From the Editor â€“ Please see ourdisclaimer at the end of this blog for a better understanding of the limitations of this series and our mission statement.
Last month, Sean turned 24.Â He and Kristy are married. Their daughter, Kira, is 2-years old. Â Sean just entered medical school. Kristyâ€™s parents support them, while Sean is in school.Â Sean has never held a job.Â Kristy is a stay at home mom. A month ago, Sean was driving home when a drunk driver pushed him off the road. In the accident, Sean broke his sternum. He also sustained a number of vascular injuries, which caused internal bleeding. He was rushed to the nearest hospital. Soon after his arrival, Sean underwent surgery to stop the bleeding.
Sean was recovering beautifully. Unfortunately, on his third day in the hospital, he developed rapid breathing, shortness of breath, and his chest pain got worse. A CT scan of the chest revealed that Sean had a pulmonary embolism. He was immediately ordered anticoagulation medication. The physician ordered 100 mg of anticoagulation medication to be split into two doses a day. The nurse misread the order and mistakenly administered 1000mg all at once. The overdose caused Sean to have extensive bleeding. Sean was scheduled for discharge within the next 3 days. Instead, he died within a few hours.
Now, think about this: Sean died prematurely at the young age of 24. Kira, lost her father. Kristy lost her husband. She now has a child to support all by herself. She has no income of her own, and she canâ€™t rely on her parents indefinitely. After careful consideration, Kristy decided to sue the nurse (and her employer, the hospital) who overdosed her husband.
In Maryland, what will she be able to recover against the nurse in a medical malpractice suit if the jury finds the nurse (and/or her employer the hospital) negligent?
Recovery in a Maryland Survival Action
The answer to that question depends on the type of action brought against the nurse and/or hospital . Kristy, as the Personal Representative of Seanâ€™s Estate,Â can sue the nurse Â (i.e. a survival action). In a survival action, Kristy is essentially bringing a claim on behalf of her deceased husband for damages that he would have been entitled to claim against the nurse had he lived (i.e. had he survived – thus the name “survival action”). Â In such an action, the monetary award would go to Seanâ€™s Estate, and it would be distributed according to his will or, if he died without a will, according to Marylandâ€™s Intestate Statute. In a survival action, Kristy can recover the medical expenses incurred by Sean as a result of the nurseâ€™s negligence. This amount would be insignificant because Sean died within a couple of hours from the time the medication was administered.
Kristy may also recover any of Seanâ€™s lost earnings from the time of his injury to the time of his death. Well, there are no such damages here because Sean was unemployed. Kristy could recover Seanâ€™s funeral expenses up to five thousand dollars. She could also recover non-economic damages associated with Seanâ€™s pain and suffering from the time of his injury to the time of his death. Â In Maryland, however, these damages are limited in Maryland to aboutÂ $650,000. Â Therefore, the most KristyÂ could recover in a survival action would be limited to about $655,000.
Recovery in a Wrongful Death Action
Kristy could also bring an action for wrongful death. In this action, Kristy could recover economic damages that she personally sustained as a result of Sean’s death. She is also entitled to recover economic damages equal to the financial support that she would have had from Sean had he lived. Â In this case, it is difficult, if not impossible, to make such a determination. Sean was unemployed at the time of his death. He had no employment history.Â Sean was not supporting his family financially. Kristyâ€™s parents supported both of them.
So, how does one calculate the financial support that Kristyâ€™s could reasonably have expected to receive from Sean in the future had he lived? One could argue, pursuant to a number of Maryland cases, that Kristy is not entitled to recover any of Seanâ€™s future lost wages because he never worked and because he never supported Kristy financially.
Theoretically, Kristy could make a claim for loss of household services (cooking, cleaning, babysitting, etc.). In this case, however, Sean was a busy medical student, and Kristy was in charge of the household. Â Therefore, it is unlikely that she would recover any such damages.
Wrongful Death – Solatium (non-economic damages)
Since her case would be in Maryland, Kristy could claim damages for her mental anguish, emotional pain and suffering, loss of society, loss of companionship, comfort, protection, marital care, attention, advice and counsel associated with Seanâ€™s death. Here again, these damages are limited to about $650,000 notwithstanding the severity of Kristyâ€™s pain and suffering.
