Lost Future Wages in a Maryland Personal Injury Case

In Maryland, the law presently is that in a personal injury action, as well as in a wrongful death action, any damages awarded for loss of future earning capacity must be reduced to present value. Walston v. Sun Cab Co., 267 Md. 559, 574-75, 298 A.2d 391 (1973) (wrongful death action); Dennis v. Blanchfield, 48 Md.App. 325, 333, 428 A.2d 80 (1981), modified on other grounds sub. nom., Blanchfield v. Dennis, 292 Md. 319, 438 A.2d 1330 (1982) (personal injury action). We believe, damages awarded for loss of future earning capacity must be reduced to present value. The situation requires employing an accountant or economist to reduce a claim for future lost wages to a present value. The situation is encountered where you can expect your client can return to their prior employment but they will not be able to do so for some identifiable future period of time.

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Wrongful death in a Maryland personal injury action

An action for wrongful death must be filed within three years of the death of the injured party. The wrongful death action arises at the time of the death and not at the time of the injury or the commission of the tort. The complaint filed with the court must state that it was brought within the proper time frame. The statute of limitations is not tolled by the provisions of courts and judicial proceedings 5-201 which normally would toll the statute of limitations during the claimants minority. A wrongful death action is a separate and distinct action from a survival action. A survivor action seeks recovery for the decedent. Whereas the wrongful death action is brought for the benefit of the decedents survivors. The damages are measured by the harm to those persons resulting from the decedents death. If you have questions regarding wrongful death in the state of Maryland please feel free to call me at 1-888-760-7339. I am more than happy to answer your questions right over the telephone at no cost to you.

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Defendant in Default Maryland Failure to Answer

In a case involving personal injury lawsuits in Maryland a defendant once served has a responsibility to file an answer. There are circumstances where the defendant fails to file an answer. In that case the plaintiff would ask the court to enter a default judgment against the defendant for failure to file an answer. The question however still remains to what extent the defendant can participate in a hearing to establish damages. The Maryland Court of Special Appeals addressed this issue in Fisher v McCrary Crescent City, LLC 972 A 2d 954 and(2009). Ultimately the court determined that a defendant in default still has the right to participate in the hearing affecting damages. Specifically the defendant in default, for failure to file a responsive pleading, can present evidence to mitigate damages; cross-examine witnesses regarding damages; present evidence on damages; object to evidence and make arguments. It is my position that discovery must be executed to a defendant in default to identify his evidence on mitigation, causation issues, damages and what if any evidence he finds objectionable.

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Estatblishing permanent Injury in a Maryland Personal Injury Case

Before you can establish that the effects of an injury are permanent you first need to establish that the injury was caused by this accident at issue. Typically this is accomplished by the timing of the onset of the complaints of pain and for some people diagnostic test confirming injury. Once you have established this causal connection you will may need expert testimony to establish that the effect of the injury is not likely to change. The only exception to this requirement for expert testimony to establish permanency is when the injury is of such a nature that common knowledge is sufficient to justify its probable permanent nature. For example in Cluster v Upton, 165 Md. 566 (1933), the issue of permanent injury was submitted to the jury without expert testimony where the plaintiff's finger, fractured in the accident, was still crooked 11 months after the accident.

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Lost Wages and Future Loss of Income as Damages in Maryland Personal Injury

I receive several communications each week either by telephone calls or e-mails from people inquiring about the difference between lost wage claims and loss of future earnings arising out of injury in a Maryland personal injury case.

Lost wages from the date of the accident to the date of trial or to the date that you return to work, even if in some modified capacity, represent your claim for lost wages.

Future loss earnings represents the lost income you can expect from the date of trial forward into your future. Proof of future loss earnings typically requires a doctor who is familiar with your work requirements and your physical limitations as a result of your injury caused by the accident to testify within a reasonable degree of medical probability that you cannot return back to your prior employment. Coupled with that you will need a vocational rehabilitation expert, or someone of like credentials, to tell us what your post accident physical capabilities are and what job markets exist for people with your capabilities. Finally, you will need an economist to calculate the total amount of your future loss earnings. They will then have to reduce those future loss earnings to a present value. The only other piece of evidence you will need to prove future loss earnings will be the work life expectancy calculations which will be provided by the economist.

If you have any questions on these issues or any other issues affecting Maryland personal injury please feel free to call me at 1-888-760-7339.

