Today is March 9, 2010. If my calculations are correct, the Maryland General Assembly has 35 days left in this year’s legislative session. March madness indeed. (I apologize if you were expecting this blog post to be about the NCAA tournament. I tried. I really did. Despite my best efforts, I could not reasonably connect young lawyering to the NCAA tournament. I suppose I could have written about work distractions caused by the tournament. But I think that holds true for all lawyers – young and not-so-young).

Of particular interest to me are two bills, one in the House (HB 622), and one in the Senate (SB 769), that seek to increase the maximum amount of noneconomic damages allowable for personal injury actions and wrongful death actions arising out of medical malpractice. Currently, noneconomic damages are generally capped at around $650,000.00, depending on when the cause of action arose. While the House bill and the Senate bill are slightly different, both bills would effectively increase that limit to $740,000.00 for causes of action arising in October or November 2010.

I do think Sen. Gladden and Del. Waldstreicher are putting their best feet forward on this issue, but I am forever amused at the arbitrary amounts our legislators seem to come up with as it relates to capping awards in medical malpractice cases. In all honesty, arbitrary does not even begin to describe it – it’s downright random.

So, why $740,000.00? The Fiscal and Policy Note attached to the bills does not give any direction as to how this number was reached, other than to state: “The 2008 Report on the Availability and Affordability of Health Care medical Professional Liability Insurance in Maryland issued by the Maryland Insurance Administration (“MIA”) in September 2008 stated that medical professional liability insurance remains available in Maryland and is more affordable for physicians today than it was in 2004.” Well, duh!

Despite what tort reformers may believe, the availability of professional liability insurance was never really in jeopardy in Maryland (even with the big rate increases from 2002 through 2005). In fact, if you look closely at the 2008 MIA report you’ll see that from 2004 to 2007, the number of suits filed increased by 229 percent.

Yet, for the biggest liability insurer in Maryland, Medical Mutual, premiums actually decreased during this same period. Not only did they decrease, but they decreased by some 15 percent in such fields as obstetrics and gynecology and emergency medicine. To put in layman’s terms, there is a boatload of available malpractice insurance in Maryland, and at affordable and competitive prices too.

If even by conservative estimates the apparent “medical malpractice crisis” of the past two decades has reached a status quo, then why increase the caps by $50,000 – $100,000.00. Why not $10,000.00? Why not $1,000,000.00? Or why not just get rid of the cap all together?

As it stands today, I see no rational or sound basis as to how the legislature is coming up with $740,000.00. Now that’s madness.

Powered by Bookmarkify™