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Arrabal v. Crew-Taylor12/3/2004
Che suffered conscious pain and suffering. Therefore, even if we were to assume, purely for argument sake, that an adequate basis was not set forth by the plaintiffs' expert, that argument was not preserved.
E. Questions 5 and 6
As mentioned earlier, the jury awarded Che's estate $636,414.90 for "past medical expenses." Neither of Che's parents were awarded monies for past medical expenses, nor were they awarded anything for economic damages of any sort. Appellants contend that, although it was undisputed that reasonable medical expenses of $636,414.90 were incurred for Che's post birth care, the child's parents had the right to reimbursement for those expenses - not Che's estate. Therefore, appellants maintain that the trial court erred when, over appellants' objection, it allowed the jury to consider whether the estate had incurred medical expenses.
Before considering the merits of appellants' position, it is important to remember that under Maryland law, the right to recover the medical expenses incurred by a tortiously injured minor child is ordinarily vested in the minor's parents, not in the minor or his estate. Garay v. Overholtzer, 332 Md. 339, 346 (1993).
The Court said in Garay:
It is well settled that when a person negligently injures a minor two separate causes of action arise; the minor child has a cause of action for injuries suffered by it, and the parent or parents of the minor child have a cause of action . . . for medical expenses incurred by the parent for the treatment of the minor's injuries.
Id. (citations omitted).
A parent's cause of action for medical expenses "is not derivative, in a legal sense, from the infant's cause of action, but . . . is separate and distinct." Id. at 348 (quoting Hudson v. Hudson, 226 Md. 521, 530 (1961)).
The foregoing principles, as applied to this case, mean that Che's parents had a right to make a claim for $636,414.90 for their son's medical expenses. This was recognized by appellees' counsel when the parents alleged in Count III (by incorporating by reference earlier allegations) that
he expense for Che Taylor's care and treatment has and will remain the responsibility of his parents, Tracy and Charles Taylor, Jr.
And, in Count III, Che's parents, by incorporating certain earlier paragraphs by references, asked for recompense for Che's past medical expenses.
Near the conclusion of the trial, counsel for appellees sought to give the jury a choice, i.e., to allow Che's estate to be reimbursed for Che's medical expenses or, in the alternative, to allow Mrs. Crew-Taylor to make the recovery. Why counsel made that decision is a mystery.
Plaintiffs' trial counsel attempted to utilize the third of the "Garay exceptions" to the usual rule that a child or his estate has no right to obtain reimbursement for medical expenses incurred as a result of the negligent actions of a tortfeasor. The Garay exceptions are:
f the minor child can show that he or his estate either has paid or will be individually responsible to pay for medical expenses: (1) by emancipation, (2) by death or incompetence of his parents, (3) as necessaries for which his parents are unable or unwilling to pay, or (4) by operation of a statute, then . . . the minor is entitled to bring a claim for those medical expenses [despite the running of limitations for parental claims].
332 Md. at 374 (emphasis added).
Mrs. Crew-Taylor testified that Che's medical expenses were $636,414.90 and that she had insurance with "Blue Cross of Maryland" to cover those expenses. She also testified that she had submit
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