The death of a loved one is always difficult to deal with, but it’s especially hard when someone close to us dies because of the negligence of another. It’s a sudden and unexpected situation that can leave a family in a state of both emotional and financial hardship. The consequences can be devastating on many levels.
If you’ve lost a loved one because of the negligence of someone else, you may be entitled to recover compensation for damages caused by the death of that person. This is what’s known as a wrongful death claim.
What Is A Wrongful Death Claim?
A wrongful death claim can occur when a person dies through the fault of another. The laws that made wrongful death claims possible have only been in existence for about the last 100 years. Prior to that, only a person who was injured could file a claim against someone else. In a case where a person died because of their injuries, the right to file a claim went with them.
Now, all 50 states have laws that support wrongful death claims by surviving family members., General Laws, Part III, Title II, Chapter 229, Section 2 explains who may be held liable in a wrongful death lawsuit in Massachusetts.
One might be able to file a wrongful death claim stemming from a car accident, botched medical procedures, product failures, and many other circumstances. A lawsuit can be filed against a person, company, or government agency if that entity is believed to be at fault by either acting in a negligent manner or acting with the intention to do harm.
What Is Negligence In A Wrongful Death Claim?
Even though a wrongful death claim and a personal injury claim are different, the plaintiff will have to prove that the same basic set of circumstances exist. One must prove four factors: duty, breach of duty, causation, and damages.
Duty means that the person or entity named as the defendant had some sort of duty to provide an element of reasonable safety to the person who died. The exact definition of this duty will vary depending on the circumstances of the case, but it means that the defendant should have either done something or refrained from doing something in order to keep others safe.
Breach of duty, quite simply, means that the other party did not do what they should have. In a car accident, for example, one could say that the other driver was texting or looking at their phone and not paying attention to the road, thereby breaching their duty to act in a responsible manner while driving.
Causation means that the plaintiff will have to prove that the decedent died as a result of that breach of duty by the defendant.
Damages will be presumed because it is obvious that someone died in a wrongful death case. As a plaintiff, you may be able to ask for damages based on loss of income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent, as well as funeral and burial expenses, among other things.
How Is Wrongful Death Defined In Massachusetts?
State law defines wrongful death as when a person, company, or other entity causes the death of a person by:
-negligence, or failing to exercise reasonable care
-a “wanton or reckless act,” or
-a breach of warranty.
A wrongful death claim can be filed in most cases where a person would have been able to file a personal injury claim if they had not died.
Who Can File A Wrongful Death Claim?
A wrongful death claim must be filed by the person legally appointed to represent your deceased loved one’s estate. The title of the personal representative appointed by the probate court will depend on whether or not the decedent left a will. If there is a will, the personal representative is called the executor/executrix. If no will exists, the personal representative will have to petition the probate court to be appointed.
Any compensation recovered as a result of the wrongful death claim will be paid to the estate of the deceased and distributed according to the decedent’s will, if any. In the absence of a will, any compensation recovered on behalf of the estate will be distributed in accordance with the Massachusetts Uniform Probate Code.
Is There A Statute Of Limitations On Wrongful Death Claims?
Yes. In Massachusetts, there is a three-year limitation. The law states that “an action to recover damages under this section shall be commenced within three years from the date of death, or within three years from the date when the deceased’s executor or administrator knew, or in the exercise of reasonable diligence, should have known of the factual basis for a cause of action.”
If you suspect you may be able to file a wrongful death claim because of the death of a loved one, it is best to speak with an experienced Massachusetts wrongful death claim lawyer as soon as possible.
Who Can Be Sued For Wrongful Death?
A wrongful death claim can be filed against a wide variety of people, companies, or government agencies. Using a car accident as a basic example, if someone was killed in an accident, their surviving family might be able to file a wrongful death claim against:
-The driver of the other car
-A bartender that over-served the driver if he was drunk
-A government agency that failed to maintain the roadway, causing the accident
-A car manufacturer that used faulty parts
-A mechanic that installed parts incorrectly, causing the accident
Who can or can not be held liable will very much depend on the specific circumstances that caused the death.
Speak With An Experienced Wrongful Death Claims Attorney
If you’ve lost a loved one and believe that their death may be due to the negligence of another party, the Law Offices of Parker Scheer can help. Our team will fight to protect your rights and help you to recover the full and fair compensation to which you are entitled. We know it’s not about getting back at the person or organization responsible, but about ensuring that such a sudden loss doesn’t leave you and your family in financial or emotional turmoil.
You can reach out to us online anytime or call (617) 886-0500 to schedule a free consultation. We’ll be happy to go over the details of your case and discuss exactly what we can do to help you with your wrongful death claim.
Wrongful Death Case Results
Subdural Hematoma – Wrongful Death; $2.75 Million
In 2011, the plaintiff’s decedent was operating a vehicle on a Massachusetts roadway when another vehicle, operated by the defendant, allegedly swerved into his lane of travel and struck his vehicle head-on. The force of the impact was severe and the defendant operator died as a result of the injuries he sustained in the crash.
