In an unreported decision by the Court of Special Appeals of Maryland (“Appellate Court”) on August 7, 2015, the Appellate Court held that a judgment entered in favor of a decedent in a Maryland medical malpractice action (personal injury action) does not preclude a subsequent wrongful death claim brought by the decedent’s survivors on the basis of the same conduct as the underlying personal injury action.
The Underlying Facts
A baby was born in Maryland on May 8, 1995 with severe cerebral palsy. His parents filed a Maryland medical malpractice case on the child’s behalf on September 5, 2001, alleging medical malpractice and breach of informed consent A Maryland medical malpractice jury returned a verdict in favor of the plaintiffs on the medical malpractice claim in April 2004 but failed to reach a decision on the breach of informed consent claim. Two years later, a second trial began on the breach of informed consent claim that resulted in a verdict in favor of the child, on September 26, 2006.
The Maryland medical malpractice defendants Appellees filed post-trial motions for remittitur and judgment notwithstanding the verdict (“JNOV”). The trial court granted the defendants’ JNOV motion and the plaintiffs appealed. The Appellate Court affirmed the trial court’s decision and the plaintiffs appealed to the Court of Appeals of Maryland (Maryland’s highest court), which reversed the Appellate Court and the trial court’s grant of JNOV, and remanded the case for further proceedings.
The child died on September 26, 2009, before the completion of the remand proceedings. The child’s parents were substituted as proper party plaintiffs in the litigation. After further proceedings in the trial court and the appellate courts, the child’s estate received payment in full satisfaction of the judgment in his favor, on March 23, 2012.
The plaintiffs filed a wrongful death action against the same defendants, on May 17, 2012. On August 1, 2012, defendants filed a motion to dismiss plaintiffs’ wrongful death complaint, which the trial court granted on December 6, 2012, based on its interpretation of the wrongful death statute. The plaintiffs then appealed to the Appellate Court.
Maryland is among a minority of U.S. states that considers a wrongful death claim as independent of the decedent’s personal injury claim – the Maryland wrongful death statute has not undertaken to keep alive an action which would otherwise die with the person, but, on the contrary, has created a new cause of action for something for which the deceased person never had, and never could have had, the right to sue; that is to say, the injury resulting from his death.
Nonetheless, in some sense a wrongful death claim is derivative of a decedent’s personal injury claim because the two actions stem from the same underlying conduct, which must have resulted in the decedent having a viable claim when he or she was injured. Accordingly, where certain defenses would bar a decedent’s claim, a wrongful death claim brought by the decedent’s surviving relatives is also barred (e.g., defenses such as contributory negligence, assumption of risk, parental immunity, and lack of privity of contract).
However, a statute of limitations defense against the decedent’s claim does not bar a subsequent wrongful death claim (it would be illogical for, by operation of a statute of limitations that applies to the decedent’s separate claim, a wrongful death claim to be time-barred before it can accrue – therefore, under Maryland’s wrongful death statute, a wrongful death claimant’s right to sue is not contingent on the decedent’s ability to file a timely negligence claim prior to his or her death.
The defenses that preclude a subsequent wrongful death action are those that, where applied, the decedent did not have a viable claim from the outset because the Maryland wrongful death statute’s definition of “wrongful act” requires that the defendant have been liable to the decedent at some point (the decedent must have had a viable personal injury claim at the time of the injury).
The Appellate Court held that because the plaintiffs are suing in their own right in their Maryland wrongful death action, and for their own injuries, not on behalf of their child, as they did in his personal injury action, the judgment in favor of their child in his personal injury action against the defendants is not a defense that bars the plaintiffs’ wrongful death claim.
Source McQuitty, et vir. v. Spangler, et al., No. 2375.
If you may be the victim of medical malpractice in Maryland, you should promptly find a Maryland malpractice lawyer who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.
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