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Articles Posted in Negligence

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If you believe that you or someone in your family has been hurt by the negligence of a doctor, hospital, or other health care provider, you probably have several questions. “How do I file a claim?” “How do I prove my case?” “If I win, how much will the judgment be?”

Another important question – sometimes overlooked by those who are not familiar with the civil justice system – is, “How long do I have to file a Cape Cod medical malpractice lawsuit?” Generally speaking, the answer to this question is “three years.” However, calculating the exact date that a claim becomes time-barred can sometimes be difficult. This is because determining the date that the claim begins to run (and the three-year clock begins to tick) is not always simple.

Facts of the Case

In a recent (unreported) case, the plaintiff was a man who claimed that he suffered an injury to his urethra due to a nurse’s negligent catheterization of him when he was a patient at the defendant hospital in October 2009. The plaintiff was reportedly told that he might urinate blood for a short while but that the bleeding would stop soon. The plaintiff not only had bloody discharge in his urine, but also he experienced painful urination that lasted for several years. However, he did not return to the defendant hospital for further medical treatment until June 2012. According to the plaintiff, he suffered from post-traumatic stress disorder and a phobia that made him fearful of seeking medical attention.

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All Massachusetts personal injury and wrongful death cases are subject to strict filing deadlines called “statutes of limitation.” Cases not filed within the time set forth by these statutes are almost always dismissed on procedural grounds.

It is important to note that, in some cases, there may be other deadlines – sometimes, much shorter deadlines – in addition to the general statute of limitations. Again, failure to act within the required time period can be fatal to a plaintiff’s case.

One example of this is a claim against a city or municipality. In these cases, at least some type of minimal legal action (such as the giving of notice) must be taken within a matter of days, or else the plaintiff will be barred from monetary recovery against the responsible governmental entity.

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Most Massachusetts personal injury lawsuits proceed in a back-and-forth fashion reminiscent of a tennis match. The plaintiff serves his or her complaint on the defendant, and then the defendant responds by filing an answer.

The parties then file discovery requests, to which the opposing party files an answer. Motions may be filed, with responses thereto filed by the other side. Eventually, if the case is not settled, a trial is held, with more back-and-forth exchanges between the plaintiff and the defendant.

Sometimes, however, a defendant may not conduct his or herself in the usual manner, potentially leading to a default judgment – a judgment declaring that the plaintiff is entitled to relief because the defendant has failed to file an answer denying the allegations in his or her complaint.

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Massachusetts medical malpractice law requires that a party who is seeking to assert a claim of negligence against a health care practitioner provide proof of his or her claim before a malpractice review tribunal before his or her case can proceed to a regular court of law.

If the tribunal does not find enough evidence for the case to continue, the plaintiff does have an “out,” in that he or she can post a bond. If this is not economically feasible, the plaintiff also has the option of appealing the tribunal’s decision to the appellate court for further review.

Facts of the Case

In a recent wrongful death case considered by the Massachusetts Appeals Court, the plaintiff was the personal representative of the estate of a 29-year-old woman who died while under the care of the defendant doctors and others. The decedent presented herself at the hospital when she was 38 1/2 weeks pregnant, complaining that she was in labor. She was in good health and had given birth two two children previously. She died at the hospital some 25 hours later.

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When someone loses a loved one due to the negligence of an individual, business, or governmental entity, he or she should consider discussing the possibility of a wrongful death lawsuit with a qualified Massachusetts civil litigation attorney. It is important that this be done in a timely manner in order to comply with the statute of limitations for such claims.

Sometimes, there can be other considerations, as well, such as happened in a recent case involving a woman who allegedly passed away due to a nursing home’s negligence. In that case, the personal representative of the woman’s estate found herself as the defendant in a federal lawsuit brought by the nursing home, which alleged that the woman’s claim had to be arbitrated instead of being brought in the court system.

Facts of the Case

The defendant in a recent federal appellate court case was the daughter and personal representative of the estate of a woman who died in 2013 while in the care of a nursing home owned and operated by the plaintiffs. The defendant, acting as personal representative of her mother’s estate, filed a wrongful death lawsuit against one of the plaintiffs in a Massachusetts state court in 2016. According to the defendant’s state court complaint, she brought suit “on behalf of the heirs of the decedent.”

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Filing a Cape Cod medical malpractice lawsuit is a multi-step process. Unlike other types of negligence cases (such as those stemming from car crashes or slip and fall accidents), a plaintiff must first present his or her proof to a reviewing board. If this tribunal does not find that the plaintiff has presented sufficient evidence so as to warrant a trial, his or her case will be dismissed unless a bond is posted.

