Boston Personal Injury Attorney Blog
A family alleging the death of a loved one due to a bacterial infection caused by improper insertion of a feeding tube will be allowed to continue with its claim, according to a recent ruling by the Massachusetts Supreme Judicial Court.
In Estate of Gavin v. Tewksbury State Hosp., the court was faced with whether the proper requirements to bring a medical malpractice for wrongful death under M.G.L. c. 258, § 4(§ 4) had been met. The trial court ruled that those requirements had not been met. A divided appellate court affirmed. The SJC, however, reversed and remanded.
Boston medical malpractice lawyers know that these types of cases require special consideration because both the technical requirements and legal threshold of proof are higher than in claims of ordinary negligence. An attorney with extensive experience in these matters can help guide you through the process.
In the Gavin case, the decedent died in 2008 at a hospital in Tewskbury, about a half-hour north of Boston. In the weeks prior, he had been receiving inpatient treatment for Huntington’s disease, a neurodegenerative disorder (genetic) that impacts muscle coordination and ultimately leads to cognitive decline. The family contends it was not his disease, but rather hospital staff negligence that led to his death. Specifically, it was alleged the feeding tube was improperly installed, an infection developed and the staff did not properly monitor the patient.
The decedent’s father was named in his will as the executor of his estate, though there was no dispute that his two children were his sole heirs. A lawsuit was filed on behalf of the man’s parents, children and mother of those children.
Per M.G.L. 229, Section 2, only the executor or administrator of the deceased may file a wrongful death action in court. Here, there was dispute as to who was the “executor,” and therefore whether the case was properly filed. The issue was that no executor or administrator of the estate had been formally appointed until after notice of the lawsuit was presented to the state attorney general’s office “on behalf of (the decedent’s) estate.”
Later, the man’s parents were named by the probate and family court as temporary co-executors by the state and later co-executors. The defendants moved for a dismissal on the grounds that the estate couldn’t file a claim without an executor or administrator.
The question is important because there are many time-constraint factors. In order to file a negligence claim against public employers or employees acting within the scope of that employment, claimants must first present the claim in writing to an executive officer within two years of the cause of action date. The employer has six months from that date to either settle or deny the claim. Failure to respond is considered denial. At the end of that six months, the plaintiff can file a formal claim.
Generally, Massachusetts medical malpractice claims must be filed within three years, or miss the statute of limitations.
The state’s highest appeals court found that while a strong argument could be made in favor of the defense here, the justices believed it significant that the legislature had not previously chosen to define the word “claimant” in the restricted manner that was suggested by the defense. That is, the court found that it was appropriate to adopt the ordinary meaning of the term “claimant” to simply mean “one who asserts a right or demand.” In doing so, the court indicated that it was proper that an “estate” could appropriately be considered a “claimant” for purposes of litigation.
If you are dealing with a medical malpractice claim in Massachusetts, call Jeffrey Glassman Injury Lawyers for a free and confidential appointment — (617) 777-7777.
Additional Resources:
Estate of Gavin v. Tewksbury State Hosp., May 15, 2014, Massachusetts Supreme Judicial Court
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