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Wrongful death claims allow a personal representative of an estate to seek compensation for any pain and suffering their loved one experienced prior to his or her death, as well as medical expenses and loss of the deceased person’s services and income. While it is obvious that a wrongful death claim can only be pursued in the event of a person’s death, it is less clear whether an arbitration agreement entered into by a decedent is binding on the decedent’s personal representative in the pursuit of a wrongful death claim.

The  United States Court of Appeals for the First Circuit recently certified the question of whether an agreement to arbitrate entered into by a person prior to his or her death is binding on the person’s beneficiaries to the Massachusetts Supreme Judicial Court (SJC). If you suffered the loss of a loved one due to someone else’s negligence, it is essential to consult an experienced Massachusetts personal injury attorney to assist you in pursuing your wrongful death claim.

The Decedent’s Arbitration Agreement

It is reported that the decedent was taken by ambulance to a nursing home run by the plaintiffs. Upon her admission, the defendant, who was the decedent’s daughter, signed multiple documents on behalf of the decedent, including an Alternative Dispute Resolution Agreement (the Agreement). The defendant was permitted to sign these documents pursuant to a document executed by the decedent, granting the defendant power of attorney. The Agreement stated that any disputes would be resolved exclusively by mediation, and if mediation was unsuccessful, binding arbitration. The decedent died and the defendant subsequently filed a wrongful death lawsuit against the plaintiffs in state court.

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It is commonly understood that parties harmed due to someone else’s negligence must pursue their claim within the time frame set forth by the applicable statute of limitations, otherwise they waive the right to recover. In certain instances, a statute of limitations can be tolled, such as in cases where an illness or defect could not have been discovered within the time permitted. In other cases, a statute of repose applies and strictly limits the time frame in which a case can be pursued.

Recently, the Supreme Judicial Court of Massachusetts ruled that the six-year statute of repose for tort actions arising out of improvements to real property related operated to eliminate all claims after the applicable period has run, even if the cause of action was not discoverable within that time frame. If you suffered harm due to exposure to a dangerous chemical or product you should meet with an experienced Massachusetts personal injury attorney to discuss the facts of your case and your potential claim for compensation.

Alleged Facts Regarding the Plaintiff’s Harm

Reportedly, the defendant manufactured and sold turbine generators and directed that asbestos be used in the installation of the generators. The defendant also supervised the installations. The plaintiff’s decedent was exposed to asbestos during the installation of the generators in two different power plants, which were constructed between 1971 and 1978. He was diagnosed with mesothelioma in 2015 and subsequently sued the defendant, alleging the defendant negligently exposed the him to asbestos during the construction of the plants. The defendant filed a motion for summary judgment, arguing that the claims were barred by the six-year statute of repose for tort actions arising out of any deficiency or neglect in the design, planning, administration, or construction of any improvement to real property. The district court stated that it was unclear whether the statue applied to cases involving diseases with extended latency periods and certified the question to the Supreme Judicial Court of Massachusetts.

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In most Massachusetts personal injury cases, the injured party is free to pursue damages from the party that caused his or her harm, as long as certain procedural requirements are met. In cases in which the person that caused the alleged harm is an employee of the federal government, however, pursuing a claim can be more difficult, due to immunities provided to the government. There are waivers to the immunities set forth by the Federal Tort Claims Act (FTCA), that allow a plaintiff to pursue a claim.

The United States District Court for the District of Massachusetts recently discussed the timeliness of a claim under the FTCA in a case in which the plaintiff sought damages from the United States of America due to the negligence of a government physician. If you live in Massachusetts and you or a loved one suffered harm due to the acts of an employee of the federal government, you should speak with a capable Massachusetts personal injury attorney to discuss the facts of your case.

It is alleged that the plaintiff underwent treatment for amphetamine addiction in 2011. He successfully completed treatment and remained clean through July 2012. In August 2012, the plaintiff began treating with the defendant doctor, who is a government physician. The plaintiff’s medical records indicated he was recovering from an amphetamine addiction and plaintiff’s mother advised the defendant doctor of the plaintiff’s addiction. The defendant doctor nonetheless prescribed the plaintiff several amphetamine-based medications.

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In Massachusetts, medical malpractice cases are handled differently than other civil lawsuits, in that the plaintiff must first present evidence of the defendant’s malpractice to a tribunal which will determine if the plaintiff has proffered sufficient evidence of liability to allow a case to proceed. Recently, the Appeals Court of Massachusetts explained the tribunal’s role and standards in evaluating the evidence submitted by a plaintiff’s expert, in a case in which it reversed a dismissal of the plaintiff’s malpractice case. If you or a loved one suffered injuries or an illness because of negligent medical care you should speak with a seasoned Massachusetts personal injury attorney regarding whether you may be able to recover compensation from the negligent care provider.

