Maryland Injury Lawyer Blog

Every month or so, I report on the Metro Verdicts Monthly graph on the front of their publication which compares verdicts and settlements for a certain type of personal injury claim in Washington D.C., Maryland, and Virginia. Sometimes I am surprised by the difference in the results.

This month I am astounded by the difference between Virginia, Washington, D.C. and Maryland in median nursing home liability verdicts and settlements since 1987. The median recoveries in Maryland and Virginia are $125,000 and $175,000, respectively. This means that the median settlement and verdict in Virginia is 40% higher than Maryland. Virginia juries are generally more conservative than Maryland so this result is somewhat surprising. But here is what I find surprising: the average nursing home case settlement or verdict in Washington, D.C. is $700,000.

I have not done any sort of sophisticated jurisdictional analysis but I believe there is a general correlation between the size of nursing home verdicts and the size of medical malpractice verdicts. Yet these figures do not appear to support this conclusion. Metro Verdicts Monthly reports that the median settlement and verdict in Washington, D.C. for wrongful death medical malpractice cases over the last 20 years is $665,700. This is much less than Maryland’s median recovery of $900,000 or Virginia’s median recovery of $750,000.

These statistics would surprise me less if the study used average instead of median because the average can be influenced by extremely high verdicts or settlements that can create a misleading picture. But the median settlement or verdict number means that the study divided the jury verdicts and settlements into two equal groups, half having settlements or verdicts above the median and half having settlements or verdicts below the median.

On Wednesday, a Baltimore City jury awarded a 78-year-old Owings Mills woman $2 million in a medical malpractice case stemming from a failed surgery that led to three successive leg amputations.

After the verdict, Defendant’s medical malpractice lawyer gave this quote to the Maryland Daily Record: “This reaffirms my long held view that it is extremely difficult for a physician to get a fair trial in Baltimore City, particularly where there is a bad outcome and a sympathetic Plaintiff.”

If I were the reporter, I would have asked a few follow-up questions. Do you think that the people of Baltimore are not as smart and more prone to emotion then, let’s say, a Baltimore County jury? Why do you think this is? Is it just medical malpractice cases we cannot trust them with or all cases? What should we do about this problem with Baltimore City jurors? Should we replace Baltimore City jurors with the right kind of people, like the good folks in, let’s say, Potomac. If Baltimore City jurors can’t be fair on juries, should we continue to trust them to vote?

Congratulations to the malpractice victim and her lawyers Charles J. Piven of Brower Piven in Baltimore and Barry J. Diamond.

The Maryland Injury Lawyer Blog received today the following comment from an emergency room doctor in southern Maryland regarding my blog post on the alleged shortage of doctors in Maryland:

"You are guilty of not supporting your assumptions with data as well. I practice emergency medicine in St. Mary's County and Southern Maryland DOES have a doctor shortage problem. I know, I work here. I have many patients that cannot get into a primary care physician or a specialist. Talk to any hospital CEO at Civista, St. Marys, or Calvert Hospital and they will all tell you the same thing. While the shortage may not be evenly distributed about the state, the shortage is real and affects real people. You mentioned that you do not know anyone that has not been able to see a doctor. I imagine that in your nice neighborhood, your friends from the club, your colleagues have all been able to find doctors. You are out of touch with the rest of Maryland. If you are waiting for 'one person to tell you they cannot find the medical care they need' come visit me in St. Mary's county and I will introduce you to many. Maybe that will convince you. By the way, I am not a member of MedChi, have not attended any MedChi meetings and have no other motive to respond to your comment other than your gross misstatements that are baseless."

First, I appreciate the comment. I publish every comment I get, even those that, unlike this one, insult me personally. The Maryland Injury Lawyer Blog is obviously slanted towards plaintiffs and victims because I am slanted that way. But I try hard to make this a forum where I am writing as a human being who sees the world as I do, not as a plaintiffs’ lawyer’s manifesto.

As it turns out, this was not the only disparaging comment I received on this blog. I received a couple of emails and a telephone call from my father echoing Dr. Tucker's sentiment. I think my father may have even mentioned southern Maryland as an example.

