Is There a Cap on Pain and Suffering in Maryland? Yes. Here Is How It Works in Serious Injury and Death Cases

If you or someone in your family was badly hurt in Maryland, or a loved one was killed, one of the first things to understand about the case is a number most juries never hear. Maryland law limits how much a person can recover for pain, suffering and other "noneconomic" harm. The jury is not told about the limit. If its verdict goes over the line, the judge cuts the award down afterward.

That rule does not apply in the District of Columbia, as we explained in our post on D.C.'s lack of a pain and suffering cap. In Maryland it shapes almost every serious injury and wrongful death case. Here is how it works.

A five-year-old, a country club pool, and a $4 million verdict cut to about $1 million

The case that shows the cap most clearly is DRD Pool Service, Inc. v. Freed, 416 Md. 46 (2010), decided by Maryland's highest court (then called the Court of Appeals, now the Supreme Court of Maryland).

On June 26, 2006, five-year-old Connor Freed was at the Crofton Country Club pool with a family friend. He got out of the water and had his life jacket taken off so he could use the restroom. He was supposed to come back and put it on again before swimming. A few minutes later, another child pointed at someone floating in the pool. It was Connor, face down. He never regained consciousness, and the autopsy confirmed he drowned. None of the 80 to 90 people at the pool that afternoon saw him go into the water.

His parents sued the company responsible for maintaining the pool. The jury found the company negligent and found that its negligence caused Connor's death. It awarded each parent $2,000,706 for their grief and loss, plus funeral expenses, for a total of $4,006,442. Under Maryland's cap, the court reduced the wrongful death award to $1,002,500.

The parents argued that the cap was unconstitutional. The Court disagreed. It had already upheld the cap twice before, in Murphy v. Edmonds, 325 Md. 342 (1992), a case brought by a woman hurt in a collision with a tractor-trailer on I-83, and in Oaks v. Connors, 339 Md. 24 (1995). In DRD Pool it declined to overrule those decisions and held that the cap survives constitutional review.

The parents did win something important. The trial judge had thrown out the separate claim for Connor's own conscious pain and suffering, because no one saw him drown. The Court reinstated it. An autopsy report and expert testimony about what a conscious child experiences while drowning were enough to let a jury decide whether he suffered before he died. Eyewitnesses were not required.

How the Maryland cap works

The general cap is in Md. Code, Cts. & Jud. Proc. § 11-108. The key points:

It covers only noneconomic damages. In an injury case that means pain, suffering, inconvenience, physical impairment, disfigurement and loss of consortium. In a wrongful death case it means mental anguish, emotional pain and suffering, and the loss of a family member's companionship, care, guidance and similar losses. The cap does not limit economic damages such as medical bills, future care, and lost earnings. The statute also says noneconomic damages do not include punitive damages.

The amount depends on when the claim arose. The cap started at $500,000 for claims arising on or after October 1, 1994, and goes up by $15,000 every October 1. The limit that applies is fixed by the date the cause of action arose, not the date of the lawsuit or the trial.

Wrongful death claims get a higher limit when there is more than one beneficiary. When two or more family members share a wrongful death award, the total for noneconomic damages can be up to 150% of the regular cap, no matter how many people share it.

A spouse's claim usually shares the injured person's cap. The cap applies to "each direct victim" and everyone who claims through that victim. In Oaks v. Connors, the Court held that a spouse's claim for loss of consortium does not get a separate cap of its own.

The jury never hears about it. The statute forbids telling the jury about the cap. Jurors decide what the harm is worth, and the judge reduces the award later if it is over the limit.

Medical malpractice has its own, different cap

Claims against doctors, hospitals and other health care providers fall under a separate statute, Md. Code, Cts. & Jud. Proc. § 3-2A-09. It works differently in three ways. It started at $650,000 for claims arising from 2005 through 2008 and rises by $15,000 every January 1 instead of every October 1. It applies to all claims arising from the same medical injury combined, no matter how many defendants there are. And when there is a wrongful death claim with two or more beneficiaries, the total for all claims, including the patient's own injury claim, is capped at 125% of the limit rather than 150%.

The numbers right now

These figures are calculated from the formulas in the two statutes.

Claims against the State of Maryland and local governments are subject to separate and often much lower limits. We covered how those work in our post on suing the State of Maryland.

What this means if you have a serious Maryland case

Economic damages matter more in Maryland. Because the noneconomic side has a ceiling and the economic side does not, the full cost of a serious injury has to be proven carefully: lifetime medical and care needs, lost earning capacity, home modifications and the rest. In a catastrophic injury case those numbers can exceed the cap many times over, and they are not cut down by it.

Every separate claim should be identified. In a death case, the family's wrongful death claim and the estate's claim for what the person suffered before death are different claims. DRD Pool shows that the second one can be proven even when no one witnessed the death. The general statute has no provision combining the two the way the medical malpractice statute does, so how a death case is framed can make a real difference.

It matters who is responsible. Whether the defendant is a private business, a health care provider, or a government agency changes which cap applies, and how much.

The date of the injury sets the number. Because the cap rises every year, two people with identical injuries can face different limits depending on when they were hurt.

Talk to us

If you were seriously injured in Maryland, or you lost a family member, we can explain how the cap and the other rules affect your case. Learn more about our wrongful death, car accident and premises liability practice, call Posey Lebowitz at (202) 524-0123, or use our contact form for a free consultation.

This is general information, not legal advice about your case.