Maryland’s highest appellate court decided on January 27, 2012 that a jury’s award of future medical expenses to a medical malpractice victim is not affected when the victim later dies. In the Maryland medical malpractice case, the parents of a newborn filed a medical malpractice claim against the obstetrician and his medical practice for the failure to obtain informed consent that resulted in a placental abruption that severely injured the child.
The medical malpractice jury had awarded $8,442,515.00 in future medical expenses to the medical malpractice plaintiffs. While aspects of the jury’s verdict were on appeal, the child died. The medical malpractice losers wanted the amount of the future medical expenses awarded by the jury to be wiped out due to their victim’s death. The Maryland Court of Appeals determined that the award for future medical expenses would stand and that the losing defendants would remain responsible for the jury’s decision.
Maryland law provides that a court “may order all or part of the future economic damages portion of the award be paid in the form of annuities or other appropriate financial instruments, or that it be paid in periodic or other payments consistent with the needs of the plaintiff, funded in full by the defendant or the defendant’s insurer and equal when paid to the amount of the future economic damages award.” Annotated Code of Maryland, Courts and Judicial Proceedings Article, Section 11-109(c). The judge’s decision with regard to requiring an annuity for future medical expenses is not mandatory but discretionary under Section 11-109(c) (the law uses the term “may” and not “shall”).
Maryland law further provides, “If the plaintiff under this section dies before the final periodic payment of an award is made, the unpaid balance of the award for future loss of earnings shall revert to the estate of the plaintiff and the unpaid balance of the award for future medical expenses shall revert to the defendant or to the defendant’s insurer if the insurer provided the funds for the future damages award.” Section 11-109(d).
In the recent Maryland appellate case, the medical malpractice defendants requested but were not granted the option of making periodic payments of the future medical expenses awarded by the jury that was permitted (but not required) under Section 11-109(c). In their appeal, the medical malpractice defendants did not allege that the judge’s refusal to grant the periodic payments option was an abuse of his discretion but rather that the child’s death during the appeal meant that the award of future medical expenses would be a “windfall” to the parents of the deceased child.
The Maryland Court of Appeals balanced the interest of the parties to the litigation and ultimately decided that “In the present case, taking into consideration the absence of annuitization of medical payments, we determine that the finality of judgment must be the norm; otherwise litigation could continue interminably.” (As another appellate court observed, “[t]he defendants in this and every other tort case well know that a plaintiff may not survive to fully enjoy an award of damages. It is the defendant’s responsibility to make clear to the fact finder that the plaintiff could die as soon as he or she leaves the courthouse.”)
At first glance, it may seem unfair that the medical malpractice defendants in the Maryland case remain responsible for future medical expenses awarded for the child when the child’s death precludes the payment of future medical expenses. But consider the situation if the child had lived much beyond his life expectancy or incurred medical expenses much greater than those anticipated when the jury rendered its decision — neither the child nor his conservator could come back into court in the future and require that the medical malpractice defendants be responsible for the additional medical expenses not originally awarded by the jury. Thus, the finality of the original judgment is an important consideration.
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