Total Recovery in a Survival and a Wrongful Death Action
If Kristy were to bring a survival action and a wrongful death action in Maryland, her damages for pain and suffering under both actions would be overall capped somewhere between $812,000 and $868,000 (the “cap” on such damages is determined by the year the “cause of action accrues). It is possible that this is all she would be able to reocover against the nurse if she brought claims for wrongful death and survival.
Sean’s daughter, Kira, has a wrongful death claim against the nurse as well. Â She would be entitled to recover the value of the support, which Sean would have provided to her had he survived. Â Again, because Sean never actually supported Kira financially and because he never worked, that may be something very difficult to prove. Â Kira, just like her mother, will be able to claim damages for her pain and suffering resulting from her father’s death. However this recovery would also Â be limited to about $650,000. This cap is imposed on both Kira and Kristy’s recovery. That is, if a jury were to award Kristy $650,000 for pain and suffering and another Â amount Â of $650,000 Â to Kristy for pain and suffering, both Kira and Kristy would recover an overall amount of $650,000 (not $1,300,000).
Keep in mind, these “possible recoveries” are reduced by the costs and fees associated with litigation.
Justice or Injustice?
Now, think about this for a secondâ€¦ Seanâ€™s normal life expectancy was going to be approximately another 50 years. All things being equal, he would have had a normal working life expectancy. Kristyâ€™s life expectancy is about the same. Kira has another 16 years before she reaches the age of 18. The average cost of living in Maryland is about $3400/month, and in some places it is a lot more. Generally speaking, Â college tuitions can be anywhere between $8,000/year and 35,000/year. The average cost for family health insurance is about $13,300/year.
So, you do the math: How long is Kristy’sÂ recoveryÂ going to last? Â How are Kristy and Kiraâ€™s lives going to be affected by the Seanâ€™s death? Is Kristy’s recovery sufficient compensation for her loss? Â The principle of compensatory damages is to put a litigant in the same position that she/he would have been in had the loss not occurred. I, for one, think that this is hardly achieved in this case.
If in a survival action the Estate can bring an action that Sean himself could have brought had he survived, why should his Estate not recover all of hisÂ lost future income as a doctor? After all, Sean was expected to earn income as a physician for many years. Why should Kristy be precluded from recovering some of Seanâ€™s future lost wages under the wrongful death action simply because Sean was not employed or contributing financially to his family at the time of his death? Surely, it is reasonable to assume that Sean would have contributed some or most of his income to his family. Finally, why should the State dictate what the value of Sean and Kristyâ€™s pain and suffering is? Shouldnâ€™t this be decided by a jury of their peers? What are your thoughts?
Malpractice Wrongful Death Lawsuit by Couple Falsely Accused of Abusing Their Child Filed Against Childrenâ€™s Hospital
Maryland’s Cap and a Message from the former MAJ President re the Goings-On in Annapolis
Legal Boot Camp (First Class): The Story of Pam â€“ Marylandâ€™s Law on Earning Capacity
“Wrongful Death and Survival Actions”
Disclaimer: As is the case with all of our blogs and the writings posted on our website, we areÂ notÂ offering legal advice to our readers. This information in our series,Legal Boot Camp, is being presented in the hope that we can provide some education about the law in Maryland and the District of Columbia. The law in the field of personal injury (and particularly in our sub-specialty of medical malpractice) can be complex and confusing at times. Even in these two jurisdictions where we are licensed to practice, the laws and their interpretation by the courts can vary significantly. It is simply our hope that by presenting this series â€“Â Legal Boot Camp - that we can provide a better understanding of some legal principles thatÂ can come into play when bringing a civil claim or lawsuit for damages as a result of the wrongdoing of others.
For those who do not live in either Maryland or the Washington, D.C., we hope that we can at least raise some issues for you to consider when you speak with an attorney licensed to practice in the state in which you live. Many times the basic concepts of law are similar. We hope that by raising some of these issues applicable to Maryland and the District of Columbia, you will at least have a basic understanding of some terms and principles thatÂ may apply to your situation. Donâ€™t be afraid to raise these issues withÂ your attorney. Education â€“ be it in law or medicine â€“ is our main goal.
Finally, please seeÂ our introductory blog forÂ Legal Boot Camp for a better understanding of our mission in presenting this series.