Survival Action in Maryland

If a loved one has died because of the negligence or intentional act of a nursing home or assisted living facility or employee, that person’s estate may be able to bring a survival action to seek compensation. The legal action would be brought by the personal representative of the estate and seek damages caused by the premature death. This is different than a wrongful death action, which is brought by family members seeking damages due to their losses.

The death of a loved one is a difficult time for any family, especially when the facts show there were people or a business responsible for the death. The Law Offices of Roger S. Weinberg helps families through challenges such as these with compassion and a strong desire to see responsible parties face justice in a civil court.

A Maryland survival action is a legal claim brought by the personal representative of the deceased.

That person is appointed by the Register of Wills or Orphan’s Court (which acts as the probate court) to administer the deceased’s estate. He or she legally stands in the place of the deceased and files any claims or lawsuits on the estate’s behalf. Through a survival action, a personal representative can seek recovery for injuries suffered by the victim, including compensation to the estate for the pain and suffering, damages and actual expenses suffered by the victim up to the moment of death.

The types of situations that may lead to a survival action can include:

  • Medical malpractice by a nursing home physician, nurse or pharmacist
  • Failing to properly supervise a resident who fell and suffered serious, eventually fatal, injuries
  • Neglecting the care of a nursing home resident to the point that the person was malnourished, dehydrated and eventually died due to an overwhelming infection
  • A physical assault of a resident that caused fatal injuries
  • Preventing wounds or bedsores and improper treatment

By Maryland statute (Estates and Trusts 7-401), state law allows the estate to recover “such damages as might have been recovered by the deceased himself had he or she survived the injury and brought the action,” giving us the term “survival claim.” The personal representative in charge of the estate could potentially recover the following:

  • Expenses (including costs of medical care) incurred between the time of the injury and death
  • Funeral costs up to a statutory limit, currently $10,000
  • Lost wages from the time of the injury to the time of death
  • Conscious pain and mental suffering. To obtain these damages it must be proven that:
    • Defendant’s negligence was the direct and proximate cause of the injury,
    • The decedent continued to live for a period of time after the incident(s) resulting in the injury or injuries, and
    • Between the incident and time of death, the decedent suffered conscious pain
  • Other damages, including loss of consortium (the negative impact on a relationship due to the incident and eventual death).

Awards for pain, suffering and loss of consortium are considered non-economic damages and fall under Maryland’s cap on non-economic damages.

  • The cap changes annually.
  • Caps differ for medical and nursing malpractice actions and non-medical malpractice actions, such as a one resulting from a car accident.
  • The caps also differ depending on whether there is only a survival action, whether there is a wrongful death action, or both.

Under Maryland law, if the death is considered instantaneous, the damages can only be for medical bills and funeral expenses (funeral expenses are limited to $10,000.00 by state law). Punitive damages (to punish the defendant) may be awarded if the defendant acted with malice (due to conscious and deliberate wrongdoing, an evil or wrongful motive, an intent to injure, ill will or fraud).

The damages awarded in a survival action go to the personal representative and become assets of the estate of the deceased. After expenses and taxes are paid, the assets of the estate are distributed based on the deceased’s will or Maryland inheritance law (normally to the next of kin). Survival actions need to be filed within three years of the date of the start of the alleged negligence.

If your loved one died while under the care of a Maryland nursing home or assisted living facility and you believe it was caused by abuse, neglect or negligence, contact our office. We can talk about the situation, the applicable laws and your legal options for obtaining compensation and justice for the deceased.  At the Law Offices of Roger S. Weinberg you’ll find compassionate support and experienced advocates to help your family through the tough times. Call 1-866-529-5839 today to schedule a free consultation.

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