First, I stand by the premise of the article. Last month, CareFirst BlueCross told the Maryland General Assembly that rather than a shortage of doctors, Maryland enjoys an adequate supply of physicians, fourth best in the United States. Supporting their argument with facts, CareFirst said that, based upon company records, there are approximately 16,500 full-time doctors practicing in Maryland. MedChi's estimation was approximately 10,000. You can drive a Mack truck through the difference in these numbers. Would this article have come out if 16,500 doctors was the number MedChi used in its calculations? As to who is telling the truth, I don't know, but I can tell you I do not trust Med Chi's numbers. They have always shown a willingness to collect and report numbers that are misleading, in an effort to vilify medical malpractice lawyers and/or insurance companies. So, I do continue to believe that Maryland has plenty of doctors even if "fourth best in the nation" is a CareFirst exaggeration.

What got me into trouble with some readers was the flip "find me someone who cannot find a doctor" comment. I felt comfortable saying this because it is true and I felt insulated from Dr. Tucker's "your friends at the club" jab because we have a lot of clients with limited means throughout the state of Maryland, and I do not recall anyone having trouble finding a doctor who would see them (and because the only “club” that I belong to is a health club - good, this segue gives me a chance to plug Club One Fitness).

I saw Doc Hollywood almost twenty years ago, and I get the idea that rural areas do have shortages of doctors, at least in certain specialties. I should have qualified my words more than I did because my experience of patients looking for and finding doctors in rural areas of Maryland is limited to the kinds of doctors patients typically see after trauma caused by negligence, which clearly leaves out many areas of physician specialties.

If the problem exists in rural areas of Maryland where successful medical malpractice lawsuits are as frequent as cicada sightings, Med Chi should focus on presenting ideas that can be used to recruit doctors to areas suffering from a shortage of physicians, such as public subsidies, scholarships and other incentives, instead of continuing to beat the drum that every problem faced by Maryland doctors involves either the insurance companies or medical malpractice lawyers.

The New York Personal Injury Lawyer Blog tipped me off to an article in the Chicago Tribune last week about a patient who filed a lawsuit against her eye doctor and his assistant alleging that the patient's toes were licked during her eye exam by the doctor’s assistant in Skokie, Illinois.

Apparently, the Plaintiff went to get an eye exam. The doctor’s assistant entered and dimmed the lights and told the plaintiff he was going to perform a "strip test." He placed a strip over her eyes and told her she would need to keep her eyes closed for 5 to 7 minutes. Feeling something on her feet, she opened her eyes and saw him licking her toes. The assistant reportedly replied, “"I'm sorry, I'm sorry, but I was checking your sugar level."

Many personal injury lawyers are going to disagree with me, but this is my definition of a frivolous medical malpractice action. Her damages were that her toes were licked. Obviously, this is not a good thing, and if it happened to my wife, I might be pretty annoyed and want to do something about it. The Plaintiff did do something about it. She pressed charges and the guy was convicted and sentenced to a year of probation. But now she wants to profit from that moment of having her toes licked and she wants to drag the doctor into it, even though there are no allegations the doctor knew or should have known that this guy was the nutcase that he apparently was. Who knows what a jury will give her but she does not want me on that jury.

I know that the Chicago Tribune sells a lot of papers. You can be sure that someone read this article in the morning on the way to jury duty and then was impaneled for a case where someone was seriously hurt. That deserving injury victim started his or her case behind the eight ball with that juror.

The wife of former Dallas Cowboys running back Ron Springs has filed a medical malpractice lawsuit against two Texas doctors she accuses of letting him slip into a coma, leaving him mentally and physically incapacitated.

Springs’ case is a wonderful story with a tragic ending. Last March, he received a kidney from ex-teammate Everson Walls and hopes were high for a full recovery, leading to some wonderful stories about Springs' friendship with his ex- teammate Walls. The public's interest in the story was furthered by the fact that Springs' son is professional football player.

I have zero information on the merits of this malpractice case. It could have a great deal of merit, I don’t know. Obviously, the injury is catastrophic. But it does not help the public’s perception of medical malpractice cases when it seems as though every famous person who has a bad medical outcome files a medical malpractice case. Charlie Weis and Dennis Quaid are a few recent examples of celebrity malpractice cases.

