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Loss of Household Services Rendered by Adult Child

June 22, 2021 By Robert S. Morter

In a recently published “clarifying” opinion, the Maryland Court of Appeals in Fowlkes v. Choudhry (No. 6, September Term, 2020) set forth the evidentiary requirements necessary to support a claim for the loss of household services occasioned by the death of an adult child.

In this medical malpractice case tried in Baltimore City, Plaintiff Fowlkes sought damages for the alleged wrongful death of her 22 year-old daughter who had succumbed to necrotizing fasciitis following treatment by Defendant Dr. Choudhry.  The jury awarded Ms. Fowlkes $500,000 for non-economic damages and $500,000 in economic damages for loss of the household services of her daughter.  The physician appealed the latter to the intermediate appellate court on the basis that Ms. Fowlkes had not produced sufficient evidence to submit the claim for lost household services to the jury and secured a reversal.  See Choudhry v. Fowlkes, 243 Md. App. 75 (2019). 

In its opinion, the Court of Special Appeals articulated a three-pronged inquiry as regards the evidence necessary for the wrongful death beneficiary to reach the jury: (1) identification of domestic services that have a market value; (2) an expectation that the decedent would continue providing those services; and (3) the duration for which those services would be provided.  The Court of Appeals accepted review of the case to further define the expectation and duration aspects of the claim.  

After an exhaustive analysis of Maryland’s Wrongful Death Act and cases from other jurisdictions relating to the compensability of expectation damages in the wrongful death setting, the Court of Appeals stated that:

“…recovery of pecuniary damages is based not only on the reasonable expectation of the parent but also must be anchored in proof of intent on the part of the deceased adult child, which can be adduced in the form of evidence of legal duty, promise, or acts of intent. We differ from our intermediate appellate court in its emphasis on duration of services because, in our view, proof of the decedent’s intent is not necessarily wholly dependent on evidence of duration, but rather can be developed through proof of a legal duty, promise, or acts of the decedent that reflects a continuing intent to serve or provide, of which evidence of duration may be a part.

Although we have expanded the quantum and quality of proof of the decedent’s intent, we do agree with the Court of Special Appeals that Ms. Fowlkes failed to adduce sufficient evidence that [her daughter] intended to provide household services in the future, absent her death. There was no proof adduced that [the daughter] had a legal duty to provide services to her mother. There was also no evidence adduced of any promise, written or oral, by [her daughter] to Ms. Fowlkes or provided to a third party, that the daughter intended to continue offering her services for any period of time.”

Loss of household services claims are often a big-ticket damage enhancer employed by Plaintiffs to push potentially recoverable damages above a client’s policy limits.  The above opinion provides defense counsel with some guidance to attack those claims and set up dispositive motions through written and deposition discovery.