The instant case raises issues of how damages should be calculated for loss of household services and loss of wages where the plaintiff's normal life expectancy was reduced considerably as the result of defendant's medical malpractice. Glenna Endal and her husband, Andrew, filed a medical malpractice action against Ms. Endal's gynecologist, Dr. Michael Monias. Specifically, the Endals alleged that Dr. Monias was negligent in failing to diagnose and treat a breast cancer in Ms. Endal. They further alleged that had the cancer been properly diagnosed and treated, there was an 85-90% chance that it would have been cured, but that because it was not properly diagnosed and treated, the cancer spread to the point that Ms. Endal's chances of surviving beyond November, 1992 were only 20%.
Evidence presented at trial established that on August 2, 1986, Glenna Endal, a 34 year-old married school teacher and mother of three children, discovered a small lump in her right breast. Six days later, she went to her gynecologist, Dr. Michael Monias, and was assured the lump was "fibrocystic breast disease," and there was "nothing to worry about." Dr. Monias ordered a mammogram, but did not order a biopsy. Ms. Endal was instructed to return in six months. Six months later, as instructed, Ms. Endal returned to Dr. Monias again complaining of the lump, again a mammogram was ordered, but not a biopsy, and again Ms. Endal was assured there was nothing to worry about. Approximately eight months after her second visit, fourteen months after her first complaint, Ms. Endal returned to Dr. Monias still complaining about the lump. Dr. Monias then referred Ms. Endal to a specialist who performed a biopsy which revealed a malignant tumor. A lumpectomy was also performed which revealed the cancer had metastasized and was now in an advanced stage. There was ample testimony supporting the jury's finding that Dr. Monias was negligent in ordering only a mammogram and in failing to perform a needle biopsy or various other diagnostic tests upon Ms. Endal's visit in August, 1986.
According to expert medical testimony, if the breast cancer had been properly diagnosed in August, 1986, Ms. Endal would have had an 85-90% probability of survival and a normal life expectancy. If properly diagnosed, she could have been successfully treated with a lumpectomy and radiation treatment. There was testimony that as a proximate result of the negligence of Dr. Monias, the cancer metastasized and spread to eleven lymph nodes. Consequently, the experts testified, Ms. Endal had only a 20% chance of survival beyond November, 1992.
The trial judge, Goudy, J., submitted the case to the jury on written issues. Out of an overabundance of caution, the judge divided the elements of damages into damages before November, 1992, which was the statistically probable date of Ms. Endal's premature death, and damages after November, 1992, which were called "post premature death" damages.
A jury found Dr. Monias was negligent and awarded damages using an "Issue Sheet" as follows:
Dr. Monias appealed the judgment to the Court of Special Appeals. In an unreported opinion, the intermediate appellate court affirmed the jury's determination of liability and affirmed all damage awards except for the $200,000 "post premature death" damage award for the loss of Ms. Endal's household services to her children.
We granted certiorari to review the damage awards for loss of income and loss of services. We shall affirm the decision of the Court of Special Appeals.
I. LOSS OF INCOME
The jury awarded Ms. Endal $33,000 for future loss of income up to the statistically expected date of Ms. Endal's premature death, which had an 80% probability of being no later than November, 1992. The jury also awarded $250,000 for loss of income after November, 1992. There was evidence that, had her cancer been diagnosed and successfully treated, Ms. Endal would have worked until age 65. There was also testimony from an economist that Ms. Endal's earnings from November, 1992 until her 65th birthday, reduced to present value, would have been in excess of $250,000. Dr. Monias does not contest the $33,000 loss of future earnings award, but he contends that the $250,000 "post premature death" loss of future earnings award was improper and was, in effect, a wrongful death award in a personal injury action.
We begin our discussion by noting that we are dealing with loss of earnings recoverable in a personal injury action. We are not concerned with loss of earnings in a survival action.
Dr. Monias contends that future loss of wages is limited to the plaintiff's actual (shortened) life expectancy rather than the plaintiff's normal life expectancy had the tort not occurred. We reject his contention. In an action for personal injuries, a plaintiff may recover for loss of future earnings which will reasonably and probably result from the tort. Adams v. Benson, 208 Md. 261, 271, 117 A.2d 881, 885 (1955). We do not discard this fundamental rule of damages where the defendant's tort shortens the plaintiff's life expectancy.
