Technology grants greater access to the law than ever before, and with that, we are becoming more litigious with every passing year. Personal injury law firms notoriously flaunt massive jury verdicts, in particular. Nearly everyone seems to know about the enormous verdict granted to the woman who was burned by McDonald’s coffee in 1994. What many do not know, however, is that many states continue to institute tort reform laws that cap various forms of damages that are available to Plaintiffs in these types of cases.
In Maryland personal injury cases, non-economic damages are “capped” by tort reform laws. These caps limit the total amount of non-economic damages a plaintiff can recover, and the statute publishes a formula to determine the maximum amount each year. Damage is non-economic when it cannot be quantified by a specific amount of money on its face. For example, medical bills, which list a specific dollar amount that a Plaintiff has paid for his or her injury, are an economic damage. Conversely, pain and suffering, permanency of injury, disfigurement, loss of consortium, or trauma that a Plaintiff endures after an injury are nearly impossible to quantify in a monetary sense – making them non-economic damages. Yet, a jury must determine a monetary amount awardable to a Plaintiff for these types of injuries.
Medical malpractice claims in Maryland have a lower cap on non-economic damages than other types of personal injury claims (i.e., car wrecks, slip-and-falls, and general liability) in order to protect physicians from outrageous verdicts and ensure that Maryland physicians remain insurable. According to the statute prescribing the cap, the limit on non-economic damages in a medical malpractice case will increase by $15,000 each year on January 1. The Maryland legislature also differentiates between claims related to medical injury and claims for wrongful death. For example, in 2018, the non-economic damage cap for a medical malpractice claim was $800,000 but in the event of a death resulting in a survival action and a wrongful death action with two or more beneficiaries the applicable cap was $1,000,000.
On January 1, 2019, the cap for non-economic damage for medical injury became $815,000, and the cap for wrongful death in medical malpractice claims became $1,019,750.
What is most notable about this statutory scheme is that it seems to live on in perpetuity. The cap will raise every year regardless of any other economic factors. Most importantly, the increase that was instituted on January 1, 2019 is the first time non-economic damages in Maryland (since the institution of the cap in 1986) could be recovered for more than $1 million.
This is of particular note for insurance carriers and health care providers because many Maryland health care providers are covered by a policy of insurance with a coverage limit of $1 million. Now, for the first time in Maryland health care providers are exposed to non-economic damages in excess of their insurance limits. An excess verdict occurs when a health care provider’s medical malpractice insurance coverage limits are less than the verdict rendered. Any additional recovery awarded to the Plaintiff above the amount of the health care provider’s coverage limits can be recovered from the health care provider personally.
A health care provider can be liable personally for any amount above coverage limits. This means that the judgement can be entered and collected on the personal assets of the healthcare provider, rather than being collected from the insurer or employer. With the increased damage cap for 2019, personal exposure is a serious concern for any health care provider in Maryland carrying $1 million in applicable insurance coverage. The latest non-economic damage cap increase means that those providers are now exposed to potential excess verdicts immediately—even before accounting for potential exposure to economic damages.
The protection of health care provider’s personal assets has become exponentially more important when an excess verdict is possible. It is important to consult with an attorney who is well-versed in Maryland medical malpractice law in order to understand and prevent substantial personal liability. PK Law is uniquely qualified to handle these issues as we have industry-leading attorneys defending medical malpractice claims as well as one of the leading wealth preservation and estate planning groups in the region. Our attorneys will devise a strategy to help protect health care providers from this significant liability and to protect the personal assets of the provider accordingly.
Kathryn Jackson is an Associate in the PK Law’s Medical Malpractice Defense Group where she focuses her practice on the defense of individual health care providers and the defense of health care institutions. Prior to joining the firm as an associate, she served as a summer associate and law clerk in the firm’s General Litigation Department. She graduated cum laude from the University of Maryland Francis King Carey School of Law.
 Plaintiff Stella Liebeck received a jury verdict of $2.86 million. Unbeknownst to many in the general public, the judge later reduced the punitive damages award, making her ultimate judgment $640,000. Liebeck v. McDonald’s Restaurants, 1995 WL 360309 (D. N.M. 1995).
 In Maryland, Plaintiff’s attorneys often pursue, and successfully recover, reimbursement of medical bills and other non-economic damages even though the costs of same had been paid by a Plaintiff’s health insurance. The basis for a Plaintiff’s recovery of expenses that were paid by a third-party (i.e. an insurance company), with some limitations, is what is known as the “collateral source” rule.
 Medical malpractice claims are those brought against a health care provider alleging that some act of negligent in the rendering of medical care caused an injury. A “health care provider” is defined in the Maryland code as, “a hospital, a related institution… a medical day care center, a hospice care program, an assisted living program, a freestanding ambulatory care facility… a physician, an osteopath, an optometrist, a chiropractor, a registered or licensed practical nurse, a dentist, a podiatrist, a psychologist, a licensed certified social worker- clinical, and a physical therapist, licensed or authorized to provide one or more health care services in Maryland.” Md. Cts. and Jud. Pro. § 3-2A-01.
 Wrongful death claims for non-economic damages are equal to 125% of the medical injury cap each year. See Md. Cts. and Jud. Pro. § 3-2A-09. Limitation of noneconomic damages.