“The wrongful death of a child, no matter that child’s age, is an unimaginable loss.” So begins the recent opinion in Shabbir Ahmed Choudhry v. Lolita D. Fowlkes. The underlying facts involved the death of a 22-year-old due to medical malpractice. The case is striking, because a jury awarded Fowlkes, the mother, $1 million in damages, $500,000 for non-economic losses and $500,000 for economic losses. But on appeal, the court reversed the jury’s award of $500,000 in economic damages.
The case examines Maryland’s wrongful death statute and economic damages. The statute allows for the recovery of damages for the loss of support or other benefits that would have been provided had the decedent not died as a result of another’s negligence.[1] With the Nov 1, 2019 opinion, the court has now provided much needed guidance to litigants pursuing and defending economic damages in wrongful death actions.
Economic vs. Non-Economic Damages
In any case involving personal injury or death, a litigant must be wary, particularly in Maryland, of the difference between economic and non-economic damages. Economic or pecuniary damages are meant to compensate for actual out-of-pocket expenses incurred as a result of the personal injury or death. A litigant is also entitled to non-economic damages. In an action for personal injury, non-economic damages mean pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other non-pecuniary injury. In a wrongful death case, these include mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care, marital care, parental care, filial care, attention, advice, counsel, training, guidance and others.
A vital difference between Maryland and many other states, is that the Maryland legislature has mandated a cap, or maximum amount, on the amount of non-economic damages.[2] The statute provides, as of October 1, 1994, for a maximum of $500,000 and increases $15,000 on October 1st of each year. Non-economic damages are for items that cannot be rendered by hired help and have no market value, unlike economic damages. Economic damages cannot duplicate damages that may be awarded as non-economic damages. Moreover, neither economic nor non-economic damages can be speculative, remote, or uncertain.
Three-Part Test
The court has now set forth a three-part test to establish economic damages for household services in a wrongful death case.
Domestic Services with a Market Value
First, the plaintiff must specifically identify domestic services that were provided by the decedent that have a market value. These are activities that would be performed by domestic workers and can be measured by prevailing wage rates. This includes such tasks as taking out the garbage, cooking, cleaning, mowing the lawn, gardening, and household repairs. Such activities should then be established by presenting evidence of the market value for these tasks.
Reasonable Expectation
Second, the plaintiff must have reasonably expected the person who died to provide the identified services. The court laid out two ways to satisfy this expectation. The first was to show a legal obligation to provide such services. For instance, the parent is entitled to a minor child’s services and a parent is similarly required to provide support to a minor child. However, the same is not true of an adult child. When a child reaches the age of 18, there is no longer an obligation for the adult child to contribute to the support of his or her parents. And children will be shocked to learn that when the child reaches the age of 18, parents no longer have a legal obligation to provide for their child.
Next, if there is no legal obligation, the plaintiff could show that the decedent regularly and consistently provided the services in the past. For example, a mother that babysits for her daughter daily, and not just when the daughter is ill, would meet this prong of the test. Again, this is because childcare is a domestic service, that has a market value and if it is done daily, it would be reasonable to expect these services would continue.
Duration Required
Finally, there must be evidence of how long the person who died would have provided the services. The duration prong may be established by examining the words and conduct of the decedent as well as the nature of the relationship. The court noted an unsuccessful claim regarding a 19-year-old male who had provided services to his parents. However, because there was no evidence that he planned to live with his parents indefinitely, the claim was rejected. So too, in Shabbir Ahmed Choudhry v. Lolita D. Fowlkes, the decedent was 22 years old and there wasn’t enough evidence of how long the household services would have been provided.
There is a presumption that spouses will provide services for the couple’s joint life expectancy. Here, although there is a presumption, expert testimony will be needed to establish the life expectancies. Without a presumption, sufficient evidence must be produced to show how long the services would have been provided.
The Takeaway
When tragedy strikes, appropriate compensation must be awarded and the court’s three-part test for establishing economic damages for the loss of household services has clarified, for both plaintiffs and defendants, when these claims can be presented to a jury in a wrongful death case.
[1] Maryland Annotated Code, Courts and Judicial Proceedings §3-904(e).
[2] Maryland Annotated Code, Courts and Judicial Proceedings, §11-108(b).
Anderson & Quinn, LLC is a law firm based in Rockville, Maryland, providing individuals, businesses, corporations, and healthcare institutions with the legal and litigation support they need to protect revenues. Alice Kelley Scanlon is a member of Anderson & Quinn, LLC, 25 Wood Lane, Rockville, MD, 20850. Tel: 301-762-3303. Email Ms. Scanlon at ascanlon@andersonquinn.com.
