Attorneys seek removal of ceiling on awards

State has $620,000 limit on amount one can get for noneconomic damages

October 22, 2002|By Stephanie Hanes | Stephanie Hanes,SUN STAFF

After a day of deliberations this month, jurors decided that a dying Baltimore County woman deserved $8 million from the doctor who had ignored a nasal growth that turned cancerous and spread throughout her skull. What they didn't know was that Lana M. Carey could collect only a fraction of that amount.

Jurors are not told that Maryland is one of 24 states with limits on awards for pain and suffering, known as "noneconomic" damages. No matter how much money a jury awards for these damages - in Carey's case, $7.5 million - the plaintiff can collect only about $600,000.

The Maryland General Assembly implemented the limit in 1986, a time when many states were passing reforms intended to stem rising malpractice insurance premiums.

Now, some Baltimore area attorneys are hoping that Carey's case and others like it will persuade the legislature to take another look at the issue.

It is part of an acrimonious national debate over award limits that pits trial lawyers and consumer rights groups against doctors and insurance companies.

"The Maryland legislature has made it a law that a person's leg, arm, vision, sexual function, if taken away through negligence, is only worth $600,000," said Marvin Ellin, Carey's attorney. "It's nothing less than outrageous, and the Maryland legislature should be ashamed of itself."

Trial lawyer groups said they will probably wait until after next month's elections to decide whether they should encourage legislation to get rid of the limits. If Maryland legislators reconsider the issue, they will have a lot of company.

This fall, President Bush said he would support a national system of limits on noneconomic damages. After lobbying on all sides, the U.S. House of Representatives passed a bill last month that would require all states to have limits and ensure that those states with caps keep them. Companion legislation faltered in the Senate.

In Maryland, the limit on noneconomic damages increases every year by $15,000. As of Oct. 1, it is $620,000. Economic damages, which include compensation for lost wages, medical expenses and other quantifiable losses, are not limited.

Closings

Doctors' groups said caps on noneconomic damages are necessary to lower the skyrocketing malpractice insurance premiums they said have forced some physicians, clinics and trauma centers out of business.

Those costs forced the Chesapeake Family Practice clinic in Cecil County to close this fall, said Russel Kujan, a spokesman for MedChi, the state medical society.

It's also what caused surgeon Gina L. Sager, rated one of Baltimore magazine's top 100 doctors, to shut down her practice recently. She said that lawsuits she was involved in caused her insurance premiums to increase from $10,000 a year to $58,000 a year.

"If we do not get medical liability reform, there is a great risk we will see a great increase in the problem of access to physicians," said Dr. Donald J. Palmisano, the president-elect of the American Medical Association.

But trial lawyers and consumer rights groups said pain and suffering damages are not responsible for high insurance costs and that limits simply pad insurance companies' profits.

"It has nothing to do with tort law," said Joanne Doroshow, the founder and executive director of the Center for Justice and Democracy, a nonprofit consumer rights group based in New York. "We're in a very predictable part of a cycle when interest rates drop and the economy weakens. Every time it happens, the insurance companies say, `It's not our fault, it's the lawyers' and the juries'.' "

Lawyers said the limits harm those most damaged by negligence.

Take, for instance, Charles A. Fischer and Janice C. Fischer, a Pasadena couple who sued North Arundel Hospital two years ago after a doctor there decided Charles Fischer's chest pains were not heart-related. Days later, Fischer, then 49, had a massive heart attack that left him brain-damaged.

In March 2000, a jury awarded the couple $1.3 million in noneconomic damages. But the cap limited the award to less than $600,000.

Since then, Janice Fischer has quit her job as a school bus driver to take care of her husband 24 hours a day. Their 35-year marriage has been transformed, she said. Her husband, once a master plumber, has almost no memory and needs constant attention.

"I just take him out for walks, to the mall, to gaze around, whatever," she said.

The Fischers deserved to collect all the money the jury awarded them, said Ellin, who represented them.

Medical groups respond

Medical groups counter that they are not trying to limit economic damages, those compensations for lost wages, medical expenses and future earnings. In Fischer's case, the jury awarded $1.4 million in economic damages. But lawyers said limiting noneconomic damages is discriminatory.

Injured women often get lower economic damages because they generally are paid less money than men. Carey, a former secretary, was awarded $165,000 for loss of future earnings.

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