Wrongful Death

January 15, 2021

Massachusetts Woman’s Wrongful Death Suit Against City Due to Fire Truck’s Delay in Responding to Stabbing Dismissed on Appeal

There can be several different defendants in a Cape Cod wrongful death lawsuit. This can include individuals, businesses, and even governmental entities. While many of the same rules apply regardless of the identity of particular defendants, sometimes there must be a different approach to a certain defendant.

For instance, claims against the government proceed differently in many situations, as compared to cases involving only private citizens or businesses. Sometimes, the claims period is shorter, or notice must be given by a certain date. This can effectively mean that an injured person must act much more quickly when suing a governmental entity.

Also, the government may be immune from certain types of lawsuits. Even where a suit is allowed, there can be limitations on the amount of money damages that can be awarded to a claimant in some cases involving the government.

December 19, 2020

Massachusetts Family’s Medical Malpractice Case for Death of Loved One Dismissed on Multiple Grounds

By John C. Manoog III

The plaintiff in a Cape Cod medical malpractice case not only bears the burden of proof at trial, but he or she also has several obligations in the pre-litigation phase of the case. Generally, the first step is a careful review of the injured or deceased person’s medical records by an expert in the field of medicine at issue.

However, the inquiry does not end there. The expert must be prepared to give a formal opinion as to any deviations of care on the part of the patient’s treating physicians and how those deviations affected the patient. Ultimately, the expert may be called upon to defend those opinions in a court of law.

Because medical malpractice cases have several special requirements, it is important that the plaintiff be represented by experienced, highly qualified legal counsel. It is a given that the doctor, nurse, or hospital will have a team of legal professionals on his or her side of the case, and the plaintiff’s attorney must be prepared to wage a vigorous fight at trial, if necessary.

November 25, 2020

Contact a Product Liability Attorney in Massachusetts If You Are Hurt by a Defective Product During the Holidays

By John C. Manoog III

While the coronavirus pandemic will likely mean that everyone’s holiday season is at least a little bit different this year as compared to years past, there are some things that remain the same. Gifts will be exchanged. Special meals will be planned. Accidents, injuries, and illnesses will happen, possibly triggering a Cape Cod product liability lawsuit.

While not every product mishap will result in an injury or illness significant enough to trigger litigation, some, unfortunately, will. Fortunately, the law provides some protection against unreasonably safe products, provided that the consumer does his or her part to assert a claim in a timely fashion.

As in other types of personal injury litigation, the burden of proof in product injury cases is on the injured individual, so it is important that any evidence concerning the bad product be saved and preserved as possible evidence. Contacting an experienced product liability attorney is also a critical step in the process of receiving fair compensation for medical expenses, lost earnings, pain and suffering, and other damages caused by a defective product.

November 10, 2020

Massachusetts Court of Appeals Vacates Medical Malpractice Tribunal’s Dismissal of Case

By John C. Manoog III

There are many steps that must be completed in order to recover fair monetary compensation for injuries or wrongful death at the hands of a health care professional in Massachusetts. One of the first hurdles that must be crossed is making it past the decision of the medical malpractice tribunal that reviews such cases as part of the legal process.

In order for a Cape Cod medical malpractice case to proceed past the tribunal and onward toward trial, there must be enough evidence of negligence by the defendants for the tribunal to find that there is a legitimate question of liability. Not every case “makes the cut,” so to speak. Sometimes, even though the patient was hurt or may even have died, there just isn’t enough evidence of wrongdoing by the doctor or other medical professional for the case to make it past the tribunal.

Of course, opinions can vary as to whether the threshold has been met. Sometimes, a plaintiff appeals a decision that would have terminated his or her case and finds legal recourse in the appellate process.

July 28, 2020

Massachusetts Appellate Court Affirms Dismissal of Wrongful Death Lawsuit Due to Lack of Duty on Homeowners

By John C. Manoog III

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.

March 13, 2020

Per Massachusetts Highest Court, Decedent’s Signature on Covenant Not to Sue Barred Wrongful Death Claim by Statutory Beneficiaries

By John C. Manoog III

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.

March 10, 2020

Massachusetts Supreme Judicial Court Answers Federal Appeals Court’s Question About State Wrongful Death Statute

By John C. Manoog III

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.

February 27, 2020

Massachusetts Court of Appeals Affirms $2.5 Million Gross Negligence Verdict in Hiatal Hernia Medical Malpractice Case

By John C. Manoog III

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.

January 29, 2020

Fire Risk From Faulty Products is an Ongoing Concern in Massachusetts and Across the Country

By John C. Manoog III

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.

October 30, 2019

Massachusetts Court of Appeals Refuses to Disturb Jury’s Verdict in Wrongful Death Suit

By John C. Manoog III

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.