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Estate of Betty Jean Shinholster v. Annapolis Hospital7/30/2004
6), provides additional support for our understanding of § 1483. These provisions state that "the personal representative of the estate of the deceased person" be able to "maintain an action and recover damages [against] the person who or the corporation that would have been liable, if death had not ensued . . . ." Subsection 2922(6) expressly permits the deceased's estate to recover "reasonable compensation for the pain and suffering, while conscious, undergone by the deceased person during the period intervening between the time of the injury and death . . . ." Accordingly, while we agree with the Chief Justice that the Legislature is free to make "a policy decision that the survivors of dead medical malpractice victims are entitled to lesser damages than are living medical malpractice victims who are suffering from one of the three types of permanent conditions enumerated in [§ 1483]," post at 14-15, we see no indication in the statute that the Legislature, in fact, made such a decision; rather, we believe that the Legislature made a quite contrary policy decision in § 2922(1), (2), and (6) by permitting a decedent's estate to recover everything that the decedent would have been able to recover had she lived.
Third, we believe that the interplay between the wrongful death act, particularly § 2922(6), and § 1483 provides additional textual support for our understanding of § 1483. Subsection 2922(6) states that in a wrongful death action "the court or jury may award . . . reasonable compensation for the pain and suffering, while conscious, undergone by the deceased person during the period intervening between the time of the injury and death . . . ." (Emphasis added.) Section 1483 provides that pain and suffering resulting from certain enumerated injuries are compensable at a higher rate. Thus, the Legislature has apparently determined that "reasonable compensation" for such pain and suffering may sometimes be in excess of $280,000. However, by concluding that, no matter what type of injuries resulted in a decedent's death, survivors in a wrongful death action may never recover under § 1483's higher cap if the decedent is dead at the time of judgment, defendants and the Chief Justice effectively preclude the awarding of "reasonable compensation" under § 2922(6) for the conscious pain and suffering undergone by at least some decedents before their death, where such pain and suffering resulted from one of the enumerated injuries in § 1483. That is, we believe that defendants and the Chief Justice overlook the express directive of § 2922(6) that the jury may award "reasonable compensation" for a decedent's conscious pain and suffering-compensation which, in the Legislature's estimation, may sometimes be in excess of $280,000 if conscious pain and suffering results from an injury enumerated in § 1483.
Finally, in asserting that the higher damages cap of § 1483 applies only where the plaintiff is suffering one of the conditions enumerated in the statute at the time of judgment, we believe that defendants and the Chief Justice give extraordinary and undue weight to the fact that the Legislature has used the present tense of the verbs in § 1483(1)(a) and (b).Particularly, in concluding that "the structure of § 1483(1) indicates that the Legislature intended that an exception, if it is applicable, apply at the time [of judgment]," post at 10, we note that the Chief Justice fails to ensure that her own interpretation of § 1483 is consistent with the Legislature's use of the verb tense "has been" in § 1483(1)(c). This use of the past tense of the verb indicates an intention by the Legislature that an injured party need not always be alive at the time of judgment for the higher cap to apply, but rather only hav
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