Why does this happen? Because many lawyers are more aggressive in taking cases on behalf of people that are famous even when the damages are not extensive or the probability of success is low. Everyone wants to be so-and-so’s lawyer and receive the ensuing publicity. The problem is that the public then perceives that every bad medical outcome case ends up being a medical malpractice case, furthering the acceptance of medical malpractice insurance companies’ argument that people bring lawsuits every time something goes wrong. The reality is that the economic demands of malpractice cases too often lead to the opposite result for most people: they have a meritorious case, but the costs of a medical malpractice case are such that no lawyer is willing to take a risk to pursue the case.

How many times have you Googled for one purpose and then found something interesting completely unrelated to what you were looking for? This weekend, looking for something completely unrelated, I found a New Yorker article from two years ago on medical malpractice in the comments section of a blog. It is an interesting and somewhat balanced article by a doctor writing about the medical malpractice problem in this country. I disagree with his conclusions but it really is a wonderfully well written article that points out the paradox inherent in medical malpractice cases. Three quotes in the article I found of particular interest:

“Malpractice attorneys are hardly the most impartial assessors of care, but medicine has offered no genuine alternative because physicians are generally unwilling to take financial responsibility for the consequences of their [medical malpractice]. Indeed, the one argument that has persuaded many doctors to be more forthright about mistakes is that doing so might make patients less likely to sue.”

“I watch a lot of baseball, and I often find myself thinking about the third baseman's job. In a season, a third baseman will have about as many chances to throw a man out as I will to operate on people. The very best (players like Mike Lowell, Hank Blalock, and Bill Mueller) do this perfectly almost every time. But two per cent of the time even they drop the ball or throw it over the first baseman's head. No one playing a full season fails to make stupid errors. When he does, the fans hoot and jeer. If the player's error costs the game, the hooting will turn to yelling. Imagine, though, that if every time Bill Mueller threw and missed it cost or damaged the life of someone you cared about. One error leaves an old man with a tracheostomy; another puts a young woman in a wheelchair; another leaves a child brain-damaged for the rest of her days. His teammates would still commiserate, but the rest of us? Some will want to rush the field howling for Mueller's blood. Others will see all the saves he's made and forgive him his failures. Nobody, though, would see him in quite the same way again. And nobody would be happy to have the game go on as if nothing had happened. We'd want him to show sorrow, to take responsibility. We'd want the people he injured to be helped in a meaningful way. This is our situation in medicine, and litigation has proved to be a singularly unsatisfactory solution. It is expensive, drawn-out, and painfully adversarial. It also helps very few people. Ninety-eight per cent of families that are hurt by medical errors don't sue. They are unable to find lawyers who think they would make good plaintiffs, or they are simply too daunted. Of those who do sue, most will lose. In the end, fewer than one in a hundred deserving families receive any money. The rest get nothing: no help, not even an apology.”

“What would most doctors do if someone close to them was hurt by a medical error? In a recent national survey, physicians and non-physicians were given the following case: A surgeon orders an antibiotic for a sixty-seven-year-old man undergoing surgery, failing to notice that the patient's chart says that he is allergic to the drug. The mistake is not caught until after the antibiotic is given, and, despite every effort, the patient dies as a result. What should be done? Unlike fifty per cent of the public, almost none of the physicians wanted the surgeon to lose his license. Medical care requires that a thousand critical steps go right every day, and none of us would have a license if we were punished every time we faltered. At the same time, fifty-five per cent of the physicians said that they would sue the surgeon for malpractice.”

Continue reading "Article on Medical Malpractice in the New Yorker" »

The Washington Post and the Baltimore Sun wrote yesterday about a new report that Maryland faces a doctor shortage that may well become severe by 2015.

We already have a shortage of doctors and things will get worse? I don’t know anyone – family, friend or client – who could not find a medical doctor when they needed one. Ever.

Who wrote the report? Well, if you go to the fourth paragraph of the Washington Post article, you learn that the report was commissioned by our good friends at MedChi, the Maryland State Medical Society. These are the same folks who warned of impending doom for doctors as the result of escalating medical malpractice cost. The same folks that came out with data supporting the future abyss.

