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Judge Holds Maryland Damages Cap Not Applicable to Malpractice Cases

ROCKVILLE, Md., April 21 /PRNewswire/ -- In a decision of broad impact to medical malpractice lawsuits across Maryland, a circuit judge in Rockville has refused to apply the state's "cap" on non-economic damages in a malpractice case.

Judge John Debelius ruled that when the Maryland General Assembly revised the damage cap in 2005 to lower the amount that malpractice victims could recover from negligent doctors and hospitals, the legislature exempted cases in which the parties had not first gone through the state's pre-suit arbitration system.

The decision was handed down late on April 20, 2009 in the case of Semsker v. Lockshin. The case concerned the death of 47-year-old Richard Semsker, a Bethesda employment attorney, from malignant melanoma, a curable skin cancer. A jury last November found a prominent dermatology practice, Norman A. Lockshin, M.D., P.A., in Silver Spring, Md., was liable for Mr. Semsker's death because one of the practice's dermatologists, Michael Albert, M.D., failed to remove a suspicious mole from Mr. Semsker's back, which later turned into melanoma. The jury awarded damages to Mr. Semsker's widow and two daughters in the amount of $5.8 million. The verdict included $3 million for the widow and children's grief and loss of companionship, and Mr. Semsker's own suffering as he battled the cancer over the last year of his life.

The judge rejected a post-trial motion by the defendant to reduce the $3 million "non-economic" damages to $812,500, the maximum that would have applied under the damages cap passed in a special session of the legislature in 2005. Maryland has had a limit on "non-economic" damages in all personal injury lawsuits since 1986. The new statute passed in 2005 applied only to malpractice cases, and cut the "cap" in half for victims of malpractice.

Judge Debelius noted in his decision that the original version of the 2005 legislation would have applied to all malpractice cases, but that as finally passed, the statute only referred to cases that had been previously arbitrated, not the majority of cases in which one or both sides waive out of arbitration and proceed only in court. In rejecting an effort by the defense to read the statute as including all malpractice claims, whether arbitrated or not, Judge Debelius ruled: "[T]his court is without authority to amend the statute to reinstate language deleted from a draft version of the legislation, or to insert new words to the same effect, whether consistent with the perceived legislative intent or otherwise."

The judge rejected several other arguments by the defendant to reduce the damage award, but did agree that the award should be reduced to give credit for an out-of-court settlement with another defendant. He held that the Semsker family was entitled to recover $2,860,436 from Dr. Albert and the Lockshin practice.

The Semsker family is represented by Patrick Malone of Patrick Malone & Associates, P.C., in Washington, D.C., and Jon Thornton of Pierce & Thornton, in Norfolk, Virginia, along with Ned Miltenberg of the Center for Constitutional Litigation in Washington, D.C.

Malone commented: "On the same day as the judge's ruling, a report was released that shows Maryland ranks 45th among the 50 states in its rate of disciplining doctors who harm patients. Rather than trying to win special protection from the legislature to shield doctors and hospitals from accountability for the injuries they cause, the medical leaders of Maryland should clean up the disciplinary process so that the truly dangerous doctors are weeded out."

The report Malone referred to was the annual ranking published by Public Citizen of physician license disciplinary boards. It can be accessed at:

    Contact for further information: 
    Patrick Malone
    Patrick Malone & Associates, P.C.
    1331 H Street N.W.
    Washington, D.C. 20005

SOURCE Patrick Malone & Associates, P.C.
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