VIII. COMPENSATORY DAMAGES FOR BODILY INJURY
In Maryland, a plaintiff who, as a result of a wrongful act has sustained personal injuries may, in a civil action,
recover the following categories of damages, if proven:
- Past medical expenses;
- Future medical expenses;
- Past lost wages;
- Future lost wages; and
- Non-economic damages.
- The Trier of Fact, Be it Judge or Jury, Is Required to Itemize Its Award of
Compensatory Damages in The Categories Set Forth Above in Section A. Maryland Courts & Judicial Proceedings
Code Annotated § 11-109(b); Wyatt v. Johnson, 103 Md.App. 250, 653 A.2d 496 (1995) (use of an itemized verdict
sheet is required).
- Noneconomic Damages Are Defined as Pain, Suffering, Inconvenience, Physical Impairment,
Disfigurement, Loss of Consortium, or Other Non-pecuniary Injury. Maryland Courts & Judicial Proceedings Code
Annotated § 11-108(a)(1). NOTE: Noneconomic damages do not include punitive damages. Maryland Courts & Judicial
Proceedings Code Annotated § 11-108(a)(2).
- Maryland's Statutory Cap on Noneconomic Damages:
- Section 11-108 of the Maryland Courts & Judicial Proceedings Code Annotated
provides that for causes of action arising on or after October 1, 1994, "an award for noneconomic damages may
not exceed $500,000."
- Statutorily mandated annual increases: This limitation is, by statute,
increased each October 1 by $15,000 beginning on October 1, 1995. The increase applies to causes of
action arising between October 1 of that year and September 30 of the following year. Therefore, and by
way of example, for a claim arising in November of 2005, the cap would be $665,000; November 2006 -
- To whom the cap applies: The cap applies to all direct victims and
"all persons who claim injury by or through that victim." Maryland Courts & Judicial Proceedings
Code Annotated § 11-108(b)(3)(i).
NOTE: However, that the loss of household services which might be a part of a loss of consortium claim
may have a pecuniary aspect to it to the extent the household assistance is hired. As such, compensation
for the cost of hired household help is not covered by the cap. Edmonds v. Murphy, 83 Md.App. 133,
573 A.2d 853 (1990), aff'd 325 Md. 342, 601 A.2d 102 (1992);
- So, by way of example, because the claim for loss of consortium is based on
an injury to the marital unit and is therefore derivative of the claim of the injured person, no separate
cap applies. Oaks v. Connors, 339 Md. 24, 668 A.2d 423 (1995).
- Intentional torts: The damage cap is not applicable to intentional
torts. Cole v. Sullivan, 110 Md.App. 79, 676 A.2d 85 (1996).
- Effect of uncontradicted evidence of pain and suffering: Trier of
fact is not obliged to accept uncontradicted testimony regarding pain and suffering: Based on discrepancies
in evidence, jury was not required to accept motorist's testimony and that of his expert concerning
extent of his pain and suffering; jury's refusal to award noneconomic damages did not require grant of
motion for new trial on damages. Butkiewicz v. State, 127 Md.App. 412, 732 A.2d 994 (1999).
- Plaintiff not limited to ad damnum clause: Ad damnum clause in
complaint does not confine Plaintiff to a verdict less than or equal to that amount. Court may grant
Plaintiff's motion to amend ad damnum clause of complaint after a jury has returned a verdict greater
than the amount claimed. Falcinelli v. Cardascia, 339 Md. 414, 663 A.2d 1256 (1995).
- Exception: In a case in which the plaintiff relies on section
10-104 of the Maryland Courts & Judicial Proceedings Code Annotated to admit medical records
and bills without authenticating testimony, the plaintiff's recovery is limited to the district
court's jurisdictional limit of $25,000.00 no matter what the jury verdict might be. James v.
Butler, 378 Md. 683, 838 A.2d 1180 (2003)(where, in a case that originated in the district
court and defendant requested a trial by jury, $300,000 non-economic damages award reversed and
remanded with instructions that award be limited to $25,000.)
- Collateral Source Rule
- Generally: Juries in Maryland are instructed that, in calculating awards
for past and future medical expenses and past and future lost wages, they are not to reduce the amount of their
award because they believe or infer that the plaintiff will receive reimbursement or otherwise be compensated
for those losses from other sources such as disability insurance, sick leave, medical insurance, etc. Bittinger
v. CSX Transp. Inc., 176 Md. App. 262, 932 A.2d 1243 (2007); The seminal case in Maryland establishing the
so-called "collateral source rule" is Plank v. Summers, 203 Md. 552, 102 A.2d 262 (1954).
- Exceptions: Evidence of collateral source payments is admissible where
there is evidence that the plaintiff is malingering or exaggerating his injuries, Leizear v. Butler, 226
Md. 171, 172 A.2d 518 (1961); evidence that the plaintiff was being paid social security disability benefits for
the same injury for which he sought compensation from the defendant is relevant as to the issue of "whether the
payment of [the benefits] had any effect on [the plaintiff's] statement that he was unable to work." Kelch
v. Mass Transit Administration, 42 Md.App. 291, 400 A.2d 440 (1979), aff'd 287 Md. 223, 411 A.2d
449 (1980); evidence of workers' compensation payments may be indirectly supplied to a jury through the presence
of the workers' compensation carrier as a party plaintiff so long as the jury is advised that its award of
damages is to be based solely on the evidence. Newcomb v. Owens, 54 Md.App. 597, 459 A.2d 1130 (1983).
