Norman A. Lockshin, M.D., P.A. v. Barbara S. Semsker

The Circuit Court for Montgomery County held in this litigation, among other things, that the plain meaning of Md. Code, Courts & Judicial Proceedings Article1 § 3-2A-09(a) (1974, 2006 Repl. Vol.), which states that the monetary cap on non-economic damages for health care malpractice claims appearing in § 3-2A-09(b) applies "to an award under § 3-2A- 05 of this subtitle or a verdict under § 3-2A-06 of this subtitle,” is that the cap is inapplicable to claims for which arbitration is waived pursuant to §§ 3-2A-06A or 3-2A-06B. The latter provisions provide the procedures for mutual and unilateral waiver of arbitration, respectively. Appellants/Cross-Petitioners (Norman A. Lockshin, M.D ., P.A., and Dr. Michael Albert) urge this Court to reach a different conclusion under the plain meaning of the statute or, alternatively, to find ambiguity in the language of § 3-2A-09(a) and to examine the legislative history of the statute, which they maintain supports the conclusion that the General Assembly intended the non-economic damages cap to apply to all health care malpractice claims, not just those that are arbitrated. Appellees/Petitioners (the Estate of Richard H. Semsker, Barbara S. Semsker, Meryl Semsker, and Julia Semsker), on the other Hand, maintain that the Circuit Court correctly determined the plain meaning of § 3-2A -09(a). For reasons we shall explain, although we agree with the Circuit Court's conclusion that the language in § 3-2A-09(a) is plain, unlike the Circuit Court, we hold that the plain meaning of that language provide s that the cap on non-economic damages applies to all health care malpractice claims, including those, like the pre sent case, for which arbitration has been waived under § 3-2A-06B.

I. The Statutory Scheme Governing Health Care Malpractice Claims

As it illuminates and informs our later analysis, it is desirable to frame early in this opinion the relevant statutory scheme in which the question at hand is enmeshed. Subtitle 3-2A of the Courts and Judicial Proceedings Article governs n early all claims brought by plaintiffs against health care providers for medical injuries alleged to have been suffered by the plaintiffs at the hands of the providers. § 3-2A-02(a)(1). The subtitle establishes the Health Care Alternative Dispute Resolution Office (the "HCADRO”) and empowers it to create panels consisting of attorneys, health care providers, and members of the public to serve, prior to litigation, as arbiters of health care malpractice claims. §§ 3-2A- 03(a) and (c). Under this arbitration scheme, a plaintiff must file initially his or her claim, along with a certificate of a qualified expert attesting to the alleged departure by the defendant(s) from standards of care and causation of the plaintiff's injury by such departure, with the Director of the HCADRO, who then refers the claim to an arbitration panel. §§ 3- 2A-04(a)(1)(i), -04(b)(1)(i), and -05(a)(1). The arbitration panel reviews pertinent documents, takes testimony from the parties and their respective experts, determines the liability of the defendant or defend ants, if any,2 assesses costs of the arbitration, and issues an award. § 3-2A-05(b)-(f). Following the panel's award determination, any party may apply to the arbitration panel to modify or correct its award as to liability, damages, or costs. § 3-2A-05(h).

Under § 3-2A-06(a), a party "may reject an award or the assessment of costs under an award for any reason” by notifying the Director, the arbitration panel, and the other parties to the dispute, and by filing an action in the Circuit Court to nullify the award or assessment of costs. §§ 3-2A-06(a) and (b)(1). Upon proper rejection of the arbitration panel's award, any party may elect to have the case tried by a jury in the Circuit Court; if n o party elects timely a trial by jury, the case is heard before a judge. § 3-2A-06(b)(2). At the close of the trial and upon timely request, the trier of fact "shall by special verdict or specific findings itemize by category and amount any damages assessed for incurred medical expenses, rehabilitation costs, and loss of earning s.” § 3-2A-06(f)(1).3 The special verdict shall itemize separately any damages for any future expenses, costs, and losses. Id. If a verdict includes any such itemized damages for expenses, costs, and losses, "a party may object to the damages as excessive on the ground that the plaintiff has been or Will be paid, reimbursed, or indemnified to the extent and subject to the limits stated in § 3- 2A-05(h) . . . .”4 Id. If, after reception of evidence on the objection at a hearing, the court finds that the dam ages are excessive on the grounds stated in § 3-2A-05(h), it may grant a new trial as to such damages or may deny a new trial if the plaintiff agrees to a remittur of the excess. § 3-2A-0 6(f)(3)(i).

The arbitration process, how ever, may be avoided in the main. Under § 3-2A-06A, at any time prior to the hearing of a claim by the HCADRO, the parties "may agree mutually to waive arbitration of the claim.” § 3-2A-06A(a). If the parties so agree, "the provisions of [§ 3-2A-06A] then shall govern all further proceedings on the claim.” Id. Where a case is subject to the provisions of § 3-2A-06A based on mutual waiver of arbitration , the statute provides that "the procedures of § 3-2A -06(f) of this subtitle shall apply.” § 3-2A-06 A(e). In addition to mutual waiver under § 3-2A-06A, arbitration of a claim through the HCADRO "may be waived by the claimant or any defendant in accordance with” § 3-2A- 06B after the filing of the certificate of qualified expert required by § 3-2A-04(b). §§ 3-2A- 06B(a) and (b)(1). If arbitration is w aived unilaterally in this fashion, "the provisions of [§ 3-2A-06B] shall govern all further proceedings o n any claim . . . .” § 3-2A-0 6B(a). A s with mutual waiver of arbitration under § 3-2A-06A, where a case is waived unilaterally out of arbitration, the statute provides that "the procedures of § 3-2 A-06(f) o f this subtitle shall apply.” § 3-2A-06B (h).

