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Articles Posted in Wrongful Death

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

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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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