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non-economic damages.

The original non-economic damages cap statute, Md. Cts. & Jud. Procs. Code Ann § 11-108 (hereinafter, “the cap”), applies in all wrongful death actions that do not involve claims of medical negli- gence.6

Effective October 1, 1994, the cap

was increased from $ 350,000.00 to $ 500,000.00, with an increase of $ 15,000.00 on October 1 each year there- after. Moreover, if there are two or more beneficiaries in a single wrongful death action, the applicable cap is multiplied by 150%. These same calculations apply to medical negligence wrongful death actions arising before January of 2005.7 In medical malpractice cases only, the non-economic damages cap statute, Md. Cts. & Jud. Procs. Code Ann § 3-2A-09


The cap for wrongful death cases applies sepa- rately from the cap that would apply to a survival claim, if any. Thus, in an action in- cluding both a survival claim and a wrong- ful death claim that includes two or more beneficiaries, arising after October 1, 2006, the survival action cap would be $ 680,000.00 and the wrongful death cap would be $ 1,020,000.00, for a total appli- cable cap of $ 1,700,000.00.


More precisely, these calculations apply to wrongful death actions arising either before January 1, 2005 (the statutory effective date of the legislation enacting a new medical malpractice cap), or January 11, 2005 (the date when the Legislature overrode Gover- nor Ehrlich’s veto of that legislation).

(hereinafter, “the medmal cap”), applies in all wrongful death actions involving claims of medical negligence. Only for such cases, the medmal cap is “frozen” at $ 650,000.00 for five years, until January 1, 2009, at which time the medmal cap again will increase by $ 15,000.00 on January 1 of each year thereafter. If there are two or more beneficiaries in a single wrongful death action, the applicable medmal cap is multiplied by only 125%.8 It generally has been held that punitive damages are not recoverable in a wrong- ful death action. United States v. Streidel, 329 Md. 533, 552, 620 A.2d 905, 915 (1993) (citing Smith v. Gray Concrete Pipe


The cap for wrongful death cases applies to both the wrongful death claim and to the survival claim, if any. Thus, in a medical negligence action including both a survival claim and a wrongful death claim that in- cludes two or more beneficiaries, arising af- ter January 1, 2007, the total applicable cap would be $ 812,500.00, or less than half of the total cap available to compensate victims of wrongdoing in the non-medical negli- gence context. Whereas the original cap arguably was un- constitutional, the new medmal cap even more plainly deprives the victims of medical negligence of the rights to due process and equal protection secured by the State Con- stitution and the Maryland Declaration of Rights. However, the unconstitutionality of the cap is also beyond the scope of this ar- ticle.

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Co., 267 Md. 149, 158-159, 297 A.2d 721, 726-727 (1972)); Baltimore & O. R.R. v. State to use of Kelly, 24 Md. 271 (1866); State to use of Coughlan v. Balti- more & O. R.R., 24 Md. 84 (1866). But see U.S. Gypsum Co. v. Mayor and City Council of Baltimore, 336 Md. 145, 185, 647 A.2d 405, 424-25 (1994) (“in a non- intentional tort action where damages are sought for personal injury or wrongful death, we have held that punitive dam- ages are recoverable if the defendant acted with actual malice”) (citing Eagle-Picher v. Balbos, 326 Md. 179, 233-234, 604 A.2d 445, 471-472 (1992)). In settlement negotiations involving multiple beneficiaries, the absence of any primary beneficiaries complicate matters. Walker v. Essex, 318 Md. 516, 569 A.2d 645 (1990) (order enforcing settlement of wrongful death action vacated when settlement was not approved by all eligible beneficiaries). At trial, damages are dis- tributed among two or more beneficiaries by the jury, “proportioned to the injury resulting from the wrongful death.” § 3- 904(c)(1). The jury verdict should specify how the award is to be divided. § 3- 904(c)(2). Although failure to request the jury to specify the distribution is not fa- tal to the claim, Passapae v. Oehring, 141 Md. 60, 118 A. 130 (1922), a conflict of interest may be generated for the practi- tioner when multiple clients must divide a finite award. See Scamardella v. Illiano, 126 Md. App. 76, 88-89, 727 A.2d 421, 427 (1999) (settlement of wrongful death action generated conflict of interest for plaintiff ’s attorney where multiple ben- eficiaries had not previously agreed to the distribution of proceeds; the conflict was resolved when all beneficiaries obtained independent counsel).9


While the decision in Scamardella remains the law of Maryland, readers are commended to a contrasting view of the relevant ethical responsibilities: In order to ensure a valid and informed consent to an aggregate settlement or an ag- gregated agreement, Rule 1.8(g) requires a lawyer to disclose, at a minimum, the fol- lowing information to the clients for whom or to whom the settlement or aggregated pro- posal is made:

• The total amount of the aggregate settlement or the result of the aggregated agreement.

• The existence and nature of all of the claims, defenses, or pleas involved in the aggregate settlement or the result of the aggregated agreement.

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