Of particular importance to the present case, § 3-2A-09, entitled "Limitation of noneconomic damages,” provides a cap on non-economic dam ages applicable "to an award under § 3-2A-05 of this subtitle or a verdict under § 3-2A-06 of this subtitle for a cause of action arising on or after January 1, 2005.” § 3-2A-09(a). Subsection (b) establishes the amount of the cap, stating that "an award or verdict under this subtitle for noneconomic damages for a cause of action arising between January 1, 2005, and December 31, 2008, inclusive, may not exceed $650 ,000.” § 3-2A-09(b)(1)(i). The limitation on non-economic damages contained in § 3-2A-09(b)(1)(i) increases by $15,000 yearly, beginning on 1 January 2009. § 3-2A-09(b)(1)(ii). In general, the cap applies "in the aggregate to all claims for personal injury and wrongful death arising from the same medical injury, regardless of the number of claim s, claimants, plaintiffs, beneficiaries, or defendants.” § 3 -2A-09(b)(2)(i). The statute further provides that, where " there is a wrongful death action in which there are two or more claimants or beneficiaries, whether or not there is a personal injury action arising from the same medical injury, the total amount awarded for noneconomic damages for all actions may not exceed 125% of the limitation established under paragraph (1) of this subsection, regardless of the number of claims, claimants, plaintiffs, beneficiaries, or defendants.” § 3-2A -09(b)(2)(ii).

Regarding the limitation on non-economic damages, § 3 -2A-09 states that a jury "may not be informed of the limitation under” § 3-2A -09(b). § 3-2A-09(c)(1). If the jury awards an amount for non-economic damages exceeding the limitation, the statute provides that "the court shall reduce the amount to conform to the limitation.” § 3-2A-09(c)(2 ). In a case in which there is a personal injury action and a wrongful death action, "if the total amount awarded by the jury for noneconomic damages for both actions exceeds the limitation under [§ 3-2A-09 (b)], the court s hall reduce the award in each action proportionately so that the total award for noneconomic damages for both actions conforms to the limitation.” § 3-2A- 09(c)(4). Lastly, § 3-2A-09(d) provides that a "verdict for past medical expenses shall be limited to: (i) [t]he total amount of past medical expenses paid by or on behalf of the plaintiff; and (ii) [t]he total amount of past medical expenses incurred but not paid by or on behalf of the plaintiff for which the plaintiff or another person on behalf of the plaintiff is obligated to pay.” § 3-2A-0 9(d)(1).

II. The Present Case

In late 199 8, Richard H. Semsker, a 44-year-old Rockville attorney, visited the dermatology offices of Norman A. Lockshin, M.D., P.A. ("Lockshin, P.A.”), a medical group operating under the trade name Derm Associates, P.C., in Silver Spring, upon referral from his internist, Dr. Lawrence Marcus. Semsker was seen by Dr. Norman A. Lockshin, who removed a cyst and wrote to Dr. Marcus that Semsker had a dark brown 6 millimeter nevus5 on his back that should be excised. According to Semsker, neither D r. Marcus nor Dr. Lockshin informed him of the presence of the nevus.

In September 200 4, Semsker returned to Lockshin, P.A . to have cysts on his upper back examined and to undergo a fu ll body skin check. He was examined by Dr. Michael Albert, a dermatologist employed by Lockshin, P.A., who documented two benign cysts, an atypical nevus on Semsker's upper right back, and a 1.3 centimeter congenital nevus on his lower back (the same nevus that had grow n from 6 millimeters w hen Dr. Lockshin examined it in 1998). Dr. Albert recommended removal of the cysts and the atypical nevus, but recommended only regular monitoring of the congenital nevus, rather than its removal. As recommended, the upper-back cysts and atypical nevus were removed.

On 3 August 2006, shortly after Semsker's wife, Barbara, noticed that the nevus Dr. Albert had not recommended be removed had changed color, Semsker returned to Lockshin, P.A., where the nevus was excised by Dr. Benjamin Lockshin. Shortly afterward, it was determined that the nevus had turned into a malign ant melanoma which had metastasized to dozens of lymph nodes in Semsker's groin and lower abdomen. Radiation and other treatment failed to halt further metastasis.

On 30 March 2007, Semsker and his wife filed with the Director of the HCADRO a claim under § 3-2A-04(a)(1)(i) for medical malpractice against Dr. Albert (Semsker's dermatologist); Lockshin, P.A. under its business name Derm Associates, P.C. (Dr. A lbert's employer); Dr. Norm an Lockshin; Dr. Kendall Hash (another employee of Lockshin, P.A .); and Dr. Marcus (Semsker's internist), alleging misdiagnosis of his cancer. Mr. and Mrs. Semsker elected to waive arbitration pursuant to § 3-2A-06B(b)(1) on 19 June 2007, and, one day later, filed in the Circuit Court for Montgomery County a complaint for medical 6Under § 3-2A-09(b)(2), the then current limit for recovery of non-economic damages In a wrongful death health care malpractice case with multiple claimants was $812, 50 0. § 3-2A-09(b) (2).

7The Semskers admit that, of the $415,781 for incurred medical expenses, they and their insurers paid only $335,5 68.15. Thus, according to the Semskers, the tota l "write- off,” calculated as the difference between the incurred bills and the amounts actually paid by all sources, was $80,213. Appellants/Cross-Petitioners, on the other hand, maintain that the write-offs by Semsker's health care providers totaled more than $200,000. The Semskers dispute that contention, arguing that the Physicians assume erroneously that the insurance subrogation lien of $218,396 include d all bills paid by insurance and that, in fact, the insurers paid $112,572 in pharmacy bills for Semsker which were not part of the subrogation lien.

