Wrongful death 'cap' debated

April 04, 1994|By Frank Langfitt | Frank Langfitt,Sun Staff Writer

In a case of legislative deja vu, the Maryland General Assembly is trying to pass a tort reform bill this session that most thought was enacted eight years ago.

The issue is limiting jury awards in wrongful death cases, which involve medical malpractice, product liability and negligent auto accidents. It features some of the state's most powerful lobbies -- doctors, lawyers and insurance companies -- in a scramble for potentially tens of millions of dollars.

Lawmakers have found themselves caught in the middle, fearful of offending any of the parties in an election year.

"They'd probably like it to go away," says Gerard E. Evans, who represents Medical Mutual, the largest insurer of physicians in the state.

The legislature passed a bill in 1986 that many thought would cap damages for pain and suffering in wrongful death lawsuits at $350,000. The primary purpose of the bill was to hold down medical liability insurance.

Last year, however, the Maryland Court of Appeals decided that the law did not apply to wrongful death -- only to personal injury cases. The problem: The law didn't mention the words "wrongful death."

The dynamics of the current debate are fairly simple and boil down to one thing: money.

Doctors and insurance companies want to keep jury awards low, warning that large payouts will lead to higher malpractice premiums that physicians will pass on to patients.

Trial attorneys want a higher limit on jury awards, arguing that a lower one would shortchange plaintiffs who have lost loved ones. Limiting payouts would, of course, also cut into attorneys' fees.

The Maryland House and Senate have approved different bills in the past week or so to address the problem. A conference committee from both houses is expected to forge a compromise this week.

The Senate and House bills differ on the issue of the cap. Senators have approved a $450,000 limit; delegates have voted for $500,000. Both raised the cap from the original $350,000 to TTC take into account the increased cost of living.

One of the main points of contention, though, is when a cap would be applied. From 1986 to 1993, Maryland courts handled wrongful death cases assuming the $350,000 cap was in effect.

The current House bill favors doctors and insurance companies by making the new cap retroactive to 1986. If the law is not made retroactive, there are at least 141 pending cases that will remain open for unlimited damages, said Joseph A. Schwartz III, a lobbyist for doctors.

Without a retroactive cap, Mr. Schwartz says that malpractice premiums will jump 20 percent. Cases settled since 1986 could not be reopened, however, according to an opinion from the state attorney general's office.

Trial lawyers favor a provision in the Senate bill that does not make the law retroactive. They argue that Medical Mutual in particular takes in far more in premiums than it pays out in claims.

"They're making record profits, and there won't be any malpractice insurance crisis," said Michael Gisriel, a lobbyist for the Maryland Trial Lawyers Association.

Three of the legislators most involved in the issue are employed by law firms that have done extensive work in this area of the law. Del. Robert L. Ehrlich Jr., a Baltimore County Republican, works for Ober Kaler Grimes & Shriver, a Baltimore firm that has defended many asbestos lawsuits. He was a prime force in trying to keep jury awards low.

Sens. John A. Pica Jr. of Baltimore and Norman R. Stone Jr. of Baltimore County, both Democrats, work for the law firm of Peter Angelos, who made a fortune representing workers against asbestos manufacturers. Both tried to kill the cap bill in a Senate committee.

All three legislators say their employment did not influence their votes. They say they have been consistent in their positions on tort reform, based on their philosophies.

Mr. Pica said the bills would not really affect his firm, because most of the cases it handles arose during the 1940s, 1950s and 1960s.

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