From: Ashcraft & Gerel (Bob Samet) <ashcraft@Radix.Net>:


I believe lost wages as an element of damage on a personal injury claim involv- ing physical injuries are still not taxable, and the same would hold true as to lost earning capacity. The following is from the Committee Report on the Federal Bill, P.L. 104-188 (Small Business Job Protec- tion Act of 1996):”If an action has its origin in a physical injury or physical sick- ness, then all damages(other than punitive damages) that flow there from are treated as payments received on account of physi- cal injury or physical sickness whether or not the recipient of the damages is the injured party. For example, damages (other than punitive damages) received by an individual on account of a claim for loss of consortium due to the physical injury or physical sickness of such individual’s spouse are excludable from gross income. In addition, damages (other than punitive damages) received on ac- count of a claim of wrongful death continue to be excludable from taxable in- come as under present law.”


From: Thomas J Gagliardo <gagliardo@nela.org>:


I agree with Bob Samet’s clarification which distinguishes between claims for back pay arising from personal injury. I should have been clearer that I was ad- dressing employment-based claims. Nicole Schultheis’ original question in- volved “negligent misrepresentations about a career opportunity and caused my client to leave her secure, long term posi- tion at another company.”


MEDICAL BILLS OF MINORS Eric Schloss


<schlosslaw@home.com> wrote: I currently have a motor tort case in


which I represent a mother and her two sons ( ages 6 and 8). At this time I have proceeded only with the claim for the mother. Both children need future sur- gery but according to the mother refuse to follow-up with the surgeons because they are traumatized from the collision. The mother’s trails scheduled for April 2001 and the three year limitations ex- pires in11/01. Do I have to claim the past medical bills of the minors in the case cur- rently pending for the mother? If no, then how long do I have to bring a claim for the past medical bills of the minors, 11/01 or do I have more time? Thank you in advance for any responses.


Winter 2001 Trial Reporter 33


From: Ashcraft & Gerel (Bob Samet) <ashcraft@Radix.Net>:


My understanding has always been that in most cases the claim for the child’s past medical expenses is a cause of action held by the parents, and, as such, cannot be extended by minority in the same man- ner as the child’s personal claim for the injuries. The statute of limitations for any particular medical expense will expire three years from the time the medical ex- pense has been incurred. In other words, the parents cannot wait until the child’s 21st birthday. If they do that, they will be barred from claiming any medical ex- penses, because any expense incurred from the time the age of majority is reached (18) will now be the child’s own claim. Does anyone understand differently?


From: “Scott R. Scherr” <sscherr@flash.net>:


Bob is absolutely right here. Medical expenses are the responsibility of the par- ent. A minor child does not have the capacity to enter into a contract. Thus, he cannot be sued for the medical bills and cannot be held liable for same. The parents are responsible for all medical bills of a minor child and the SOL runs 3 years from date of accident.


From: Gerald Holtz <GIHoltz@aol.com>:


Bob, Generally speaking you are cor- rect; save one exception. I believe there is


a Maryland appellate case that stands for the proposition that the minor child can make a claim for past medical expenses if his parents claim is barred by limitations and if it can be shown that the parents are/were unable to pay the expenses. (Irwin- cite please. Thanks.)


From: Irwin Weiss <irwin@irwinweiss.com>:


Sometimes when discussing these is-


sues resort to the appellate law of Maryland is a reasonable approach. Look at Pepper v. Johns Hopkins (or perhaps its JHH v. Pepper) and also Garay v. Overholtzer, 332 Md. 339, 631 A.2d 429 (1993).


From: George Tolley <gtolley@lawdjb.com>:


Under Pepper and Garay, the claim for medical expenses of the children belongs to the parent. However, the parent can- not assert a claim for the children’s “pain and suffering” — that claim belongs ex- clusively to the children themselves. Apparently, the children are not plaintiffs in the case, and under Pepper and Garay, they do not have to be. I agree with Irwin that the claim should be asserted in the pending action, by amending the com- plaint and, if applicable, supplementing answers to interrogatories to specify the children’s medical expenses (past expenses AND reasonably probable future medi- cal expenses up to the age of majority),to avoid the defense of res judicata.





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