Wrongful Death and Survival Actions in Maryland
Explanation of the Claims That Can Be Made in Death Cases Caused by Negligence
When a victim dies in an auto accident or truck accident, or as the result of medical malpractice in Maryland, the decedent's family's personal injury lawyer will typically bring two distinct claims. One is an action brought on behalf of the personal representative of the deceased, claiming recovery for the injuries suffered by the victim. Maryland law calls this claim a "survival action," which is the Maryland statute that allows compensation to the victim's estate for the pain and suffering and other damages and actual expenses incurred by the victim that were suffered up to the moment of death. The other claim is a "wrongful death action," also pursuant to Maryland statute, brought by the relatives of the victim and seeking compensation for the victim's accidental death.
More on Wrongful Death
In a survival action in Maryland, damages are measured in terms of harm to the actual. victim. The personal representative serves as the posthumous agent of the victim. In a wrongful death action in Maryland, damages are measured in terms of harm to loved ones as a result of the loss of the victim. In this case, the surviving relatives do not serve the agent for the decedent and act on their own behalf for their own loss.
One chief difference between a survival statute and a wrongful death statute is that if death is instantaneous, there can be no cause of action except for medical bills, lost wages before death and funeral expenses under the Maryland survival statute. Of course, this is a fallacy of law; no one can argue that a parent who does not get to see their children grow up has not suffered a loss. But the law gives that claim to the children under the survival statute.
One question families who have lost a loved one in an accident or by medical malpractice ask is what is the maximum recovery they can receive for their accidental death that is due to the negligence of someone else? Assuming no problems with insurance or collectability, the damages can be separated into economic and non-economic damages.
Maximum Recovery in Maryland for a Wrongful Death, Excluding Economic Damages
If there is more than one wrongful death beneficiary, for example in a case where a woman has two children, the maximum recovery for an accident that happens today is $1.7 million. This is because there is a cap on non-economic damages in a survival action in Maryland of $680,000. This is also the maximum cap on any non- medical malpractice wrongful death case if there is only one claimant. The wrongful death cap with two or more beneficiaries in a non-medical malpractice case is now $1,020,000. If there is only one claimant, the maximum recovery for non-economic damages would be $1.36 million ($680,000 for the survival action and $680,000 for the wrongful death action). (For the purposes of this illustration, we have assumed that the accident occurred this year; click here to see the damage caps for other dates of death).
Non-Economic Damages in Medical Malpractice Cases
For reasons that our lawyers would argue escapes logic, if someone is killed in Maryland as a result of medical malpractice, the maximum non-economic recovery is much lower The pain and suffering cap in Maryland in medical malpractice cases is $650,000. This is also the cap on Maryland medical malpractice wrongful death cases if there is only one wrongful death beneficiary. In other words, the maximum recovery in a death case where there is only one wrongful death beneficiary is $650,000. In Maryland medical malpractice cases with two (or more) plaintiffs, the cap is reduced from 150% of the medical personal injury cap to 125%. Md. Code Ann., Cts. and Jud. Proc., §3-2A-09. Accordingly, the wrongful death cap with two or more beneficiaries in medical malpractice cases that arise after today is $812,500 and will remain the same until 2009. Adding insult to injury, this cap combines wrongful death and a survival actions, meaning the non-economic recovery in cases where death is caused by medical malpractice in Maryland is either $650,000 or $812,500.
Recovery of Economic Damages
There is no cap on economic damages in Maryland. Accordingly, in the example above where the woman supports two children, the children would be entitled to recover for the loss of the comforts, education, and position in society which they would have enjoyed if their mother/wife had lived and retained her income and they had continued to form part of the family. Practically, this means they are also entitled to (1) her lost wages from the time of the accident/malpractice and her death and (2) future lost wages. A future lost earnings award is allowed for earnings "reasonably certain" to result from the injury and are awarded by the jury (or judge) in a lump sum. The amount of lost earnings awarded must be based upon present value and not upon speculation about inflation or other unknown factors impacting earning potential. But, obviously, the computation of future lost earnings is not exact and to some degree it invariably requires speculation about the decedent's life expectancy and expected work experience.
If you live in the Baltimore Washington area and believe you have a family member that was killed that you believe was by the negligence by another driver on the road, by medical malpractice, or as the result of the used of a defective product, get a free no obligation consultation with our Maryland wrongful death lawyers by phone at (800-553-8082).
More Information on Wrongful Death Claims in Maryland
- Maryland Fatal Accident Claims (an overview)
- Median Settlements and Verdicts in Wrongful Death Cases in Maryland (Maryland wrongful death lawsuit settlement and verdict data)
- Average Wrongful Death Verdict (wrongful death case verdict statistics)
- Wrongful Death Medical Malpractice Verdicts and Settlement (average values of lawsuits)
- Your Chances of Winning a Medical Malpractice Lawsuit (jury verdict data on how often Plaintiff prevails)
- Maryland Wrongful Death Statute (the statute under which wrongful death recoveries are made that highlights who can make a wrongful death claim in Maryland)
- More on Wrongful Death in Maryland (more Maryland wrongful death lawsuit information)
Types of Wrongful Death Claims
- Automobile Accidents
- Truck Accidents
- Medical Malpractice
- Product Liability
- Forklift Accidents
- Swimming Pool Drowning Wrongful Death Claims
Information for Other Wrongful Death Lawyers
- Sample Wrongful Death Lawsuit (example of Complaint)
- Maryland Cap on Non-Economic (Pain and Suffering) Damages (Maryland cap on damages in wrongful death cases)
- Dealing with Medicare Liens in Wrongful Death Cases (guidance on how to balance interests of wrongful death and survival action claims)
- What Happens When the Widow Remarries? (explanation of Maryland law in accidental death cases)
- Use Plaintiffs in Maryland Wrongful Death Cases (what lawyers need to do when they do not represent all of the beneficiaries)
- Maryland Medical Malpractice Lawyer Blog (discussion of malpractice issues, cases and law in Maryland)
- Maryland Personal Injury Lawyer Blog (discussion of wrongful death personal injury claims in Maryland, among other topics)