Between 1998 and 2006, Richard H. Semsker, a Rockville attorney, received treatment from the dermatology offices of Norman A. Lockshin. Lockshin's offices allegedly misdiagnosed Semsker's skin cancer, and Mr. Semsker died in 2007. Semsker's family filed a claim for medical malpractice pursuant to the 2004 Maryland Patients' Access to Quality Health Care Act ("Act") and elected to waive arbitration pursuant to MD. CODE ANN., CTS. & JUD. PROC. § 3-2A-06B(b)(1). The Semskers filed a Complaint in the Circuit Court for Montgomery County and were ultimately a jury awarded $1.5 million.

The issue on appeal was whether the cap on non-economic damages in health care malpractice claims applied pursuant to the Act when arbitration was waived. The issue was one of statutory construction, and the Court determined that the Act's plain language meaning controlled.

Section 3-2A-09(a) of the Act stated that the cap on non-economic damages for health care malpractice claims applied to awards under § 3-2A-05 or a verdict under § 3-2A-06. A health care malpractice claim reaches a Maryland circuit court in one of four ways: (1) the claim was arbitrated per § 3-2A-05 and the court confirmed the award; (2) a party to the arbitration rejected the award per § 3-2A-06(a), and filed with the circuit court to nullify the award and proceed to trial; (3) parties mutually agree to waive arbitration and proceed directly to circuit court per § 3-2A-06A; and, (4) a party unilaterally waived arbitration and filed a claim directly in the circuit court per § 3-2A-06B.

The Court explained that the cap on non-economic damages clearly applied to arbitration awards under §§ 3-2A-05 and -06, for arbitrated awards and judgments obtained after an arbitration award was rejected, respectively. The specific question that the court addressed was "whether the reference in § 3-2A-09(a) to 'a verdict under § 3-2A-06 of this subtitle' encompasses resulting verdicts reached via the §§ 3-2A-06A or 3-2A-06B for mutual or unilateral waiver of arbitration."

For two reasons, the Court determined that the cap applies to health care claims in which arbitration was waived. First, both sections providing for the waiver of arbitration require that the procedures of § 3-2A-06(f) apply. Thus, where arbitration has been properly waived and the claim proceeds to trial in circuit court, the claim is subject to § 3-2A-06(f), which provides for itemization of the jury's verdict into specific categories, the filing of an objection to the jury's verdict, and the court's consideration and resolution of any objection. Any verdict obtained under § 3-2A-06(f) is a verdict under "§ 3-2A-06." Accordingly, a verdict obtained by wavier of arbitration that must comply with § 3-2A-06(f) is a "verdict under § 3-2A-06 of this subtitle" and must comply with the cap on non-economic damages.

Second, § 3-2A-09(b) states "an award or verdict under this subtitle for non-economic damages for a cause of action arising between January 15, 2010, and December 31, 2008, inclusive, may not exceed $650,000." The Court held that reference to the entire "subtitle" contemplates all non-economic damages awards for health care malpractice actions, including those brought under §§ 3-2A-06A and -06B, allowing parties to waive arbitration.

Thus, the case was remanded to the Circuit Court for Montgomery County with instructions that the court apply the cap on non-economic damages to the verdict.

Additionally, the Court held that pursuant to MD. CODE ANN., CTS. & JUD. PROC. §3-1404, the cap on non-economic damages must be applied to reduce the award or verdict prior to any reduction based on a joint tortfeasor settlement. Applying a joint tortfeasor reduction prior to the application of the cap on non-economic damages would allow a plaintiff to recover the total non-economic damages in an amount in excess of the cap, because the cap would be applied to each defendant's pro rata share. That negates the purpose of the cap, therefore the cap must be applied prior to any joint tortfeasor reduction.