Trial report for this wrongful death case
Dram Shop – Wrongful Death; $225,000
The plaintiffs’ decedent, a 25-year-old man, visited a cocktail lounge located in the defendant’s hotel and consumed several “Long Island Iced Teas” within a 4-hour period. The plaintiffs’ decedent was an employee of the hotel and stayed in the lounge after closing and served himself a beer from the tap. The plaintiffs’ decedent exited the lounge at approximately 3:30 a.m., and despite being extremely intoxicated, he attempted to drive himself home. En route, the plaintiffs’ decedent car exited the roadway and plummeted into Stony Brook River, killing him. This case was complicated by the decedent’s driving record, which included two prior DUI convictions, and the defendant’s argument that the negligence on the decedent’s part was greater than the defendant’s negligence, and thereby precluding liability. The case settled after one full day of mediation.
CASE SUMMARY:Our Boston medical malpractice attorneys handled a case where the decedent was admitted to a medical facility following difficulties she was experiencing at home caring for herself. When she was admitted, it was noted that she had a diagnosis of rheumatoid arthritis and was taking Methotrexate once weekly for management of her condition.
The decedent was doing reasonably well until October 2011 when she developed a sore throat and swelling about her lips. It was ultimately discovered that instead of receiving her weekly dose of Methotrxate, she had been receiving the medication daily for 8 consecutive days.
The investigation revealed that the nursing supervisor had changed the time of the administration of her Methotrexate so that it would be consolidated with other medications she was receiving. In doing so, however, the nursing manager failed to notice that when she changed the time of the administration, the pharmacy computer’s software program defaulted to a daily administration.
The order was electronically delivered to the outside pharmacy, which failed to notice the error and instead, approved and filled the order. The following day, the decedent began receiving the first of her eight consecutive doses of this toxic medication. None of the nurses that administered the medication had checked the medical chart (as required) to confirm when the decedent received her last dose of the medication. Also, one of the nurses that administered the majority of the consecutive Methotrexate doses was unaware of the therapeutic dosing frequency of the medication.
Even when the decedent complained of a sore throat and lip swelling, none of the nursing staff investigated the cause, but rather administered Benadryl and Tylenol to aid with symptom relief.
Finally, following her eighth consecutive dose, the nursing staff realized their error and she was transported to a nearby hospital for treatment. Unfortunately, by the time she arrived, the extent of the overdose was severe and she was unable to recover.
From October 20 – November 8, the decedent remained in the ICU department. She was conscious during most of this time and endured significant conscious pain and suffering prior to her death.
The decedent was the matriarch of a very close Italian family and her loss was felt by all the family members, especially her daughter with whom she lived with for many years before being placed in the medical facility, and her two sons.
Claims were pursued against the medical personnel and facility involved in this systemic breakdown that allowed myriad errors to compound, resulting in the decedent’s untimely death. Claims were also pursued against the outside pharmacy that received and approved the order for the daily doses of the medication, based on the flaws in their computer software program that allowed for the inadvertent change from weekly to daily dosing when a change in the time of the administration of the drug was entered.
The parties engaged in the pre-litigation discovery and then mediated the case. However, issues over the validity and effect of Indemnification Agreements between the defendants created insurmountable obstacles to the resolution of the case that day.
Ultimately, with the continued assistance of the mediator, the indemnification issues were resolved to the satisfaction of all parties, resulting in a settlement.
CASE SUMMARY:The decedent, a 36-year-old male, was transported to the Emergency Room involuntarily and subsequently admitted to the Emergency Department pursuant to M.G.L. c. 123, sec. 12. Upon arrival, the decedent was examined by an emergency room physician and two psychiatric clinicians. The plan, following the patient’s evaluation, was to transfer the patient, pursuant to Section 12, to a secure inpatient psychiatric unit as soon as a bed was available. Unfortunately, no bed was available so the patient/decedent remained in the Emergency Room with security observing him overnight.
The next morning the hospital nursing staff and psychiatric clinician found him to be calm and cooperative. Following a discussion with the decedent, the psychiatric clinician spoke with one of the two emergency room physicians on duty. One of the two emergency room physicians authorized the discharge of the decedent to a non-Section 12 psychiatric facility. The emergency room physician never examined the decedent and never spoke with him prior to authorizing the discharge. While the identity of the physician who authorized the discharge was never confirmed, it was undisputed that one of the two on-duty emergency room physicians that morning had authorized the discharge. The two physicians on duty were identified through the printed “rotation schedule.” The following morning, the decedent escaped from the non-section 12 psychiatric facilities and died.
The Estate alleged that the practice group that employed the two physicians on duty at the time the decedent was discharged was vicariously liable for the negligent acts of its employee. The plaintiff alleged that the physician who authorized the discharge breached the standard of care when the physician discharged him to an inappropriate facility. The plaintiff, through expert testimony, established that at a minimum a qualified medical professional, pursuant to Section 12, was required to evaluate the decedent to determine whether he remained in need of Section 12 protection. The plaintiff’s experts all testified that the psychiatric clinician that examined the decedent was not a qualified medical professional as required by the statute. As a result of the inappropriate discharge, the decedent was in an inadequate facility from which he escaped and died within twenty-four hours of his discharge from the hospital.
The defense focused on the alleged change in the decedent’s condition on the date of discharge. The defense further argued that the change in the condition of the decedent warranted a lifting and/or withdrawal of the Section 12 order issued the prior day.
The case was tried before a fourteen (14) member jury for seven days. The jury was out for approximately twelve hours before returning a verdict in favor of the decedent’s estate and against the Emergency Room Practice Group.
Find Out If You Have A Wrongful Death Case
To find out more information about Massachusetts wrongful death law and evaluate your case, contact us for a free confidential case review and receive a response within hours, or call (617) 886-0500. If you need a lawyer outside of Massachusetts, contact us for a referral.