Articles Posted in Wrongful Death

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Many people avoid thinking about what will happen to their property and assets after their death, and ultimately die without a will to determine how their estate will be disbursed. Family members of an individual who dies intestate may not see the necessity in determining how the estate should be divided and may delay in taking any action to raise an estate and appoint a personal representative. The failure to take prompt action when a person passes away can have a damaging effect on your ability to control the estate’s assets, however. A recent Massachusetts estate planning decision held that you waive certain rights if you do not act in a timely manner.

In Bennett v. R.J. Reynolds Tobacco Company, the Superior Court of Massachusetts defined what rights a limited personal representative has with regards to a decedent’s estate.  Specifically, the court addressed whether a personal representative who is granted limited authority under the Uniform Probate Code (UPC) has standing to pursue tort actions that are an asset of the decedent’s estate. In Bennet, the Plaintiff’s father died on March 7, 2014. Section 3-108 of the UPC provides that no testacy or appointment proceeding may take place more than three years after a decedent’s death. If no personal representative has been appointed within three years of a decedent’s death, section 3-108(4) of the UPC allows for a personal representative to be named, but only for the limited purpose of determining successors to the estate. Section 3-108(4) specifically states, however, the representative does not have the right to possess any estate assets. Plaintiff was appointed the limited representative of the estate, pursuant to section 3-108(4), on July 26, 2017.

Plaintiff subsequently brought claims of wrongful death and civil conspiracy against the Defendant, as the limited personal representative of the estate of her deceased father.  The Defendant filed a motion to dismiss the Complaint, arguing the Plaintiff’s appointment as a personal representative of the estate under section 3-108(4) of the UPC did not grant her the authority to pursue a wrongful death claim or any tort claim that belonged to the decedent and became a part of the decedent’s estate upon his death.

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The Commonwealth’s Supreme Court reviewed a new issue recently in a Massachusetts wrongful death law suit.  The legal question was whether a pharmacy was required by law to notify the prescribing physician after the patient’s health insurer advises the pharmacy that it needs a “prior authorization form” filled out by the physician.  The decedent was prescribed Topamax to treat her epilepsy.  The medication controlled her life-threatening seizures.  Her insurer paid for this prescription twice in the months before her nineteenth birthday, but refused to do so afterward because it did not have a prior authorization form for an insured who is older than eighteen.  The woman’s family made multiple attempts to obtain the medication, but the pharmacy refused to fill it.  The family could not afford the medication without insurance and the woman died from a fatal seizure that year.

The woman’s mother and executor brought an action for wrongful death and punitive damages against the pharmacy, her daughter’s neurologist, and the neurological practice.  The mother testified at trial that the pharmacy repeatedly told her daughter and other family members the pharmacy would notify her doctor about the need for prior authorization, but the physician and his practice denied receiving notice.  The trial court granted the pharmacy’s motion for the summary judgment on the legal basis that the pharmacy had no legal duty to the decedent to notify her doctor and the practice about the need for prior authorization.

Prior authorization was required by MassHealth to establish the medical effectiveness and necessity of the medicine.  This was to ensure there were no other cost-effective options to use, or generic drugs.  The form was two pages long and took less than ten minutes to complete. It provided information about the diagnosis, the prescribed medication, basic patient  information ,the doctor’s information, and the prescriber’s signature.  The form was accepted only by the prescribing physician.  Pharmacies and patients were not allowed to complete the form.  The insurer only told the pharmacy because it was the pharmacy that submitted the claim for coverage. 

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The Massachusetts Supreme Court recently determined there was no special relationship between a university and its student that would create a duty for the university to take action to prevent his suicide.  Without an obligation to act, the university was not liable for the student’s death.  In this Massachusetts wrongful death case (SJC-12329), the Supreme Court acknowledged that a special relationship could be formed between a university and its student, but it wasn’t present here.