Of course, that data turned out to be nonsense as evidenced by the fact that malpractice claims in Maryland dropped 32% over the following three years. But the MedChi cry of wolf did lead to new caps on medical malpractice cases in Maryland.

Another coincidence is the timing. Before the Maryland legislature began a special session to deal with the “medical malpractice” crisis, MedChi put out tons of information about how the sky was falling. Now, this report comes out – surprise! – just as the Maryland General Assembly goes into session. Having hoodwinked the Maryland legislature last time around, MedChi knows there is no chance of imposing new restrictions on damages in medical malpractice cases. Instead, I think their goal is to stop any groundswell to roll back those new restrictions and to apply pressure on the insurance companies to increase compensation.

Look, I’m all in favor of the insurance companies increasing doctor reimbursement rates. This issue makes the cost associated with medical malpractice claims seem like chump change. The only reason that MedChi targets medical malpractice cases is that medical malpractice lawyers are easy targets and injury victims are relatively small in number, so medical malpractice insurance rates are just an easier target for MedChi than taking on the insurance companies and their lobbyist.

This is not the first jurisdiction where doctors have complained about a doctor shortage where no shortage exists. Following this is a good editorial from Arizona on this topic.

I am not saying that there will never be a shortage of doctors in Maryland. What I am saying is that considering the messenger, I’m going to wait for an impartial study that tells me there is a crisis or until I talk to one person – anyone – who tells me they cannot find the medical care they need.

Reading back over this post, I hate that I sound so anti Maryland doctor. I'm not. I love Maryland doctors. I have three kids and I hope all three of them become doctors in Maryland. Years ago, I had cancer twice. Maryland doctors saved my life and I will be forever grateful to them. I'm not anti-doctor. And most doctors that I talk to don't have strong opinions on these medical malpractice issues, with respect to insurance premiums, caps, or anything else. They just want to help their patients and earn the decent living to which they are entitled. I also realize that MedChi is doing their job, fighting for these doctors. I just think they are advocates without any credibility on these issues. So I find it incredibly annoying when the Washington Post and the Baltimore Sun publish their findings as fact without questioning the source and MedChi's possible ulterior motives.

The Maryland Court of Special Appeals found in a 2-1 decision last month that a reduction of 30 percent in the survival chances of a woman with uterine cancer as the result of medical malpractice is not actionable as a matter of Maryland law.

Marcantonio v. Moen is a case about the delay in diagnosing cancer. Plaintiff claimed that his wife died as the result of her doctors misinterpreting a sonogram and failing to order sufficient tests to follow up on the woman’s symptoms. Because of this failure to diagnose, the Plaintiff claims that his wife’s chances of survival went down from 80% to 50%-60%. So while she was statistically likely to beat the cancer even with the malpractice, she died.

The Maryland Court of Special Appeals found that the “major issue to be decided is whether proof that a health care provider was responsible for a twenty to thirty percent reduction in the decedent's chance of survival is sufficient to prove that the malpractice caused the death. We shall hold that it is not," wrote Judge James P. Salmon.

In other words, the court is saying that there has to be a 51% likelihood that the person would have died but for the negligence. So in this case, she would have to have a 29% chance of living as a result of the negligence to recover.

But what the plaintiff and the minority opinion (a very well reasoning dissent from Judge Timothy E. Meredith) argue is that the 51% math is illogical because the majority opinion is doing the calculation pretending it does not know the outcome. So if you have a 90% chance of living and defendant’s negligence takes you down to 60% and you die, there is a 75% chance you died as a result of the negligence.

Doesn’t this make sense? In the scenario I just gave, it is more likely than not that the person died because of the negligence of the doctor. Shouldn’t that be enough? Yet you can’t recover in Maryland as a matter law in a wrongful death case when clearly the doctor’s negligence is likely the cause of the death.

The only way to make this right is going to be with help from the Maryland legislature because I don’t see the Maryland Court of Appeals fixing this.

You can read the opinion here or this summary of an article written by Scott Daugherty of the Capital Gazette (which contains a brief quote from me).