The precise issue in the instant case was left open in Rhone v. Fisher, 224 Md. 223, 231-32, 167 A.2d 773, 779 (1961), where we held that generally a plaintiff is not entitled to recover damages for the "lost years" themselves where the defendant's tort shortened the plaintiff's life expectancy. We noted in Rhone that the plaintiff failed to raise the issue of loss of earnings for the "lost years" and so that aspect of damages was not before the Court. Id. at 232, 167 A.2d at 779. We shall reach this issue in the instant case. We hold, in accord with the majority of other jurisdictions, that the proper measure of lost earnings damages in a personal injury action for a plaintiff whose life expectancy is reduced by the defendant's negligence is the plaintiff's loss of earnings based on the plaintiff's life expectancy had the tortious conduct not occurred, rather than loss of earnings based on the plaintiff's post-tort shortened life expectancy. "If the injury shortens plaintiff's life expectancy, the weight of American authority nevertheless computes future earning loss on the basis of the life expectancy plaintiff would have had without the injury." 4 F. Harper et al., The Law of Torts § 25.8, at 552 n. 9 (2d ed. 1986) and cases cited therein; Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 595, 94 S.Ct. 806, 819, 39 L.Ed.2d 9, 26 (1974) (holding that, "[u]nder the prevailing American rule, a tort victim suing for damages for permanent injuries is permitted to base his recovery `on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury'" (quoting 2 F. Harper & F. James, The Law of Torts § 24.6, at 1293-94 (1956) (emphasis in original)).
Damages for future loss of earnings must be based on the victim's life expectancy absent the tort rather than on the shortened life expectancy resulting from the tort. We will not permit the tortfeasor to reduce liability for the victim's loss of earnings by reducing the victim's life expectancy.
In the instant case, the trial judge separated the future loss-of-earnings damages into (1) future loss of earnings up to November, 1992, and (2) future loss of earnings from November, 1992 to age 65 when Ms. Endal would have retired based on her pre-injury life expectancy. The combination of both awards gave Ms. Endal what she is entitled to — her loss of future earnings based on her normal life expectancy had she been properly diagnosed and treated.
II. LOSS OF SERVICES
The loss-of-services damages in the instant case, like the loss-of-earnings damages, were subdivided into separate awards for pre and post "premature death" damages. Loss-of-services damages for the period before Ms. Endal's probable premature death were apparently included in either Ms. Endal's $200,000 "noneconomic damages" award or the Endals' $75,000 loss of consortium award.
In Rhone v. Fisher, 224 Md. at 230-31, 167 A.2d at 778, this Court held that, as a general rule, a plaintiff cannot recover damages for the "lost years" of shortened life expectancy caused by a defendant's negligence. We did, however, acknowledge that there might be two potential categories of recoverable damages relating to "lost years" of shortened life expectancy. The first category recognized in Rhone was mental suffering resulting from knowledge of the shortened of life expectancy. Id. In Rhone, we upheld a jury's award that included such damages. The second potentially permissible form of damages related to the "lost years" identified in Rhone was "lost earnings during the lost years," id. at 232, 167 A.2d at 779; however, that issue was not decided in Rhone because it was not preserved for appeal. It is this second category of damages, lost earnings for lost years, that we have approved in the instant case, supra. Rhone recognized only these two elements of damages as potentially permissible forms of damages related to the "lost years" of shortened life expectancy. The Endals, in essence, ask us to recognize an additional category — loss of services that the tort victim will not be able to provide to her family because of her shortened life expectancy. We decline to further expand Rhone to permit recovery for loss of services during the "lost years" of a plaintiff's shortened life expectancy. Ms. Endal contends that we should treat loss-of-services damages the same as loss-of-earnings damages, and thus allow loss-of-services damages for the "lost years" of shortened life expectancy. The Court of Special Appeals did not agree, nor do we. The Maryland cases Ms. Endal cites to support this argument clearly held that injured persons in personal injury actions are entitled to recover pecuniary damages for impairment of their ability to perform household duties, but none of these cases addresses whether, let alone holds that, loss-of-services damages should be awarded during the "lost years" of shortened life expectancy. Instead, they all concern temporary or permanent impairment without any discussion of the plaintiff's life expectancy. See, e.g., Straughan v. Tsouvalos, 246 Md. 242, 228 A.2d 300 (1967); Hughes v. Carter, 236 Md. 484, 204 A.2d 566 (1964); Adams v. Benson, 208 Md. 261, 117 A.2d 881 (1955). The same can be said for the out-of-state authorities and treatises on which Ms. Endal relies.
