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Articles Posted in Wrongful Death

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 ›

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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