No fact-finder has determined yet the amount of any write-offs.

On 15 October 2007, while the case was p ending in the Circuit Court, Semsker passed away due to his cancer. On 19 December 2007, Mrs. Semsker filed a Second Amended Complaint, converting the case to a wrongful death and survival action on behalf of Semsker's estate (for which she is the personal representative) and adding the Semskers' two adult daughters, Meryl and Julia Semsker, as plaintiffs. Prior to trial, the remaining Semskers dismissed voluntarily and with prejudice all claims against Dr. Hash.

The trial was conducted before a jury beginning on 3 November 2008. At trial, the Semskers introduced, without objection , evidence of $415,781 in incurred medical expenses.7 On the final day of trial, following the conclusion of the evidence, the Semskers reached a joint tortfeasor settlement with Dr. Marcus in the amount of $1 million and granted 8A "non-Swigert” release, referring to our decision in Swigert v. W elk, 213 Md. 613, 133 A.2d 428 (1957), establishes joint tortfeasor status of the settling defendant and requires the plaintiff to credit against a judgment the greater of the settlement amount or a pro rata share of the judgment.

Dr. Marcus a standard non-Swigert joint tortfeasor release.8 The purpose of the joint tortfeasor release was to provide an automatic credit to an y non-settling defendants who were held liable ultimately to the Semskers in the present case, thus protecting Dr. Marcus from all future claims against him for contribution from non-settling joint tortfeasors. The release described the credit as "an automatic reduction of any future verdict or judgment against any non-settling tortfeasor” of "all damages . . . recoverable” by the Semskers "to the extent of the pro rata share[] of [Dr. Marcus] or pro tanto, whichever is greater.” On 14 November 2008, the jury returned a special verdict in favor of the Semskers, finding Dr. Albert liable individually for medical malpractice. In its verdict, the jury awarded the Semskers $5,805,000 in compensatory damages, which included a total of $3 million in non-economic damages, allocated as follows: $1 million to Semsker's estate, $1 million to Mrs. Semsker, and $500,000 to each of the Semskers' daughters.9 The verdict was applied by stipulation to Dr. Albert's employer, Lockshin, P.A., on a respondeat superior basis.10

On 18 November 2008, the Semskers moved the Circuit Court for entry of judgment On the entire jury verdict, specifically requesting that the court not apply the § 3-2A-09 cap On non-economic damages. The court entered judgment on the jury verdict on 19 November 2008. Subsequently, the defendants found liable by the jury, Dr. Albert and Lockshin, P.A. (collectively "the Physicians”), urged the court in a timely motion to apply the cap on noneconomic damages contained in § 3-2A -09(b) to the verdict, to reduce the award for past medical expenses to account for those expenses that had been written off, and to conform the verdict to the evidence. The court, in that moment being of the view that the cap on noneconomic damages applied to the case, reduced the cumulative non-economic damages by the sum of $2,177 ,500, i.e., from $3 million to a total of $812 ,500, the cap limit for noneconomic damages in wrongful death health care malpractice cases with multiple claimants, and entered revised judgments on that amount on 26 November 2008.11 The court also reduced the award for past medical expenses from $500,000 to $415,871 in order to conform to the evidence presented at trial.

The Semskers moved the Circuit Court, on 1 December 2008, to alter or amend the judgment, arguing that the cap on non-economic damages did not apply to unarbitrated claims. The Physicians filed motions requesting a new trial, remittur, and revision of the judgments based on application of the pro rata reduction called for by the release between the Semskers and Dr. Marcus. On 20 April 2009, the Circuit Court issued an order and opinion holding that, under the purportedly clear language of § 3-2A-09(a), the cap on noneconomic damages contained in § 3-2A-09 did not apply to the present case because it involved an unarbitrated claim, denying the Physicians' motion for a new trial or remittur, and revising the judgment to reflect Dr. Marcus's pro rata joint tortfeasor contribution. In addition, the court, assuming hypothetically that the cap applied to unarbitrated claims, held that any pro rata reduction based on the joint tortfeasor settlement should be calculated prior to application of the cap, and that the Semskers could recover for past medical expenses that had been written off by M r. Semsker's health care providers due to the Physicians' failure To adduce at trial any evidence of such "write-off s.” On 24 April 2009, the Circuit Court Entered four judgments12 in favor of the Semesters, in accordance with its 20 April order and Opinion, effectively reinstating the amount of the award granted by the jury in its special verdict.13

The Semesters and the Physicians petitioned this Court for a writ of certiorari, prior To final action o n an appeal to the Court of Special Appeals. We granted their petitions, 409 Md. 413, 975 A.2d 875 (2009 ), to consider the following questions:

(1) Whether the Circuit Court erred in holding that the cap on non-economic damages in health care malpractice claims contained in § 3-2A-09 does not apply to health care malpractice claims in which arbitration has been waived under §§ 3-2A-06A or 3-2A-06B?

(2) Whether the Circuit Court erred in holding that, if the cap does apply to claims in which arbitration has been waived, the court should apply a pro rata joint tortfeasor reduction prior to applying the limitation on non-economic damages?

(3) Whether the Circuit Court erred in holding that § 3-2A- 09(d)(1) does not mandate a reduction of the verdict to exclude Past medical expenses that were not, and will not be paid by or on behalf of, the patient, where the Physicians failed to offer evidence of those expenses at trial?

