Wrongful Death and Survival Actions in Maryland

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This page will

  1. explain the two legal claims that arise when someone is killed as the result of a negligent act in Maryland, and
  2. provide information as to how much money surviving families may recover in a fatality case.

Two Types of Claims Result When Someone Is Negligently Killed

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 statutory 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.

In a survival action in Maryland, damages are measured in terms of harm to the actual victim.  The personal representative of the victim's Estate serves as the posthumous agent of the victim. 

These damages include physical pain before death, the agony of knowing you are dying, any medical bills, and funeral and burial services. (Learn more about this claim here)

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. What is that loss for the survivors? The most common loss is the obvious: the incalculable grief and suffering that comes with losing someone you love.

One chief difference between a survival statute and the WD 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 our tort law; no one can argue that a parent who does not get to see their children grow up has not suffered a loss.  But these rules give 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, the damages can be separated into economic and non-economic damages.

Maximum Recovery in Maryland for Fatal Accident/Malpractice Claims

More on Wrongful Death

If there is more than one beneficiary, for example in a case where a woman has two children, the maximum recovery for an accident that happens today (2013) is just shy of $2 million. This is because there is a cap on non-economic damages in a survival action in Maryland of $785,000.  

This is also the maximum cap on any non-medical malpractice fatal accident case if there is only one claimant.  The wrongful death cap with two or more beneficiaries in a non-medical malpractice case is now $1,177,500.  If there is only one claimant, the maximum recovery for non-economic damages would be $1.57 million ($785,000 for the survival action and $785,000 for the WD action).

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 $725,000 in 2013. (It goes up $15,000 each year.).  

This is also the cap on Maryland medical malpractice WD cases if there is only one surviving beneficiary. In other words, the maximum recovery in a death case where there is only one beneficiary is $725,000.  In 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 $906, 250. 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 $725,000 or $906,250.

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.fatalaccidentlawyer  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.

Statute of Limitations to Sue for Negligent Fatality

Every type of claim in Maryland has an expiration date. Simply put, there are deadlines to get a lawsuit filed in every type of civil case -- motor vehicle accident, medical malpractice and breach of contract, to name a few.

Wrongful death claims are no exception, except that wrongful death is a very broad description, and the deadlines that apply are based on the type of case. Most personal injury cases in Maryland have a three year deadline (called the statute of limitations). So in an automobile accident, slip-and-fall, dog bite injury or construction accident, a lawsuit must be filed within three years of the date of the accident.

The discovery rule, which is like hitting the snooze button on an alarm, applies when the plaintiff did not or reasonably should not have known of the negligence and injury. Let's be clear: it doesn't typically apply in most cases.

The other main category of cases is for medical malpractice, which include nursing home, dental malpractice, medication errors, and misdiagnosis of cancer cases. Those cases also have a three year statute of limitations.

Unlike most other cases, the discovery rule carries some heft, here. For example, if a doctor fails to diagnose a patient with cancer, it is not fair to start the three year clock on the date of the misdiagnosis.

However, in Maryland a medical malpractice claim must be filed within five years of the date of negligence (except for kids, who have until age 21). So, wrongful death cases can be grounded in a garden variety negligence case (auto accident, slip and fall, product liability,medical malpractice, and so forth).

These types of claims also have a statute of limitations (technically, it's a condition precedent, but even most judges refer to it as a statute of limitations), and must be filed within three years of the date of death. So let's say that there's an automobile accident which causes significant health problems, eventually causing the death of the victim three months later. Is the deadline to file a wrongful death claim three years after the accident, or three years after the death? The answer is that the claim must be filed within three years of the date of death.

The reason is simple. This claim is for the bereaving beneficiaries, usually the spouse, children and/or parents of the victim. They don't actually have a claim for their own damages until the victim dies, and the rules grant them three years to bring their claim. marylandIt is important to note that a survival claim, filed by the personal representative of the victim for recovery of medical expenses and conscious pain and suffering, would be time-barred if filed later than three years from the date of accident.

Also, the discovery rule doesn't typically help extend the time to file wrongful death claims, except in cases of toxic exposure-type occupational diseases. Likewise, a minor must still bring a wrongful death claim within three years of the date of death. The time to file is not extended to the minor's 21st birthday, like other types of claims.

There are other deadlines, called notice requirements, that may apply. In general, this means that a particular defendant must be placed on formal notice of a claim before a lawsuit is filed. These types of notice requirements usually apply to governmental entities. Cities, states and federal governments all have them.

However, there are some that you might not suspect. For example, the Maryland Local Government Tort Claims Act (Courts & Judicial Proceedings 5-301) protects Lexington Market, Inc. That and other entities demand formal notice within 180 days (6 months) of the accident. The best policy is always to contact a lawyer immediately after an accident. Even if you don't know if you need a lawyer, you can get some advice about whether your claim has an imminent deadline.

What You Need to Prove to Bring a Successful Wrongful Death Lawsuit

To bring a successful lawsuit under the statute, plaintiffs must prove:

  1. the victim's death;
  2. hat the victim's death was proximately caused by the negligence of the defendant;
  3. hat the victim's death resulted in injury to the plaintiff, who falls within the category of
    beneficiaries defined by the statute; and
  4. that the lawsuit is brought within the statute of limitations

You can find a sample wrongful death lawsuit that incorporates these claims here.

Hiring a Lawyer to Fight for You

           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, you need to get the best lawyer you possibly can to fight for you. Call us for a free no obligation consultation with our attorneys by phone at 800-553-8082