Understanding your claim · Alan J. Belsky
A serious injury and another person’s mistake do not answer every legal question. The injured person’s conduct, knowledge of a danger, and proof that negligence caused the claimed harm can determine whether compensation is available.
Contributory negligence versus comparative fault
Comparative fault generally apportions responsibility: a claimant’s damages are reduced according to the claimant’s share of fault. Pure systems permit recovery despite a high percentage of claimant fault; modified systems impose a cutoff. The applicable jurisdiction’s rules matter.
Maryland and the District of Columbia generally follow contributory negligence instead. In an ordinary negligence claim, a claimant’s own failure to exercise reasonable care can bar recovery entirely if it proximately contributed to the injury. A defendant need not show that the claimant was mostly responsible.
For example, a finding that the defendant was predominantly at fault does not necessarily protect a Maryland claimant whose own negligence also contributed to the collision. This is why the sequence of events, photographs, witnesses, and the injured person’s actions deserve close review.
In Coleman v. Soccer Association of Columbia (2013), Maryland’s high court retained contributory negligence. The jury found negligence on both sides, and the claimant recovered nothing. The effect can be harsh. Defenses and exceptions, including last clear chance where its requirements are satisfied, need case-specific analysis.
An important D.C. collision exception
D.C. law limits this defense for covered pedestrians and vulnerable users of public highways or sidewalks in specified collisions. Under D.C. Code §50–2204.52, their negligence does not bar recovery unless it proximately caused the injury and exceeds the combined negligence of all defendants who proximately caused it. The statute covers specified collisions involving motor vehicles, other vulnerable users, or pedestrians. It does not replace contributory negligence for every D.C. injury claim.
Do not assume that being blamed by an insurer ends your case—or that a small share of fault merely reduces compensation. Review the evidence and the law governing the particular claim.
Assumption of the risk: knowing and accepting a danger
Assumption of the risk concerns knowingly and voluntarily encountering a particular danger. In Maryland, the defense requires knowledge of the risk, appreciation of it, and voluntary exposure. It can bar recovery even when the choice to proceed was otherwise reasonable. Contributory negligence instead focuses on a failure to use reasonable care.
Walking on ice
Someone who sees an icy surface, understands the slipping danger, and freely chooses to cross it may face an assumption-of-risk defense. But a winter fall is not automatically barred. Hidden ice, the person’s actual knowledge, available alternatives, and whether the choice was voluntary can change the analysis.
In Poole v. Coakley & Williams Construction (2011), Maryland’s high court rejected summary judgment based on assumption of risk where knowledge of black ice beneath running water was disputed. General awareness of cold weather did not resolve whether the particular danger was known and appreciated.
Sports participation and attendance
A participant who understands and voluntarily accepts ordinary contact or another familiar danger of a sport may face this defense. Attendance can also involve known risks, such as a ball entering spectator seating. Participation or attendance does not establish acceptance of every possible hazard; the specific risk, the person’s knowledge, and how the injury occurred must be examined.
D.C. also distinguishes voluntary acceptance of a known risk from unreasonable conduct. Its courts caution against treating the two defenses as interchangeable. Phillips v. Fujitec America (2010) discusses that distinction and spectator-sport risks.
Failure to diagnose and loss of a chance of survival
A delayed cancer diagnosis may reduce the prospect of successful treatment. Maryland nevertheless does not recognize loss of a chance of survival as a substitute for the traditional causation requirement in wrongful-death and survival claims. That can produce outcomes patients and families understandably find unfair.
Wadsworth v. Sharma (2022) reaffirmed the holdings of Weimer and Fennell. A wrongful-death claimant must establish that negligence more likely than not caused the death; showing that negligence destroyed a substantial possibility of survival is insufficient by itself. The distinction is especially important when the patient’s chance of surviving the underlying condition was 50% or less before the alleged negligence.
Why survival percentages need careful explanation
| Illustration | What the percentages do—and do not—show |
|---|---|
| 55% before the error; 49% afterward | The patient initially had a better-than-even prospect. Crossing below 50% may be relevant evidence, but does not automatically prove that the error caused the eventual death. |
| 90% before the error; 51% afterward | The decline is substantial. Remaining above 50% does not automatically defeat a claim. The injury alleged, actual outcome, and expert causation evidence remain essential. |
| 49% before the error; a much smaller chance afterward | Maryland’s rejection of a separate loss-of-chance remedy presents a substantial obstacle where the claim depends only on losing that chance, rather than proof that negligence probably caused the claimed injury. |
The percentage chance of survival is not the same question as the probability that negligence caused an actual injury. There is no automatic recovery whenever a prognosis crosses from 51% to 49%, and no automatic defense whenever it remains above 50%.
