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Articles Posted in Wrongful Death

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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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When someone is killed while working on another’s property, those left behind may wish to consider the possibility of filing a Cape Cod wrongful death lawsuit. Of course, the likelihood of success in such a case depends very much on the particular circumstances of the decedent’s passing.

If the personal representative of the decedent’s estate is able to prove by a preponderance of the evidence that the defendant owed the decedent a legal duty, that this duty was breached, and that the decedent’s death was a proximate result of the defendant’s breach of duty, then the decedent’s estate may be entitled to substantial compensation for the decedent’s wrongful death.

Facts of the Case

The plaintiff in a recent appellate case was the personal representative of the estate of a man who died after suffering a fall while making repairs to a three-story home that belonged to two of the defendants. The plaintiff also named a relative of one of the homeowners as a defendant; this individual was allegedly involved in the decision to hire the decedent to make the repairs that led to the decedent’s death. According to the plaintiffs’ complaint, the defendants did not supply the decedent with any safety equipment, nor did they apply for a building permit with regard to the work that was to be done. The decedent fell to his death when a ladder, lent to him by his brother, shifted.

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When someone causes the death of another person through an act of negligence or conduct that is considered to be willful, wanton, or reckless, the wrongdoer may be held liable through a Massachusetts wrongful death lawsuit. Of course, liability will not apply in every instance in which one person is responsible for the death of another, as there are several legal defenses to a civil lawsuit claiming wrongful death.

If the defendant believes that he or she has a defense to the plaintiff’s claims such that a finding of liability would be improper, he or she may file a motion to dismiss the plaintiff’s case. The trial court must then decide whether the plaintiff’s case should be dismissed or should proceed to trial.

Facts of the Case

In a recently reported case, the plaintiff was the personal representative of the estate of a man who was killed by the defendant state trooper during an incident in 2013. The decedent had a long history of mental illness and sometimes failed to comply with doctor’s orders regarding the taking of his prescription medication. On the day of the incident at issue, the decedent had allegedly been traveling erratically along a multi-lane state highway before coming to a stop on the side of the road. Another motorist called 911, and the defendant trooper responded to the call during which the decedent was shot.

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In a Massachusetts wrongful death suit seeking compensation for the death of a loved one, a claim must be filed in a court with appropriate jurisdiction and venue over the matter. Generally speaking, venue in a personal injury or wrongful death case can be found in the county and state in which the accident happened.

Sometimes, however, a matter is more complicated, such as when the federal courts have either concurrent or exclusive jurisdiction over a particular claim. In such a situation, if suit is filed in an inappropriate or inconvenient forum it may be possible to have the case transferred to the appropriate federal court.

Facts of the Case

In a federal district court case originally filed in the United States District Court for the District of New Jersey, the plaintiffs were the owners of a commercial fishing vessel that was lost at sea during a clamming voyage that departed from Fairhaven, Massachusetts, in early December 2017. Two crew members perished during voyage, and representatives of their estates sought to file claims against the owners of the vessel. The vessel owners’ suit sought exoneration from or limitation as to liability based upon the Limitation of Liability Act, 46 U.S.C. § 30501 et seq. The federal district court in New Jersey entered an order admonishing all persons with claims arising from the sinking of the plaintiffs’ vessel to file such claims by a certain deadline. Continue reading

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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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