What a Family Can Recover, and What Maryland Limits

A lot of people ask me what a case is worth, and I understand why. A family that has been hurt by the medical system wants to know where all of this leads. The answer is that it depends on the person. Each case is worth something different, because we evaluate each client on what that client needs, what care lies ahead, and what has been lost.

Maryland divides the money into two kinds. One is what we call economic damages, the losses a calculator can reach, which I describe as not limited, with one statutory limit on past medical expenses that I set out below. The other is what we call non-economic damages, the kind people shorthand as pain and suffering, and that is the kind Maryland caps. This chapter covers both, shows how a lifetime of care becomes a figure a jury can follow, and names the family members who can bring a claim when a loved one has died.

First, though, I want to say what the money is for. Nothing a lawyer does can turn back time, and I wish it could. What compensation can do is help a family put a life back together after it has been turned upside down, and the numbers are easier to follow once that purpose is clear.

Let me start with what compensation does. It lets people put their lives back together, especially when those lives have been turned upside down, like I keep saying. The easiest way to see it is to walk through an ordinary day.

Think about your own morning. You get up, brush your teeth, wash your face, put on your clothes, make breakfast and coffee, and get in your car. Many of us take that for granted, and I do too. These are what we call our activities of daily living: getting up, getting dressed, getting in your car, going shopping, going on vacation. Let's suppose it became a struggle just to get out of bed, to get downstairs, or to drive. What would that do to your life? Could you hold a job? Could you go to the food store?

Now let's suppose the job goes. Maybe you cannot work anymore, or you are so disabled that no job is open to you, or you are fired because you can no longer do the work. Let's suppose you also need speech therapy, occupational therapy, regular visits with doctors and specialists, and expensive medications, and some of those therapies and treatments are not covered by your insurance. In my view insurance does not cover much of this anymore.

Medical care costs keep climbing, and in my observation they have become unaffordable, so that many people are wiped out by medical costs and end up filing for bankruptcy. So what I tell my clients is that the compensation is going to allow them, hopefully, to have these things in their lives.

Now let's suppose it is worse. The person you live with cannot take care of you because it is too much. They have to help you walk, and they have to bathe you, because you cannot stand in a shower. You may need a nurse or an aide to come into your home for eight hours a day, ten, twelve, or around the clock. Many of my clients need twenty-four-hour care, and it is massively expensive. Insurance, I have found, does not cover around-the-clock nursing care.

I will say that money can seem "a bittersweet or a hollow thing to talk about with people." No lawyer can change what happened. What I can tell a client is that we will hold the system accountable, and Chapter 19 takes up what accountability means to the families who ask for it.

People sometimes roll their eyes and say it is all about the money, as though something is wrong with that, and I understand the reaction. The families who call me have had their lives turned upside down. Still, the picture some people hold of a malpractice case as a windfall is bad press, and in my view it is propaganda that has been put out there.

Thirty-five years of phone calls have taught me this. In all those years, no one has phoned to say that medical malpractice hurt them and that they expect to receive a lot of money. What my clients understand is that they now have to find money to pay for the things they need, to supplement what their insurance does not cover or what disability payments do not cover.

That gives them "the freedom, the peace of mind" to know the money will be there to make the quality of their lives as good as it can be. It is how I talk to a client about compensation, and when I do, they understand that I do not judge them. I do not think they are here for all the money. A lottery mentality is "the farthest thing from my mind," and I know that from dealing with my clients for thirty-five years and seeing what it is like.

Take a family with a severely brain-injured child. Many of my clients who have children like this need 24-hour medical care and nursing care, and that is very expensive. The most rewarding thing I can offer is peace of mind: the knowledge that the family has the financial resources to have the child at home, as opposed to some kind of institution. In my view those institutions are not great. A lot of satisfaction comes from helping a family reach that point.

The question I hear next is how anyone puts a figure on years of care that have not happened yet. We do it through a specific type of expert called a life care planner. This is someone with the experience and knowledge to determine what each person needs, and to put together what is called a life care plan: the therapies, the medications, the nursing care, and everything else that person will need for the rest of life.

The plan starts with records, and the ones that matter most are the ones created afterwards. Many of these children go to specialists, and their charts tell me the diagnosis and the therapies the child needs, such as occupational therapy and speech therapy. Does the child need specialized equipment? Does the child need care in the home? Chapter 8 covers how the delivery records are read. These later records feed the damages side of the case, and I take that information to the life care planner, who can project out into the future the medical care and services a child with cerebral palsy is going to need.

