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Survival Actions in Maryland Claims Made by Victim’s Estate

When a person dies because of someone else’s negligence, there are typically two types of claims that are created: survival and wrongful death.

The survival claim isn’t named terribly well — it is the claim made by the estate for specific types of injuries. It makes more sense if you think of the claim as the thing that “survives” the death.

The wrongful death claim, by contrast, is made by the beneficiaries of the dead individual (typically spouse, children, and/or parents) for their emotional losses. The law permitting survival actions is found in MD. CTS.&JUD. PROC. 6-401.

Deadlines in Survival Action Lawsuits

Like most Maryland negligence cases, survival claims must be filed in the courts within three years of the date of the negligence. The statute of limitations for wrongful death claims, which, again, are a different animal than survival actions, typically also has a three-year limit in Maryland, but this period starts from the date of death.

The exception is the discovery rule, which starts the three-year clock on the date a plaintiff knew or reasonably should have known about the negligence. It goes without saying that each case is very fact-specific, and you don’t want to be a test case for the courts. If you can file within three years of the negligence, you’re likely to be better off.

More on Death Claims

Medical malpractice cases have a slightly different rule — it’s typically three years from the date of negligence but not to exceed five years from the date of negligence when applying the discovery rule (click here for a more detailed analysis of this statute of limitations issue).

The other cautionary note is that there may be shorter deadlines, particularly when governments and governmental agencies are involved. For that reason, if you think you have a claim, you should contact a lawyer about the applicable deadlines immediately. Missing a deadline could mean that you lose your chance for recovery.

In Maryland, the statute of limitations for a survival action claim is typically three years from the date of the injury that eventually led to the death of the individual. This is a crucial legal timeframe during which the personal representative of the deceased’s estate must file the survival action lawsuit. The survival action claim allows the estate to pursue compensation for the injuries and suffering the deceased experienced between the time of injury and the time of death.

There is rarely wiggle room with this deadline to file a survival action or wrongful death lawsuit. Failing to file a survival action lawsuit within this time frame can result in losing the right to sue. Courts are generally extremely strict about the statute of limitations deadlines, and relatable human reasons for missing this deadline will almost invariably carry no legal weight.

Damages Available for Survival Claims

It is important to remember that the survival claim is mostly for injury to the person who died (lawyers use the antiseptic-sounding word “decedent”). If death is instantaneous, most survival action damages will not be recoverable. The law will, therefore permit the estate to recover the following damages:

  • Funeral expenses (up to the limit stated in Md. Code, Est & Trusts 8-106(c), which is $10,000 in 2013). Md. Code Est. & Trusts 7-401.
  • Property damage
  • Medical expenses between the time of injury and the time of death
  • Lost wages between the time of injury and the time of death
  • Non-economic damages between the time of injury and death (non-economic damages include things like pain, suffering, mental anguish, and physical impairment)
  • Punitive damages, when allowed (punitive damages, meant to punish the wrongdoer, are not typically allowed in Maryland automobile accident claims)


Notably, there are limits on the amount of non-economic damages recoverable in a survival claim.

The cap is different for medical malpractice cases and non-medical malpractice cases. There is a separate cap on wrongful death cases — so, if the decedent leaves behind family members, there is more potential for a higher monetary recovery. These damages go directly to the deceased’s estate and are taken care of by the estate’s personal representative.

The personal representative is someone, usually a family member, who has been approved by the courts to handle the decedent’s affairs. The personal representative will then make distributions of any money received according to Maryland law — pursuant to the will if there is one, otherwise according to the laws of intestate succession (more lawyer-speak, meaning according to the statutes that say how property passes when someone dies without a will).

Survival Action Settlement Amounts

In Maryland, due to the state’s cap on non-economic damages in survival action claims, our survival action lawyers view the calculation of settlement amounts as relatively straightforward, primarily influenced by the likelihood of winning the case at trial. Because a victim’s last conscious moments on earth before dying are rarely anything short of catastrophically awful.

