Attorneys weigh appeal of reduction in malpractice award

Judge cuts pain and suffering award from $4.5M to $1.3M based on state standards

A Montgomery County Circuit Court jury in June awarded Victoria M. Young of Laurel $4.5 million for the pain and suffering she endured after Dr. Robert Levitt left a surgical sponge inside her body during a 2005 hysterectomy at Holy Cross Hospital. She was 48 at the time.

Judge Ronald B. Rubin last month reduce Young's award to $1.3 million, citing a state cap on non-monetary losses such pain and suffering. Under Maryland law, no more than $650,000 can be awarded to a plaintiff for each claim of non-economic damages.

Young's attorneys say the cap is unconstitutional.

"For various reasons, it kind of takes the decisions out of the jury's hands," said Robert J. Goldman, of the Bethesda-based firm Finklestein & Horvitz P.C.

The jury said Levitt was responsible for leaving a 40-by-40 centimeter gauze sponge in the woman's stomach after her surgery. After testimony about Young's resulting chronic pain and Levitt's failure to respond to her complaints, the jury awarded her $30,000 for medical expenses and $4.5 million for pain and suffering. Young and her husband were also awarded $375,000 for loss of consortium.

An out-of-court settlement also was reached with Holy Cross Hospital. Young's attorneys and Holy Cross Hospital spokeswoman Yolanda Gaskins declined to comment on the details of the settlement.

Levitt's attorney, H. Kenneth Armstrong of the Rockville-based Armstrong, Donohue, Ceppos & Vaughan, did not return repeated phone calls.

Goldman and attorney Nathan I. Finklestein say they will decide whether to appeal the reduced award after the judge rules on all post-judgment motions. Goldman maintained that juries should be relied upon to decide appropriate awards for damages, not state-imposed caps. 

"This cap the legislature has put on has unfairly [affected] people who have been injured through medical malpractice," Goldman said.

The constitutionality of statutory caps for non-economic damages has not been addressed by the U.S. Supreme Court.

"This is one of the largest medical malpractice verdicts in Montgomery County and probably one of the largest in Maryland," Goldman said of the nearly $5 million verdict. "But that does not mean it's unreasonable in any way."