- Where plaintiff introduced evidence of reduced financial condition and alleged
it was as a result of injury sustained, defendant should have been permitted to introduce evidence of
plaintiff's receipt of retirement benefits as an exception to the collateral source rule. However, this
exception is very narrowly drawn. See generally, CSX Transportation, Inc. v. Haischer, 151 Md. App.
147, 824 A.2d 966 (2003), reversed, 381 Md. 119 (2004).
- Damages for Emotional Injuries
- Generally: Historically in Maryland, as elsewhere, a recovery for emotional
distress associated with a negligently-caused physical injury has been permitted in the discretion of the trier
of fact as part of an award of noneconomic compensatory damages. See e.g., Baltimore Traction Co. v.
Wallace, 77 Md. 435, 26 A.518 (1893).
- May a plaintiff in Maryland recover damages for an emotional injury in the
absence of a physical impact? Yes. Maryland permits a recovery for any "physical injury" resulting from
the negligence of another regardless of a physical impact. Green v. Shoemaker, 111 Md. 69, 73 A.688 (1909).
- Physical impact defined: As used in this rule, however, the term
"physical" does not have its usual dictionary meaning and a compensable physical injury may be
demonstrated by evidence of a distressed mental state. Vance v. Vance, 286 Md. 490, 408 A.2d
- Objective determination requirement: The limitation on a recovery
under this rule of damages is that the emotional injury must be "capable of objective determination."
Vance v. Vance, 286 Md. 490, 408 A.2d 728 (1979);
- While mere conclusory statements such as "I was afraid" are insufficient
to establish a right to a recovery. See Hunt v. Mercy Medical Center, 121 Md. 516, 710 A.2d
362 (1998) ("the evidence must be detailed enough to give the jury a basis upon which to quantify the
injury"), corroborating testimony is not required, see New Summit Associates v. Nistle, 73
Md.App. 351, 533 A.2d 1350 (1987) (plaintiff's own testimony that he suffered nervous shock resulting
in nausea, diarrhea, and an inability to sleep supported a finding of compensable injury) nor is the
opinion of a medical expert required. Hunt v. Mercy Medical Center, 121 Md. 516, 710 A.2d
362 (1998), see also, , Hoffman v. Stamper, 385 Md. 1, 867 A.2d 276 (2005) (permitting recovery
of non-economic damages for emotional distress resulting from fraudulent home sales practices).
- Pre-impact fright: The Maryland Court of Appeals has gone so far
as to hold it permissible for a jury to infer from nothing more than 71 feet of skid marks, that
a decedent killed in a motor vehicle accident suffered fright and/or emotional distress during the
period before the collision so as to support an award of emotional distress damages for "pre-impact
fright" in a survival action. Beynon v. Montgomery Cablevision, 351 Md. 460, 718 A.2d 1161
- Death of non-viable fetus: Pregnant woman who sustains injury as a
result of tortious conduct and who, as part of that injury, suffers the loss of a non-viable fetus may,
as part of her personal injury action, recover for any demonstrable emotional loss that is attributable
to the loss of the fetus. Smith v. Borello, 370 Md. 227, 804 A.2d 1151 (2002).
- Objective determination of emotional distress not required in intentional
tort cases: Hoffman v. Stamper, 155 Md. App. 247, 843 A.2d 143 (2003)(in an action seeking a recovery
based on, among other things, fraudulent conduct, objective evidence of emotional distress was not a required
showing where, as the court stated: "[P]roof that the defendant committed the wrong alleged is sufficient
reassurance that the plaintiff's claimed emotional distress is not feigned because the wrongful conduct
ordinarily would cause emotional distress in the victim.").
NOTE: Maryland draws a distinction between the tort of "negligent infliction of emotional distress"
which it does not recognize, Lapides v. Trabbic, 134 Md.App. 51, 758 A.2d 1114 (2000), and the
recovery of emotional distress damages as a result of a recognized tort such as negligence which, as
noted above, is permitted. That is, as a separate count in a plaintiff's complaint, a claim for the
negligent infliction of emotional distress is not permitted although a plaintiff may recover emotional
distress damages as part of the damages suffered as a result of an independent negligent act. Belcher
v. T. Rowe Price Fund., Inc., 329 Md. 709, 621 A.2d 872 (1993).
- Note further that Maryland does recognize a cause of action for the
intentional infliction of emotional distress although the claim rarely survives summary
judgment as it is "to be used sparingly and only for opprobrious behavior that includes truly
outrageous conduct." Mitchell v. Baltimore Sun, 164 Md. App. 497, 883 A.2d 1008 (2005)(the
emotional distress "must be so severe that no reasonable man could be expected to endure it");
Batson v. Shiflett, 325 Md. 684, 602 A.2d 1191 (1992); Barchers v. Hrychuk, 126
Md.App. 10, 727 A.2d 388 (1999) ("The tort of intentional infliction of emotional distress is rarely
viable and should be used sparingly.").