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Articles Posted in Wrongful Death

The first question that must be answered in any Cape Cod wrongful death or personal injury lawsuit is, “Did the defendant owe a duty of care to the plaintiff?” The answer to this inquiry can be impacted by state statutes, existing case law, local ordinances, the particular facts of the case, the relationship between the parties, and various other matters.

If the defendant did owe a duty of care to the plaintiff, the next step is to determine whether the duty was breached. If it was, then the issue turns to the question of causation and, then, damages. Only if the defendant owed the plaintiff a duty of care, breached that duty, and thereby proximately caused legal damages to him or her may the case be resolved in the plaintiff’s favor.

If the answer to the duty question is “no,” the case ends there – unless the trial court’s judgment is appealed, of course. Then, a higher court may take a look at the case to determine whether a mistake was made in the lower tribunal. Only if the appealing party can convince the appellate court that a reversible error was made will there be a reversal of the lower court’s decision and a reinstatement of the plaintiff’s complaint.

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When someone is injured by another’s breach of the duty of due care, he or she has a right to file a negligence claim seeking compensation from the responsible party for his or her personal injuries. This includes payment for medical expenses, lost earnings, pain and suffering, and other damages.

A Massachusetts wrongful death action may lie when a person is killed by another’s negligence. These suits are typically brought by the personal representative of the victim’s estate, acting on behalf of the beneficiaries enumerated under the state’s wrongful death statute, and, if successful, may result in the awarding of different elements of damages than would have been available in a personal injury lawsuit filed by the victim. The state’s highest court recently clarified the relationship between these two types of claims.

Facts of the Case

In a recent case, the plaintiff was the personal representative of a man who died in a scuba diving accident in 2014. The plaintiff filed a lawsuit against the defendants, the manufacturer of the decedent’s dry suit, the person who supplied the decedent’s diving equipment, and the dive leader, seeking to assert a wrongful death claim under Massachusetts General Laws ch. 229, § 2. The plaintiff settled her case against all defendants except the dive leader. Thereafter, the dive leader filed a motion for summary judgment, relying upon a release and covenant not to sue that the decedent signed prior to his death. The trial court granted the motion, and the plaintiff appealed. The Massachusetts Supreme Judicial Court transferred the case from the intermediate appellate court on its own initiative.

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More and more often, defendants in Cape Cod wrongful death and personal injury lawsuits are attempting to circumvent the traditional litigation process in cases charging them with negligent or reckless conduct. Of course, this tactic is more common in certain scenarios than in others. For example, in nursing home negligence cases, defendant care facilities often rely on clauses agreeing to arbitration – usually signed along with other paperwork when the patient was admitted to the nursing home – in their quest to avoid the courthouse. A recent case addressed the question of whether or not such an agreement was enforceable against the wrongful death beneficiaries of a deceased patient on whose behalf such an agreement had been signed.

Facts of the Case

In a case recently ruled upon by the Supreme Judicial Court of Massachusetts, the plaintiff was the personal representative of her mother’s estate. Prior to her mother’s admission into the defendant nursing home, the plaintiff signed an arbitration agreement on her mother’s behalf (the plaintiff had power of attorney for the mother). After the mother passed away in 2013 due to the defendant’s alleged negligence, the plaintiff filed a wrongful death lawsuit in state court against the defendant, seeking monetary compensation for her mother’s death. The defendant insisted that the Federal Arbitration Act barred the plaintiff’s lawsuit.

The defendant filed suit in federal court. On appeal from a federal district court’s order compelling arbitration, the United States Court of Appeals for the First Circuit certified two questions to the state’s highest court pursuant to Massachusetts Supreme Judicial Court Rule 1:03. One of those questions pertained to whether the Massachusetts wrongful death statute, which was codified at Massachusetts General Laws ch. 229, § 2, provided rights to statutory beneficiaries’ derivative of, or independent from, what would have been the decedent’s own cause of action.

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Not every bad result in an operating room or emergency treatment center results in a finding of medical negligence. After all, some patients have medical conditions that may not respond to treatment, and some have diseases or injuries for which there is no cure.

However, if a particular patient could have been saved through the exercise of reasonable medical care but, instead, dies because the treating physician’s care fell below the standard of competency for doctors who regularly perform such procedures, a Cape Cod medical malpractice lawsuit may be possible. An attorney who practices in this area will need to review the facts of your loved one’s particular case in order to determine whether there is a reasonable chance for success on the merits before going forward with the case.

Facts of the Case

In a recent case, the plaintiff was the surviving spouse and personal representative of a woman who died after undergoing surgery for treatment of a hiatal hernia in her diaphragm. The plaintiff brought a medical malpractice wrongful death lawsuit against the defendants, a doctor, a nurse, and the professional corporation for whom they worked, alleging that defendants’ treatment of the decedent fell below the standard of care for an average qualified surgeon and nurse and that this breach of care was a substantial factor in the decedent’s death. The defendants answered that the decedent died as a result of longstanding damage to her heart caused by her hiatal hernia rather than from any alleged negligence committed by them.

