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Articles Posted in Wrongful Death

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

A 29 year-old woman was visiting relatives in Massachusetts when she tried to use an inflatable swimming pool slide that was imported and sold by Toys R Us, Inc. and, LLC (“Toys R Us”).  As she slid down head first, the slide collapsed when she reached the bottom and her head struck the concrete deck of the swimming pool through the slide’s fabric. Her devastating injuries resulted in quadriplegia. The next day the woman died after her family took her off of life support, in accordance with her wishes.

The death of a loved one is difficult no matter what the circumstances. And when a family member dies due to the negligence of another person or entity, it may be even more difficult to accept.  At the very least, the family may be able to bring a wrongful death lawsuit, in an attempt to hold the negligent parties responsible for their actions, and to recover some of the financial losses that they will now incur. If you or someone you know is confronted with the death of a loved one due to the negligence of another, it is important to contact a local Cape Cod injury attorney who will work to secure the financial recovery to which you may be entitled.

In this case, the decedent’s estate brought an action alleging wrongful death, negligence, and breach of the implied warranty of merchantability.  A jury found the company liable for wrongful death, breach of warranty and negligence, awarding over two and a half million dollars in compensatory damages, and $18 million in punitive damages. Toys R Us appealed, maintaining that the award of $18 million in punitive damages was unconstitutional, arguing that it was grossly excessive and violated due process. The Massachusetts wrongful death statute allows for an award of punitive damages where the victim’s death was caused by the “malicious, willful, wanton or reckless conduct of the defendant or by the gross negligence of the defendant.” The statute sets a minimum award of $5,000, but does not set forth a maximum amount that may be awarded.  In Massachusetts, courts have identified the following two purposes of a punitive damages award: condemnation and deterrence. Continue reading

In the summer months, people take advantage of the warm weather by riding bikes instead of driving.  But it is important for bicycle riders to follow the rules of the road as well as other safety measures.  According to news reports, a Wellfleet teenager was riding his bicycle in a busy section of Route 6 when he was struck by a 76 year-old driver, also from Wellfleet.  The cyclist was on his way to work and trying to cross the street when he was hit by a woman driving a Honda Accord.  He was not wearing a helmet.

After police conducted an investigation by interviewing witnesses and recreating the accident scene, they determined that no criminal charges would be filed against the driver.  The family of the 16 year-old victim, however, may be entitled to bring a wrongful death claim against the driver, if there is evidence of negligence.  If you or someone you love has been involved in a car accident, you may be entitled to compensation. It is critical to contact a local injury attorney with extensive experience handling such cases.

In this case, the teenager was not wearing a helmet and it is unclear what caused the accident.  In many car accidents involving cyclists, the biker rider may be at fault.  According to an article in the Cape Cod Today, Yarmouth police reported that there have been 17 bicycle versus car crashes since June 1 of this year.  The police pointed out that many of these accidents are the fault of the cyclist and occur in high traffic areas.  The police in Yarmouth have increased bike safety patrols in high traffic areas and will also be stopping cyclists and issuing citations for any rider who violates Massachusetts law. Continue reading