Medical Malpractice Wrongful Death
Wrongful death in a medical malpractice.
Medical malpractice is a serious issue in our hospitals and is a leading cause of wrongful death. Over 225,000 people die from medical malpractice related injuries in a single year. A US Department of Justice report in 2007 noted that the number of payouts stemming from medical malpractice cases increased 40%. According to a new study by the Department of Health and Human Services (DHHS) Agency for Healthcare Research and Quality (AHRQ) one of every ten patients nationwide who died within 90 days of surgery did so because of a preventable medical error. The study also found that those same errors cost nearly $1.5 billion annually. We are taught to trust doctors and follow their advice as it pertains to our health. After all, doctors go through an extensive course of training, pass a medical board exam and complete several years of residency, which thoroughly prepare them to treat and protect our health. Unfortunately, despite all of these safeguards, medical errors are all too common.
Medical error may turn a routine medical procedure into a tragedy. Generally, a medical error is not necessarily medical malpractice. A deviation from the standard of care is what makes a medical mistake a potential malpractice claim. This is known as medical negligence. Some medical errors include surgical malpractice, medication errors, bacterial infections, birth injuries, dental malpractice and diagnosis errors. Often, preventable medical mistakes result from staff failure to follow standard policies and procedures. Some suggest that medical errors occur due to lack of sleep. Others believe that the doctors service too many patients in too short a time. After being on duty for many hours, physicians, nurses and other medical workers may not communicate well due to fatigue, or time constraints with the numerous patients.
Many states have enacted “apology laws” for healthcare workers. These laws provide for open expression of regret, sympathy or compassion by physicians and other healthcare providers without fear of such apology being used against them in a malpractice suit. These laws are purportedly designed to diminish the number of lawsuits against medical workers by providing families and friends of victims with a sense that the medical provider regrets the unfortunate or tragic outcome of the medical error. The apology laws are designed to encourage healthcare providers to speak candidly with the victims. These laws conflict with the advice given to medical providers by their malpractice insurance carriers who advise doctors not to admit any errors unless they are protected by legislation. Moreover, many hospitals waive costs of medical bills when involving medical errors with the patient.
When a victim dies as a result of a medical malpractice, the decedent’s family may bring two distinct claims. One is an action brought on behalf of the personal representative of the deceased, claiming recovery for the injuries suffered by the victim. (“survival action”). This action is for compensation to the victim’s estate for pain and suffering and other damages, as well as for actual expenses incurred by the victim that were suffered up to the moment of death. The other action is a “wrongful death action” brought by the relatives of the victim who are seeking compensation for their relative’s death. In survival action, damages are measured in terms of harm to the victim. The personal representative serves as the victim’s agent. In a wrongful death action, damages are measured in terms of harm to loved ones as a result of the loss of the victim. The surviving relatives do not serve as agents for the decedent nor act on their own behalf for their own loss. While Maryland and the District of Columbia allow the victims to bring both actions, Virginia law allows to bring only one of the actions, leaving the victim’s family or the decedent’s estate without any compensation (Virginia only allows one recovery for a single injury).
The main difference between survival action and wrongful death action is that if death is instantaneous, there can be no cause of action except for medical bills and funeral expenses under the survival statute. This limitation creates a fundamental unfairness, as a parent who does not get to see their children grow up has suffered a great loss, just as children who grow up without their parents have suffered. The survival action law gives that claim to the children and not to the parents under the survival statute.
One question families who have lost a loved one by medical malpractice ask is what is the maximum recovery they can receive for their loss? Assuming no problems with insurance or collectability, Metro Verdicts Monthly reports that the median settlement and verdict in Maryland for wrongful death medical malpractice cases over the last 20 years is $900,000. This is far more than the verdicts in Virginia and the District of Columbia, which range between $750,000 and $665,000. However in 2005, Maryland legislature reversed that trend by enacting a cap on non-economic damages in wrongful death actions which is currently $650,000, regardless of how much the jury award is. Virginia and the District of Columbia do not place the same limitations on the verdicts. Maryland provides for $650,000 as the maximum recovery in a death case when there is only one wrongful death beneficiary. The wrongful death cap with two or more beneficiaries in Maryland today is $812,500. Moreover, the cap combines wrongful death and survival actions, even though in Maryland one can bring both survival and wrongful death actions. The non-economic recovery is capped at $650,000 or $812,500 accordingly. The new cap on non-economic damages in wrongful death malpractice cases has had an impact on the amount of verdict awards in Maryland.
There are no caps on economic damages. Economic damages include not only medical expenses associated with the victim’s treatment, but also lost wages from the time of the accident/malpractice and death, as well as future lost wages. A future lost earnings award is allowed for earnings “reasonably certain” to result from the injury and are awarded by the jury (or judge) in a lump sum. But, obviously, the computation of future lost earnings is not exact and to some degree requires speculation about the decedent's life expectancy and expected work experience.