As the issues are solely questions of statutory interpretation, and, thus, questions of law, our review is non-deferential. See Harvey v. Marshall, 389 Md. 243, 257, 884 A.2d 1171, 1179 (2005); Davis v. Slater, 383 Md. 599, 604, 861 A.2d 78, 80-81 (2004); Liverpool v. Baltimore Diamond Exchange, Inc., 369 Md. 304 , 310, 799 A.2d 1 264, 1267 (200 2). III. Applicability of the Cap to Unarbitrated Health Care Malpractice Claims Basing its decision on what it believed to be the plain meaning of § 3-2A-09(a), the Circuit Court held that the non-economic damages cap of § 3-2A-09 did not apply to the present unarbitrated case because § 3-2A-09(a), which states that the cap is applic able to awards under § 3-2A-05 and verdicts under § 3-2A-06, makes no reference to §§ 3-2A-06A or 3-2A-06B, the "separate and distinct” sections governing waiver of arbitration. Although finding the language in § 3-2A-09(a) plain in its meaning, the trial court nevertheless reviewed the purpose and legislative history of § 3-2A-09(a), concluding (1) that its interpretation of § 3-2A-09(a) did not conflict with the statute's purpose paragraph14 because the statute as interpreted "does impose a single restriction on awards applicable to both wrongful death and survival actions in certain medical malpractice claims,” and (2) that applying the cap to unarbitrated claims would "essentially reinstate the language of § 3-2A- 09 that was specifically deleted and amended by the General Assembly when it enacted the final version of the b ill.”15 We agree with the Circuit Court that the language of § 3-2A-09(a) is plain. For reasons we shall explain, however, we disagree as to the plain meaning of that language and hold that the plain meaning of the reference in § 3-2A-09(a) to "a verdict under § 3-2A-06" includes verdicts in cases that arrive in a Maryland courthouse following a waiver of arbitration pursuant to §§ 3-2A-06A or 3-2A-06B.

A. Pertinent Principles of Sound Statutory Construction

The cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the Legislature. Bd. of Educ. v. Zimmer-Rubert, 409 Md. 200, 214, 973 A.2d 233, 241 (200 9); In re Najasha B., 409 Md. 20, 27, 972 A.2d 845, 849 (2009 ). A court's primary goal in interpreting statutory language is to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by the statutory provision under scrutiny. Anderson v. Council of Unit Owners, 404 Md. 560, 571, 948 A.2d 11, 18 (2 009); People's Ins. Counsel Div. v. Allstate Ins. Co., 408 Md. 336, 351, 969 A.2d 9 71, 979-80 (2009); Barbre v. Pope, 402 Md. 157, 172 , 935 A.2d 699, 708 (2007); Dep't of Health & Mental Hygiene v. Kelly, 397 Md. 399 , 419-20, 918 A.2d 470, 482 (2007); Gen. Motors Corp. v. Seay, 388 Md. 341 , 352, 879 A.2d 1 049, 1055 (200 5).

To ascertain the intent of the General Assembly, we begin with the normal, plain meaning of the language of the statute. Zimmer-Rubert, 409 Md. at 214, 973 A.2d at 241; Allstate, 408 Md. at 351, 969 A.2d at 980; Anderson, 404 Md. at 57 1, 948 A .2d at 18; Allen v. State, 402 Md. 59, 76, 935 A.2d 421, 431 (20 07); Barbre, 402 Md. at 172, 935 A.2d at 708; Kelly, 397 Md. at 420, 91 8 A.2d at 482. If the language of the statute is unambiguous and clearly consistent with the statute's apparent purpose, our inquiry as to legislative intent ends ordinarily and we apply the statute as written, without resort to other rules of construction. Zimmer-Rubert, 409 Md. at 214-15 , 973 A.2d at 241-42 ; In re Najasha B., 409 Md. at 27, 972 A .2d at 849; Allstate, 408 Md. at 351, 969 A.2d at 980; Anderson, 404 Md. at 572, 948 A.2d at 19 ; Barbre, 402 Md. at 174, 935 A.2d at 708-09 ; Kelly, 397 Md. at 419, 918 A.2d at 482. We neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, and we do not construe a statute with "forced or subtle interpretations ” that limit or ex tend its application. Lonaconing Trap Club, Inc. v. Dep't of Env't, 410 Md. 326 , 339, 978 A.2d 7 02, 709 (2009); Liverpool, 369 Md. at 316-17, 799 A.2d at 1271 (2002); Curran v. Price, 334 Md. 149, 172, 638 A.2d 93, 105 (1994); Amal. Cas. Ins. Co. v. Helms, 239 M d. 529, 5 35, 212 A.2d 3 11, 316 (1965).

We, however, do not read statutory language in a vacuum, nor do we confine strictly our interpretation of a statute's plain language to the isolated section alone . Anderson, 404 Md. at 572, 948 A.2d at 19; Drew v. First Guar. Mort. Corp., 379 Md. 318, 327, 842 A.2d 1, 6 (2003); Blondell v. B alt. City Police Dep't, 341 Md. 680 , 691, 672 A.2d 6 39, 645 (1996); Comptroller v. John C. Louis Co., 285 Md. 527, 538, 404 A.2d 1045, 1052-53 (1979).