Facts Regarding the Plaintiff’s Decedent’s Treatment

Reportedly, the plaintiff’s decedent presented to the hospital when she was in labor. She underwent an emergency cesarean section and emergency hysterectomy. She died twenty-five hours later due to hemorrhagic shock and amniotic embolism. Her husband subsequently filed a wrongful death lawsuit alleging that the defendant doctors committed medical malpractice which resulted in the decedent’s death. A hearing was held in front of a medical malpractice tribunal, after which the tribunal found the evidence offered by the plaintiff failed to establish the defendant’s liability. Thus, the tribunal dismissed the plaintiff’s case after which the plaintiff appealed.

The Tribunal’s Role in Evaluating Evidence of Medical Malpractice

Under Massachusetts law, a plaintiff’s offer of proof of medical malpractice is sufficient if there is evidence that the defendant is a health care provider who did not conform to good medical practice, and the plaintiff suffered damages as a result. However, the tribunal should not assess credibility or weigh the strength of the evidence. Rather, it merely must determine whether, if the plaintiff’s evidence is properly substantiated, it is sufficient to raise a legitimate question of liability. The evidence is to be viewed in a light most favorable to the plaintiff. Similarly, the standard for admission of expert testimony at the tribunal level is very lenient. Thus, a fact-based opinion by a qualified expert that the defendant committed malpractice is sufficient.
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It is commonly understood that the Massachusetts Workers’ Compensation Act provides that if a person is injured at work and recovers workers’ compensation benefits from his or her employer, the injured party’s acceptance of benefits will act as a release, preventing the injured party from pursuing any further claims from the employer arising out of the incident. However, the injured party is not precluded from pursuing personal injury claims from other parties who may be liable.

A Massachusetts appellate court recently analyzed whether an injured party’s release of his employer via a workers’ compensation claim prevented a non-employer defendant from joining the employer as an additional defendant and alleging the employer was liable for the injured party’s harm. If you were injured while working, you may be able to recover damages from parties other than your employer, and you should speak with a skilled Massachusetts personal injury attorney to discuss the facts of your case and to develop a plan for seeking damages.

Facts Regarding the Plaintiff’s Employment

Reportedly, the plaintiff was hired by the employer to perform construction work. The defendant contracting company subsequently hired the employer to work as a subcontractor at a home owned by the owner of the defendant contracting company. During the course of construction, the plaintiff fell in an unguarded area and suffered severe injuries. He received workers’ compensation benefits from the employer, after which he filed a personal injury lawsuit against the defendant contracting company. The defendant filed an answer to the plaintiff’s complaint but subsequently sought leave to amend the answer to add the employer as an additional defendant. The defendant wished to assert claims of breach of contract, negligence, negligent misrepresentation, and indemnification against the employer. The court denied the defendant’s request for leave, after which the defendant appealed.
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Under Massachusetts law, a party who is injured by someone else’s negligence typically has three years from the date of the injury to pursue a claim against the negligent party. In certain cases, however, such as when a person is injured on a public way, the law requires that the injured party provide notice of any potential claim to the allegedly negligent party in a much shorter time frame.

As shown in a recent case decided by the Appeals Court of Massachusetts, the failure to provide notice of a claim for injuries arising from a defective way can be fatal to a plaintiff’s case, regardless of the cause of the delay. If you suffered harm due to an accident caused by a defective way, you should consult a skilled Massachusetts personal injury attorney as soon as possible to discuss your options for seeking damages.

Factual and Procedural History

Allegedly, the plaintiff suffered injuries to her foot while she was walking on a public way in Boston, due to a depression in the road. She provided notice of the claim to the city within thirty days, as required by G. L. c. 84, §§ 15 & 18, commonly referred to as the defective way statute. About three months later, the city sent a letter to the plaintiff denying liability and stating that the defendant gas company was the party responsible for the way in question. The plaintiff sent notice to the defendant gas company the following day and subsequently filed a lawsuit against both the city and the defendant gas company. The defendant gas company filed a motion to dismiss due to late notice, which the court denied. The case proceeded to trial. After the close of the plaintiff’s case, the defendant gas company filed a motion for a directed verdict due to the late notice. The court granted the motion, and plaintiff appealed.

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In medical malpractice cases, as in all civil claims, the plaintiff must set forth appropriate facts to raise a question of liability as to the defendant medical care providers. Unlike other civil cases, however, the sufficiency of the evidence set forth in a medical malpractice lawsuit is assessed by a tribunal before the plaintiff is allowed to proceed with his or her claim.

Recently, a Massachusetts appellate court reviewed the standard for evaluating whether a plaintiff’s evidence in a medical malpractice case is adequate, in a case in which the plaintiff’s claims were dismissed by the tribunal. If you were harmed by negligent medical care, it is important to retain a skilled Massachusetts personal injury attorney to represent you in your pursuit of compensation, to provide you with a good chance of a favorable outcome under the circumstances.

