Clarifying the Difference Between Wrongful Death and Survivorship
August 26, 2021 By Lauren N. Rutkowski
The Maryland Court of Special Appeals recently released an opinion further clarifying the differences between wrongful death suits and survivorship actions. In, Wadsworth v. Sharma, the decedent had stage IV metastatic breast cancer in 2013. 2021 Md. App. LEXIS 533 (July 1, 2021). The decedent was treating with an oncologist during April 2013, when the cancer was already stage IV, however, the oncologist did not discover the cancer. Had the cancer been discovered in April 2013, and the decedent received proper treatment, she would have had a life expectancy of eighty (80) months. The cancer was discovered by another provider about three years later in February 2016. Decedent received the same treatment that would have been recommended in 2013 if the cancer had been discovered. Decedent eventually died in June 2017. The Personal Representative brought a survivorship action against the doctor who failed to diagnose the cancer and the doctor’s employer. Simultaneously, the decedent’s husband and other close relatives filed wrongful death actions against the same defendants. Both actions claimed that while the doctor who failed to diagnose the cancer did not cause the decedent’s death, the failure to diagnose shortened decedent’s life by thirty (30) months. The trial court granted the defendant’s motion for summary judgment as to both the wrongful death claim and survivorship action. The Court of Special Appeals upheld the granting of summary judgment as to the wrongful death claims but reversed and remanded the granting of summary judgment as to the survivorship action.
With regard to the wrongful death claim, the court noted that the Maryland Wrongful Death Statute is in derogation of common law and must be strictly construed. Thus, for a plaintiff to succeed on a claim for wrongful death, they must establish that the defendant’s wrongful act caused the death of the decedent. The plaintiffs in Wadsworth made what the court called a “precious time” argument citing the loss of thirty (30) months of the decedent’s life through the defendants’ negligence. In order for this argument to succeed, the defendants argued that the plaintiffs needed to prove that as of April 2013, when decedent was treated by the defendant oncologist, her cancer was still probably curable. Plaintiff’s own expert testified that as of April 2013, decedent’s cancer was not curable. The Court of Special Appeals agreed with this argument ruling that a relative of a decedent cannot recover damages unless the relative can prove that the defendant’s negligence caused the decedent’s death. As to the survivorship action, the personal representative sought damages suffered by the decedent as a result of the defendant’s negligence to include: conscious physical pain and suffering; mental and emotional distress and anguish; severe bodily injuries, damages, and discomfort; disability; fear; stress; anxiety; embarrassment; inconvenience; diminished quality of life; loss of the ability to enjoy the normal pleasures of life; loss of the ability to perform activities of daily living and household services; unnecessary hospitalizations and procedures; additional medical conditions and diagnoses; past medical, surgical, hospital, therapy, rehabilitation, medication, equipment and other necessary expenses; loss of employment, wages, income, and earning capacity; funeral, burial, and other related expenses; untimely death; and other compensable injuries, losses, damages, and negative sequelae. The court noted that Maryland’s Survivorship Statute does not require that plaintiff prove the decedent’s death was caused by the defendant’s negligence. Rather, this causal proof is only required for an award for funeral expenses. Otherwise, plaintiffs only need to show that if the decedent had lived, the decedent would have had a cause of action against the defendants. In the Wadsworth case, those damages decedent could have sued for included conscious pain and suffering, mental anguish, medical expenses, and potentially lost wages. The Court of Special Appeals reversed the trial court’s entry of summary judgment as to the survivorship action and remanded the case back. The court did note, however, that recovery as to precious years lost or the shortening of decedent’s life was not permitted.