Maryland attorneys, clients grapple with noneconomic damages cap

“The only people who are made whole are people with relatively minimal injuries,” says attorney George Tolley III. (The Daily Record/File Photo)

In Maryland, plaintiffs who have suffered injuries and are successful in court are entitled to economic damages that can be attached to a fixed monetary value and verified objectively. Examples include medical expenses, lost income or property, lost business opportunities and future income.

In the state, there is no cap or limit to the amount of economic damages that may be recovered.

For noneconomic damages, however, the story is different. Noneconomic damages are typically referred to as pain and suffering, emotional trauma, lost companionship and lost enjoyment of life. They are subjective measures that do not have a fixed dollar amount, like medical expenses, but they often are the more serious of the damages sustained. And in Maryland, state statutes strictly limit their amount.

As a result, attorneys in personal injury cases resort to a variety of strategies to make their clients whole, or as whole as possible, says David Muncy, a personal injury attorney with Plaxen Adler Muncy in Columbia who is also secretary of the Maryland Association For Justice, a legislative advocacy and professional development bar association for trial lawyers.

Each case is unique, but one of the most important factors to consider is accounting for economic damages, which have no cap, he said. Every expense has to be itemized.

This can include past medical expenses and wages lost. Depending on the type of injury, it could make sense to have an expert like a physician or nurse set up a life care plan to account for what care may be needed in the future — a person may need more surgeries or expensive medications, for instance.

Trial attorneys may call on vocational experts or economists to talk about future lost wages or lost earning power going forward, Muncy said.

“It is expensive to do that,” he said. Attorneys have to hire expensive experts, and the cost comes out of the recovery. “We can only do it for cases where it makes sense.”

Personal injury attorneys can also rely on witnesses who knew the person before and after the injury and can attest to the range and breadth of daily activities that may have grown more restricted, he said.

How the cap works

The current cap for noneconomic damages stemming from personal injury and wrongful death cases is $890,000.

The limit increases to $1,335,500 in wrongful death cases that involve two or more beneficiaries. An additional survival action cap of $890,000 can be applied, bringing the total to $2,225,000.

Each year, the state of Maryland increases the amount of non-economic damages that can be awarded for personal injury and wrongful death claims by $15,000.

There is also a separate, lower cap for noneconomic damages arising from cases involving medical malpractice. This amount is currently $845,000, with a cap of $1,056,250 in wrongful death cases made by two or more surviving family members. Jurors aren’t informed of this cap for noneconomic damages.

The much lower cap for medical malpractice sets up an odd situation in that people awarded noneconomic damages receive substantially less based on the way in which they die, attorneys said.

“It penalizes people with the worst injuries,” Muncy said.

“The only people who are made whole are people with relatively minimal injuries,” said attorney George Tolley III, with Dugan, Babii, Tolley & Kohler, LLC of Timonium, who also manages legislative advocacy for the Maryland Association for Justice. “Then you can get all of your damages recovered in court, and they won’t be arbitrarily cut down.”

Eric Schloss, of Saltzberg & Schloss in Towson, handles cases mostly involving people who’ve been injured in automobile accidents. He said he hasn’t had to worry about the cap too much because the cases have not involved catastrophic injuries.

In infrequent situations where clients have a more serious or even catastrophic injury, he has to have a difficult conversation with them and explain the cap on noneconomic damages. “Everyone is shocked when I tell them,” Schloss said.

Imagine a situation where a person has a permanent, but static injury, say an amputated limb or suffers from severe burns and scarring. The person may not need or receive constant medical care, and there may not be substantial economic damages, yet the pain and suffering experienced could last a lifetime. “It’s a terribly unfair law, it just is,” Tolley said.

The malpractice cap also reduces the incentive for defendants and their insurance carriers to settle in matters involving damages close to or exceeding the cap, because the cap represents their maximum exposure, Muncy and Tolley said.

Advocates for caps say they rein in unjustifiably high jury awards that, in turn, inflate companies’ insurance costs.

But Muncy contended that no cap really ever makes sense, because if a jury gets a damages award wildly wrong, there are already procedures in place address it, including a judge’s ability to throw out an unreasonable award.

“If the result doesn’t make sense, there are mechanisms to address it,” he said. “It doesn’t have to be one size fits all.”