In Maryland, when a minor is negligently injured, two separate causes of action arise: the minor child has one for the injuries he or she suffered, and the parent of the minor child has one for medical expenses incurred by the parent for treatment of his or her child's injuries.[1] Generally, the minor child does not have a cause of action for his or her pre-majority medical expenses because the “parents possess the exclusive right to recover a minor's pre-majority medical expenses.”[2]
The law in Maryland provides four exceptions under which a minor may have a cause of action to recover his or her own medical expenses:
(1) when the minor child has paid or agreed to pay the expenses,
(2) when the minor child is legally responsible for payment, such as by reason of emancipation, or the death or incompetency of his parents,
(3) when the parents have waived or assigned their right of recovery in favor of the minor child, or
(4) when recovery of expenses is permitted by statute.[3]
The first, second and fourth exceptions noted above give a minor child a separate and distinct claim for his medical expenses.[4]
Parents have a statutory duty to support and care for their children pursuant to Maryland Code § 5–203(b) of the Family Law Article.[5] This statute reads: “Powers and duties of parents.—The parents of a minor child: (1) are jointly and severally responsible for the child's support, care, nurture, welfare, and education....”[6] This statutory duty partially abrogates the doctrine of necessaries, making parents liable for the value of necessaries provided to their minor children.[7] Medical care is embraced within the scope of the statutory duty requiring parents to support their minor children.[8] In Garay, the Supreme Court of Maryland stated that:
The doctrine of necessaries is sufficient to hold a minor child liable for medical expenses incurred by him or her if it can be shown that his or her parent is unwilling or truly unable to pay them. This liability will, in turn, give a minor the right to claim medical expenses on his or her own behalf. It would be manifestly unjust to hold a child liable for medical expenses but to deny that child the opportunity to recover those expenses from a wrongdoer.[9]
“[I]f it can be shown that the minor’s estate has paid or is responsible to pay for any pre-majority medical expenses, this claim is also vested in the minor.”[10] Thus, if the minor child meets his or her burden of showing that his parents are unable or unwilling to pay his medical expenses, and that he has paid or will be responsible for paying such expenses, he may make a claim for them.[11] This is now referred to as the Pepper exception.
In Pepper, the plaintiffs argued that the parents were unable and unwilling to pay for their son Travis’s care.[12] Therefore, the Supreme Court of Maryland held that because Travis, as the minor plaintiff, might become personally liable for these expenses, he had a cause of action under the second Garay exception, namely the incompetency of his parents to pay.[13]
In Pepper, in order to establish the exception to the general prohibition against the minor’s recovery of pre-majority medical expenses after the parental statute of limitations had run, the Peppers provided, “the July 13 memo excerpts of deposition testimony by Dr. Malak Derakshani and economist Manuel R. Smith; affidavits from Mr. Smith and the Peppers; the Peppers’ tax return; and their insurance policy.”[14] The Appellate Court of Maryland noted the extensive financial disclosures that the Peppers had to disclose in order to meet their burden of proof under this exception:
According to the July 13th proffer, Linda Pepper no longer works outside the home because she must be home to care for Travis; Terry Pepper earns $20,795 a year working at his own business as an automobile mechanic; after paying taxes, the Peppers have a net monthly income of $1,537.75, which is well short of their monthly expenses of $2,289.
The Peppers do not have an individual savings account. They hold in their names, as parents of their older son, Tyler, age 10, a savings account worth about $18,000, which is designated as his college fund. They have an account in Travis’s name containing about $1,700, comprised of gifts given to him. Mr. and Mrs. Pepper each hold about $9,000 in individual retirement accounts, which represent the only retirement funds they have available.
According to the materials set forth in the proffer, Mr. Pepper’s income and the combined savings of the Peppers are insufficient to pay for all of Travis’s future medical needs. The child has limited vision, severe cerebral palsy, partial motor paralysis of all four limbs, brain damage, severe mental and motor retardation, and spasticity. He cannot stand or sit up without assistance. In fact, he requires assistance with all of his activities of daily living.[15]
The Appellate Court of Maryland held that the trial judge erred in precluding evidence of medical expenses for consideration by the jury based on the proffers made, however, the extent of the proffer and the intrusion into the parents’ and family’s income and assets was substantial.[16] This extensive invasion of the parents’ financial situation, which is not normally discoverable or admissible, would not be required if Maryland law recognized that the child has an absolute right, separate and apart from his or her parents, to recover pre-majority medical expenses for injuries inflicted on the child by negligent tort-feasors.