On Monday, the Supreme Judicial Court of Massachusetts overturned the dismissal of a lawsuit filed by a woman against a physician who had failed to warn his patient of the side effects of a medication. These side effects had caused the patient to lose consciousness at the wheel and kill the woman’s 10 year-old pedestrian son. The driver had recently had treatment for cancer and had been told by his doctor that he could safely resume driving while on his medication. (He had stopped driving for a period of time.) The mother sued, alleging that the doctor failed to warn his patient, the driver, of the possible side effects of drowsiness, dizziness, and altered consciousness.

The lower court had dismissed the lawsuit, claiming that the physician had a duty to his patient only, not to third parties. The Supreme Judicial Court disagreed and found that the doctor's duty extended to anyone who could be harmed by his failure to warn his patient about the drug's side effects. This ruling greatly widens the scope of duty of physicians when choosing treatment options for their patients and perhaps necessitates a wider discussion of possible side effects when prescribing medications. The case will now return to the lower court and be tried on the issue of the doctor's negligence (the dismissal was on the basis of standing to bring the lawsuit in the first place).

This is a very sad case. The driver was 75 years old and suffered from lung cancer, chronic bronchitis, high blood pressure and emphysema. At the time of the crash, he had finished his cancer treatment but was still on many medications. He died of cancer shortly after the accident. A ten-year old boy lost his life when he was in the wrong place at the wrong time. It does not get much more awful than that.

Obviously, if the duty of care a doctor has to his patient is widened to include third parties, it will be seemingly impossible to imagine the number of persons, like the ten-year old boy, who will fall into this scope. Will doctors in this doctor's position now have to tell their patients not to drive at all for fear of harm being caused to some third parties if any of the side effects arise and an accident ensues? Or will it be enough just to inform them of the side effects? I don't know but I think it is a question for the jury.

It will be interesting to see what the Massachusetts legislature does with this issue, because the legislature, as it has been prone to do, can pass laws limiting physicians' liability. I hope they don't. The politics of limiting the liability of doctors for medical malpractice cases notwithstanding, the court's rule in this case is consistent with the more modern view of ignoring privity and focusing on allowing actions in negligence by individuals or groups within a foreseeable zone of danger of the negligence. Clearly, in this case, this ten year-old boy was a foreseeable victim of the doctor's alleged negligence.

A quick search for a Maryland case on point came up empty, but this holding is consistent with the Florida Supreme Court's ruling in Pate v. Threlkel, 661 So. 2d 278, 278 (Fla. 1995), which found that "when the prevailing standard of care creates a duty that is obviously for the benefit of certain identified third parties and the physician knows of the existence of those third parties, then the physician's duty runs to those third parties." Id. at 1168.

I read this weekend an absolutely crazy story about a Tennessee medical malpractice case. A Tennessee lawyer was sued for legal malpractice for botching a medical malpractice case which he supposedly should have won. The legal malpractice case settled for $750,000 which means, if logic and reason were at all involved in the settlement process, it was a meaningful case with real value. Incredibly, he was also successfully sued for bringing a groundless lawsuit – the same case he should have won. There can be only once cogent response to these facts: huh?

Here is what happened. Underlying plaintiff has back surgery which left him blind in one eye and without peripheral vision in the other, rendering him legally blind and unable to work. Obviously, this was an awful outcome. Plaintiff brings a medical malpractice claim against the doctor, claiming that incompatible blood control products were used together during the surgery and caused Plaintiff’s injuries.

Plaintiff’s lawyer apparently starts screwing things up from there. The lawyer failed to find a medical expert that supported the claim before filing the suit, although there is a requirement in Tennessee that he do so. Ultimately he never did obtain an expert. In the legal malpractice suit, Plaintiff contended that incompatible medications did not cause his injuries. Instead, he and his experts claimed that the real cause of his injuries was the misplacement of his head during his seven hour surgery. The legal malpractice claim was settled, again for a substantial amount of money.

Of course, in the legal malpractice case, the lawyer being sued steps into the shoes of the doctor being sued in the medical malpractice case as a defendant for the “case within the case.” So someone was willing to write a pretty big check under the assumption that the doctor had committed medical malpractice, but the doctor’s medical malpractice insurance rates do not go up and he gets off scot-free.

