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Articles Posted in Wrongful Death

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The underlying premise of the body of law known as “negligence” is that those who breach a duty to those whom such a duty is owed should be held financially liable for the foreseeable consequences of their action (or inaction, as the case may be).

This means that, in a Massachusetts wrongful death lawsuit, the plaintiff has the duty of proving all four elements of negligence (duty, breach of duty, damages, and causation) by a preponderance of the evidence.

Typically, the arguments at trial revolve around whether a duty was breached and, if so, how money the plaintiff should be awarded for his or her losses. However, sometimes the parties disagree as to whether the defendant owed a legal duty to the plaintiff under the circumstances of the case. In such a situation, it is up to the courts to decide.

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Generally speaking, in a Massachusetts personal injury or wrongful death lawsuit, it is the jury’s job to determine not only which party was at fault but also the amount of damages to which the plaintiff is entitled if the defendant is determined to have been negligent.

That having been said, it is important to note that the trial court judge may override the jury’s decision on damages in some cases. Such an action is the exception rather than the rule, however, and it is subject to review by the appellate court if either party challenges the ruling.

Facts of the Case

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Suicide claims tens of thousands of lives annually in the United States alone, including a disproportionate number of those in their teens and twenties. Given that there are more than 10 times the number of emergency department visits for self-inflicted injuries as there are completed suicides, there can sometimes be a window of opportunity to prevent a successful suicide.

If an individual or entity that owes a duty of care to a suicidal person does not act in a way that is reasonably prudent under the circumstances, a Cape Cod wrongful death action may be appropriate.

Facts of the Case

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Filing a claim for medical negligence in Cape Cod or elsewhere in Massachusetts can be a complicated endeavor. It pays to talk to an attorney as soon as possible after suspecting that you or someone close to you has been hurt by an act of medical malpractice.

It takes a considerable amount of time to properly investigate and substantiate a medical malpractice claim. If the appropriate paperwork is not completed in a timely fashion – or if the offer of proof submitted to the medical malpractice tribunal does not meet the requirements of Massachusetts medical malpractice law – the case is subject to dismissal, even if the plaintiff was severely injured or even passed away because of a medical provider’s mistake.

Facts of the Case

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Unlike car accident or slip and fall cases, Cape Cod medical malpractice lawsuits require that the plaintiff make an offer of proof before a special tribunal. If the tribunal does not find that the plaintiff’s offer is adequate, the plaintiff may post a bond within a certain time period, or he or she may appeal the case to the appellate court for a review of the tribunal’s finding.

Facts of the Case

The plaintiff in a recent (unreported) appellate case was the personal representative of the estate of a man who died after suffering a full cardiac arrest in 2012. The man, who was 46 years old at the time of his death, had been under the care of the defendant physician (a primary care physician). The plaintiff’s complaint sounded in medical negligence, including allegations that the defendant’s failure to “appreciate and address” the decedent’s heart disease violated the applicable standard of care and caused his premature death.

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When a Cape Cod medical malpractice lawsuit goes to trial, there are usually multiple witnesses who testify in front of the jury. This includes not only the parties to the case but also the expert witnesses who are retained by each side to render an opinion as to the applicable standard of care, whether the defendant violated that standard, and the injuries suffered by the victim if so.

Sometimes, a particular witness cannot be present at trial, so his or her testimony is secured outside the courtroom, in advance, via a deposition. However, there are limitations on when a deposition may be used in lieu of live testimony.

Facts of the Case

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Many civil lawsuits are filed each year in the state and federal courts – far too many to be handled efficiently by the court system if a full-blown trial is required in every case. For this and other reasons, settlements are highly encouraged.

Under Mass. Gen. Laws ch. 176D, § 3(9)(f), an insurance company has a legal obligation to effectuate a “prompt, fair, and equitable settlement” of claims in which liability is clear. When this does not happen, Mass. Gen. Laws ch. 93A, § 9 allows the person whose rights were affected by the violation of the law to bring a civil action against the insurance company to recover damages.

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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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