This case originated with a graduate student who lived off campus.  He struggled taking tests and sought help from the program coordinator.  The coordinator referred him to the school’s disability services, but the student declined to use the disability accommodations.  Notes of the meeting between the disability coordinator and the student show he declined to connect with the school’s medical division, believing it would not help.  The student was also referred to the university’s mental health services, where he also turned down assistance.  The student denied suicidal ideation. 

Later, the student admitted he had long suffered from depression and had made two prior suicide attempts in college.  The student denied having any active thoughts of suicide.  The student agreed to return at the beginning of the school year to address his test-taking issues and mental health.  However, during the summer, he expressed frustration at the course of action taken by the university with referrals to mental health services.  The student relayed to school officials he was actively under the care of a psychiatrist.  When he returned to school, he again acknowledged he had been treated for depression by a private physician.  After additional meetings, the school reached out to the private physician, who accepted the information provided and expressed concern without formally acknowledging he was treating the student. 

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Several things must be considered when a personal injury settlement is reached. One of these considerations is whether the injured person is required by law to notify and pay a portion of the settlement to a third party. Some entities, often health care providers, are allowed to place a lien on settlements or benefits so that they can be paid for the services previously rendered. The Appeals Court recently examined an appeal by the estate of a woman injured in a Massachusetts car accident, which was ordered to provide payment to the Massachusetts Executive Office of Health and Human Services (MassHealth).

The estate reached a settlement with the defendant driver who caused the car accident and subsequent injury. This accident aggravated the now-deceased plaintiff’s dementia prior to her death a year after the accident. The estate filed suit within two years after her passing and ultimately reached a settlement of $250,000. Before the injured person died, MassHealth provided over $18,000 worth of medical care and imposed a lien on the claim for reimbursement of expenses paid for the injured person’s care.

The estate and MassHealth conferred about the lien prior to the settlement, discussing the possibility to reduce the lien. However, nothing came of these discussions because the injured person’s attorney did not submit the forms that would reduce the lien. After the settlement was reached with the defendant driver, MassHealth issued demand letters to the estate for payment. Eventually, MassHealth learned it was not named on the settlement check. Initially, MassHealth attempted to discuss the matter with the estate’s attorney, but it eventually moved to intervene on the settlement. The lower court granted the motion for intervention and ordered payment of the medical expenses. The estate appealed.

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You do not often see a criminal case intersecting with a Massachusetts personal injury action, but a recent medical malpractice decision issued by the Appeals Court shows how the former affects the latter. The original action was filed by the husband of the decedent, claiming the treating physicians and health care facility caused the death of his wife through their negligent care of her during her knee replacement surgery. Early on, the estate took the deposition of one of the anesthesiologists involved in the injured wife’s care. Soon afterward, this physician had his medical licenses revoked and was indicted for Medicare fraud. He then filed to bifurcate the civil trial and invoked his Fifth Amendment privilege against self-incrimination.

The other defendant anesthesiologist filed a notice of his intention to use parts of the other doctor’s deposition, since he would be unavailable. The anesthesiologist invoking his Constitutional privilege and the health care provider both settled with the estate, leaving the remaining anesthesiologist as the lone defendant. The judge denied the defendant doctor’s motion to use the deposition. At trial, the doctor invoking the privilege did not appear, and the judge allowed parts of the deposed testimony to be read during trial. The court allowed the defendant to read the part of the deposition in which the other doctor admitted his medical license was suspended in three states. The jury returned a verdict in favor of the remaining defendant anesthesiologist.

The Appeals Court noted the trial court relied on the exception to the evidentiary rule that allows hearsay evidence through prior recorded testimony when the witness is unavailable. To determine whether this exception can be applied, the court must determine the declarant is unavailable and evaluate whether the prior recorded statement was given in a proceeding that substantially addressed the same issues in the present proceeding, with similar opportunities for cross-examination. The appellate court agreed with the trial court’s assessment that the other anesthesiologist was unavailable. The Appeals Court determined the doctor unequivocally indicated his intent to assert his constitutional privilege against self-incrimination.