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When a defective product causes injury or death to a consumer, the consumer (or his or her family) may be able to recover a settlement or judgment against the company that made the product. In some situations, the wholesaler and or seller may also be liable. There are several different legal theories upon which the consumer may rely on in a Cape Cod products liability lawsuit. These theories include (but are not necessarily limited to) design defect, manufacturing defect, strict liability, failure to warn, and breach of warranty. It is important that a person who has been hurt by a dangerous product get legal advice in a timely fashion, lest his or her claim become time-barred under state products liability laws.

Battery Banks Recalled

Most of us rely heavily on our cellphones these days, and a dead battery can disrupt not only our entertainment but also our ability to communicate and, when we are traveling, navigate. Portable power banks have become very popular, as we often need additional battery power to get us through a long day or a weekend trip. Unfortunately, power banks are not without risk. Recently, the United States Consumer Product Safety Commission (CPSC)  issued a recall of certain 10,000 mAh power banks because the banks’ battery may overheat and cause a fire. Consumers are advised to stop using the recalled products immediately.

Interestingly, these banks are not associated with a particular brand. Rather, they may contain a company logo on the front and or back of the product. This is because they were distributed as promotional items at meetings or other events rather than sold directly to the public. If you have suffered a fire or a burn caused by one of these banks or another lithium-ion battery product, you may be able to seek compensation via a products liability claim against the manufacturer of the device.

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In a Massachusetts wrongful death lawsuit, there are likely to be many issues. If the loved one’s death was caused by an act of negligence, some of these issues will include duty, breach of duty, causation, and damages.

For a plaintiff to be successful on the merits of his or her case, he or she must provide convincing, competent, and legally admissible evidence on each of these issues. Unfortunately, simply offering testimony from witnesses may not be enough, as there are rules of evidence that determine what is, and what is not, legally admissible in court. In some situations, an appellate court may be called upon to determine whether these matters were ruled upon properly during the trial of a wrongful death lawsuit.

Facts of the Case

In a recent case, the plaintiff was the personal representative of the estate of man who died in a car accident. The plaintiff filed a wrongful death lawsuit against the defendants, seeking to recover compensation for the loss of his decedent. The case was tried to a jury. The plaintiff was dissatisfied with the jury’s verdict and filed a motion for a new trial. The trial court denied the plaintiff’s motion, and he appealed.

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Under the common law, the “king could do no wrong” – and hence was not subject to a finding of liability in court for negligent or reckless conduct. In modern times, the concept of sovereign immunity can apply to a government, just as it did to a monarchy. Citizens still do not have the “right” to sue a city, state, or even the federal government under the principles of sovereign immunity.

However, most governmental entities have passed laws that allow themselves to be sued, at least in some circumstances. However, there are almost always limitations on such suits, including those involving a Cape Cod wrongful death claim.

Facts of the Case

In a recent unreported case, the plaintiff was a special administratrix who filed suit against the defendant city public health commission, asserting a cause of action for wrongful death and failure to supervise and/or train employees. According to allegations in the plaintiff’s complaint, the decedent was placed into an ambulance that was under the control of the defendant commission after staff members at an inn called 911 and reported that the decedent was experiencing suicidal thoughts. The defendant reportedly disregarded its usual practice of driving a suicidal patient to the hospital with a police escort; when the defendant’s employees opened the ambulance door, the decedent ran into the street, laid down, and was killed by a motor vehicle moving through traffic.

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In a Massachusetts negligence action seeking compensation for personal injuries or a loved one’s wrongful death, the plaintiff must prove several things in order to prevail at trial. First and foremost, the plaintiff must be able to show that a duty existed between him or her and the defendant.

If the plaintiff can show that the defendant breached this duty and that, as a proximate result, he or she suffered damages, he or she may be able to recover payment for medical costs, lost wages, pain and suffering, and other associated expenses.

However, if the court does not agree that a duty of some sort existed between the parties, the plaintiff’s case will fail.

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Those who have lost a loved one to the negligence of another person, a business, or a governmental entity should be aware that there is a finite amount of time for filing a Massachusetts wrongful death claim. Not only does the plaintiff’s lawsuit need to be filed by a certain date, he or she also has a limited amount of time in which to serve the defendant with a copy of the complaint.

While there are a few, very limited exceptions to the requirements of the statute of limitations and service of process rules for such claims, almost all untimely claims are dismissed by the courts.

Thus, it is important to talk to an attorney as soon as possible if you believe that your loved one died due to another’s negligence.

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Dealing with an insurance company while seeking fair compensation for personal injuries or a loved one’s wrongful death can be extremely frustrating, especially for someone who has not yet retained counsel. Even when attorneys are involved, however, the insurance company may still hold tightly to its purse strings, refusing to offer a settlement that the plaintiff and his or her counsel believe is reasonable.

Under Massachusetts wrongful death law, there are consequences for insurance companies that refuse to negotiate claims in good faith, as well as for those that engage in unfair or deceptive acts. However, defining what is or is not good faith in a given situation can be even more contentious that the claim itself.

Facts of the Case

In a recent case, the plaintiff was the administrator of the estate of a woman (his deceased mother) who allegedly perished as a result of the negligence of a certain nursing home. The plaintiff filed a wrongful death lawsuit against the nursing home, and the case proceeded to trial. The jury found in favor of the plaintiff, and the trial court entered judgment upon a multi-million dollar verdict in favor of the plaintiff, finding that the nursing home was liable to the plaintiff for his mother’s wrongful death and her conscious pain and suffering. Continue reading

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