Maryland’s Pepper exception differs from the jurisprudence of other state courts. While Maryland’s Pepper exception creates a potential windfall for negligent tortfeasors based solely on the action or inaction of a third-party, i.e., the parents, to the sole detriment of the injured child, other states have recognized that an injured child should not be punished twice – once for the negligence of the tort-feasor and again for the intentional or unintentional delay of his or her parents. For example, in Alabama and Pennsylvania, while the parents have a right to seek pre-majority medical expenses on behalf of their child in tort litigation, the failure of the parents to do so within the parental statute of limitations does not bar the child from seeking those same pre-majority medical expenses if the child institutes tort litigation on his or her own after the parental statute of limitations has expired but during the child’s statutory window for filing suit.
In Alabama, Section 6-5-482 of the Alabama Code describes the limitations for claims under the Alabama Medical Liability Act. The statute, in pertinent part, reads as follows:
All actions against physicians, surgeons, dentists, medical institutions or other health care providers for liability, error, mistake or failure to cure, whether based on contract or tort, must be commenced within two years next after the act or omission or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act…
There are thus three separate limitations: first, the two-year limitation commencing at the time of the negligent act or omission; second, a short six-month limitation commencing on the date of the discovery of the negligent act or omission; and third, an absolute four-year period of repose that commences on the occurrence of the act or omission giving rise to the claim. An exception to this four-year repose is provided in Alabama Code § 6-5-482(b): “except, that in the case of a minor under four years of age, such minor shall have until his eighth birthday to commence such action.”
Alabama law presently provides that a father or mother (if they are lawfully living together as husband and wife), shall have an equal right to commence an action for an injury to their minor child, a member of the family, under § 6-5-390, Code of Alabama (1975). The plaintiff parent, in a claim for injuries to a minor child, can recover for loss of the child’s services and for medical expenses incurred in treating the injuries.[17] As observed in Cabaniss v. Cook,[18] however, the minor himself may recover these damages in certain circumstances. A minor, suing by his or her next friend, may recover medical expenses.[19] Of course, a defendant could not have double exposure for the same medical expenses, and, according to Cabaniss v. Cook, where a father, acting as next friend of the minor, brings suit for the minor child, he “waives” in the child’s favor the father’s right to recover the expenses of medical treatment and loss of services, and he is thereafter “estopped” to claim them in a separate suit.[20] The pertinent language from Cabaniss v. Cook is as follows:
We are faced, on this appeal, with a case of first impression in Alabama. It is the general rule in Alabama that a father, in an action to recover for injuries to a minor child, may recover for loss of the child’s services and for medical expenses incurred in treating such injuries.
Alabama recognizes, however, that the minor child himself may recover these damages in certain circumstances. Thus, it has been held that where the minor is emancipated, he may recover for lost wages. Likewise, a minor, suing by his or her next friend, may recover medical expenses. A judgment against the defendant for such medical expenses would protect him against any other possible suit for the same damages.
…
It is, therefore, that we hold that where, as here, the father, acting as next friend of the minor, brings suit for his minor child, he “waives,” in the child’s favor, his right to recover the expenses of medical treatment and the loss of services, and he is thereafter “estopped” to claim them in a separate suit.[21]
Under Alabama law, the minor has an independent right to recover pre-majority medical expenses, regardless of any parental delay under the general parental statute of limitations.
Likewise, under Pennsylvania Law, personal injury to a minor gives rise to two separate and distinct causes of action – one, the parents’ claim for medical expenses and loss of the minor’s services during minority, and the other, the minor’s claim for pain and suffering and for losses after minority.[22] The two-year statute of limitations on a minor’s independent cause of action that accrues before the age of 18 is tolled until the minor turns 18.[23] Accordingly, the limitations period for a minor’s claim is measured from the time the minor turns 18 irrespective of when the claim accrues.[24] Even though the statute of limitations is tolled, a parent or guardian may still commence an action on behalf of a minor at any time after it accrues.[25] Such an action does not affect the limitations period; it remains suspended until the minor turns 18.[26]
The minority tolling provision in Pennsylvania, however, did not apply to the parents’ non-derivative claim for medical expenses and loss of the minor’s services during minority.[27] Accordingly, the limitations period for the parents commenced when the minor’s cause of action accrues.[28] Based on these principles, the parents’ claims for medical expenses that a minor will incur during the period of time before he turns 18 was statutorily time-barred unless filed within two years of accrual.[29]
Traditionally, Pennsylvania courts had held that the right to recover medical expenses a minor incurs before the age of 18 accrues only to the parents, and the minor could not independently recover those expenses.[30] The Superior Court ruled in Czimmer, however, that “the common law doctrine prohibiting a minor from recovering damages for medical expenses incurred before age 18 is no longer viable.”[31] The Czimmer Court held:
The common law doctrine rested on the premise that parents, specifically fathers, were solely responsible for the support of minors, including medical expenses, and minors were the property of their fathers until turning 18. The common law rule was motivated by a desire to allow the party who actually suffered the damages, i.e., the parents with a support obligation, to recover for the loss caused by a tortfeasor, and to prevent double recovery by both the parents and the minor for the same expenses. However, as the Commonwealth Court in Shaffer–Doan explained, the development of the law and legislation has come to recognize that the cause of action to recover pre-majority medical expenses belongs to both the parents and the minor.
