Maryland Wrongful Death and Survival Actions
When a person dies due to the negligence of another, there are potentially two types of claims triggered:
- Survival Action: The legal basis of a survival action is similar to a personal injury case, except that the person was killed instead of merely injured. Therefore, the plaintiff is the decedent and the claim is to recover compensation for economic and non-economic damages. However, there are a couple of issues that arise in survival actions when it comes to standing to sue and how to assess damages.
- Wrongful Death: These claims are based upon the emotional losses that the deceased person’s loved ones experience upon his or her death. Only beneficiaries designated by statute can file a wrongful death case, such as the spouse, parent, or children of the victim. The same law provides that damages are recoverable for mental and emotional anguish; loss of society, companionship, comfort, and protection; parental care and guidance; and similar losses.
A. Survival Actions
I. Standing to File a Lawsuit in a Survival Action
Under Maryland law, only a personal representative acting on behalf of the deceased can file a lawsuit for damages under the doctrine of survival actions. The personal representative essentially stands in the shoes of the decedent, taking actions and making decisions that the person who has died cannot.
This person may be designated by the decedent’s will, in which case the power to sue is given to the will executor. If the deceased person did not have a will, it is necessary to have a court appoint a personal representative to file the lawsuit. The process requires the proposed representative to file a petition in court, requesting that the judge appoint him or her to handle the decedent’s affairs. Typically, this individual would be the deceased person’s spouse, child, or parent.
II. Damages Available in a Survival Action
In a survival action, the victim’s estate is entitled to recover for any pain and suffering along with other damages and expenses that the victim went through as a result of the accident up until the moment of death. If the victim had to be hospitalized and suffered for several hours or days until their death, this would also be compensable as conscious pain and suffering. Additionally, you may be able to obtain compensation for hospital bills, funeral expenses and/or loss of spousal/parental support. An attorney handling a survival action will usually need to set up an estate on behalf of the victim, or help you to get a personal representative appointed.
As mentioned, survival actions share many of the same concepts behind a typical personal injury lawsuit. Many of the legal theories regarding damages apply, so a personal representative can sue for two types of damages:
- Economic Damages: A personal representative can file an action to recover such economic losses as medical expenses, costs of funeral and burial services, damage to property, and lost wages between the accident and the person’s death.
- Non-Economic Damages: As in a personal injury case, there may also be losses that are not so readily ascertainable as economic damages. The decedent’s personal representative may sue in a survival action to recover for pain and suffering, mental anguish and emotional distress, and loss of relationship.
Note that the relevant time for considering all non-economic damages is limited to the period between the accident that caused the injuries and the person’s death. Obviously, the decedent does not experience pain and suffering or emotional anguish after dying. Therefore, there may be no claim for non-economic damages if the death to the victim was instantaneous.
III. Statutory Caps
In wrongful death and survival actions, Maryland has established a statutory cap for plaintiffs. For wrongful death cases in which the cause of action arises on or after October 1, 2016, the statutory cap is $830,000. There is also a cap when two or more beneficiaries make a wrongful death claim, which is $1,245,000 as of October 1, 2016. The combined limit for wrongful death and survival action is $2,075,000. For each situation, the statutory cap increases on October 1 of each year.
It is important to understand that the statutory cap applies when the cause of action arises; in a Maryland car accident case, that would be the date the accident occurred.
- What recourse do I have if someone in my family has been killed in a car accident due to another driver's negligence?
B. Maryland Wrongful Death Claims
A wrongful death action can be brought by the relatives of the victim and the compensation is usually awarded to the victim’s relatives for the accidental death. Compensation may vary depending on the surviving parties kinship status to the deceased and an attorney should be consulted to determine what rights, if any, you may have in such a case.
I. Who Can Make a Maryland Wrongful Death Claim?
In Munger v. United States, 116 F. Supp. 2d 672 (D. Md. 2000): The court interpreted Maryland law to indicate that only a spouse, parent or child of the deceased would have standing to sue for wrongful death. The court notes that in other jurisdictions, the claim for wrongful death may belong to the estate of the deceased instead. In Maryland, the statute provides that if there is a surviving spouse, parent or child, another person may not bring a wrongful death action on behalf of the deceased. The statute does allow such claims by persons who are not a spouse, child or parent in certain instances such as where there are no surviving spouses, children or parents.
II. Damages Available to Wrongful Death Claimants
If a family member has suffered a tragic loss and died as a result of the negligent actions of another party, whether by a motor vehicle accident, a work-related accident or a medical error, the victim's surviving dependents and relatives may be entitled to compensation for the medical bills of your family member before he or she died. The surviving parties may also be able to obtain compensation for any conscious pain and suffering sustained by the deceased family member between the time of the accident and the time of death. Other forms of compensation may include compensation for loss of income resulting from the death of the family member or provider. In addition, surviving family members may be entitled to compensation for mental anguish.
Note: We also handle Wrongful death and fatal accident claims that have occured in Virginia.
Similar to Maryland law, Virginia law allows for damages that are “fair and just.” (Va § 8.01-52) and the statute provides a complete list of damages including:
- Conscious Pain
- Funeral and burial expenses
- Personal Grief
- Medical Expenses
- Loss of future income
- Loss of Support
- Sorrow and mental illness
IF YOU NEED HELP, CONTACT US TODAY
If you have lost a loved one due to someone's negligence, whether the death occured in Maryland, Virginia or Washington D.C., it is important to retain an attorney who will assist with each potential cause of action (whether wrongful death or survival) and properly oversee administration of the deceased individual’s estate. There are frequently different theories of liability and complicated legal issues involved in such cases, but an experienced attorney can help with appointing a personal representative and in pursuing the responsible party for the appropriate damages.
The lawyers with Bob Katz Law, in Baltimore and in Virginia, have represented many clients in wrongful death and survival actions, and will strive to maximize compensation available under Maryland law for your family. Please contact our office with questions or to schedule a consultation to discuss your case.