Rather, the plain language must be viewed within the con text of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute. Anderson, 404 Md. at 572, 948 A.2d at 19; Comptroller v. Phillips, 384 Md. 583, 591, 865 A.2d 590, 594 (2005); Harvey, 389 Md. at 290, 884 A.2d at 1199; Blondell, 341 Md. at 691, 672 A.2d at 645. We presume that the Legislature intends its enactments to operate together as a consistent and harmonious body of law, and, thus, we seek to reconcile and harmonize the parts of a statute, to the extent possible consistent with the statute's object and scope. Harvey, 389 Md. at 290, 884 A.2d at 1199; Liverpool, 369 Md. at 316-17, 799 A.2d at 1271; Curran, 334 Md. at 172, 638 A.2d at 104; John C. Louis Co., 285 Md. at 538- 39, 404 A.2d at 1053.

Where the words of a statute are ambiguous and subject to more than one reasonable interpretation, or where the words are clear and unambiguous when viewed in isolation, but become ambiguous when read as part of a larger statutory scheme, a court must resolve the ambiguity by searching for legislative intent in other indicia, including the history of the legislation or other relevant sources intrinsic and extrinsic to the legislative process. In re Najasha B., 409 Md. at 27, 972 A.2d at 84 9; Allstate, 408 Md. at 351, 969 A.2d at 979-80; Anderson, 404 Md. at 57 2, 948 A .2d at 19; Barbre, 402 Md. at 17 3, 935 A .2d at 709; Kelly, 397 Md. at 419-20, 918 A.2d at 482. In resolving ambiguities, a court considers the structure of the statute, how it relates to other laws , its general purpose, and the relative rationality and legal effect of various competing constructio ns. In re Najasha B., 409 Md. at 27, 972 A.2d at 849; Liverpool, 369 Md. at 316-17, 799 A.2 d at 1271; Chesapeake Charter, Inc. v. Bd. of Educ., 358 Md. 129, 135 , 747 A.2d 625, 628 (2000); Curran, 334 Md. at 172, 638 A.2d at 104.

In every case, the statute must be given a reasonable interpretation, not one that is absurd, illogical, o r incompatible with common sense. Zimmer-Rubert, 409 Md. at 214, 973 A.2d at 241; Anderson, 404 Md. at 571, 948 A.2d at 18; Barbre, 402 Md. at 172, 935 A.2d at 708.

B. What is the Plain Meaning of § 3-2A-09(a)?

Section 3-2A-09(a) provides that the non-economic damages cap for health care malpractice claims is applicable "to an award under § 3-2A-05 of this subtitle or a verdict under § 3-2A-06 of this subtitle.” § 3-2A-09(a). Subsection (a) makes no mention of § 3- 2A-06A or § 3-2A-06B, the sections governing the procedures for waiving arbitration . The Semskers contend, and the Circuit Court found, that the omission of such mention from subsection (a) of the arbitration provisions of §§ 3-2A-06A and 3-2A-06B must mean that, where arbitration has been waived, the cap on non-economic damages does not apply. They are mistaken.

A health care malpractice claim may arrive in a Maryland circuit court in four distinct ways. First, the claim may be fully arbitrated under the procedures of § 3-2A-05 and require nothing more from the court than confirmation of the award. § 3-2A -05. Alternatively, under § 3-2A-06, the claim may proceed through the arbitration procedures of § 3-2A-05, the award may be rejected by one of the parties in accordance with § 3-2A-06(a), and the rejecting party may file an action in a circuit court to nullify the award an d proceed to trial. §§ 3-2A-06(a) and (b). The third and fourth avenue s into court for a health care malpractice claim are through waiver of arbitration under §§ 3-2A-06A or 3-2A-06B, either mutually by both sides or unilaterally by the plaintiff or any defendant, respectively, and the filing of a claim in a circuit court.

It is obvious that a claim following the first path, full arbitration under § 3-2A-05, will result in "an award under § 3-2A-05 of this subtitle,” and the cap on non-economic damages contained in § 3-2A-09 will apply. It is equally clear and undisputed that, where an arbitration award issues and a party rejects the award under § 3-2A-06(a), electing instead to proceed to trial on the claim, the resulting verdict constitutes "a verdict under § 3-2A-06" and the cap is applicable. The question we must resolve in this case is whether the reference in § 3-2A-09(a) to "a verdict under § 3-2A-06 of this subtitle” encompasses resultant verdicts reached via the other two avenues f or resolution of health care malpractice claims, namely, those resulting from cases that arrive in court following either mutual or unilateral waiver of arbitration under § § 3-2A-06A or 3-2A-06B, respectively.

Sections 3-2A -06A and 3-2A -06B address solely the procedures for waiving arbitration in health care malpractice claims. Due to their limited scope in outlining the procedures for waiving arbitration, the sections make no mention of verdicts, nor do they address court procedures following waiver of arbitration. Both sections, how ever, provide explicitly that, "[i]n any case subject to this section, the procedures of § 3-2A-0 6(f) of this subtitle shall apply.” §§ 3-2A-06A(e) and 3-2A-06B(h). Thus, where a case has been waived properly out of arbitration under §§ 3-2A-06A or 3-2A-06 B and proceeds to tria l in a circuit court, the claim is subject to the procedures of § 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 base d on its excessive nature, and the court's consideration and resolution of any objection. § 3-2A-06 (f).

It is clear that, if a verdict is returned under the procedures of § 3-2A-06(f), it constitutes "a verdict under § 3-2A-06 of this subtitle.” Despite the Circuit Court's reasoning and the Semskers' argument that the verdict obtained in the present case was "a verdict under § 3-2A-06B,” there can be no such verdict; where arbitration is waived, according to the specific commands of §§ 3-2A-06A(e) and 3-2A -06B(h), the only verdict in a health care malpractice case is one obtained in accordance with the procedures of § 3-2A-06(f) and, thus, "a verdict under § 3-2A-06 of this subtitle.” Regardless of whether the verdict comes after rejection of an arbitration award or waiver of arbitration, it is "a verdict under § 3-2A-06 of this subtitle” and is subject to the cap provided for in § 3-2A-09.