Continue reading "Can a Medical Malpractice Case that Settles for $750,000 Be Frivolous?" »

A few weeks ago, I wrote about a new product for medical malpractice lawyers called MedMal Reports. This company creates a report of the expected medical malpractice payout for a given case, based on the National Practitioner’s Data Bank. I received an email from MedMal Reports Chief Economist, Dr. David M. Frankel, asking if I might tell Maryland Injury Lawyer Blog readers about his new newsletter.

I get a lot of these emails and my first instinct was to press delete. But I took a quick look at the newsletter. If you are into the statistics of personal injury and medical malpractice cases like I am, you are going to love the newsletter. It answers the questions I have always wondered about: whether gender matters (it does not), and what is the optimal age of a plaintiff with respect to settlement/trial value of the case (30-39).

As always, good information is power. This kind of information does two powerful things for medical malpractice lawyers. First, it gives you ammunition to use in settlement negotiations. The majority of good medical malpractice cases settle. The battleground is usually over price, and detailed information that shows the value of your client’s case is helpful. The second thing it gives you is information to inform and educate the client in making the call as to whether they want to take their medical malpractice case to trial or whether to resolve it.

This is the first newsletter MedMal Reports has put out. I get the idea that it will be monthly. As anyone who blogs knows, it is hard to consistently put out useful and informative information. But with the analysis Med Mal Reports has done with the treasure trove of information the National Practitioner’s Data Bank provides, they are certainly armed with the weapons to continue to provide regular information of interest to medical malpractice lawyers on both sides of the v.

You can find their November newsletter here.

The West Virginia Supreme Court, applying West Virginia’s medical malpractice cap, affirmed the trial court’s decision to cut a $10 million medical malpractice verdict against a West Virginia hospital and one of its doctors down to $1 million.

Plaintiff’s lawyers contended that the non-economic damages cap in medical malpractice cases in West Virginia did not apply to the jury’s verdict because their claim against the hospital did not arise out of the care and treatment of the Plaintiff but instead because of the hospital’s failure to control an environmental serratia outbreak which the jury found caused Plaintiff to contract a nearly fatal infection during an otherwise routine anterior cruciate ligament (“ACL”) surgical reconstruction in 1995.

Relying on judicial estoppel, the West Virginia Supreme Court disagreed in a tight 3-2 decision. The court found that Plaintiff pursued the case as a medical malpractice case in the pleadings, in their requested jury instructions, the agreed upon verdict sheet, and in Plaintiff’s closing argument.

Of those four, I think the verdict sheet is the most compelling. The verdict sheet read: “Do you find by a preponderance of the evidence that West Virginia University Hospitals, Inc., was negligent in its care and treatment of the Plaintiff by failing to maintain a safe and proper hospital environment with respect to infection control?”

Like most personal injury attorneys, I dislike medical malpractice or any other caps on non-economic damages. But I also believe in applying the law and suspect that this was the right decision.

I say "suspect" because two judges did dissent but neither have issued an opinion. There still may be a dissenting opinion; in West Virginia, they put out the majority opinion when it is ready even if the dissenting opinion has not yet been drafted. I will be interested in seeing specifically why those judges dissented.

Politically, you also have to figure that all things being equal, the West Virginia Supreme Court would rather not have a ten million dollar judgment against the state's premier hospital. Moreover, even I will admit that the verdict seems high given that there was no mention of any permanent injury. I'm not mimimizing what appears to be an awful case that almost killed a 15 year-old girl. I'm just not sure if the damages should be eight figures. The Plaintiff's medical malpractice lawyers likely did not expect a $10 million verdict because they were clearly couching the case as a medical malpractice case, fully aware of the cap, when they really did not have to do so.

Of course, the preceding paragraph does exactly what I always complain about when others do it: second guessing a jury's verdict when they sat through the entire trial and were in the best position to make the call as to the appropriate damage award. But on the limited information I have, and assumptions I am making because the Plaintiff's medical malpractice lawyers set up the case as a medical malpractice case (knowing about the cap on non-economic damages and the lack of facts regarding permanency) and my own limited knowledge of serratia bacteria infection secondary to surgery, a $10 million verdict seems awfully high.