The Plaintiff’s Lawsuit Against the Defendants

The plaintiff filed a medical malpractice lawsuit against four physicians and a hospital, reportedly arising out of the care provided to her husband. Upon review, the tribunal found that there was insufficient evidence to raise an issue of fact as to liability as to all of the defendants, and dismissed the plaintiff’s claims. The plaintiff appealed.

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Under the Massachusetts workers’ compensation act, if a person is injured at work he or she can seek workers’ compensation benefits. Even if a person recovers benefits, he or she is still permitted to file a third-party negligence claim against the individual that caused his or her harm, as illustrated in a recent case decided by a Massachusetts Appellate Court.

Additionally, the court explained that the Massachusetts workers’ compensation act prohibits an employer from retaliating against an employee for pursuing a tort claim.  If you were harmed in a work-related injury, you should meet with a trusted Massachusetts workers’ compensation attorney to evaluate your case and assess your avenues for seeking recovery of compensation.

Facts Regarding Plaintiff’s Employment

Reportedly, the plaintiff was hired by a temp agency to work at the defendant manufacturing facility. While working there, the plaintiff was injured when one of the defendant’s employee’s negligent operation of a forklift caused metal sheets to fall on her foot. The plaintiff filed a workers’ compensation claim with the temp agency and received benefits. She was then hired as a full-time employee by the defendant. The plaintiff subsequently filed a lawsuit against the defendant and its employee for the harm suffered in the accident, alleging theories of negligence and respondeat superior. The defendant then terminated the plaintiff, stating the lawsuit as the cause of her termination. The plaintiff amended her lawsuit to include a claim for retaliatory termination. The defendant filed a motion to dismiss the case in its entirety which the trial court granted. The plaintiff appealed. 

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No matter how strong a plaintiff’s case, if he or she fails to file a lawsuit within the time period set forth by the applicable statute of limitations, he or she may be precluded from pursuing a claim. While there are some exceptions to the statutory limitations period they only apply in certain circumstances.  This was illustrated in Mendonca v. Walcott, a case in which the trial court dismissed the plaintiff’s medical malpractice case due to the plaintiff’s failure to file within the three-year time period set forth by the applicable statute of limitations. If you or a loved one were injured due to negligent medical care, you should consult a knowledgeable Massachusetts personal injury attorney to analyze the facts of your case and to assess whether you may be able to recover damages.

Facts Regarding the Plaintiff’s Treatment

Allegedly, the plaintiff began treatment with the defendant pediatrician when the plaintiff was 10 years old. When the plaintiff first began treating with the defendant in 2008, it was noted she was remarkably small for her age. In 2009, when she was 11 years old, the plaintiff complained of swollen glands in her neck, for which she was prescribed antibiotics. Later that year during her physical examination, it was again noted that she was very small for her age. The defendant did not examine the plaintiff’s neck during her physical. In 2011, it was noted the plaintiff was in the 5th percentile for her height and 1st for her weight.

Reportedly, on one occasion the plaintiff complained of various concerns and her neck was examined but no abnormality was noted, even though a photograph that was taken at that time depicted visible swelling in the neck. The plaintiff returned with complaints of a lump in her throat in the winter of 2011 and was examined by a nurse practitioner, who noted that the plaintiff’s thyroid felt enlarged. The plaintiff subsequently underwent a biopsy in January of 2012 and was diagnosed with thyroid cancer. The plaintiff filed a medical malpractice lawsuit against the defendant in August 2015. The defendant filed a motion for summary judgment, arguing that the plaintiff failed to file the lawsuit within the applicable statute of limitations.

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The adverse effects of smoking cigarettes are common knowledge. While currently cigarettes must be sold with warning labels, that was not always the case. As such, if someone began smoking decades ago and suffered harm as a result, he or she may be able to pursue claims against cigarette manufacturers on various theories of liability.

Notably, Massachusetts is a jurisdiction that allows such claims, as shown in a recent case in which the Superior Court of Massachusetts ruled that a plaintiff could proceed with its product liability claims against a cigarette manufacturer, denying the defendant manufacturer’s motion for summary judgment. If you or a loved one suffered harm due to a dangerous product, you should meet with an experienced Massachusetts personal injury attorney to discuss your options for pursuing compensation.

Plaintiff’s Decedent’s History of Smoking

Allegedly, the plaintiff’s mother began smoking the defendant’s cigarettes in 1963 when she was 13 years old after she was given free cigarettes by one of the defendant’s representatives. She became addicted to cigarettes and smoked two packs per day for decades. She was diagnosed with cancer in 2016 and ultimately succumbed to the disease. She smoked until her death. After the decedent’s death, the plaintiff filed a wrongful death lawsuit against the defendant, alleging negligence, breach of warranty, conspiracy, and violation of G.L.c. 93A. The defendant filed a motion for partial summary judgment, which the court denied.

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