Articles Posted in Wrongful Death

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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.  Holding handsUpon 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. Pub Chairs 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).Birth Control 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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Breach of duty and causation are two of the main elements to prove in personal injury lawsuits. Even if a breach occurred, it must also be the cause of the alleged injury. In Milambo vs. Catlin (15-P-687), the Appeals Court of Massachusetts reviewed a wrongful death lawsuit brought by the father of a child who was stillborn, on behalf of the child’s estate. At the trial, one of three doctors was found by the jury to be negligent but not a substantial contributor to the child’s death. The estate alleged that the doctors who participated in the child’s delivery were negligent by delaying a c-section.

At trial, the defendants argued that the child died within the womb due to an undetermined cause. The defendants pushed back against the estate’s claim that they delayed the caesarean with the assertion that the mother delayed in giving her consent to the c-section. Baby UltrasoundAs part of the defense, the doctors emphasized the mother’s medical history, which included several previous surgical procedures preceding the delivery of her stillborn child. On the date of the delivery, the mother went to the hospital, complaining of constipation and abdominal pain. A fetal heart monitor was placed on the mother, which showed normal results for about five hours. After six hours, the monitor results went from normal to poor, and a c-section was determined to be necessary. The defendants claimed that the father argued with them that the baby was fine and asked for his wife’s gynecologist, asserting they didn’t know what they were doing, and the pain medication was causing the problems.

Forty-five minutes passed between the time the doctors first told the mother a c-section was needed and when consent was given. Nearly two hours after she was told a c-section was needed, the surgery was performed, and the child was delivered stillborn. The cause of death was certified as “unknown intrauterine fetal demise.” The lone expert for the estate was an obstetrician/gynecologist who testified that the consent form signed four months before should have been valid, that there should have been constant fetal monitoring, and that the delay violated the standard of care governing physicians in their specialty. The defendants had two experts who testified that the three treating physicians followed the standard of care, based on their review of the care provided to the mother and the need to receive her consent on the day of the delivery. The perinatal pathologist who testified for the defense also confirmed that the cause of the stillbirth was unexplained and undetermined.
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Soon after a lengthy personal injury trial, the unsuccessful party can move for a Judgment Notwithstanding the Verdict and for a new trial, claiming that the evidence did not support the verdict handed down by the jury. This occurred in a recently issued Massachusetts Appeals Court decision, Ellis vs. Peter Clarke (15-P-868), in which the defendant doctor, an emergency radiologist, appealed a jury verdict in favor of the estate of a now-deceased patient. In this appeal, the defendant physician challenged the use of a witness and the conclusions drawn by the jury based on the evidence presented that his actions led to the death of the patient and grantor of the estate.

chest x-rayThe defendant radiologist argued that the estate did not use an appropriate witness who was a standard radiologist, rather than an emergency radiologist. The appellate court listed several cites from case law, which has established the standards for a medical expert. A medical expert may be utilized to testify about many things, including the appropriate standard of care for a patient with the health issues around which the litigation centers. Massachusetts case law has specifically addressed that the expert does not have to be a specialist in the area concerned. The medical expert witness just needs to have the sufficient education, training, experience, and familiarity with the main subject matter of the testimony. The trial judge made a prior determination that the estate’s medical expert was qualified based on his experience reading chest x-rays from ERs, alongside his training and education.

The radiologist also questioned the judge’s ruling determining that the estate did not have to produce evidence showing the diagnosis of cancer should have been made by a certain date. The appellate court did not think a date was necessary, particularly since the law presumes that any warning, if given, will be heeded. In this case, the expert witness stated that the deceased patient would have had a greater chance of survival if the appropriate care had been used and she had been warned.
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When an at-fault party is faced with a lawsuit, they will raise any and all legal defenses available to avoid liability. In all litigation, courts attempt to avoid duplicative processes to provide efficient and effective justice. The legal doctrines of res judicata and collateral estoppel bar re-litigating claims or issues that have been previously decided on the merits in a prior adjudication in a final judgment. pedestrian crossingIn complicated personal injury and wrongful death lawsuits with multiple parties, doctrines like res judicata and collateral estoppel are often utilized to bar or limit claims an injured party, estate, or family member may have.

In Resto vs. City of Lawrence (14-P-1711), an 11-year-old boy was hit by a car crossing a street undergoing a lot of construction. A motorist driving his car at a high rate of speed hit the child, who died as a result of his injuries. The administratrix of the estate filed suit against the driver of the car as well as companies that were hired by the city to perform construction work at the high school. The estate alleged in an amended complaint that the construction companies did not take proper steps to mitigate the intersection’s pedestrian safety issues. A year after the original complaint was filed, the estate filed to amend a second time and added the Massachusetts city as a defendant. The estate alleged the city failed to maintain signage about the increased pedestrian and vehicular traffic.

The trial court judge denied the amendment, determining that the city did not owe a duty to the deceased boy and that its negligence was not the proximate cause of the accident. The companies hired by the city later filed motions for summary judgment, arguing that the court’s reasoning in its prior refusal to allow the addition of the city applied to them. The companies felt this logic should extend to them – that no duty of care was owed to the child who died, and that their negligence was not the proximate cause of the child’s injuries. The judge agreed, and the claims against the companies were dismissed through the court’s entry of summary judgments.
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Recently, the Supreme Judicial Court weighed whether or not an affidavit submitted by an administrator of an estate had to be based on personal knowledge. In Bayless vs. T.T.S. Trio Corp., (474 Mass. 215), the estate filed suit for a man who died after a solo car accident, which occurred after he left a restaurant bar he often frequented. The estate sought to hold the restaurant liable under the Commonwealth’s Dram Shop Act, G. L. c. 231, § 60J, which holds establishments responsible if they continue to serve alcohol to patrons when they knew or should have known the patron was intoxicated. As part of any civil action, the Act requires an affidavit to be filed within 90 days of filing the complaint. bar sceneThe defendant restaurant appealed the decision of the trial court, which allowed an affidavit submitted by the administrator as part of the initial pleadings. The Massachusetts Supreme Judicial Court decided to hear the case under an interlocutory petition for relief.