You can click on the link for the West Virginia Supreme Court Opinion.

Doctors may have a new opponent in their battle for lower medical malpractice premiums: the state of Maryland. As I wrote last month, Maryland has been paying subsidies to doctors to the tune of $80 million over the past three years as a part of the medical malpractice “reform” bill that was passed in 2004. The Baltimore Sun reports today that Maryland Insurance Commissioner Ralph S. Tyler ruled that a $68.6 million malpractice premium surplus, which Medical Mutual had accrued last year, is owed to the state of Maryland.

Back in 2004, doctors’ fervor for caps in medical malpractice cases reached a new high. To fan the flames, I’m convinced that Medical Mutual (easily the largest medical malpractice insurer in Maryland, covering about 75% of Maryland doctors) engaged in a little creative accounting and timely settlement negotiations that allowed Medical Mutual to pay out more during the time frame being examined by the Maryland legislature. The Maryland legislature was looking at this time frame to determine how much medical malpractice premiums had risen.

After they got their wish and the Maryland legislature passed a bill to further cap medical malpractice damages, it quickly became apparent that the rise in premiums was artificial, evidenced by this $68.6 million surplus. For most insurance companies, this means that they have a $68.6 million profit. But Medical Mutual is owned by its own policyholders, the doctors Medical Mutual covers. So this profit would have gone back to the doctors had the state of Maryland not intervened.

In the end, I don’t know what this really means. Commissioner Tyler’s ruling apparently left open an escape hatch, stating that “I have left the door open for Medial Mutual to rescind its dividend declaration and propose a solution to mitigate rates next year.” In other words, Maryland may allow Medical Mutual to keep the money as long as it pays it doctors back in decreased premiums as opposed to a cash payment. This solution might be the best play for everyone, including Maryland medical malpractice lawyers, because stable premiums might strengthen our case for removing the medical malpractice non-economic damages cap. The truth is the only real loser would be Maryland taxpayers who are facing tax hikes next year and want their $80 million back.

A few months ago, I wrote about an upcoming review in Cook County on the constitutionality of medical malpractice caps. Yesterday, an Illinois trial judge found medical malpractice caps are unconstitutional, reversing a 2005 law capping damages in medical malpractice cases. The trial judge found that a cap on medical malpractice damages violates Illinois Constitution's separation of powers between the legislature and judiciary.

The battle is far from over - this is a trial judge making the call. But it is still good news for medical malpractice victims in Illinois.

I have expressed my disdain for Maryland’s cap on non-economic damages many times on the Maryland Personal Injury Lawyer Blog. I read an interesting article in the University of Baltimore Law Forum on an issue to which I have never given much consideration: the impact of the cap on non-economic damages on women. In the article, Maryland Tort Damages: A Form of Sex-Based Discrimination 37 U. Balt. L.F. 97 (2007), University of Baltimore law professor Rebecca Korzec argues that the statutory cap on non-economic damages in Maryland, although facially neutral, has the unintended consequence that it disproportionately disadvantages women.

The essential premise is that limiting non-economic damages disproportionately affects female litigants, because women earn less, in large measure due to women spending more time on unpaid child care and taking care of the children and the house. Accordingly, limiting pain and suffering damages does not allow juries to award fair compensation. Non-economic damage caps solidify bias by rewarding economic losses over non-economic ones, intensifying the gender bias of tort law.

Moreover, Professor Korzec notes that physical injuries to women may not result in significant damages awards, because of the nature of some injuries that are specific to women. A "soccer mom" who suffers an injury requiring a hysterectomy, for example, may result in little economic harm. Accordingly, restricting or limiting her non-economic damages may result in an insignificant award of damages.

In my mind, this is one more intellectual dagger into an idea that is not logically defensible. Now it appears that non-economic damage caps are not only discriminatory towards people who are the most seriously injured, it is also discriminatory to women. Although I do not have a lot of hope, the Maryland legislature should really hold hearings on the efficacy of the cap and its impact on a small minority of injury victims that need the system’s protection more than anyone.

(I found this article in the adjunct facility office at the University of Baltimore Law School after teaching my class. I looked on-line at the University of Baltimore Law Forum’s website, but it is not yet available.)