In Maryland, surviving family members may have the right to take legal action against those responsible for the death of a family member. These types of actions are known as Maryland wrongful death claims. In a recent case, the wife and children of the decedent filed a lawsuit against the doctor who had treated him and the medical practice where he sought medical care. At trial, the lower court dismissed the plaintiffs’ wrongful death claims. In a June 22, 2020 opinion, the Maryland Court of Special Appeals reviewed whether dismissal was appropriate.
The decedent had visited the defendant in February of 2013 because he had been experiencing dizziness and pain in his tongue and ear. At that visit, the decedent received a tongue scraping biopsy. Although the biopsy results indicated that the sample was benign, the report also stated that the biopsy was fragmented and small, which limited its findings. When the decedent continued to experience pain over the following year, the defendant performed a second biopsy in July of 2014, which revealed that he had cancer. The decedent underwent various treatments, but eventually succumbed to complications related to oral cancer.
The plaintiffs alleged that the defendants were negligent by failing to properly diagnose the decedent’s cancer when he first sought treatment. At trial, the plaintiffs called a medical expert who testified that if the decedent been diagnosed at the time of the first biopsy, the survival rate would have been between 70 and 80 percent, instead of 50 to 55 percent. The defendants then argued that the plaintiffs had only established a loss of chance of survival, not that the defendants’ negligence caused the decedent’s death. The trial court agreed and dismissed the plaintiffs’ claims without a jury verdict.
The loss of chance doctrine refers to a decreasing chance of survival as a result of negligent treatment. Maryland, however, does not allow damages for such loss in wrongful death claims. The rationale is that, if a decedent’s chance of survival was already less than 50 percent before the alleged negligence, then the underlying disease was the likely cause of the death, irrespective of any negligence. As such, wrongful death actions in which the alleged negligence deprives the decedent of less than a 50 percent survival rate are not compensable under Maryland law.
On appeal, the court found that, insofar as the decedent’s chance of survival was up to 80 percent when he first sought treatment in 2013, the plaintiffs could recover damages in a Maryland wrongful death claim. The appeals court therefore held that the trial court erred by relying on the loss chance doctrine to dismiss the plaintiffs’ claims, and remanded the case for a new trial.
At Foran & Foran, P.A., our personal injury attorneys can provide compassionate legal guidance following the death of a loved one. We have represented many victims of negligence and their family members in wrongful death and personal injury cases arising out of automobile and semi-truck accidents, medical negligence, and the careless actions of other individuals or businesses. Request a free consultation with one of our experienced lawyers by calling (301) 441-2022 or contacting us online.