Our conclusion that the reference in § 3-2A-09(a) to "a verdict under 3-2A-06” includes verdicts in cases where arbitration is waived in accordance with §§ 3-2A-06A or 3- 2A-06B is reinforced by the language of the subsection that follows, § 3-2A-09(b). That subsection states that "an award or verdict under this subtitle for non-economic damages for a cause of action arising between January 1, 2005, and December 31, 2008, inclusive, may not exceed $650 ,000.” § 3-2A-09(b). By reference to the entirety of subtitle 3-2A, subsection (b) contemplates a cap o n all non-economic damage awards and verdicts in health ca re malpractice cases, including those brought under §§ 3-2A-05, -06, -06A, and -06B, regardless of their derivation. Thus, the language of subsection (b) supports our conclusion that the cap on non-economic damages applies to claims for w hich arbitration is waived under §§ 3-2A-06A or 3-2A-06B.

We hold that, based on the plain meaning of § 3-2A-0 9 and the specific provisions of §§ 3-2A-06A and 3-2A-06B referring to the procedures of § 3-2A-06(f) regarding the issuance of verdicts, the cap on non-economic damages contained in § 3-2A-09(b) applies to all health care malpractice claims, whether they are: (1) arbitrated under § 3-2A-05; (2) arbitrated, but followed by a rejection of the arbitration award under § 3-2A-06; or (3) waived out of arbitration under §§ 3-2A-06A or 3-2A-06B. Thus, the cap on non-economic damages was applicable to the Semskers' claims in the present case.

C. The Legislative History of § 3-2A-09(a)

For the sake of completeness, "we may resort to legislative history to ensure that our plain language interpretation is correct.” Zimmer-Rubert, 409 Md. at 214, 973 A.2d at 241; see also Shenker v. Laureate Educ., Inc., __ Md. __, __ A .2d __ (2009) (reviewing legislative history "for the sake of testing the validity of our construction” in the context of statutory interpretation).

The language of § 3-2A -09(a) at issue in this case was enacted by the General Assembly during an emergency special session called by then Governor Robert Ehrlich on 28 December 2004. The bill that emerged from that intense special session, House Bill 2, included the current language of § 3-2A-09(a), stating that the non-economic damages cap applies to "an award under § 3-2A-05 of this subtitle or a verdict under § 3-2A-06 of this subtitle.” The initial pertinent language of the bill, as it appeared during the first and second readings in the House of Delegates, however, provided that the cap "applies to a judgment under this subtitle.” The Circuit Court, in its analysis, focused on the change in this wording and concluded that the amendment to § 3-2A-09 in the enacted version of House Bill 2 "had the effect of narrowing the ambit of the statute from general application to all medical malpractice actions to application to only certain medical malpractice actions.” Thus, the trial court apparently believed the General Assembly had "deliberately and specific ally amended” § 3-2A-09(a) to exclude application of the cap to cases for which arbitration had been waived under §§ 3-2A-06A or 3-2A-06B.

There exists, however, a considerably more reasonable interpretation of the purpose behind the General Assembly's change in language from the initial formulation of § 3-2A- 09(a) in House Bill 2 and its final enacted version – clarity. Originally, § 3-2A-09(a) purportedly applied the cap on non-economic damages to "judgments.” Statutorily-mandated caps, however, should be applied to reduce verdicts, which are issued by juries, rather than "judgments,” which are entered by judges. A jury may not be informed of the statutory cap on damages, see § 3-2A-09(c)(1), and, thus, its verdict may exceed the cap and require reduction. Judges, however, are presumed to know the law and do not enter "judgments” in excess of the statutory "caps.” As such, the General Assembly altered the language of § 3- 2A-09(a) to apply to "an award or a verdict,” rather than to "judgments,” in order to reflect the distinction between the concepts and clarify that the cap on non-economic damages is applied to the arbitration award or the jury's verdict, not the judicially-entered final "judgment” in the case. The Circuit Court's belief that the change re presented a deliberate decision to remove from the ambit of the cap claims for which arbitration was waived under §§ 3-2A-06A or 3-2A-06B, without any legislative history to suggest that the General Assembly intended such a sea change, requires a considerable leap in reasoning. In addition, during the special session, the General Assembly added subsection (e) to § 11-108, the general cap on non-economic damages for personal injury actions. 2004 Md. Laws (Spec. Sess.), ch. 5, at 57. Subsection (e) states that "[t]he provisions of this section do not apply to a verdict under Title 3, Sub title 2A of th is article for damages in which the cause of action arises on or after January 1, 2005.” § 11-108(e). The amendment removed health care malpractice actions from the ambit of the general non-economic damages cap of § 11-108. If the Circuit Court's interpretation of § 3-2A -09(a) we re adopted , no cap would apply to health care malpractice claims for which arbitration is waived under §§ 3-2A-06A or 3-2A-06B, due to the operation of § 11-108(e). Such cases would represent the only personal injury claims singled out for exemption from a cap on non-economic damages. Without any legislative history supporting this interpretation, it would be unreasonable to conclude that the General Assembly, when it clarified the language of § 3-2A-09(a), intended such a result.