Essentially then, the only deduction from the maximum cap on damages should correspond to the risk of losing the case. For instance, if there’s an 80% chance of winning, the settlement amount should ideally be 80% of the capped amount plus any economic damages. This approach simplifies the process of determining settlement values in survival actions, as the major variable is only the assessment of the probability of success in court.

Verdicts in Maryland Survival Action Cases

In Maryland, survival action lawsuits involve determining compensation for the pain and suffering endured by a deceased individual prior to their death.

Normally, we give sample settlement amounts and jury awards. But we are only using verdicts here.  Why?  While settlements reached outside of court do not always equitably allocate funds between survival actions and wrongful death claims, jury verdicts are required to provide fair compensation for each distinct aspect.

Jury awards in survival actions are based on quantifiable damages suffered by the deceased from the time of injury until death, separate from the losses experienced by surviving family members in wrongful death claims.

The following examples of jury compensation payouts in Maryland survival action lawsuits illustrate how juries in Maryland have historically valued these claims, offering insights into the judicial process of assigning monetary worth to the often-intangible aspects of human suffering and loss. The only problem is that settlement value and jury awards can be very different which makes calculating settlement amounts in these cases more difficult.  But, again, the biggest driver how strong the case is proving the defendant is responsible.

$3,000,000 (Baltimore County 2023): a 70-year-old male, presented to the emergency room two days prior to his death with low blood pressure, vomiting blood and near fainting and was treated by defendant. He was eventually diagnosed with an upper gastrointestinal bleed and died. The wrongful death and survival action with allegations that the defendant failed to timely diagnose his patient as hypotensive and hemodynamically unstable due to hypovolemia from blood loss; failed to consult with a general surgeon regarding his patient’s gastrointestinal bleeding, and unstable blood pressure and failed endoscopy. A jury awarded $3,000,000, but the award was reduced to $981,250 based on the cap.

$1,144,732 (Baltimore County 2022): A survival action was brought after a 51-year-old man committed suicide while taking Paxil to treat depression and anxiety/panic attacks/. The lawsuit was brought against his primary doctor who prescribed the Paxil without performing necessary medical exams and without requiring the man to come in for regular check-ups to monitor his response to the medication. Entire award was for the survival claim in this case.

$400,000 (Baltimore City 2021): This wrongful death and survival action was brought after a 56-year-old man Mason died when a vehicle operated by an employee of the Maryland Department of Human Resources (MDHR) him while he was standing on the shoulder of a public roadway. Following a bench trial, the plaintiffs were awarded $400,000 on their survival claim for the decedent’s pain and suffering.

$1,300,000 (Baltimore City 2019): This wrongful death and survival action was brought after a 69-year-old retired male was killed when a vacant rowhouse collapsed, causing bricks and rubble to crush the vehicle he was sitting in that was parked in a public parking lot near his home and adjacent to the rowhouse. The lawsuit was brought against the owners of the building for failing to comply with various building and safety codes. $1 million was awarded for the wrongful death claim and $300,000 for pain and suffering on the survival claim.

Our Law Firm Handles Death Claims

If your loved one was killed because of medical malpractice or other personal injury, contact our wrongful death and survival action lawyers at 1.800.553.8082 or send us a confidential message online. We can help you to understand your legal rights and help you get the compensation you deserve.

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They quite literally worked as hard as if not harder than the doctors to save our lives. Terry Waldron
Ron helped me find a clear path that ended with my foot healing and a settlement that was much more than I hope for. Aaron Johnson
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The last case I referred to them settled for $1.2 million. John Selinger
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The entire team from the intake Samantha to the lawyer himself (Ron Miller) has been really approachable. Suzette Allen
The case settled and I got a lot more money than I expected. Ron even fought to reduce how much I owed in medical bills so I could get an even larger settlement. Nchedo Idahosa
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