For each item the planner gives me a number. What does it cost? Sometimes it is a fixed cost and sometimes it is an hourly cost. Then the planner tells me how long the person needs it. From there the method is arithmetic. We work out what it costs to provide the care for one year, and then we multiply that by the amount of time we project the person will live.

Let's suppose someone needs a hundred thousand dollars of medical care per year and is projected to live twenty-five years. We take a hundred thousand, multiply it by twenty-five, and that gives us the number we present to the jury. That is arithmetic, offered only to show the method. It is not a prediction of what any case is worth.

Children with severe brain injuries are living a lot longer than they did when I started practicing law, which means more years in the multiplication, and the costs are enormous. A medical negligence case is worth different amounts for different people because each client is different. Some are more injured than others, some need more medical care or more medications, and some need a job replaced or have lost job opportunity. So we have to evaluate each case on its own.

Maryland law allows a claim for what we call economic damages. These are the things that can be calculated: medical bills, both past and future, job loss, past or future, and any future medical care the person will need. The way I phrase it, "you can take a calculator and you can actually come to a number." Past losses have already happened. Future losses are the ones the records and the experts project, and the life care plan in the last section is how future care gets its number.

Those are what we call economic damages. In my description they are "not limited," and, as I put it, and they are "decided case by case." Each case is different, so the figure is built from that client's own bills, that client's own work history, and that client's own projected care. The limit that applies to pain and suffering, which comes next, is a separate matter.

The law does address one economic item. Maryland Courts and Judicial Proceedings section 3-2A-09 says that a verdict for past medical expenses is limited to two amounts: the past medical expenses paid by or on behalf of the plaintiff, and the past medical expenses incurred but not paid, for which the plaintiff or another person on the plaintiff's behalf is obligated to pay. That is the statute speaking, not me.

The other kind is what we call non-economic damages, and pain and suffering is the shorthand people use. Maryland is one of the states that limit the amount of these damages, and a number of states are going in the same direction. The statute defines non-economic damages, in a claim for personal injury, as pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other nonpecuniary injury. That definition is in Maryland Courts and Judicial Proceedings section 3-2A-01.

For claims against health care providers, the limit itself is in section 3-2A-09. The statute sets a fixed dollar ceiling on non-economic damages, and it raises that ceiling by a set amount each January 1, so the figure that governs one family's claim depends on the date the cause of action arose. A lawyer has to work that figure out from the facts of the case, and this book prints no dollar amount because the number moves. The ceiling applies in the aggregate to all claims for personal injury and wrongful death that arise from the same medical injury, regardless of the number of claims, claimants, plaintiffs, beneficiaries, or defendants. In a jury trial, the jury may not be informed of the limit, and if the jury awards more, the court reduces the amount to conform to it.

Those are the words of the law. Here is my own view, and it is only mine. To me the limit is too restrictive. "I wish we didn't have those damages." I call them arbitrary numbers, ones the Maryland legislature put in place, and in my view they no longer fit cases the way they should, because people are suffering a lot and the limits are restrictive.

A wrongful death claim is the claim a family brings when a medical mistake ends in a death. The statute states the basic rule in Maryland Courts and Judicial Proceedings section 3-902: an action may be maintained against a person whose wrongful act causes the death of another.

The harder question is who in a family can bring it. States differ on this point, and in Maryland only certain family members can. As I explain it, it has to be the spouse of the person who died, the children, or the parents. They are the only ones who can bring a medical malpractice wrongful death case, "not a brother, not a sister, not an aunt, or an uncle." Let's suppose a family has lost someone. The spouse, the children, and the parents hold the claim, and in the ordinary case a sibling does not. The statute's fallback for a dependent relative comes next.

The statute says the same thing in its own terms, with a fallback I want you to know about. Section 3-904(a) provides that an action shall be for the benefit of the wife, husband, parent, and child of the deceased person, with narrow exceptions the statute spells out. Section 3-904(b) adds that if no one qualifies under subsection (a), the action is for the benefit of any person related to the deceased by blood or marriage who was substantially dependent upon the deceased. Section 3-904(f) adds that only one action lies in respect to the death of a person.

A wrongful death claim has non-economic damages of its own. Section 3-2A-01 defines them, in a wrongful death claim, as mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education. Section 3-2A-09 sets a rule for this situation too: when a wrongful death action has two or more claimants or beneficiaries, the total non-economic damages for all of the actions may not exceed 125% of the ordinary limit. That is the law, and a lawyer has to read it against the facts of each family.