Wrongful Death and Survival Actions In Maryland & the District of Columbia

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1 Open Your Eyes Wrongful Death and Survival Actions In Maryland & the District of Columbia

2 A Wrongful Death Action What is a wrongful death lawsuit? In the context of a medical malpractice lawsuit, wrongful death is essentially an allegation that due to the negligence of a health care provider, such as a doctor, nurse, physician's assistant or hospital, your loved one has died. The death is considered to be wrongful because you, as a Plaintiff, will be alleging that it was the negligence of the health care provider that led to your loved one's death. Typically, the person or persons allowed to recover for the wrongful death of an individual are those members of the decedent's immediate family, such as spouse, children or mother or father depending on who the 'legal beneficiaries' are in each given situation. Let's put this in the form of an example. Hypothetically, if a Decedent's wife were to allege that her husband had cancer (e.g. a melanoma a skin cancer that is of the most deadly variety), and that the husband's physician's breached the standard of reasonable medical care by failing to make a timely diagnosis and the melanoma was the cause of her husband's death, then there would be a case for wrongful death In this example, the wife would go through a legal procedure to have herself appointed as the personal representative of the estate of her husband. A lawsuit would be brought to cover essentially two categories of claims. In the District of Columbia, this action is brought by the person who has been appointed as the personal representative of the deceased. The persons he or she actually represents are the surviving spouse and next of kin of the deceased. These persons are the persons actually having the legal claims, and in that sense, they are the real plaintiffs. The jury (or a judge in a non-jury trial) is to consider the financial loss each beneficiary has suffered. These financial losses are for the financial support the deceased would likely have provided to each beneficiary, any gifts and other contributions, which the deceased could have reasonably been expected to provide to each beneficiary had the deceased not died. Various factors such as the deceased's earnings and earning capacity and probable joint life expectancy are taken into account in making this calculation. Furthermore, there may be an award for the reasonable value of what is known as loss of services (e.g. yard work, household chores and the like) that the deceased would likely have provided to each beneficiary over their joint life expectancies. However, in the District of Columbia, unlike Maryland, there may not be any award in a wrongful death action for the sorrow, mental distress or grief (solatium), or for the loss of love and affection that the next of kin may have suffered because of their loved one's death. This is probably the major distinction (other than Maryland's cap on damages) between the recovery allowed in the District of Columbia as opposed to Maryland in a wrongful death action. There is no cap on damages in the District of Columbia.

3 In Maryland, the statutory beneficiaries (spouse, parent and/or child depending on the statutes governing each situation) are the proper parties to bring an action for wrongful death. The elements of recoverable damages are both economic and non-economic damages. Non-economic damages for a spouse in Maryland are the mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, attention, advice or counsel the surviving spouse has experienced or probably will experience in the future. When a minor child is making the claim, these non-economic damages are the mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, parental care, attention, advice, counsel, training, guidance or education which the child has experienced or probably will experience in the future. The economic damages in Maryland for such cases that a jury may consider include the financial support as well as the replacement value of the services that the deceased furnished or probably could have been expected to furnish. A jury may consider the deceased's earnings and future earning capacity for the probable time both had been expected to live (known as "joint life expectancy") to determine the amount that the surviving spouse could reasonably have expected to receive. The economic damages in Maryland for such cases that a jury may consider include the financial support as well as the replacement value of the services that the deceased furnished or probably could have been expected to furnish. The non-economic losses are not limited to the period of time when the surviving child is a minor. When a parent is bringing a claim in Maryland for the wrongful death of a child, the economic damages are any financial benefits a parent probably would have been expected to receive from the deceased child until the child reached age 18. The non-economic damages are the mental anguish, emotional pain and suffering, and the loss of society, companionship, comfort, protection, care, attention, advice, counsel or guidance, a parent has experienced or probably will experience in the future. The non-economic losses are not limited to the period of time when the child would have been a minor. In Maryland, there is a cap (limit) on the amount of damages a party can recovery. This cap is determined based on the year that the cause of action arose and whether there is also a claim under Maryland's Survival Act. You should discuss with your attorney how the cap might apply in your particular situation. You will also see later in this White Paper that there is currently a challenge to the cap pending in Maryland's highest appellate court, the Maryland Court of Appeals.