However, the tribunal’s decision is reviewable by the courts, and sometimes such the tribunal’s decision is reversed on appeal.

Facts of the Case

In a recent (unreported) Massachusetts Appeals Court case, the plaintiff was the personal representative of the estate of a man who allegedly died due to the negligence of the defendants, two hospitals and several doctors. The plaintiff presented her case to a medical malpractice tribunal, which ruled that there was not enough evidence to raise a legitimate issue of liability as to four of the physicians or as to one of the hospitals. The plaintiff did not post the bond required under Mass. Gen. Laws ch. 231, § 60B, and thus the trial court dismissed her case as to those defendants. She appealed.

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If you are hurt because of a slip and fall-type accident in or around Cape Cod, do you know how long you have to file a claim against the negligent party who caused the condition that led to your fall? You may think you know, but, chances are, you only know part of the answer to this important question.

Generally speaking, there is a three-year statute of limitations for personal injury and wrongful death claims in Massachusetts. However, there may be additional considerations that could shorten the effective time for taking legal action to a much shorter time – perhaps even a matter of days rather than a matter of years.

For example, for claims against governmental entities for injuries caused by a “defective way,” an injured person has just 30 days to filed a formal notice of claim (a precursor to a lawsuit filed in court) with the appropriate entity under Massachusetts Gen. Laws ch. 84, §§ 15, 18. If this formal notice is not given, the defendant will most likely be able to have the plaintiff’s lawsuit dismissed later on – even if the suit itself is filed within the general three-year statute of limitations.

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Each year, hundreds of Massachusetts residents lose their lives in automobile accidents, and tens of thousands more are injured. If you or a family member has recently been involved in a Cape Cod car accident, there are several things that you should know. Having the right information at the right time can go a long way toward making sure that you receive fair compensation for your injuries (or, in the case of a fatal crash, for your loved one’s wrongful death).

Getting Started on a Claim

The first thing to know about seeking fair compensation following a Cape Cod motor vehicle accident is that the burden of proving fault lies on the plaintiff (the person seeking payment for medical expenses, lost wages, property damage, etc.) This means that the plaintiff must file a civil claim against the responsible party within the period set forth by the Massachusetts statute of limitations for personal injuries or wrongful death. (It is possible that the defendant may be charged criminally due to an accident, but this is a separate matter that, typically, does not involve the injured individual.)

While it is possible for a car wreck litigant to represent himself or herself in court in a civil lawsuit seeking compensation for injuries suffered in an accident, this is not advisable. The defendant’s insurance company will hire an attorney to represent the defendant in court, and the plaintiff will need skilled legal representation during both pre-trial settlement negotiations and during litigation, if the case proceeds to trial.

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Naturally, some Cape Cod automobile accident cases are more complex than others. Still, a case reviewed early this month by the Massachusetts Court of Appeals stands out as unusually protracted. Although the facts of how the accident happened were straightforward enough (a pedestrian was struck by a car while crossing the street), a total of three lawsuits were ultimately filed.

Two complicating factors were that, in one action, the plaintiff was awarded more than four times the defendant’s liability insurance limits in damages and that, thereafter, the defendant filed for bankruptcy protection.

Facts of the Case

In a recent appellate court case, the plaintiff in an earlier action was a pedestrian who was injured when she was struck by a certain motorist (named as the defendant in that action). The case proceeded to a jury trial and resulted in a determination that the defendant was 65% at fault. The plaintiff was awarded $414,500 in damages after deduction of personal injury protection benefits previously received. The defendant’s insurance company paid policy limits of $100,000.

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As the holiday season winds down, many Massachusetts residents may be planning to begin the new year with the resolution of healthier eating – fewer starchy processed foods and more fresh fruits and vegetables. Usually, this would be a good plan.

Unfortunately, however, there have been several food contamination scares recently that could leave one wondering whether a new diet would indeed be best choice or whether eating “healthier” might end in a Massachusetts food poisoning lawsuit.

The Romaine Lettuce Recall

The United States Food & Drug Administration oversees the safety of the nation’s food supply. Often, this comes in the form of the recall of batch of foods (such as ground beef) processed within a few days time. With the recent romaine lettuce situation, however, the warning (first issued in late November) was much broader. Consumers were urged not eat any romaine lettuce and to throw out any such food product until more information was obtained by the FDA.

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