A Comparison (Continued from page 21)
forth the secondary beneficiaries. The damages for wrongful death and
survival actions are codified and in- clude: past and future medical charges, past and future loss of compensation, non-economic damages, and other damages. Because the life expectancy of the deceased is important to some of these determinations, make sure to present evidence of life expectancy of the deceased and the beneficiaries.1 A survival action will normally ac-
company a wrongful death cause of action and §7-401 of the Estates and Trust Article governs the action on behalf of the decedent’s estate. The Personal Representative may recover on behalf of the decedent and for the decedent’s estate those damages which the decedent could have recovered had they not died.2
This includes conscious
pain and suffering between time of in- jury and time of death, funeral expenses not to exceed $5,000, property damage, punitive damages, loss of earnings from the time of injury to the time of death, and medical expenses from the time of injury to the time of death.3 With respect to conscious pain and
suffering, even if a decedent lives a short time, you can recover substantial dam- ages.4
It is important to present evidence
of the conscious pain and suffering of the deceased and not assume that the court will infer it from the surrounding circumstances of the death. You can do this directly through witnesses who observed the deceased or annotations in hospital record. Nurses’ notes are a great place to gather information about conscious pain and suffering. They generally provide detailed notes on daily observations, including pain and pain medication. In cases where there
1 2 3
Byrum v. Maryott, 26 Md. App. 130, 337 A.2d 142 (1975).
See Maryland Pattern Jury Instructions (MJPI) 10:22.
See Maryland Pattern Jury Instructions (MJPI) 10:25.
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Trial Reporter 23 Credible. Responsive.
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are no hospital records or witnesses to the death, such as in a drowning or fire case, using an expert witness, such as a pathologist who can explain the mechanism of death, is an excellent way to show conscious pain and suffering.5 An expert can discuss the details of how a person dies, giving a physiological ex- planation of how death takes place and what the person likely experienced. In automobile cases, recovery for pre- impact fright is compensable.6
In an
automobile accident death, showing that the victim was conscious and likely observed the oncoming vehicle before impact can be proven with an accident reconstruction expert using a second by second analysis of how the accident occurred. Getting the police report, photos, and police reconstruction
4 5 6
Greenstein v. Meister, 279 Md. 275, 368 A.2d 451 (1977).
Ory v. Libersky, 40 Md. App. at 162, 389 A.2d at 929 (1978).
Beynon v. Montgomery Cablevision Ltd. Partnership, 351 Md. 460, 718 A.2d 1161 (1998).
7 Courts and Judicial Proceedings § 5-101. 8
Turner v. Yamada Motor Corp., 88 Md. App. 1, 591 A.2d 886 (1991).
Experienced.
Providing Services to the Legal Profession and Their Clients
Ellin & Tucker Consultants Specialize in
reports are crucial to proving the way the accident occurred and, circumstan- tially, pre-impact fright. Knowing how to prove damages through admissible evidence is the key to maximizing your client’s recovery.
Statute of Limitations The statute of limitations for both If the death occurred
wrongful death and survival actions is three (3) years.7
outside Maryland, and suit is filed in Maryland, you will apply the substan- tive law of the location where the death occurred, and the procedural law of Maryland.8
Because limitations is pro-
cedural, if you have a death that occurs in another jurisdiction with a limitations period shorter than Maryland which has run, filing suit in Maryland (assuming jurisdiction), will make the case timely filed.
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