4 A Survival Action What is a survival action? In Maryland, the survival action brought by the estate of the deceased allows for recovery of both economic losses such as funeral expenses and specifically defined loss of earnings and non-economic losses such as the conscious pain and suffering or mental anguish the deceased experienced as a result of the malpractice until the time of his/her death. Using the same example of the husband who died as a result of his undiagnosed melanoma, this action would be brought by the personal representative of the deceased husband's estate (typically the spouse if alive) for those injuries the decedent could have brought had he lived. This action would essentially be a claim for non-economic damages (e.g. pain and suffering, disfigurement, inconvenience, etc.) the decedent suffered prior to his death, as well as economic damages to the extent they would be recoverable under the facts of any given case (e.g. medical expenses, lost wages, etc.) prior to the time of death. In the District of Columbia, damages under the Survival Act are for any conscious pain and suffering experienced by the deceased between the time of injury and the time of his death, and for the financial loss suffered by the deceased as a result of his or her injuries. Included in any award would be the cost of reasonable and necessary medical and hospital expenses for the deceased. The non-economic damages would include as well reasonable compensation for any bodily injuries, mental anguish, disabilities, disfigurement and/or deformities, and inconvenience and discomfort experienced by the deceased between the time of the injury and the time of his/her death. Furthermore, under D.C.'s Survival Act, the estate is entitled to receive the amount of money the decedent would have accumulated over his or her lifetime. Factors such as the decedent's potential future earnings (taking into account inflation), benefits, earning capacity and the like may all be taken into account in arriving at this calculation. From this amount, the law provides that the jury (or a judge in a non-jury case) is to subtract the amounts that the decedent would have spent on his or her own living expenses and the living expenses of any dependents the decedent may have had. Furthermore, the taxes the decedent would reasonably have had to pay are also to be deducted. The law in the District of Columbia then provides that this net amount of financial losses are to be reduced to present value. Essentially, this is a calculation taking into account factors such as a discount rate an investment rate of interest in today's market calculated on the life expectancy of the decedent that would return an amount equal to the future earnings or accumulations of the decedent. The financial calculations are always done by forensic economic experts retained in such cases. The bottom line is the answer to two questions First What are the total net (after living expenses and taxes) future earnings of the decedent? Second If that amount were invested today at a reasonable rate of return, how much would that cost?

5 Recoverable damages in the District of Columbia are generally referred to as pecuniary losses loosely defined as economic damages. While the law in the District of Columbia allows a party to recover what at first glance might seem similar to the types of grief or solatium damages permitted in Maryland, this is not the case. For example, the law of the District of Columbia permits an element of recovery to compensate the family for the value of the services lost as a result of the decedent's death. This type of damages can include such things as the value of caring for children, preparing meals for the family, providing advice and other things that do not appear to be easily quantified with mathematical precision. In certain cases, this element of damages may provide for compensation for services such as care, education, training, and personal advice which would be expected to have been provided to the next of kin had the decedent lived. Nevertheless, these are referred to as pecuniary damages, not solatium. There are other elements of damages that are peculiar to wrongful death/survival actions such as set-off's for a combined recovery and the like. These elements have different rules governing them depending on the jurisdiction where the action is filed. Variations also come into play depending upon the age of the deceased and the relationship of the deceased to the person or persons making the claim. Other rules and limitations may also apply which may limit recovery, such as the existence of any liens for medical bills. Some of these topics will be covered in a later article. Variations also come into play depending upon the age of the deceased and the relationship of the deceased to the person or persons making the claim. As was noted previously, some states, such as Maryland, place a cap or limit on the amount of recovery which a plaintiff may receive for non-economic damages in a malpractice action. In other jurisdictions, such as the District of Columbia, there is no cap on such damages. It is left to the jury to decide what they believe, based on the evidence presented, the loved ones who are left behind should be awarded in such instances. The only rare exception to the amount of recovery for non-economic damages in the District of Columbia is when those damages are deemed excessive by the court i.e. based not on the evidence but on some impermissible element such as passion or prejudice. These reductions of a verdict, in the District of Columbia, are very, very rare. At the present time, there is a case pending before Maryland's highest court, the Court of Appeals, claiming that the Maryland legislature did not properly articulate the limitation or cap on wrongful death damages which can be awarded to loved ones left behind. This case, the Semsker case, has already been argued before the Court of Appeals. No ruling has yet been issued. We will post an update once that decision is announced. So keep in mind, the laws relating to recovery of damages are often not the same in different jurisdictions, and each individual case must be examined carefully by an attorney, who specializes and is knowledgeable in this area of the law. Copyright 2009 Nash & Associates, LLC. All rights reserved.