Maryland’s Intermediate Appellate Court Rejects the Viability of a “Loss of Years” Claim in Wrongful Death and Survival Action Claims
July 22, 2021 By Mark A. Kohl
Maryland, unlike some jurisdictions does not recognize the “loss of chance” theory in wrongful death medical malpractice cases. Therefore, a claimant must establish that, but for the provider’s negligence, she more likely than not would have survived (rather than establishing she lost the chance to survive). But, until recently, Maryland’s courts of record had not addressed whether a “loss of years” argument was viable in wrongful death and survival action claims.
The Court of Special Appeals in Wadsworth v. Sharma (publication pending) attempted to answer the question. 2021 Md. App. LEXIS 533 (July 1, 2021). The decedent in 2013 had terminal cancer, but her provider failed to make the diagnosis and institute treatment. The cancer was discovered in 2016 and the decedent passed in 2017. The plaintiffs elicited evidence that the decedent, due to a lack of proper diagnosis, lost two-and-a-half years of her life and argued her beneficiaries (through a wrongful death action) and her estate (through a survival action) were entitled to recovery.
The Circuit Court disagreed and granted summary judgment in favor of the provider, reasoning that since the cancer was terminal in 2013 the provider was not the cause of death. The Court of Special Appeals affirmed the trial court’s decision as to the wrongful death claim, noting that Maryland has long held that it is necessary for the beneficiaries to establish that the negligent act was more likely than not the cause of the decedent’s death.
The Court of Special Appeals, however, reversed the trial court’s entry of summary judgment as to the survival action claim on a narrow range of issues. The intermediate appellate court explicitly rejected the loss of years approach. But, the Court of Special appeals concluded that if the estate could establish (1) the decedent’s conscious pain and suffering due to the provider’s negligence; (2) a pre-death loss of income (as recoverable in a survival action) due to the negligence; or (3) mental anguish due to the decedent’s knowledge of a shortened life span summary judgment as to the estate’s claim would be inappropriate.
The decision (if unaltered before publication and upheld by the Court of Appeals) illuminates the narrow circumstances where a decedent’s estate may recover for medical negligence. However, the holding generally rejects “loss of years” as a viable theory for recovery in wrongful death and survival actions.