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‘Wrongful death’ applies to loss of life, not years, Md. appeals court says

Cancer victim's family cannot pursue claim

A doctor’s failure to diagnose a patient’s terminal illness cannot give rise to a wrongful death claim based on the argument that the patient would have lived years longer had the diagnosis been made and life-extending treatment begun earlier, Maryland’s second-highest court has ruled in an appeal brought by the family of a metastatic breast cancer victim.

For a wrongful death claim to be made, surviving family members must show that the doctor’s negligence caused the patient’s death — and not merely deprived them of more time with their loved one before he or she died of the terminal illness, the Court of Special Appeals held in its reported decision last week.

The court’s 3-0 ruling denied a bid by Stephanie Wadsworth’s father, widower and two children to revive their claim that had Dr. Poornima Sharma’s correctly diagnosed Wadsworth’s terminal cancer in 2013 she would have lived an additional 2 1/2 years. A Baltimore County Circuit Court judge had granted summary judgement for Sharma, stating her allegedly failed diagnosis was not a proximate cause of Wadsworth’s death.

The Court of Special Appeals acknowledged the family’s loss but said Maryland’s wrongful death statute “must be strictly construed” to apply only when – in the law’s words — a “wrongful act caused the death of another.”

Sharma’s alleged failure to diagnose the terminal cancer did not cause Wadsworth’s death, the appellate court stated, adding that a correct diagnosis would not have resulted in her survival from the disease.

“In a wrongful death action, death is the only injury for which plaintiffs can sue,” Judge James P. Salmon wrote for the court. “The relatives of Mrs. Wadsworth were not entitled to recover solatium type damages, or any other type of damages because they were deprived of the decedent’s company, love and affection for 30 months. The motions judge (in circuit court) had no choice but to grant summary judgment in favor of the (doctor) as to the wrongful death claim.”

Brian S. Brown, the family’s attorney, said he is reviewing the decision and he and his clients have not decided whether they will seek review by the Court of Appeals.

“When people lose time with a loved one as the result of a health care provider’s negligence, they should be compensated for that loss,” Brown stated via email.

“But, in wrongful death cases like this, as the law stands now, compensation is not available because ‘the decedent would have died anyway,’” added Brown, of Brown & Barron LLC in Baltimore. “That wrongful death beneficiaries cannot recover damages for the time they lost with their mother, father, husband wife or child because their loved one was already terminally ill essentially provides health care providers with a free pass and provides no compensation to those the decedent left behind. The law, in this respect, should change.”

Sharma’s attorney, Michael A. Damiano, did not immediately return messages Tuesday seeking comment on the Court of Special Appeals’ decision. Damiano is with Shaw & Associates PA in Hunt Valley.

Though rejecting the family’s wrongful death clam, the appellate court said Wadsworth’s estate could pursue recovery for the pain, suffering and lost earnings she might have endured due to the years she was allegedly deprived of due to Sharma’s alleged failure to diagnose the terminal cancer and the resulting delay in life-extending treatment.

For the pain and suffering claim to succeed, the estate’s personal representative would have to prove not only that Sharma’s negligence had caused Wadsworth years of life but that she knew of those lost years and suffered mental anguish due to her knowledge, the court said.

“We are gratified that the Court of Special Appeals recognized that Ms. Wadsworth’s estate is entitled to damages for the suffering she endured as a result of the defendants’ negligence and we are looking forward to putting this case before a jury for its consideration,” Brown stated. “Still, that Ms. Wadsworth’s loved ones are not entitled to compensation for their own losses remains an issue that should probably be addressed by the Court of Appeals.”

According to court papers, Wadsworth was diagnosed with stage 3 breast cancer in 2006, for which she had surgery followed by radiation and chemotherapy. Follow-up diagnostic scans in 2006, 2007 and 2008 showed no signs of metastatic cancer.

Five years later, an April 2013 scan revealed an abnormality that a radiologist reported as potentially cancerous lesions in Wadsworth’s clavicle, according to the family’s complaint.

Sharma received the report but never told Wadsworth or her other doctors of its findings and did not order follow-up tests, the complaint alleged.

By this time, however, Wadsworth had stage IV metastatic breast cancer, according to court papers.

She displayed no signs of the disease until February 2016, when she fell and injured her right shoulder. A bone scan revealed a malignant lesion in her clavicle.

Wadsworth, now diagnosed with stage 4 metastatic breast cancer, was given the aggressive treatment and therapy she would have received had she been diagnosed and treated in April 2013, according to court papers.

Wadsworth died on June 10, 2017, at age 53.

Had she been diagnosed and treatment begun in April 2017, she would have lived an additional 30 months, until December 2019, according to the family’s medical experts.

The family filed the wrongful death lawsuit in October 2018 against Sharma and her employers, University of Maryland Oncology Associates PA and University of Maryland Community Medical Group Inc. The lawsuit was accompanied by the estate’s claim alleging pain and suffering and lost wages.

When the Baltimore County Circuit Court judge granted summary judgment for the doctor, the family and estate sought review by the Court of Special Appeals.

Salmon, a retired judge sitting by special assignment, was joined in the opinion by Judges Melanie Shaw Geter and Gregory Wells.

The Court of Special Appeals rendered its decision in Scott Wadsworth et al. v. Poornima Sharma et al., No.1703, September Term 2019.

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