In Marcantonio v. Moen (2008), the court reversed summary judgment because expert evidence created a factual dispute about whether delayed diagnosis probably caused the patient’s death. The patient’s chance of survival before the alleged negligence exceeded 50%; the court treated the claim as traditional causation, rather than a claim for loss of a chance alone.
Review requires the records, disease stage and biology, available treatment, relevant survival period, and qualified expert opinions. A general survival statistic cannot establish one patient’s claim. Separate harm—such as additional treatment, expense, or pain caused by a delay—also requires its own causation and damages analysis.
Maryland caps on noneconomic damages
Noneconomic damages compensate for harms without a direct price tag: pain, suffering, disfigurement, physical impairment, and loss of companionship. Economic damages address financial losses, such as medical expenses and lost earnings. The noneconomic caps do not impose the same ceiling on proven economic losses, although other rules can limit recovery.
General personal injury claims
Courts and Judicial Proceedings §11–108 governs the ordinary personal-injury cap. It increases by $15,000 each October 1. For causes of action arising October 1, 2025–September 30, 2026, the base cap is $965,000; for October 1, 2026–September 30, 2027, it is $980,000. The personal-injury limit covers the direct victim and persons claiming through that victim.
Medical malpractice claims
Section 3–2A–09 uses a different formula. The cap increases by $15,000 each January 1; the base limit for causes of action arising during 2026 is $920,000. It applies collectively to personal-injury and wrongful-death claims arising from the same medical injury, regardless of the number of defendants or claimants. Adding providers does not multiply the cap.
| Type and period | Base noneconomic limit | Wrongful death with two or more beneficiaries |
|---|---|---|
| General injury: Oct. 1, 2025–Sept. 30, 2026 | $965,000 | $1,447,500 for wrongful death |
| General injury: Oct. 1, 2026–Sept. 30, 2027 | $980,000 | $1,470,000 for wrongful death |
| Medical malpractice: Jan. 1–Dec. 31, 2026 | $920,000 | $1,150,000 collectively for claims from the same medical injury |
The applicable date is when the cause of action arises—not simply the year a lawsuit is filed or tried. Identifying that date requires review of the injury and claim; older injuries may be subject to older limits.
What does “two or more beneficiaries” mean?
A wrongful-death beneficiary is a person legally entitled to seek compensation for the loss caused by the death. Under §3–904, qualifying relatives generally include the deceased person’s spouse, parents, and children, subject to statutory conditions and exclusions. If none qualify, a relative by blood or marriage who was substantially dependent on the deceased may qualify.
Examples include a surviving spouse and a child, or two surviving children. Being named in a will does not establish wrongful-death eligibility. The estate’s survival claim is separate and does not count as an additional family beneficiary.
The larger cap is a shared ceiling, not a separate allowance for each person. In general injury cases, two or more wrongful-death beneficiaries share a limit of 150% of the base cap. In medical malpractice, the collective limit becomes 125% of the base cap. Three or four beneficiaries do not further multiply it. Individual shares depend on the legally recoverable loss and the verdict.
Wrongful death and the estate’s survival claim
A survival claim concerns injuries and losses the deceased person sustained before death; wrongful death concerns the eligible relatives’ own losses. General negligence may permit separate capped awards for these claims. Medical malpractice instead combines claims from the same medical injury under its aggregate limit, including the 125% limit when the statutory multiple-beneficiary condition applies.
Why a verdict may exceed the amount recovered
Under both statutes, the jury is not told the cap. The court reduces a noneconomic award that exceeds the applicable limit. A headline verdict therefore may differ substantially from the resulting judgment. A cap is also not a guaranteed award or a prediction of settlement value.
The firm evaluates the financial losses, human harm, applicable cap, and other recovery restrictions together. These distinctions are especially important when a severe permanent injury produces substantial suffering but relatively limited economic losses.
Read about the firm’s medical malpractice review · Legal malpractice representation
Draft prepared for review October 11, 2026. General information only, not advice about an individual case. An inquiry does not establish representation or extend any deadline.