As such, the legislative history, although not conclusive, supports our holding that the non-economic damages cap contained in § 3-2A-09 applies to all health care malpractice claims, including those for which arbitration has been waived under §§ 3-2A-06A or 3-2A16According to the Circuit Court's calculations, app lying the pro rata reduction first, followed by the cap on non-economic damages, would result in a total judgment of $2,172,936 against the Physicians as non-settling tortfeasors. Reversing the order of operations and applying the cap prior to the pro rata reduction would result in a total judgment of $1,766,686 against the Physicians. Thus, the determination of the appropriate order of operation impacts the amount of the judgment against the Physicians by $406,250. 06B. The C ircuit Court's holding to the contrary was error.

IV. The Order of Operation of the Cap and Settlement Credit

Out of an abundance of caution, the Circuit Court assum ed hypothetically that the cap might be applicable to the present case and determined that any pro rata reduction of the verdict, based on Dr. Marcus's joint tortfeasor settlement with the Semskers, should be taken into account prior to application of the non-economic damages cap.16 We reac h the opposite conclusion, holding that 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.

The statute governing the ef fect of a joint tortfeasor settlement and release is § 3- 1404, entitled "Effect of release on injured person's claim.” That section provides:

A release by the injured person of one joint tort-feasor, whether before or after judgment, does not discharge the other tortfeasors unless the re lease so pro vides, but it reduces the claim against the other tort-feasors in the amount of the consideration paid for the release or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid.

§ 3-1404. Thus, as noted by the Circuit Court, the statute defers to the language of th e release for th e effect of the settlement.

The release between the Semskers and Dr. Marcus acknowledged Dr. Marcus' position as a joint tortfeasor and called for a "pro rata reduction of any verdict or judgment of any non-settling tortfeasor.” The Circuit Court concluded that the word "verdict” in the release meant the verdict prior to theoretical application of the statutory cap, and that the word "judgment” referred to the capped verdict. Characterizing its conclusion as "fairness” in giving the Semskers the "benefit of their bargain” with D r. Marcus, the Circuit Court determined that the joint tortfeasor settlement credit would apply to the uncapped "verdict,” rather than the capped "judgment.” We disagree with the Court's conclusion in this regard and hold th at the word "verdict” in the release means inherently the capped verdict. Section 3-2A-09(b) provides that "an award or verdict under this subtitle for noneconomic damages for a cause of action arising between January 1, 2005, and December 31, 2008, inclusiv e, may not exceed $ 650,000.” § 3-2A-09(b) (emphasis added). The section mandates that a jury's verdict may not exceed the statutory cap. Thus, any verdict rendered by a jury exceeding the amount of the non-economic damages cap inherently is a verdict in the amount of the cap from the moment it is rendered. Under this construction, the reference in the release to a "verdict” cannot mean the uncapped jury's verdict which exceeds the statutorily-mandated cap; § 3-2A-09 (b) states exp licitly that there can be no such verdict. As such, the "verdict or judgment” in th is case are on e in the same – the amount of the jury's verdict reduced in conformity with the non-economic damages cap of § 3-2A-09 (b). Thus, the appropriate order of operations is to apply first the cap to the jury's verdict for non-economic damages, followed by a credit for the joint tortfeasor settlement.

In addition, the release states that "[a]ll damages arising out of the occurrence recoverable by the [Semskers] against anyone other than [Dr. Marcus] will be reduced as provided in [§ 3-1404].” (Emphasis added). Due to the application of the non-economic damages cap, the only non-economic damages recoverable by the Semskers from the Physicians are the damages capped by § 3-2A-09(b). This portion of the release further suggests that any pro rata credit for the joint tortfeasor settlement with Dr. Marcus will be applied only after application of the non-economic damages cap.

Had Dr. Marcus not settled with the Semskers, and had the Semskers proce eded to trial against Dr. Marcus and Dr. Albert, the cap on non-economic damages would have been applied to the total verdict, not to each def endant's prorata share o f the verdict. Application of the pro rata credit for Dr. Marcus' settlement prior to application of the cap on noneconomic damages would not yield a consistent outcome. Rather, such an order of operations hypothetically would enable the Semskers to recover total non-economic damages in an amount in excess of the cap, much the same as if the cap applied only to each defendant's pro rata share of non-economic damages, thus negating the purpose of the cap limiting recovery of non-economic dam ages. In ord r to preserve the effectiveness of the cap on non-economic damages and ensure that the joint tortfeasor settlement does not affect Dr. Albert's potential liability for non-economic damages, the cap must be applied prior to any pro rata credit for a joint tortfeasor settlement.

The order of operation that we hold applicable today, applying first the cap on noneconomic damages followed by any credit for a joint tortfeasor settlement, has been adhered to previously by Maryland courts w ithout ex ception . See Franklin v. Morrison, 350 Md. 144, 153, 174-75, 711 A.2d 177, 182, 192-93; Anne Arundel Med. Center, Inc. v. Condon, 102 Md. App. 408, 414, 649 A .2d 1189 (1994 ).