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Many products consumed by Massachusetts residents can be dangerous as well as useful. If a product contains inherent risks, manufacturers may be obligated to warn the consumer of these hazards. Manufacturers are liable for injuries caused by a failure to warn. This duty was discussed in a Massachusetts product liability decision. An executrix filed a wrongful death lawsuit after the decedent was found underneath a truck on his farm. His clothing was caught in a spinning U-joint that was a part of the truck, causing him to die by accidental asphyxiation. His widow filed suit against the manufacturer that produced the original core of the truck and the company that manufactured the equipment used to lift the dump body of the truck.

The deceased had originally bought the truck from an independent dealer as an “incomplete vehicle” in which there was a chassis, engine, and cab. It did not have the necessary components needed to perform the intended functions of a dump truck. The decedent transformed it into a functioning dump truck by installing the body and the mechanical system for tilting it. This was all completed decades before the accident, and no record was kept of who provided the work. The power take off (PTO) made by the second defendant connected to the transmission so that it could help power various kinds of equipment. This was achieved by the PTO spinning a post when it was engaged, which then powered the part attached to it.

The dump truck had several exposed parts like the auxiliary drive shaft and U-joint, which presented several dangers to anyone working below the truck when the PTO was running. Each respective manufacturer provided a warning of the risks that would be present in the future with a completed vehicle. The manufacturer of the truck provided a specific warning about the uses of PTOs and any related equipment. The relevant section of the manual contained a separate box marked “warning” with several exclamation points. General warnings were provided by the maker of the PTO, which advised avoiding going underneath the vehicle while the engine was running. It also admonished against working near the rotating drive shaft, due to the possibility of getting entangled.

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When personal injury cases are filed against a government entity, an injured person faces challenges unique to this type of defendant. Case law in Massachusetts and elsewhere grants governmental bodies immunity from civil lawsuits. The idea is that the government body should not be distracted by civil litigation defense so that it can focus on the daily needs of the community. General Laws c. 258, § 10(j) grants public employers immunity from tort actions based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the conduct of a third party. Many exceptions, however, have been also been codified by the legislature in the Commonwealth’s general laws, providing opportunities for injured parties to be granted legal and financial relief.  In a recently issued case (16-P-1308), the Appeals Court reviewed the defendant city’s argument that it was shielded from liability under sovereign immunity.

This case was filed after a teenager died from drowning in the swimming pool at the local high school. The teen had left his home at 8:00 in the morning to go to the school to turn in paperwork for the upcoming school year. The school was not open on this date. Security cameras revealed that a little after 10:00 AM, the teen was inside the school in a hallway close to the pool. The footage revealed he was in the weight room and then the girls’ locker room, which has a door that exits directly to the swimming pool. At 5:30 PM that day, a swim coach found the teen’s body at the bottom of the pool. Emergency personnel pronounced the teen to be dead at the scene.

The estate of the teen alleged he suffered a wrongful death due to the city’s negligent maintenance of school property, and the site itself was an attractive nuisance. The complaint specifically alleged that the doors and locks to the pool area were not properly secured. The city claimed sovereign immunity and sought dismissal, alleging the exception did not apply in this situation. The trial court agreed with the estate’s argument that this fell under the exception found in G.L. c. 258 § 10(j), which states that sovereign immunity does not apply when there is negligent maintenance of public property.

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In a recent case (15-P-1563), the Massachusetts Appeals Court reviewed a wrongful death lawsuit filed by the estate of a deceased infant, alleging the health care providers negligently performed their duties and led to the death of the infant. The case went to trial, ending with a verdict for the defendants. The estate appealed, claiming errors in the evidentiary rulings made by the judge.  Upon review, the appellate court declined to overturn the decision, providing insight into what must be shown by an injured party to successfully pursue a wrongful death action.