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Wrongful Death In Maryland Personal Injury

Wrongful Death In Maryland Personal Injury

The wrongful death statute in Maryland can be found in the Courts and Judicial Proceedings Article starting with section 3-901 through 3-904. Additionally Maryland Rule 15 -1001 must also be reviewed prior to initiating suit. The wrongful death statute defines the persons who are entitled to bring an action for wrongful death as a result of the loss of someone who has died. Specifically the claim may be brought by primary beneficiaries. Those persons are defined as a spouse, a parent, and the children of the deceased person. If there is no primary beneficiary then suit may be brought by secondary beneficiaries, who are defined as any person related to the deceased person by blood or marriage who was wholly dependent upon the deceased. A person is considered wholly dependent under the wrongful death statute when he or she existed financially entirely on the income of the deceased and has no other consequential source or means of being financially self-supporting other than income of the deceased. Even in circumstances where spouses are separated and near divorce the surviving spouse is still entitled to bring an action and obtain recovery. An illegitimate child may also qualify the primary beneficiary under the statute. Additional a viable unborn child at the time of the decedent's death may qualify as a primary beneficiary under the statute. However, a stepchild, stepparent or personal representative however is not permitted to be a claimant under the statute.

It is important to remember that primary beneficiaries who are not pursuing suit must still be named in the pleadings

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Erbs Palsy

This is an injury that can be caused at birth and often times is the result of medical negligence. There are specific protocols doctors and mid wives are trained to follow when they encounter a birth emergency such as the baby becoming stuck due to the shoulders not passing through the birth canal. The various protocols include:

McRoberts Maneuver: Where the mother is repositioned and flexing knees to abdomen

Surapubic Pressure: Where push pressure is asserted over the mother's abdomen.

Wood's or Cork Screw Maneuver: Rotating the child's upper shoulder downward and the downward shoulder up ward.

C- Section: Which is extracting the baby through surgery.

There are four major types of injuries which occur to the nerves in the brachial plexus network which can result in some form of palsy:

1. an avulsion meaning the nerve is torn from the spine.

2. a rupture meaning the nerve is torn but not where it attaches to the spine.

3. a neuroma meaning the nerve has tried to heal but scar tissue has grown around the injury placing pressure on the injured nerve praxis. While the nerve has been damaged, it has not been torn and improvement should be seen within 3 months.

4. Neuropraxia is the mildest form of nerve injury. Neuropraxia, the most common form of Erb's Palsy is localized to the specific place where the injury occurs. It is a physiologic block of nerve conduction within an axon without any anatomical interruption. Many infants born with brachial plexus palsy have neuropraxia and sometimes recover within 4-6 weeks.

If you are not sure if negligence was involved in your baby's injury call my office. We will investigate the cause for you and provide those answers at no cost to you. 1-888-760-7339.

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Maryland Personal Injury The Damage Cap

Maryland has long ago placed a cap on the amount of non economic damages a person can receive in compensation for injury. Since its inception the cap has been the center of great debate initiated primarily by the plaintiff aggrieved by the harsh reduction of his/her judgment. Some argue the cap thwarts justice. Once the jury has spoken and entered a judgment shouldn't that judgment be honored? Others argue the cap is needed to contain cost to the general public. Ultimately the cap removes discretion from the fact finder and leaves litigants with an inflexible mathematical boundary. A viable alternative that better serves justice is a post judgment review of the excess award. Not every case should be sustained. I am sure not every case should be reduced. The Maryland Damage cap states in pertinent part:

in any action for damages for personal injury or wrongful death in which the cause of action arises on or after October 1, 1994, an award for noneconomic damages may not exceed $500,000.

(ii) The limitation on noneconomic damages provided under subparagraph (i) of this paragraph shall increase by $15,000 on October 1 of each year beginning on October 1, 1995. The increased amount shall apply to causes of action arising between October 1 of that year and September 30 of the following year, inclusive.

(3)(i) The limitation established under paragraph (2) of this subsection shall apply in a personal injury action to each direct victim of tortious conduct and all persons who claim injury by or through that victim.

(ii) In a wrongful death action in which there are two or more claimants or beneficiaries, an award for noneconomic damages may not exceed 150% of the limitation established under paragraph (2) of this subsection, regardless of the number of claimants or beneficiaries who share in the award.

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