When a person is killed by the negligent or intentional act of another, immediate family members (referred to as the “distributees”) may bring an action for compensation under a state’s wrongful death statute. While wrongful death law was originally developed by common law (judge made law), every state including Maryland has adopted a wrongful death statute. Under Maryland’s wrongful death law, there are two types of actions that can be brought by the decedents of a relative who is killed in an accident or by the intentional act of a third party.
A survival action is brought by the decedent’s personal representative to compensate for the damages suffered by the decedent including pain and suffering and actual expenses incurred by the decedent from the incident until the time of his death. The focus of a survival action is the damages actually suffered by the decedent. Under Maryland law, an estate may only receive very limited compensation in a survival action if the decedent is killed instantly. The only compensation that can be awarded in this situation is medical costs and funeral expenses. The theory behind this limitation to a survival action is that anyone who dies instantly does not experience any other loss because death is instantaneous. This is somewhat untrue because one who loses the chance to raise their child certainly suffers a loss.
Wrongful Death Action
A wrongful death action awards the family of the decedents for their own suffering and loss as a result of the death of the decedent. This action need not be brought by the representative of the estate of the decedent but may be brought by the husband, wife, parent or child of the decedent. The estate of the decedent also may not take the place of an immediate family member, except for very narrow circumstances when there is no one who qualifies (i.e. no husband, wife, parent, child).
Elements of Maryland Wrongful Death Law
To pursue a civil claim for wrongful death, the immediate family member that files the claim must establish certain elements:
• Death of a human being
• Caused by the negligence or intentional act of a 3rd party
• The survival of family members who are suffering the loss of financial support, love, care, comfort, supervision, guidance, household assistance and general society previously provided by the decedent
Types of Wrongful Death Cases
While any negligent or intentional act that causes the death of another can be the basis of a wrongful death action. There are a number of types of cases that commonly give rise to wrongful death claims.
• Vehicular accident (e.g. auto, motorcycle, trucking, bus, airplane, train)
• Medical malpractice (e.g. failure to diagnose)
• Occupational exposure to hazardous substances (e.g. asbestos exposure)
• Criminal assault or battery resulting in death
• Death during a supervised activity
Types of Wrongful Death Damages
As a general rule under Maryland wrongful death law, one can recover both economic and non-economic losses. Pecuniary or financial injury can be compensated. Non-pecuniary losses including loss of love, comfort and affection from the decedent may also be compensated, but most states do not typically permit an award of damages for emotional distress from the death of a loved one. Some states will allow damages for emotional distress suffered by the immediate family member of the decedent under narrow circumstances where the decedent was present when the decedent was injured. Similarly, the pain and suffering of the decedent is not recoverable through the wrongful death action but only through the survival action brought by the estate of the decedent. Damages available in a wrongful death action include the following:
• Pecuniary Loss: (1) loss of income from injury to death, (2) loss of future earning, (3) loss of parental guidance, (4) medical and funeral expenses
• Non-Economic Loss: Loss of love, companionship, comfort, affection, society or moral support.
Determining Pecuniary Loss
The court will consider factors such as the age, intelligence, education and earning capacity of the decedent as well as the circumstances of the immediate family members who bring the action. This can be a very difficult issue to establish and involves a certain degree of speculation about the decedent’s age life expectancy and potential earning capacity. This issue becomes even more problematic when the decedent is someone who is advanced in age or a child whose future earning capacity is hard to determine. A Maryland wrongful death lawyer has experience with this type of complicated issue and can assist one in establishing pecuniary damages under Maryland wrongful death law. If you need a qualified Maryland wrongful death lawyer, click her.