The central question in this medical malpractice case was whether or not the providers were negligent by failing to recognize the baby’s heart monitor tracings were too slow, requiring a cesarean section. The defendants argued at trial that the tracings indicated a reassuring heart rate and that the cesarean was performed when the dilation failed to progress beyond nine centimeters. The estate pointed to the missing original, contemporaneous paper tracings, arguing that the copies in evidence did not have any handwritten notations of the defendants, so it was difficult to tell whether the doctors noted a reassuring or non-reassuring heart rate during the mother’s labor. The estate argued that the post-delivery care provider notations referred to a non-reassuring fetal heart rate as the reason for the c-section. The defendants countered that the notations could have been post-delivery assumptions, based on the near-lifeless state of the child upon delivery.

The estate entered into evidence copies of the post-delivery medical providers but did not call any of them as witnesses during trial. The defendants argued the lack of witnesses necessitated a missing witness instruction, which the trial judge denied. However, at argument, the defendants asserted that the estate did not present evidence that the post-delivery care providers actually examined the records of the heart tracings made at the time of delivery. The estate felt the judge allowed this argument in error and made it a focal point of the appeal.

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Duty is a term that one may hear frequently in a personal injury lawsuit. In any negligence action, it is one of four elements that must be proven at trial to hold a defendant liable for her, his, or its actions. The duty to act in a certain manner to ensure the safety of others is often created by statute. However, certain duties are strengthened or lessened by case law formed by one or more appellate decisions. This can be seen in a recently issued wrongful death case, Bernier vs. Smitty’s Sports Pub, Inc. (No. 14-P-1967).

In this case, the decedent patron had entered the rear entrance of a pub. He opened a door with an “Employees Only” sign, thinking it was the bathroom. The bathroom’s door and the “Employees Only” door looked similar. However, the “Employees Only” door opened into a concrete staircase with a large drop. This door was typically locked during business hours but was unlocked at this time, causing the man to fall and injure himself. The man died a couple of weeks later as a result of his injuries. His estate filed suit against the pub, alleging negligence, and a jury found the pub to be 80% negligent and the deceased to be 20% negligent.

The pub appealed, arguing that they did not owe a duty to the man because he was a trespasser. Under case law, a landowner owes a duty to those it invites onto its property. The premises must be maintained in a reasonably safe condition, with the owner acting as a reasonable person would act. A court will consider the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. However, if the person is a trespasser, this duty disappears. A landowner is only required to refrain from reckless or wanton conduct that could cause harm to a trespasser. A trespasser cannot file a negligence action against the owner of the property.

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The Massachusetts Appeals Court recently assessed a summary judgment in favor of the defendant manufacturer in Niedner vs. Ortho-McNeil Pharmaceutical, Inc. (No. 15-P-1272). The estate filed suit against the makers of a birth control device that was prescribed and taken by a deceased college student. The woman was first prescribed an oral form of birth control in 2008, which she took but eventually discontinued. The young woman then looked for another form of birth control and was prescribed the Ortho Evra patch (patch), which transfers synthetic forms of estrogen and progestin through the skin. Rather than daily ingestion, this method only requires direct application to the skin once a week for three straight weeks, followed by a patch-free week. After taking this second round of hormonal birth control for three months, the young woman collapsed and died in her dorm room from a pulmonary embolism. The estate filed suit, alleging breach of warranty. The central focus of this breach of warranty claim was that the birth control manufacturer failed to adequately warn of the increased risks of suffering a blood clot.

By law, a manufacturer of a product with known dangers has a duty to warn consumers who will foreseeably come in contact with the product and be subjected to those dangers. (See H.P. Hood & Sons v. Ford Motor Co., 370 Mass. 69, 75 (1976). If communication with a consumer is unreasonable, the burden of this duty is alleviated. Specifically, this comes in the form of the “learned intermediary rule,” under which the manufacturer is not as responsible for passing the knowledge of risks to the consumer if those risks are communicated to the physicians and pharmacists handling the drug. However, case law has shifted part of this duty back to the manufacturer as patient participation has increased and the medical supervision over commonly used products, like birth control, has decreased.

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