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Arrabal v. Crew-Taylor12/3/2004
y, 332 Md. at 371, 631 A.2d at 445.
Despite Hopkins's implicit assertion to the contrary, the doctrine of necessaries was never intended to be a limitation on a child's right to recover medical expenses from the person(s) responsible for causing them. It is merely an acknowledgment that for certain services, a minor should not be heard to disavow a contract which by personal necessity required his or her participation. In a case of catastrophic medical injury , we can certainly conceive of a situation where the parents can afford some but not all of the injured child's past, present, and future medical expenses. Assuming limitations has barred parental claims for such, the doctrine of necessaries protects an injured minor's right to recover from a tortfeasor medical expenses that his or her parents are ill-able to afford and for which he or she ultimately may be liable. Otherwise, the child would be twice victimized - once at the hands of the tortfeasor, and once by parents who, for whatever reason, failed to timely prosecute their claims for medical expenses. We cannot countenance a result that would leave the only innocent victim in such a transaction uncompensated for his or her injuries and potentially beholden to the compelled generosity of the taxpayer. Public policy and justice demand that an injured minor's right to recover medical expenses in his or her own name after limitations has barred parental claims begin where the parents' financial ability to provide for medical necessaries ends. That is the rule of Garay.
Id. at 694-95 (emphasis added).
The Pepper Court concluded as follows:
As we explained in Part III. a., supra, and as pointed out by amicus for the Peppers, our holding in Garay, was "simply intended to preclude pre- majority expense claims by the minor to the extent that his or her parents have the means . . . to furnish necessary medical and attendant care but failed to assert their claims against the tortfeasor within the limitations period." Whether or not parents are able to afford necessary medical care for their negligently injured minor child will vary from case to case according to the circumstances of the parties involved, including, but not limited to, parental income, existing financial assets and obligations, the number of children in the family, available insurance coverage, the cost of living and inflation rate, whether or not both parents work, or are even capable of working in light of the child's injuries, and other economic and non-economic factors too numerous to list. It will also vary, of course, on the nature of the injury and the duration and manner of treatment. These infinitely variable factors preclude a bright line rule concerning the standard by which the affordability determination can be made. More often than not, juries will have to decide with the aid of expert and lay testimony when necessary, whether and to what extent an injured child's medical necessaries exceed the financial ability of the parents. We note however, that as a matter of public policy, government assistance programs are not a factor to be used in making that determination, otherwise the taxpayer would bear a financial burden that rightfully should be borne by the tortfeasor. The same holds true with respect to the often remarkable gratuity of strangers and friends.
Id. at 701 (emphasis added).
The difference between this case and Pepper is that in Pepper it was clear from the plaintiffs' proffer that only a portion of the minor's medical expenses would be paid by insurance. Thus, to the extent that there was no insurance coverage, Garay Exception 3 applied. Here, appellees failed to show that one penny of Che's medical exp
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