November 3, 2019

In its reported opinion dated November 1, 2019, the Court of Special Appeals of Maryland (“Maryland Appellate Court”), Maryland’s intermediate appellate court, discussed what is necessary to prove a loss of household services claim in a medical malpractice wrongful death case.

A Maryland medical malpractice wrongful death jury found the defendant physician liable for the wrongful death of the plaintiff’s 22-year-old daughter who died from complications related to necrotizing fasciitis, a severe infection in her leg and groin area, and awarded $500,000 in noneconomic damages and $500,000 in economic damages for the loss of the daughter’s services. During the trial, the mother testified that she had lived with her daughter since her daughter’s birth (she was a single mother) and that her daughter completed various household chores for about two hours per day and that she hoped to live with her daughter forever.

On appeal, the defendant physician argued that the circuit court erred in denying his motions for judgment as to mother’s economic damages claim (i.e., loss of household services claim).

Maryland Appellate Court Opinion

Loss Of Household Services Claim

The Maryland Appellate Court stated that in order to recover economic damages for the loss of household services, “a beneficiary must: (1) identify domestic services that have a market value; (2) have reasonably expected the decedent to provide the identified services, which—absent the decedent’s legal obligation to provide the services—will typically require evidence showing that the decedent was regularly providing the services in the past; and (3) present some evidence concerning the duration the decedent would have likely provided the services.”

The Maryland Appellate Court stated: “a beneficiary must first identify specific household tasks that can be performed by domestic workers and, as a result, have an identifiable market value if the beneficiary is seeking an economic damages award. These tasks may include “cooking, cleaning, and gardening” and can range from “polishing the family silver to pulling up weeds from the garden.””

The Maryland Appellate Court stated: “a beneficiary must set forth evidence showing that he or she had a reasonable expectation that the decedent would perform the identified household tasks. Maryland cases consistently set forth that a beneficiary must have a “reasonable expectation of pecuniary benefit or advantage from a continuance of the life of the person killed” … there are at least two ways in which a beneficiary can establish this reasonable expectation. First, a beneficiary may have a reasonable expectation to the receipt of services from a decedent if the decedent was under a legal obligation to provide the services to the beneficiary … Second, absent the decedent’s legal obligation to provide the services, Maryland case law supports that a beneficiary has a reasonable expectation that a decedent will perform such tasks if the decedent has been regularly and consistently (not just occasionally) performing those tasks in the past.”

The Maryland Appellate Court stated: “absent a recognized presumption speaking to the duration of services, we conclude that a beneficiary must present some evidence—which may include “words and conduct of the decedent manifesting an intention … to make future contributions of … service to the plaintiff,” as well as life expectancy evidence, Jones, 173 Md. App. at 244—to establish a non-speculative length of time during which the beneficiary could have reasonably expected to continue to receive the household services … [evidence tending to establish the likely duration of the services would also presumably overlap with evidence showing that the beneficiary had a reasonable expectation of receiving the services in the first place. No doubt the decedent’s course of conduct in providing services in the past, as well as any express or implied words or actions of the decedent tending to show that he or she planned to continue providing the services going forward, is relevant to both issues] … Some evidence of duration is necessary because “the law cannot achieve justice if speculation is to be used as the basis for determining damages.””

In the case it was deciding, the Maryland Appellate Court stated: “we are not convinced by [the defendant] that in order to establish economic loss as a result of her daughter’s death, [the plaintiff] had to prove that she was unable to perform the tasks herself or that she would suffer economic hardship if required to pay for replacement services (though we acknowledge that such a showing might strengthen her claim to economic damages).”

The Maryland Apppellate Court held, nonetheless: “Even if [the plaintiff] did not have to present evidence of the specific market value or replacement cost of the services once she identified tasks that undoubtedly have a market value (that is, tasks that can be completed by domestic workers), we would still reverse. We agree with [the defendant] that [the plaintiff] presented insufficient evidence as to the likely duration of such services to submit her damages claim to the jury … in addition to this lack of evidence about the past duration of the services, [the plaintiff] also presented no evidence supporting that her daughter, who was at the start of her adult life, planned to live with [the plaintiff] indefinitely and to keep providing her mother household services on a daily (or any other regular) basis … [w]ithout such a presumption, [the plaintiff] needed to provide some evidence that [her daughter]—based on [her daughter’s] own words or other conduct manifesting her future plans—intended to continue providing the identified household tasks to her mother on a regular basis in the future … household services like those [the daughter] performed may be recoverable as a pecuniary loss but [the plaintiff] presented insufficient evidence to submit her damages claim to the jury.”

Source Choudhry v. Fowlkes, No. 1148, September Term 2017.

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