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Articles Posted in Wrongful Death

The Massachusetts wrongful death statute provides a legal remedy for those whose loved ones have died due to the negligent, willful, wanton, or reckless behavior of a person or business. If a plaintiff is successful in a wrongful death case, he or she may be entitled to damages, such as the funeral and burial expenses of the deceased person, compensation for the loss of the deceased person’s companionship and counsel, and loss of the deceased’s net income.

Like other tort actions, wrongful death lawsuits are subject to a statute of limitations that limits the time period during which a claimant may file suit against the responsible party. Generally, that time period is three years, although a different length of time may apply in certain situations. (This is one of the many reasons that it is best to consult an attorney sooner, rather than later, in wrongful death and personal injury cases.)

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Earlier this month, the U.S. Department of Transportation National Highway Traffic Safety Administration (NHTSA) released an “Early Estimate of Motor Vehicle Traffic Fatalities in 2015,” projecting that some 35,200 motor vehicle accident fatalities occurred nationally last year.

The good news is that this number, while tragic, is lower than the 43,510 fatalities that happened 10 years earlier. In fact, the number of traffic fatalities has been dropping steadily since 2005, except for a 4% increase in 2012. Unfortunately, if the NHTSA’s report is accurate, 2015 saw a 7.7% increase in the overall number of fatalities on U.S. roadways.

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Just as a negligent driver can be held liable in a court of law for damages resulting from the breach of a legal duty while driving a motor vehicle, so can a medical professional be held liable for a failure to uphold the applicable standard of care due a patient during the diagnosis or treatment of an illness, injury, or medical condition, including pregnancy and childbirth.

Unfortunately, such cases can be very difficult and time-consuming, and the plaintiff does not always win, even when a doctor’s actions have allegedly resulted in a very serious injury or even death.

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All personal injury and wrongful death lawsuits arising from negligence require proof of four essential elements. The defendant must have owed the plaintiff a duty, the defendant must have breached the duty, the plaintiff must have suffered damages, and the damages must have been the proximate result of the breached duty.

In some cases, particularly those arising from medical negligence, the plaintiff must provide expert testimony as to the issues of duty and breach of duty. It is up to the trial court judge to determine whether a particular expert relied upon by the plaintiff is qualified to testify on the issues at hand.

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Many states, including Massachusetts, have statutes in place under which a business that sells alcoholic beverages to a person who is obviously intoxicated can be held liable for the resulting damages, including both personal injury and wrongful death. These statutes are often referred to as “dram shop” acts (so named because spirits were once sold by a measurement known as a “dram”).

Of course, disagreements often arise as to whether the person who was sold the alcoholic beverages was, in fact, “obviously intoxicated” when he or she was served more alcohol. In order for a Massachusetts dram shop action to move forward, the plaintiff must file an affidavit setting forth “sufficient facts to raise a legitimate question of liability.” Otherwise, the case will, most likely, be dismissed on summary judgment.

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Product liability cases can arise in a wide array of situations, including on-the-job accidents. Recently, the Massachusetts Appeals Court was called upon to decide a case in which an allegedly defective product caused the death of a man who was inspecting a roof.

Although the court’s opinion did not go into detail regarding whether the man had also filed a workers’ compensation claim, it is sometimes possible to pursue both workers’ compensation benefits and damages in tort against a negligent third party. If the tort lawsuit is successful, the workers’ compensation carrier may be entitled to repayment of certain benefits under the law of subrogation.

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Driving an 18-wheeler is no easy task. The size and weight of large commercial trucks, combined with the possibility of shifting loads, make them much more difficult to maneuver than smaller vehicles. When a truck accident occurs, injuries and even deaths are common.

Trucking companies should recognize this danger and spend a reasonable amount of time and money to train drivers before sending them out onto crowded highways alongside smaller, more vulnerable vehicles. Although some larger companies do accept this responsibility, unfortunately, many smaller operations are willing to employ drivers who only meet the minimum requirements for a commercial driver’s license in their state.

In many instances, this may be only a few hours of training. Most of us spent considerably more time than that behind the wheel of our family’s sedan with a parent instructing us before we were allowed to drive ourselves across town to see a movie or grab a burger.
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Under sovereign immunity, governmental entities may be immune from lawsuits arising from the negligence of their employees. Over the years, the courts carved out several exceptions to the doctrine, and in 1978 the Commonwealth passed the Massachusetts Torts Claims Act, Mass. Gen. Laws c. 258, § 4 (the “Act”), specifying the circumstances in which immunity is waived and the procedural requirements for making a claim.

Although every malpractice case has its own complexities, claims against the government present some unique procedural challenges. If you have been injured or lost a loved one due to the medical negligence of a governmental employee, you need an experienced medical malpractice attorney working on your case.

The Facts of the Case

Recently, the Supreme Judicial Court of Massachusetts ruled on a tricky procedural issue under the Act.  In Estate of Gavin v. Tewksbury State Hospital, the plaintiff estate commenced an action against the defendant state hospital, alleging that a state employee’s negligent insertion of a feeding tube had led to the decedent’s death. The hospital moved to dismiss the complaint on the grounds that the estate had failed to comply with the presentment requirement under the Act. Continue reading

Over the past several decades, arbitration clauses have increasingly been used to resolve legal disputes. An Arbitration clause is an agreement between two contracting parties to settle their disputes in arbitration as opposed to going to trial. Their increased use has several justifications including reducing court volume.

It may be strange to find an article about arbitration clauses in a personal injury blog; however, arbitration clauses in personal injury and wrongful death claims have also increased. In 2012, the U.S. Supreme Court decided in Marmet Health Care Center, Inc. v. Brown, that when parties agree to arbitrate personal injury or wrongful death claims under the Federal Arbitration Act (“FAA”), without any other legal issues, those claims must be arbitrated.

Arbitration clauses involving personal injury or wrongful death can be further complicated when a third party signs the contract. This month, the Supreme Judicial Court of Massachusetts (“SCT”) published two companion personal injury and wrongful death cases where an agent with a Health Care Proxy (“HCP”) signed an arbitration clause. Continue reading

Massachusetts has one of the strongest Consumer Protection Acts in the country. Under Massachusetts General Law Chapter 93A, known as Massachusetts Consumer Protection Act, the Attorney General or a consumer can bring a legal action against unfair or deceptive conduct in the market place. This includes unfair and deceptive settlement practices when insurance companies unreasonably delay settlement in personal injury cases. The rule is meant to encourage insurance companies to settle claims with injured parties when the company has determined that their insured party was solely at fault.

The Massachusetts Appeals Court recently ruled in Rivera v. Commerce Ins. Co. that insurance companies are liable for all tort related expenses when an insurance company unreasonably delays settlement in a personal injury case. Under 93A, if an insurance company finds its insured is solely at fault and delays settlement to the injured in order to obtain a smaller settlement, the insurance company will be liable for the legal expenses of the injured because of the delay. The issue at hand in the case was the extent of expenses for which an insurance company would be liable.

The case arose out of a 2003 accident when a dump truck struck the plaintiff’s vehicle head-on. The plaintiff was returning from his job as a day laborer. The dump truck company was insured by Commerce Insurance Company, the defendant in the case. Within ninety days of the accident, Commerce had concluded that the accident was the sole fault of its insured, the dump truck company. The plaintiff retained counsel and regularly provide Commerce with the plaintiff’s medical status. The plaintiff underwent several years of surgeries and physical therapies while unable to work and accruing mounting medical bills. Continue reading