Watch Out: Plaintiffs are Claiming a Two-Cap Case!

Physicians and hospitals in Maryland depend on “cap” limits to control costs in medical malpractice cases. But they should be aware — plaintiffs are finding creative ways to add a second cap, particularly in birth cases. And it could get expensive.

Indeed, a Maryland jury recently awarded a minor plaintiff more than $20M in non-economic damages as compensation for his birth injury. But the verdict was reduced significantly to reflect a single non-economic cap. Not surprisingly, the plaintiffs’ bar is dissatisfied with the typical “single cap” in birth injury cases.

In another recent birth injury case, suit was filed on behalf of two individual plaintiffs – the minor child claimed damages relating to his Erb’s palsy (pulled too hard), and the mother claimed damages relating to her vaginal tearing (physician should have done an episiotomy). Plaintiffs “added” a cap by asserting two separate plaintiffs, each with their own separate cap for non-economic damages.

Although there is no Maryland case law directly on point, analysis of the statute and relevant case law suggests plaintiffs may have a viable argument in some circumstances.[1] The counter to their position, however, is to argue that both claims arose from the same medical injury, in compliance with the statutory requirement that the cap “shall apply in the aggregate to all claims.” The appellate courts will need to resolve this one!

Bottom Line: We anticipate having to challenge the efforts of opposing counsel to circumvent the “single cap” limitation, particularly in alleged birth injury cases.

If you have any questions about these types of claims or caps, please feel free to contact us.

[1] Md. Code, Cts. & Jud. Proc. § 3-2A-09(b).

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Neal Brown

Neal Brown

Neal Brown is a Fellow of the American College of Trial Lawyers and a Martindale-Hubbell AV-rated trial attorney. He is a founding partner of Waranch & Brown, where he has devoted his career to defending hospitals and health care providers in medical malpractice and related cases.
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