Medical Systems v. Waldt, a relatively rare event that signifies temporarily that the Court is not satisfied with some aspect of the opinion.  As of this date, therefore, the Court of Appeals' decision is no longer binding precedent and has been removed from publication.  The case can no longer be access on the Court's home page.

Sometimes cases are recalled to correct minor errors within the opinion.  Minor changes are usually made quickly and the opinion is reissued.  Rarely, the Court will change the substance of the opinion.  In Waldt, the mathematical computation of the expert's percentage of time spent serving as an expert was so close to the twenty percent statutory maximum (as calculated in the opinion - 20.6%) that it is possible the Court wishes to elaborate or expound upon the method by which it disqualified the plaintiff's expert.  The real reason for the recall is purely conjectural but is an interesting development in a very important opinion.  The attorneys at Belsky, Weinberg and Horowitz will keep you abreast of developments in the Waldt decision when they arise.

Did you know that in late 2005, the Maryland General Assembly in response to cries from the insurance industry substantially lowered the cap for noneconomic (pain and suffering) recovery for medical malpractice victims? The amendment is particularly unfair in circumstances where the victim dies from negligent care and leaves two or more surviving beneficiaries holding wrongful death claims. Today, a person who is severally injured or killed in an automobile or slip and fall accident will recover considerably more than will a victim of medical malpractice.

Under the provisions of the cap which predated the 2005 change, the maximum amount of noneconomic loss recoverable by both the estate of the decedent and his surviving heirs no matter what type of personal injury was sustained was approximately $1,625,000. After the amendment, the maximum noneconomic loss award for medical malpractice claims is $812,500. Under the amendment, the estate of the dedecent holds a maximum claim of $650,000 and the wrongful death beneficiaries, no matter how many (provided there are more than two) can now receive only $162,500.

Wrongful death damages are intended to compensate the decedent's beneficiaries for loss of companionship, affection, support and other intangible attributes of a loving, supportive relationship lost due to the untimely death of their loved one. To value such a claim at a mere $162,500 is absurd and unfair.

The idea of tort law is to adequately compensate the injured victim while also serving as a deterrent against future negligent conduct. In theory, individuals are more likely to conform their behavior to avoid risks of harm if they are faced with the possibility of large monetary awards for their mistakes. Under the laws of evidence, a tortfeasor may change his or her behavior without fear that such "subsequent remedial measures" can be introduced as evidence of negligence since many might assume that the after-the-fact correction of a problem is evidence that the problem existed and was known on the date of injury.

What makes little sense is that medical providers are in a far superior position to understand the risks of their actions and inactions and have a far superior ability to conform their behavior to avoid harm than does the motorist whose acts and omissions resulting in an accident frequently involve little to no deliberation or high risk behavior. Indeed, the sophistication of the medical community makes the deterrent effect of tort law much more important and likely to achieve the desired goal of encouraging the rendition of more careful medical care.

The Maryland General Assembly should take a careful look at the changes it made in haste during the emergency session in December 2005 and should consider the impact the new cap has on the families of those who are severally injured or killed as a result of avoidable medical errors. At minimum, victims of malpractice should receive no less than the victims of other types of personal injury.

The attorneys at Belsky, Weinberg & Horowitz frequently resolve cases where the various caps on noneconomic loss come into play.  We continue to fight for the rights of our clients to ensure they receive equal justice under the law.  The Court of Appeals of Maryland is considering several cap cases which have or will be summarized in upcoming posts.  We will monitor the arguments and outcomes of those cases and report on important events as they arise.  For more information about our firm, please contact us.