The Court of Special Appeals of Maryland, which is Maryland’s intermediate appellate court, summarized the facts of a Maryland medical malpractice wrongful death case that it decided in a published opinion dated July 1, 2021, as follows: A patient sees an oncologist in April 2013 at a point where she has stage IV metastatic breast cancer. No one survives that type of breast cancer. Nevertheless, with proper treatment, she, at that point, had a life expectancy of eighty months. As a result of the doctor’s negligence, the cancer was not discovered at that time. Almost three years later, in February 2016, the cancer was discovered by another healthcare provider. Thereafter, the patient received the same cancer treatment that she would have received if the cancer had been discovered in April of 2013. The patient died of metastatic breast cancer, at age 53, in June 2017. Thereafter, her personal representative brought a survivorship action against both the doctor who had failed to diagnose the cancer and the doctor’s employer. The patient’s husband and other close relatives of the patient also filed a wrongful death action against the same defendants. The plaintiffs claimed that the doctor’s negligence, although it did not cause the victim’s death, shortened her life expectancy by thirty months.”

Maryland Wrongful Death Claim

The Maryand Appellate Court stated, “in a Maryland wrongful death case, the plaintiff(s) must prove that the defendant’s negligence more likely than not (better than 50% chance) caused decedent’s death … Whether decedent would have been alive in five years is irrelevant when the issue is whether the doctor caused the patient’s death … plaintiffs-appellants had the burden of proving that the decedent’s injury (death) was caused by the defendants-appellee’s negligence. The evidence presented to the motions court proved that at the time of the alleged negligence, the decedent didn’t have an over 50% chance of a cure … The relatives of Mrs. Wadsworth were not entitled to recover solatium type damages, or any other type of damages because they were deprived of the decedent’s company, love and affection for 30 months. The motions judge had no choice but to grant summary judgment in favor of the defendants-appellees as to the wrongful death claim.”

Maryland Survival Claim

With regard to the survival action, the Maryland Appellate Court stated: “we shall hold that the personal representative may possibly recover some damages even though he was unable to prove that Dr. Sharma’s negligence caused the decedent’s death … It is important to emphasize that Section 6-401 of the Courts & Judicial Proceedings Article (dealing with a survival action) does not require that the plaintiff prove that death was caused by the defendants’ negligence. The personal representative, unless he or she makes a claim for funeral expenses, must only show that the decedent, if he or she had lived, would have had a cause of action. Those damages “currently include conscious pain and suffering as well as medical expenses, but exclude future loss of earnings, solatium damages, and damages which result to other persons from the death” … [the lost wages] claim will be limited to the loss of wages caused by the misdiagnosis between February 2016 (when stage IV cancer was diagnosed) and the date of death … if on remand the personal representative can prove that due to Dr. Sharma’s negligence, the decedent incurred medical expenses or endured pain or suffering that she would not have endured if there had been no negligence, he can make a recovery for such damages.”

The Maryland Appellate Court concluded: “The personal representative may not recover funeral expenses because under the wording of Estates and Trusts Article, § 7-401(y)(i)(ii), and the holding in Fennell, he cannot prove that Dr. Sharma caused the decedent’s death. The personal representative, on remand, can recover damages if he can show any of the following: 1) Mrs. Wadsworth endured conscious pain and suffering due to Dr. Sharma’s negligence; 2) the loss of wage issue was not waived and that due to Dr. Sharma’s negligence, Mrs. Wadsworth suffered pre-death loss of income; and 3) assuming the personal representative can prove that the decedent’s life was shorter due to Dr. Sharma’s negligence and assuming further that, prior to her death, Mrs. Wadsworth knew Dr. Sharma had shortened her life expectancy, recovery may be had for the mental anguish caused to Mrs. Wadsworth as a result of such knowledge. The personal representative may not, however, recover for the shortening of Mrs. Wadsworth’s life.”

Source Scott Wadsworth, et al. v. Poornima Sharma, M.D., et al., No. 1703, September Term 2019.

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