…
Thus, we conclude the minor has an independent right to recover medical expenses incurred before turning 18, as long as the parents do not duplicate the claim. We base our conclusion on the primary public policy that a tortfeasor should be responsible for the harm its tortious conduct causes. We cannot discern any reason to allow a tortfeasor to avoid penalty based on the failure of the minor’s parents to bring a timely action. This is an unwarranted windfall in favor of a responsible tortfeasor due to a victim’s age.[32]
In Pennsylvania, the minor therefore has an independent right to recover medical expenses incurred before turning 18, if the parents do not duplicate the claim. Alabama and Pennsylvania, along with other states with similar jurisprudence, currently provide greater protection for child victims of negligent conduct than Maryland.
Maryland’s Pepper exception to the recovery of pre-majority medical expenses on behalf of a minor when suit is filed after the expiration of the parental statute of limitations has been in place for over 25 years.[33] Generally, an injured minor in Maryland does not have a cause of action for his pre-majority medical expenses.[34] This holding arises from the fact that parents have a legal responsibility to care for their children through the age of majority.[35]
Thus, when a child is injured, the claim for pre-majority medical expenses is one that typically vests with the parents. The law in Maryland is that there are four exceptions under which a minor may have a cause of action to recover his medical expenses: (1) when the minor child has paid or agreed to pay the expenses, (2) when the minor child is legally responsible for payment, such as by reason of emancipation, or the death or incompetency of his parents, (3) when the parents have waived or assigned their right of recovery in favor of the minor child, or (4) when recovery of expenses is permitted by statute.[36]
Given the state of the law, the Pepper court explained that the minor child can make a claim for pre-majority medical expenses, but only after pleading and proving that the child’s parents are unable or unwilling to pay for those pre-majority expenses. When this situation arises, it creates a “case within a case” on a collateral issue where the minor child has the burden of proving that his parents are unable or unwilling to pay, creating a line of inquiry into the details of the parents’ financial situation which would otherwise not be discoverable or admissible. It also requires a subjective determination by a judge or a jury in order to answer the question of whether the parents are, in fact, unable or unwilling to pay. This inquiry might be answered in a way that is detrimental to the child’s recovery due solely to the child’s age at the time the case was filed.
Other states, including both Alabama and Pennsylvania, recognize that an innocent victim of negligent conduct should not be punished by the inaction of his or her parents. Both states, and other states who share similar jurisprudence, recognize that two of the main purposes of the tort system are (1) to make the victim of the negligence “whole” again and (2) to deter tort-feasors from future negligent conduct by holding them fully accountable for the full magnitude of the harms they’ve inflicted. Maryland must do the same. Maryland’s current system of putting the onus on the child to prove that his or her parents are unable or unwilling to pay for their pre-majority medical expenses benefits negligent tort-feasors in Maryland. This windfall is not due to any overriding public policy considerations but is merely a relic of times past, when children were seen under common law as the property of their fathers until they reached the age of 18. Injured children in the State of Maryland should not be potentially disadvantaged by their parents’ failure to bring a claim within the parental statute of limitations. It is time for practitioners to reject Maryland’s current state of the law and advocate for judicial or legislative abrogation of the current prohibition against recovery of pre-majority medical expenses by minors:
I am unable to accede to this statement of the law…Public policy, I think, is more concerned in the protection of individual rights than in the profits to inure to individuals by the invasion of those rights… Of course, great interests should not be overthrown on trifling or frivolous grounds, as where the maxim 'de minimis non curat lex’ is applicable; but every substantial, material right of person or property is entitled to protection against all the world.[37]
:
Kieran Murphy is partner at Bertram & Murphy, with a practice focused on representing victims of birth injuries, neonatal injuries, and medical malpractice. Kieran has extensive courtroom experience and has handled trials and oral arguments before trial and appellate courts as sole counsel numerous times throughout his career. Despite being a young attorney, Kieran is regularly commended by judges and opposing attorneys for his courtroom demeanor, his trial presentation, his preparation, and his cross-examination skills. Throughout his career, Kieran has been asked by judges and fellow attorneys to consult and present on issues related to the rules of civil procedure and the rules of evidence.
