Lockshin v. Semsker

• Decision Date: 12 January 2010
• Docket Number: No. 78 September Term, 2009.,78 September Term, 2009.
• Parties: Norman A. LOCKSHIN, M.D., P.A., et al. v. Barbara S. SEMSKER, individually and as personal representative of the estate of Richard H. Semsker, et al.
• Court: Court of Special Appeals of Maryland

987 A.2d 18

412 Md. 257

Norman A. LOCKSHIN, M.D., P.A., et al. v. Barbara S. SEMSKER, individually and as personal representative of the estate of Richard H. Semsker, et al.

No. 78 September Term, 2009.

Court of Appeals of Maryland.

January 12, 2010.

James L. Shea (Mitchell Y. Mirviss and Michael J. De Vinne of Venable, LLP, Baltimore, MD; David A. Levin and Thomas C. Marriner of Wharton, Levin, Ehrmantraut & Klein, P.A., Annapolis, MD), on brief, for Appellants.

Brief of Amicus Curiae, The American Ins. Ass'n, in support of Appellants: Robert E. Scott, Jr., Esquire, Paul N. Farquharson, Esquire, Semmes, Bowen & Semmes, Baltimore, MD.

Brief of Amici Curiae, University of Maryland Medical System, Johns Hopkins Health System, Medstar Health, and Lifebridge Health, Inc. in support of Appellants/Cross-Petitioners Norman Lockshin, et al: Mark D. Gately, Esquire, Hogan & Hartson, LLP, Baltimore, MD; Jessica L. Ellsworth, Esquire, Hogan & Hartson, LLP, Washington, DC, of counsel.

Brief of The Maryland Hosp. Ass'n, Inc. Amicus Curiae in support of Appellants: Jerome G. Geraghty, Esquire, Alexander Chizhik, Esquire, Blades & Rosenfeld, P.A., Baltimore, MD.

Brief of Amici Curiae in support of Appellants, The Medical and Chirurgical Faculty of Maryland, Inc. t/a The Maryland State Medical Society and The American Medical Ass'n: Stephen H. Johnson, Esquire, Gen. Counsel, The Maryland State Medical Society, Baltimore, MD; Joseph A. Schwartz, III, Esquire, Pamela Metz Kasemeyer, Esquire, J. Steven Wise, Esquire, Schwartz, Metz & Wise, PA, Baltimore, MD.

Brief of Amicus Curiae, NFIB Small Business Legal Center in support of Defendants-Appellants: Elizabeth Gaudio, Esquire, Nat. Federation of Independent Business, Washington, DC.

Brief of Amicus Curiae, Maryland Defense Counsel: K. Nichole Nesbitt, Esquire, Kelly Hughes Iverson, Esquire, Goodell, DeVries, Leech & Dann, LLP, Baltimore, MD.

Patrick A. Malone (Leonard W. Dooren of Patrick Malone & Associates, PC, Washington, DC; Ned Miltenberg of Center for Constitutional Litigation, PC, Washington, DC; Jonathan L. Thornton of

Pierce & Thornton, PLC, Norfolk, VA, of counsel), on brief, for Appellees.

Brief of Amicus Curiae, Maryland Ass'n for Justice: George S. Tolley, III, Esquire, Dugan, Babij & Tolley, LLC, Timonium, MD; David M. Kopstein, Esquire, Seabrook, MD.

Brief of Amicus Curiae, Progressive Maryland in support of Appellees/Petitioners: Wayne M. Willoughby, Esquire, Gershon, Willoughby, Gertz & Smith, LLC, Baltimore, MD.

ARGUED BEFORE BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

HARRELL, Judge.

The Circuit Court for Montgomery County held in this litigation, among other things, that the plain meaning of Md.Code, Courts & Judicial Proceedings Article¹ § 3-2A-09(a) (1974, 2006 Repl.Vol.), which states that the monetary cap on non-economic damages for health care malpractice claims appearing in § 3-2A-09(b) applies "to an award under § 3-2A-05 of this subtitle or a verdict under § 3-2A-06 of this subtitle," is that the cap is inapplicable to claims for which arbitration is waived pursuant to §§ 3-2A-06A or 3-2A-06B. The latter provisions provide the procedures for mutual and unilateral waiver of arbitration, respectively. Appellants/Cross-Petitioners (Norman A. Lockshin, M.D., P.A., and Dr. Michael Albert) urge this Court to reach a different conclusion under the plain meaning of the statute or, alternatively, to find ambiguity in the language of § 3-2A-09(a) and to examine the legislative history of the statute, which they maintain supports the conclusion that the General Assembly intended the non-economic damages cap to apply to all health care malpractice claims, not just those that are arbitrated. Appellees/Petitioners (the Estate of Richard H. Semsker, Barbara S. Semsker, Meryl Semsker, and Julia Semsker), on the other hand, maintain that the Circuit Court correctly determined the plain meaning of § 3-2A-09(a). For reasons we shall explain, although we agree with the Circuit Court's conclusion that the language in § 3-2A-09(a) is plain, unlike the Circuit Court, we hold that the plain meaning of that language provides that the cap on non-economic damages applies to all health care malpractice claims, including those, like the present case, for which arbitration has been waived under § 3-2A-06B.

