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Personal Injury Damages in Maryland

A working knowledge of damages is important for knowing at an early stage, what foundations must be laid to request damages of the potential defendant and what defenses can be raised to the damages claimed by a plaintiff. An individual who has been injured by the negligence of another is entitled to be made whole. Compensatory damages are those monetary damages designed to make a plaintiff whole. Not all legal damages are easy to quantify; however, a monetary award is the only appropriate sanction against a tortfeasor. There are two types of compensatory damages: special damages and general damages. Put simply, special damages are the out-of-pocket expenses that a plaintiff incurs as a result of the occurrence. General Damages are non-pecuniary damages, on which the law is unable to place a dollar amount, but nevertheless recognizes them as compensable. The most common example of general compensatory damages is "pain and suffering." These damages are also sometimes referred to as "non-economic" damages. Non-economic damages are limited to a specific dollar amount based upon a statute passed by the Maryland legislature.

1. Special Damages

Past medical expenses have to be reasonable, necessary and casually connected to the occurrence for which you are making a claim. Expert testimony is typically required to prove the necessity and reasonableness of the expenses. An expert is also necessary for recovery of future medical expenses. Expert testimony may also be needed to prove the causal connection between the accident and the plaintiff's injury or condition, in order to recover past and future medical expenses. This may be so when the injury involves aggravation or acceleration of a previously existing condition. When a layperson cannot draw the connection between accident and injury, an expert is needed. The expert only needs to testify as to a reasonable medical probability, not a certainty.

To accommodate for the expense and difficulty of calling an expert to testify at trial in smaller cases, the Maryland legislature established a mechanism by which a plaintiff, in limited circumstances, may offer medical records and bills from the medical provider without an expert's testimony. The same statute permits the defendant to offer similar records without a sponsoring witness.

Lost wages also make up a substantial part of most personal injury claims. There are two basic requirements for recovering lost wages. First, the lost wages must be actual and certain. The wages cannot be speculative, remote, or uncertain. Second, the plaintiff must prove that his injury impaired him from being able to work. To recover future lost earnings, plaintiffs must prove that they are permanently disabled and that their disability will diminish their future earning capacity. This will typically require expert testimony.

2. General Damages

Mental pain and suffering is also recoverable following a physical injury. However, where there was no physical injury, mental pain/suffering is normally not compensable, except in very limited circumstances. An additional factor in determining pain and suffering is the aggravation of pre-existing injuries. While it is true that the "thin skull rule" applies in Maryland, the defendant is only responsible for the extent to which the plaintiff's pre-existing injury was aggravated. The defendant is not liable to the plaintiff for causing the condition in the first place. There are special rules for recovery of pain and suffering in a wrongful death action. The obvious problem is that the injured party is no longer able testify about his pain and suffering. The personal representative must prove three facts to recover for the decedent's pain and suffering. They are:

  1. the defendant's negligence was the proximate cause of death;
  2. the decedent was alive after the accident; and
  3. between the accident and death, the decedent suffered conscious pain.

Punitive damages (also known as exemplary damages) are over and above what is intended to make the plaintiff whole. Punitive damages are intended to punish the tortfeasor, to set an example for others, and to deter future outrageous conduct. In Maryland, punitive damages are almost impossible to recover in a personal injury action, particularly one based on negligence. A party seeking punitive damages must show that the defendant acted with "actual malice." Actual malice is "evil motive, intent to injure, ill will or fraud." Moreover, the actual malice must be proven by clear and convincing evidence.

3. Contributory Negligence and Assumption of Risk

Maryland still recognizes contributory negligence as a complete bar to a plaintiff's recovery. Assumption of the risk also bars a plaintiff's recovery completely. Because of the distinct possibility that a plaintiff will walk away from the courthouse with nothing because of these doctrines, both plaintiffs and defendants must consider the actions of the plaintiff in determining the value of a case.

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