Maryland high court to address general liability cap

Maryland's high court is set to decide the constitutionality of a general liability cap in a case that likely will impact a separate limit on noneconomic awards in medical liability suits.

The Court of Appeals on April 2 heard oral arguments in a wrongful death case, in which a jury awarded a family $4 million after their 5-year-old son, Connor Freed, drowned in a country club pool in 2006. The trial judge reduced the verdict to $1 million, based on a noneconomic damage cap in general personal injury cases.

The Freeds appealed, contending that the cap violated their equal protection rights, but the Maryland Court of Special Appeals rejected that argument in 2009. Judges cited a nearly 20-year-old high court precedent finding that caps served a legitimate government purpose in making insurance affordable and available and did nothing to restrict access to the courts.

Physicians want to see that precedent stand.

"The concern is, if [the high court] rules that caps are unconstitutional in this action, the next one down the road could be a medical malpractice case to go after the constitutionality of that cap," said Gene M. Ransom III, CEO of MedChi, the Maryland State Medical Society. The organization filed a friend-of-the-court brief in the case, Freed v. DRD Pool Service Inc., joined by the Litigation Center of the American Medical Association and State Medical Societies and the Medical Mutual Liability Insurance Society of Maryland, the state's largest medical liability insurer.

Overturning caps would disrupt not only decades-old case law, but also years of stability in Maryland's medical liability environment that has helped keep doctors in practice, Ransom said. Since 2004 -- the last time the Legislature revised the state's medical liability cap to $650,000 -- physicians have seen their liability costs moderate and even inch downward in some areas, he said.

Plaintiff lawyers say rather than helping access to care, such award limits punish injured patients.

"By their very nature, caps are arbitrary and unfair to injured parties, because what you have is [lawmakers] dictating what somebody's injury is worth without hearing the facts of the case. The way our system works is a jury hears the facts of the case and decides the damages," said Wayne M. Willoughby, immediate past president of the Maryland Assn. for Justice. The state trade group for trial attorneys also filed a brief in the case.

Judges have the power to reduce unreasonable awards, Willoughby added, "so there are already checks and balances in place."