I. The Statutory Scheme Governing Health Care Malpractice Claims

As it illuminates and informs our later analysis, it is desirable to frame early in this opinion the relevant statutory scheme in which the question at hand is enmeshed.

Subtitle 3-2A of the Courts and Judicial Proceedings Article governs nearly all claims brought by plaintiffs against health care providers for medical injuries alleged to have been suffered by the plaintiffs at the hands of the providers. § 3-2A-02(a)(1). The subtitle establishes the Health Care Alternative Dispute Resolution Office (the "HCADRO") and empowers it to create panels consisting of attorneys, health care providers, and members of the public to serve, prior to litigation, as arbiters of health care malpractice claims. §§ 3-2A-03 (a) and (c). Under this arbitration scheme, a plaintiff must file initially his or her claim, along with a certificate of a qualified expert attesting to the alleged departure by the defendant(s) from standards of care and causation of the plaintiff's injury by such departure, with the Director of the HCADRO, who then refers the claim to an arbitration panel. §§ 3-2A-04(a)(1)(i), -04(b)(1)(i), and -05(a)(1). The arbitration panel reviews pertinent documents, takes testimony from the parties and their respective experts, determines the liability of the defendant or defendants, if any,² assesses costs of the arbitration, and issues an award. § 3-2A-05(b)-(f). Following the panel's award determination, any party may apply to the arbitration panel to modify or correct its award as to liability, damages, or costs. § 3-2A-05(h).

Under § 3-2A-06(a), a party "may reject an award or the assessment of costs under an award for any reason" by notifying the Director, the arbitration panel, and the other parties to the dispute, and by filing an action in the Circuit Court to nullify the award or assessment of costs. §§ 3-2A-06(a) and (b)(1). Upon proper rejection of the arbitration panel's award, any party may elect to have the case tried by a jury in the Circuit Court; if no party elects timely a trial by jury, the case is heard before a judge. § 3-2A-06(b)(2).

At the close of the trial and upon timely request, the trier of fact "shall by special verdict or specific findings itemize by category and amount any damages assessed for incurred medical expenses, rehabilitation costs, and loss of earnings." § 3-2A-06(f)(1).³ The special verdict shall itemize separately any damages for any future expenses, costs, and losses. Id. If a verdict includes any such itemized damages for expenses, costs, and losses, "a party may object to the damages as excessive on the ground that the plaintiff has been or will be paid, reimbursed, or indemnified to the extent and subject to the limits stated in § 3-2A-05(h). . . ."⁴ Id. If, after reception of evidence on the objection at a hearing, the court finds that the damages are excessive on the grounds stated in § 3-2A-05(h), it may grant a new trial as to such damages or may deny a new trial if the plaintiff agrees to a remittur of the excess. § 3-2A-06(f)(3)(i).

The arbitration process, however, may be avoided in the main. Under § 3-2A-06A, at any time prior to the hearing of a claim by the HCADRO, the parties "may agree mutually to waive arbitration of the claim." § 3-2A-06A(a). If the parties so agree, "the provisions of [§ 3-2A-06A] then shall govern all further proceedings on the claim." Id. Where a case is subject to the provisions of § 3-2A-06A based on mutual waiver of arbitration, the statute provides that "the procedures of § 3-2A-06(f) of this subtitle shall apply." § 3-2A-06A(e).

In addition to mutual waiver under § 3-2A-06A, arbitration of a claim through the HCADRO "may be waived by the claimant or any defendant in accordance with" § 3-2A-06B after the filing of the certificate of qualified expert required by § 3-2A-04(b). §§ 3-2A-06B(a) and (b)(1). If arbitration is waived unilaterally in this fashion, "the provisions of [§ 3-2A-06B] shall govern all further proceedings on any claim . . . ." § 3-2A-06B(a). As with mutual waiver of arbitration under § 3-2A-06A, where a case is waived unilaterally out of arbitration, the statute provides that "the procedures of § 3-2A-06(f) of this subtitle shall apply." § 3-2A-06B(h).

Of particular importance to the present case, § 3-2A-09, entitled "Limitation of noneconomic damages," provides a cap on non-economic damages applicable "to an award under § 3-2A-05 of this subtitle or a verdict under § 3-2A-06 of this subtitle for a cause of action arising on or after January 1, 2005." § 3-2A-09(a). Subsection (b) establishes the amount of the cap, stating that "an award or verdict under this subtitle for noneconomic damages for a cause of action arising between January 1, 2005, and December 31, 2008, inclusive, may not exceed $650,000." § 3-2A-09(b)(1)(i). The limitation on non-economic damages contained in § 3-2A-09(b)(1)(i) increases by $15,000 yearly, beginning on 1 January 2009. § 3-2A-09(b)(1)(ii). In general, the cap applies "in the aggregate to all claims for personal injury and wrongful death arising from the same medical injury, regardless of the number of claims, claimants, plaintiffs, beneficiaries, or defendants." § 3-2A-09(b)(2)(i). The statute further provides that, where "there is a wrongful death action in which there are two or more claimants or beneficiaries, whether or not there is a personal injury action arising from the same medical injury, the total amount awarded for noneconomic damages for all actions may not exceed 125% of the limitation established under paragraph (1)...