Further, the case for recognizing loss-of-services damages related to the "lost years" is not as compelling as the case for recognizing loss-of-earnings damages related to those years. Loss-of-earnings damages are to compensate a tort victim for income the victim will not receive because of the tort. Loss-of-services damages, on the other hand, are to compensate a tort victim for services the victim will not be able to provide because of the tort. In the instant case the "post premature death" loss-of-earnings damages were to compensate Ms. Endal for money that she will not receive because of her untimely death. The "post premature death" loss-of-services damages were to compensate for services Ms. Endal will not be able to perform for her family because of her untimely death. Obviously Ms. Endal will have no need for her own services following her premature death; these loss-of-services damages were to compensate Ms. Endal's family.
We also note that the award in the instant case for "loss of household services to children" is similar to a child's claim for "loss of parental consortium." A few jurisdictions have recognized a loss of consortium damage claim by minor children for injuries to a parent. See W. Page Keeton et al., Prosser and Keeton on The Law of Torts § 125, at 935-36 (5th ed. 1984); S.G. Ridgeway, Loss of Consortium and Loss of Services Actions: A Legacy of Separate Spheres, 50 Mont.L.Rev. 349, 349 & n. 4 (1989). Maryland, however, has not recognized such a claim for children except in the context of a wrongful death action. We are not persuaded that this Court should further expand tort damages to include such loss-of-consortium type damages for a minor child whose parent is severely injured but not killed. See Gaver v. Harrant, 316 Md. 17, 28-32, 557 A.2d 210, 216-18 (1989) (discussing why Maryland has not recognized a damage claim for loss of parental society and affection).
Ms. Endal also argues that in light of Maryland's recognition of a limited claim for loss of the economic value of a child's services, see Maryland Code (1984, 1991 Repl.Vol.), Family Law Article, § 5-206; Hudson v. Hudson, 226 Md. 521, 528, 174 A.2d 339, 342 (1961), we should recognize a reciprocal loss of parental services claim on behalf of minor children. We also decline this invitation to further expand tort damages. For the same reasons we gave in Gaver for not recognizing children's loss of parental consortium claims, we also decline to recognize loss of parental service claims. If such a new cause of action is to be recognized, the legislature should do so after weighing such factors as the benefits of such a new cause of action, the probable increase in insurance costs, and the increased cost of litigation should children be made parties to their parents' tort suits. What we said in Gaver is equally applicable in the instant case:
Gaver, 316 Md. at 33, 557 A.2d at 218.
In summary, in tort actions where a family member is injured, the marital entity has a claim for damages for loss of a spouse's consortium, but parents and children do not have a claim for loss of each other's consortium. Parents have a limited common law claim for the economic value of the loss of an injured child's services, but children have no reciprocal claim for loss of an injured parent's services. A tort victim's loss of earnings damages are based on pre-tort life expectancy, but a tort victim's loss-of-services damages are based on actual post-tort life expectancy. Arguments can no doubt be made for expanding and equalizing damages, particularly for parent-child damage claims. Such expansion entails a host of public policy concerns, including potential for increasing insurance costs, adding to litigation expenses by making children parties to a parent's tort action, as well as the uncertainty and remoteness of such damages. The task of balancing these concerns can best be undertaken by the General Assembly, rather than by this Court.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THE COURT OF SPECIAL APPEALS AND IN THIS COURT TO BE PAID THREE-FOURTHS BY PETITIONER AND ONE-FOURTH BY RESPONDENT.
Issues involving the court's instruction in the instant case that were decided by the Court of Special Appeals in its unreported opinion are not encompassed in this Court's grant of certiorari. We in no way suggest approval of the splitting of damages into pre and post premature death damages.
This case does not present, and so we do not address, the question of whether Maryland follows the majority of jurisdictions which hold that a prior personal injury judgment obtained by the decedent completely precludes any subsequent wrongful death action based on the same negligent conduct. 4 F. Harper et al., The Law of Torts § 24.6, at 471-72 & n. 1 (2d ed. 1986); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 127, at 955 & n. 18 (5th ed. 1984); cf. Melitch v. United Rwys. & E. Co., 121 Md. 457, 462-63, 88 A. 229, 231 (1913) (held no action would lie under the former Wrongful Death Act, Article 67, § 1 of the Code of 1904, because decedent had executed a valid release of all claims he "might or could possibly have" on account of his injuries).
Id. at 989; Cf. Rhone, 224 Md. at 233, 167 A.2d at 779.