Fowlkes v. Choudhry
Decision Date | 26 March 2021 |
Docket Number | No. 6, Sept. Term, 2020,6, Sept. Term, 2020 |
Citation | 248 A.3d 298,472 Md. 688 |
Parties | Lolita D. FOWLKES v. Shabbir Ahmed CHOUDHRY |
Court | Court of Special Appeals of Maryland |
Argued by Thomas C. Cardaro (Jeffrey L. Peek and C. Drew Fritch, Cardaro & Peek, LLC, Baltimore, MD), on brief, for Petitioner.
George S. Tolley III, Esquire, Dugan, Babij, Tolley & Kohler, LLC, 1966 Greenspring Drive, Suite 500, Timonium, MD 21093, for Amicus Curiae Maryland Association for Justice, Inc.
Argued by John R. Fischel (Edward W. Brady, Brady, Fischel & Daily, LLC, Annapolis, MD), on brief, for Respondent.
Mitchell Y. Mirviss, Esquire, Emily J. Wilson, Esquire, Venable LLP, 750 East Pratt Street, 9th Floor, Baltimore, MD 21202, for Amici Curiae Medical Mutual Liability Society of Maryland, and Medchi, The Maryland State Medical Society.
Argued before: Barbera, C.J., McDonald, Hotten, Getty, Booth, Biran, Lynne A. Battaglia (Senior Judge, Specially Assigned), JJ.
This Court granted certiorari in the present case to determine what must be proven in a wrongful death medical malpractice case in order for a parent to recover pecuniary, also referred to as economic, damages for the alleged loss of household services rendered by a deceased adult child to the parent, under the Wrongful Death Act, Sections 3-901 to 3-904 of the Courts and Judicial Proceedings Article, Maryland Code (1973, 2013 Repl. Vol.).1 Fowlkes v. Choudhry , 467 Md. 712, 226 A.3d 245 (2020).
The Petitioner, Ms. Lolita Fowlkes, asks that we reverse a judgment of the Court of Special Appeals that had vacated an award of $500,000 against Dr. Shabbir Choudhry, Respondent, by a jury in the Circuit Court for Baltimore City, for loss of household services, which she alleged she would have received from her adult daughter, Yenita Owens, who had died after having received medical treatment by Dr. Choudhry, among others.2 The Court of Special Appeals, in a published opinion, Choudhry v. Fowlkes , 243 Md. App. 75, 219 A.3d 107 (2019), held that in a wrongful death action, a parent could recover economic damages for loss of household services, but that Ms. Fowlkes had not produced sufficient evidence to have the claim submitted to a jury, pursuant to Maryland Rule 2-519.3
In so doing, the intermediate appellate court articulated a three-part "test" to evaluate claims for economic damages arising from the loss of household services performed for a parent by an adult child prior to her death. According to the intermediate appellate court:
[A] beneficiary must: (1) identify domestic services that have a market value; (2) have reasonably expected the decedent to provide the identified services, which—absent the decedent's legal obligation to provide the services—will typically require evidence showing that the decedent was regularly providing the services in the past; and (3) present some evidence concerning the duration the decedent would have likely provided the services.
Application of the articulated "test" to the evidence presented by Ms. Fowlkes yielded a twofold concern for our brethren: the lack of "market value" evidence for the services, as well as the absence of proof "that Ms. Owens intended to continue providing the identified household tasks to her mother on a regular basis in the future", the latter being the basis for the Court's reversal of the judgment for the economic damages for household services. Id. at 101, 219 A.3d 107.
At trial, Ms. Fowlkes testified that she was seventeen years-old when her daughter was born and that she had raised her daughter as a single parent. Ms. Fowlkes stated that she and her daughter had lived together during her daughter's twenty-two years. The two of them had engaged in a variety of activities, by which they developed a very close bond, which, according to Ms. Fowlkes, "was more than a mother and a daughter." According to Ms. Fowlkes, she and her daughter were best friends.
Ms. Fowlkes also testified regarding household tasks that her daughter had performed, which, the parties agree was offered to support her claim for pecuniary damages related to lost household services:
What constitutes proof of loss under the Wrongful Death Act to support a pecuniary damage award to compensate for the loss of household services from an adult child, now deceased, to a parent and whether Ms. Fowlkes's testimony was sufficient to create a jury question regarding whether the loss of her daughter's services in the future was compensable constitute the crux of the case before us. We shall agree with the Court of Special Appeals that the evidence adduced by Ms. Fowlkes was insufficient to meet her burden of proof because proof of intent on the part of the deceased adult child to continue to perform household services on behalf of the parent must be adduced, in addition to evidence of what the parent expected, to survive a directed verdict.
The Wrongful Death Act was originally enacted in 1852 in Maryland as "An Act to compensate the families of persons killed by the wrongful act, neglect or default of another person." Maryland Laws (1852), Chapter 299. The Act provided:
1852 Maryland Laws, Chapter 299. The statute and its evolution were summarized by this Court in McKeon v. State, for the Use of Conrad , 211 Md. 437, 442, 127 A.2d 635 (1956) as:
Prior to 1852, under the common law, Maryland permitted no recovery for pecuniary loss suffered by a relative of one killed by the negligence of another. In that year, the Legislature enacted Ch. 299 of the Acts of 1852, which provided an action at law for the benefit of a wife, husband, parent and child of a person whose death shall have been caused by the wrongful act, neglect or default of another, against the person wrongfully causing said death. The list of persons entitled to recover under the then Sec. 2 of the above Act, remained the same until 1937, when it was enlarged to permit recovery by the mother of an illegitimate child and by an illegitimate child when the deceased person was the mother of such child. In 1952, the Legislature again added to this list by including relatives of the deceased who met certain dependency qualifications, but only if there were no surviving wife, husband, parent or child.
In 1969, the General Assembly revised the Act to expand the type of damages recoverable to include non-economic, or solatium, damages.
In the case of the death of a spouse or minor child, the damages awarded by a jury in such cases shall not be limited or restricted to the "pecuniary loss" or "pecuniary benefit" rule, but may include damages for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education where applicable.[4 ]
1969 Maryland Laws, Chapter 352.
Under the Act, now codified as Sections 3-901 to 3-904 of the Courts and Judicial Proceedings Article, Maryland Code (1973, 2020 Repl. Vol.), a "wrongful act" is "an act, neglect, or default including a felonious act which would have entitled the party injured to maintain an action and...
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... ... benefits that would have been provided, had the decedent not ... died as a result of another's negligence'" ... Choudhry v. Fowlkes, 243 Md.App. 75, 85, 219 A.3d ... 107, 112 (2019) (quoting Spangler v. McQuitty, 449 ... Md. 33, 53, 141 A.3d 156, 168 ... ...
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... ... 303, 354, 160 A.3d 1238, ... 1256 (2017). Economic damages are sometimes referred to as ... “pecuniary” damages. Choudhry v ... Fowlkes , 243 Md.App. 75, 85, 219 A.3d 107, 113 (2019), ... aff'd , 472 Md. 688, 243 A.3d 298 (2021) ... Economic damages ... ...