[1] Pepper v. Johns Hopkins Hosp., 111 Md. App. 49, 61, 680 A.2d 532, 538 (1996), aff'd, 346 Md. 679, 697 A.2d 1358 (1997) (citing Garay v. Overholtzer, 332 Md. 339, 346, 631 A.2d 429 (1993)).
[2] Id. (citing Garay at 367, 631 A.2d 429).
[3] Pepper at 61–62, 680 A.2d at 538 (citing Garay at 366, 631 A.2d 429 (footnote omitted)).
[4] Id. (citing Garay at 366–67, 631 A.2d 429).
[5] Maryland Code (1984, 1991 Repl. Vol.), § 5–203(b) of the Family Law Article.
[7] Pepper at 62–63, 680 A.2d at 538–39 (citing Garay at 369, 631 A.2d 429).
[8] Pepper at 62–63, 680 A.2d at 538–39 (citing Kennedy v. Kennedy, 55 Md. App. 299, 462 A.2d 1208 (1983)).
[9] Pepper at 62–63, 680 A.2d at 538–39 (citing Garay at 371, 631 A.2d 429).
[10] Pepper at 62–63, 680 A.2d at 538–39 (citing Garay at 374, 631 A.2d 429).
[11] Pepper at 62–63, 680 A.2d at 538–39.
[12] Pepper at 62–63, 680 A.2d at 538–39.
[13] Pepper at 62–63, 680 A.2d at 538–39.
[14] Pepper at 64, 680 A.2d at 539.
[15] Pepper at 64, 680 A.2d at 539–40.
[16] Pepper at 68, 680 A.2d at 541.
[17] Cabaniss v. Cook, 353 So. 2d 784 (Ala. 1977); Smith v. Richardson, 277 Ala. 389, 171 So. 2d 96 (1965); Franklin v. Georgia Casualty Co., 225 Ala. 58, 141 So. 702 (1932); Williston v. Ard, 611 So. 2d 274 (Ala. 1992) (insufficient evidence of value of child’s services); see Clark v. Black, 630 So. 2d 1012 (Ala. 1993) (suggesting that the jury instructions given may have been misleading and should have stated because the plaintiff is a minor, the law requires that his claim be brought by and through an adult as next friend, in this case, his parents acting as next friends, in order to make it clear to the jury that any award in a minor’s case belongs to the minor for his injuries and damages and that any damages to which the parents are entitled (such as medical expenses in this case) must be included in the parents’ award); 1 Alabama Pattern Jury Instructions Civil Nos. 11.24, 11.26, 11.27 (3d ed. 2020).
[18] Cabaniss v. Cook, 353 So. 2d 784 (Ala. 1977).
[21] Id. at 785–87 (internal citations omitted).
[22] Czimmer v. Janssen Pharm., Inc., 2015 Pa. Super 175, 122 A.3d 1043, 1060 (2015) (citing Bowmaster ex rel. Bowmaster v. Clair, 933 A.2d 86, 88 (Pa. Super. 2007)).
[23] Id.; see also 42 Pa. C.S.A. §5533(b)(1)(i)–(ii).
[24] Czimmer at 1060–1061.
[27] Czimmer at 1060–1061.
[28] Id. (internal citations omitted).
[29] 42 Pa. C.S.A. 5524(2).
[32] Id. at 1063–1064 (internal citations omitted) (emphasis added).
[34] See Garay at 367, 631 A.2d 429 (parents possess the exclusive right to recover a minor's pre-majority medical expenses).
[35] See Md. Code (1984, 1991 Repl. Vol.), § 5-203(b) of the Family Law Article.
[37] McCleery v. Highland Boy Gold Mining Co., 140 F. 951, 952–53 (C.C.D. Utah 1904).
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