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Maryland

Maryland’s legislative session was disappointing, but not disastrous. Lawmakers abandoned two bills that would have provided much needed COVID-19 liability protections, but no significant liability expanding bills were passed. Despite the Court of Special Appeals’ reversal of the largest medical malpractice verdict in U.S. history, Maryland’s medical malpractice climate remains unstable. The Baltimore Circuit Court is steadily working through the decades-long asbestos backlog, which primarily consists of stale, meritless filings from the notorious Law Office of Peter Angelos.

Given the Maryland legislature’s propensity to pursue liability-expanding legislation and the delicate and instable nature of asbestos litigation and medical malpractice litigation in the state, ATRF will keep a careful eye on Maryland’s civil justice system. Term-limited Governor Larry Hogan (R) has served as an important backstop and depending on the outcome of the November 2022 gubernatorial election, lobbyists for the plaintiffs’ bar could be further emboldened.

LEGISLATIVE ACTIVITY

Lawmakers Fail to Pass Desperately Needed COVID-19 Liability Protections

Yet again, Maryland lawmakers failed to pass crucial COVID-19 liability protections. Egregiously, lawmakers failed to even vote on two promising bills, HB 508 and SB 210, which would have shielded persons and entities from civil liability stemming from the COVID-19 pandemic absent gross negligence or intentional wrongdoing. Both bills were heard in committee but failed to advance further, leaving Maryland in the minority of states that have not safeguarded healthcare providers, businesses, and others from burdensome lawsuits.

Lawsuit-Generating Data Privacy Legislation Withdrawn

For several years, Maryland lawmakers have introduced litigation-generating data privacy bills that are never seriously considered. This year was no different. A string of ambitious data privacy bills was introduced but not a single one reached bicameral votes. HB 218/SB 16 would have required private entities that collect biometric identifiers and information to establish a written, public framework for destroying such information in compliance with particular schedules and guidelines. The private right of action, including a provision that would have allowed recovery of $1,000 in damages plus attorneys’ fees regardless of whether a person experienced an actual injury, would have taken Maryland down the problematic road paved by Illinois and California. Delegate Sara Love, the bill’s sponsor, withdrew it. This bill’s demise is fortunate because it failed to contemplate technological innovations.

MEDICAL LIABILITY CONCERNS

Maryland Court of Appeals Denies Certiorari, Effectively Finalizing Reversal of $229 Million Medical Malpractice Verdict

In 2019, a Baltimore County jury unsettled the state’s healthcare environment by returning a record- breaking $229 million verdict against Johns Hopkins Bayview Medical Center in a birth-injury case. In that instance, a plaintiff diagnosed with early-onset preeclampsia, a potentially life-threatening pregnancy complication, repeatedly declined a Caesarian section despite warnings that the fetus was at an elevated risk for severe physical and mental disabilities or death. After her daughter was born with severe mental and physical disabilities requiring life-long care, the plaintiff sued the hospital, Johns Hopkins, alleging claims for lack of informed consent and negligent treatment. The plaintiffs’ attorney touted the verdict as the largest medical malpractice award in U.S. history. The Maryland Court of Special Appeals unanimously reversed in February 2021, finding there was no evidence showing that the plaintiff’s healthcare providers withheld material information or were negligent in providing treatment. The court explained that the “right to individual autonomy includes the right to refuse treatment or to withdraw consent to treatment at any time, even if the decision ‘has a detrimental effect.’” On May 28, 2021, Maryland’s highest court denied certiorari, effectively finalizing the Court of Special Appeals’ decision.

Although the appellate court resolved this case fairly, the initial verdict sent shockwaves through certain segments of the medical malpractice insurance industry. The fact that a Baltimore County jury rendered such an extreme verdict creates uncertainty about the risks of insuring the state’s urban doctors. Medical malpractice premiums in Maryland increased 18.8% between 2019 and 2020, and rates are expected to rise more as the system absorbs the impact of the astonishing verdict.

The Jig Is Up for Asbestos Monger Peter Angelos

The Law Firm of Peter Angelos filed tens of thousands of asbestos cases in Baltimore in the 1990s and has secured hundreds of millions of dollars from litigation. Angelos is notorious for urging judges and lawmakers to consolidate asbestos trials in an effort to package weak claims with viable ones and compel settlements.

At first, the judiciary was open to the idea, and permitted consolidation on two occasions. For example, in 1991, Angelos represented more than 90% of the plaintiffs in a consolidated case consisting of 9,032 claims, the largest consolidated action in U.S. history at the time. However, this practice simply encouraged Angelos to continue filing dubious claims and the docket soon became clogged again. In 2014, Angelos again tried to consolidate thousands of cases, but the court was not fooled by Angelos’ money-grabbing scheme and denied the request. Judge John Glynn explained that “charg[ing] headlong into consolidation” would be an inefficient use of court resources. The Baltimore City Court opted to implement a version of the innovative approach employed by the manager of federal asbestos litigation (MDL-875).

In December of 2016, the court adopted a procedure in which judges individually review pending cases at monthly status conferences to filter out non-viable ones. Predictably, Angelos’ firm is voluntarily dismissing the majority of its cases when they are called up for a status conference, revealing that most of Angelos’ pending cases lacked basic evidentiary support such as medical diagnoses, verifications of exposure, and corroborative witnesses.

Angelos’ decrease in filings caused Baltimore’s total filings to drop. In 2015, 2016, and 2017, Baltimore ranked second in the nation in asbestos filings with 694, 548, and 495, respectively. In 2018, Baltimore ranked third in the nation in asbestos filings with 330, dropped to sixth place in 2019 with 166 filings, and fell to fourteenth place in 2020 with only 54 filings, a 67.5% decrease from the previous year.

In April 2019, Angelos, determined to continue benefiting from meritless cases, enlisted Gerald Evans of Evans and Associates to lobby the legislature to sneak an 11th hour bill establishing a mediation program for the asbestos docket. The legislature did not take the bait. In October of 2019, the Angelos firm again urged consolidation at a House Judiciary Committee hearing in which the panel was briefed on issues that might arise in the 2020 legislative session. If the pandemic had not interrupted the 2020 legislative session, Angelos probably would have revived his duplicitous tactics. This year, however, Angelos was quiet, as the procedural updates that Baltimore began implementing in 2014 continue to steadily weed out his meritless claims lingering in the system. ATRF is optimistic that Maryland’s asbestos litigation climate will continue to improve, and that Angelos’ stale filings will continue to be dismissed into oblivion.