V. Evidence of W rite-Offs and the C ollateral Source Rule

The Circuit Court held that, because the P hysicians failed to adduce at trial evidence of certain write-offs of past medical expenses by Mr. Semsker's health care providers, the Physicians could not a vail themselves in a pos t-trial motion of the provisions of § 3-2A- 09(d)(1), which provides that "[a] verdict for past medic al expense s shall be limited to: (i) [t]he total amount of past medical expenses paid by or on behalf of the plaintiff; and (ii) [t]he total amount of past medical expenses incurred but not paid by or on behalf of the plaintiff for which the plaintiff or another person on behalf of the plaintiff is obligated to pay.” § 3- 2A-09(d)(1). The Physicians contend that presentation of such evidence during trial w ould have constituted collateral source evidence contravening the dictates of the common law collateral source rule. That rule permits an injured person to recover the full amount of his or her provable damages, "regardless of the amount of compensation which the person has received for his [or her] injuries from sources unre lated to the tortfeasor,” and generally prohibits presentation to a jury of evidence of the amount of medical expenses that have been or will be p aid by health insurance. Haischer v. CSX Transportation, Inc., 381 Md. 119, 132, 848 A.2d 620, 627 (2004) (quoting Motor Vehicle Admin. v. Seidel, 326 Md. 237, 253, 604 A.2d 472, 481 (1992)). Rather, they maintain, reduction of a jury's verdict to reflect write-offs should be undertaken by the trial judge and occur during the post-verdict remittur phase.

In its determination, the Circuit Court found that § 3-2A-09(d) "clearly grafts a legislative exception to the collateral source rule” because, unlike subsection (c)(1), which states that juries may not be informed of the non-economic damages cap and that verdicts for non-economic damages in excess of the cap shall be reduced by the court post-verdict, subsection (d) contains no such limitations or instructions. We disagree with the trial court's conclusion and hold that evidence of write-offs by health care providers should be considered post-verdict by the court, rather than presented to the jury during trial. The language of § 3-2A-09(d)(1) makes no mention of the collateral source rule, nor does it provide that evidence concerning the payment or write-off of past medical expenses must be submitted during trial for consideration by th e jury. This Court long has recognized the principle of statutory interpretation that the common law will not be deemed as repealed by implication. Suter v. Stuckey, 402 Md. 211, 232, 935 A.2d 73 1, 743 (20 07); Robinson v. State, 353 M d. 683, 6 93, 728 A.2d 6 98, 702 (1999). Thus, if possible, we shall strive to interpret § 3-2A-09(d) to avoid repeal or altering the application of the common law collateral source rule.

Section 3-2A-09(d)(1) states that verdicts for past medical expenses shall be limited to the total amount of past medical expenses paid by or on behalf of the plaintiff and the total amount of past medical expenses incurred, but not yet paid, for which the plaintiff or another person on behalf of the plaintiff is obligated to pay. § 3-2A-09(d)(1). Thus, the section mandates that amounts written-off shall not be included in the verdict. The question, for which the statute provides no express answer, is whether consideration of write-offs falls to the jury during trial or to the judge post-verdict in remittur.

If it is for the jury to consider write-offs and reduce their verdict accordingly, it will be necessary for a defendant to introduce evidence to the jury of the actual payments made by the plaintiff's health insurers or other collateral sources. As noted supra, such evidence contravenes the collateral source doctrine. Adopting this interpretation would require reading § 3-2A-09(d), as the Circuit Court did here, as fashioning a legislative exception on the collateral source rule, despite the statute's omission of any reference to that rule. Alternatively, if evidence of write-offs and discounts by the plaintiff's health care providers is to be presented to the court in a post-verdict remittur setting, similar to the procedures found in §§ 3-2A-05(h) and 3-2A-09(c), the collateral source doctrine is not implicated or violated. Under this interpretation, the collateral source rule and § 3-2A-09 may be harmonized such that collateral source evidence of write-offs and discounts is not presented to the jury, but to the court, after the jury has rendered its verdict. Compelled by our duties to harmonize statutory language wherever possible and avoid repeal of the common law by implication, we embrace the latter interpretation as most consistent with the legislative intent and principles of statutory interpretation.

As to the Circuit Court's contention regarding the omission from § 3-2A-09(d) of language similar to that in § 3-2A-09(c)(1) that juries not be informed of the non-economic damages cap, we note that the long-standing acceptance of the collateral source rule and its prohibition on the presentation of collateral source evidence to the jury obviates any need for the General Assembly to confirm its applicability in § 3-2A -09(d). Longstanding principles of the common law need no such statutory affirmation to have continuing effect. Thus, we hold that any evidence of w rite-offs and discounts by M r. Semsker's health care providers properly is considered post-verdict by the court, rather than at trial to the jury. The Circuit Court erred by finding that the Physicians waived their right to reductions under § 3-2A- 09(d) base d on their failure to present evidence o f the write-offs during the trial.

VI. Conclusions

To summarize, we ho ld that: (1) the non-economic damages cap provided for in § 3- 2A-09(b) applies to all health care malpractice claims brought under subtitle 3-2A, including the present case for which arbitration had been waived pursuant to § 3-2A-06B; (2) the noneconomic damages cap should be applied to the jury's verdict prior to application of the pro rata credit provided for in D r. Marcus's joint tortfeasor settlement and release; and, (3) the Physicians did not waive their right to any potential reduction under § 3-2A-09(d) based on write-offs by Mr. Semsker's health care providers due to their failure to adduce at trial evidence of such write-offs. Our holdings rest squarely on the principles of sound statutory interpretation and track the General Assembly's intent for the consideration of health care malpractice claims. We reverse the judgment of the Circuit Court for Montgomery County and remand the case to it with directions that the court apply, in accordance with § 3-2A- 09(b), the cap on non-economic damages to the verdict, prior to application of the pro rata credit based on the Semskers' joint tortfeasor settlement with Dr. M arcus, and to conduct a remittur hearing to determine the amount of any write-offs by Semsker's health care providers and reduce the judgment accordingly.

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See: http://mdcourts.gov/opinions/coa/2010/78a09.pdf

JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY REVERSED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY THE APPELLEES/PETITIONERS, THE SEMSKERS.