The affidavit described the deceased’s behavior throughout his patronage of the restaurant and the evening he died. The statement was made based on information gathered from several witnesses who had witnessed his excessive drinking, which often caused him to have impaired movement and speech. Witnesses also described conversations between the deceased person and an unnamed female bartender, who would continue to serve the decedent alcoholic drinks after he was clearly intoxicated.

On the evening of his death, the decedent was witnessed drinking at 4 P.M., when he proceeded to become drunk once again. He spoke to his daughter several times, who asked him to come home to a family barbecue. The daughter also spoke to the bartender mentioned above, who tried to assure her he was fine. This same bartender later told a different patron that she was concerned about the decedent because he hadn’t eaten anything. The bartender, as was her custom, continued to serve him alcohol, and he bought and drank 12 drinks while he was at the restaurant. The daughter, during her last call to him at 9 P.M., noticed his speech was slurred. Soon afterward, he died in a vehicle crash from multiple traumatic wounds.
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When medical malpractice lawsuits go to trial, both sides will likely use expert witnesses to aid in the presentation of their case. In order to recover damages in any medical malpractice case, the injured party or family of the deceased person must show that the injury was the result of the doctor, hospital, or medical staff failing to uphold their duty to follow the set standards in the industry in order to provide competent medical care. stethoscope-1-1541316.jpgSince many injured patients were already sick when they sought treatment, it becomes necessary during trial to show the fact-finder, or jury, what ‘went wrong’ beyond the original illness of the patient. This requires specialized testimony from expert witnesses.

In Kace vs. Gants (SJC-11827), the Supreme Judicial Court reviewed whether the plaintiff’s expert witness testimony was properly disclosed under the Commonwealth’s statutes. In this case, the administratrix of a deceased patient’s estate brought suit against the Emergency Room physician who treated the patient for several symptoms that included coughing, fever, malaise, and pleuritic chest pains. The defendant doctor ordered chest x-rays, which showed no abnormalities, but didn’t order an electrocardiogram or any blood tests. The patient was diagnosed with bronchitis and given an antibiotic and pain reliever, but the doctor did not consider myocarditis, a condition that begins with respiratory issues and spreads to the heart. Records reveal that the patient was likely only examined for five minutes. The patient was found dead the following morning, and the autopsy revealed that he perished from bronchitis and myocarditis.
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Recently, the appellate court of Massachusetts reviewed an appeal from the parents of a deceased delivery driver who was murdered while working for a Domino’s franchise. In the case, Lind v. Domino’s Pizza LLC (14-P-928) the parents appealed the trial court’s decision to dismiss the claims against the pizza corporation after considering its eleventh-hour motion for summary judgment. black-5-1500886.jpgThe case discusses how far liability extends and the legal concept of agency, which often plays into personal injury and wrongful death cases.

When determining whether a person’s injury or death was due to the negligence of another, the courts look at whether a duty, created by law, was owed to the person, whether there was a breach of that duty, whether the breach caused the alleged injury or death, and whether damages were incurred. Sometimes people are injured or hurt by another person who was working for a company when the injury occurred. For example, if an employee was responsible for cleaning up spills in a grocery store but failed to do so, the employee would be the immediate person responsible for any injuries sustained by a customer who slips and falls on the spill. However, the employer is also accountable for the injuries sustained because the employee was acting on behalf of the company, or as an agent.

In Lind, the question comes up about how far this logic extends as far as liability is concerned under civil law. Popular chain restaurants are often franchises, in which an individual or group purchases the rights or ability to use the logo, menu, and recipes of an established brand but holds the majority of the day-to-day responsibilities of running the store. The murdered employee worked for a franchisee of the Domino’s Pizza brand. As part of the wrongful death action, the administrator of the estate filed a wrongful death action against several parties, including the murderer and the pizza franchisor.
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If you or a family member has suffered an injury while working in construction, there may be multiple legal routes to obtaining monetary relief. Typically, an injury is covered by workers’ compensation insurance held by the employer, but the injured person may also hold other parties accountable through personal injury actions. construction-1466591.jpgA recent unpublished Massachusetts case, Leahy v. Daniel O’Connell’s Sons, Inc. (14-P-1215), looks at suits filed by an injured subcontractor employee as well as the suits filed by his employer, all stemming from his injury. The injured worker was on a break and sitting on a pallet when a previously installed limestone panel fell on him, crushing his legs and arm. These injuries caused serious and permanent damage.

The injured worker filed a personal injury suit against the general contractor, the masonry company that was installing the limestone, the insurance company insuring the masonry, and other subcontractors on the job. The general contractor filed a third-party complaint against the injured worker’s employer and the insurance company used by the property owners to cover the general contractor and its workers. The general contractor also filed against the subcontractor and its policy, also alleging they were owed indemnification. The general contractor felt the insurance company was obligated to indemnify them in the subcontracting injured worker’s suit, since the work was part of the project covered by the umbrella insurance policy.
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