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do not enterOn October 5, 2012, after being admitted to Holy Family Hospital for a knee operation, a woman passed away.  Her son, Brian Evans, claimed that his mother suffered from sleep apnea and that it was not properly managed by the doctors and hospital staff.  As a result, he alleged that the carelessness of the parties ultimately caused or contributed to his mother’s tragic and untimely death.  Mr. Evans brought suit against the Defendant hospital, Steward Health Care System, and various health care practitioners who allegedly rendered care and treatment to his mother.  The Plaintiff represented himself in the matter and chose not to seek legal representation in pursuit of his claims.  Mr. Evans predicated his suit on personal injuries resulting in his mother’s death, wrongful death, intentional infliction of emotional distress, loss of consortium and loss of love.  In turn, the Defendants filed a motion to dismiss claiming that the Plaintiff, Brian Evans, does not have standing to sue.

The concept of standing is deeply rooted within the requirements of all judicial matters.  Essentially, the principles of standing seek to determine whether or not a person (the potential plaintiff) is the type of person whom the law intends to protect against the type of harm he or she complains of.  The three basic requirements of standing are that the person bringing the suit must show that he or she has suffered an injury in fact, that is causally related to the Defendant’s conduct, and that a favorable decision in favor of the claimant will be able to redress the plaintiff’s injuries.  While the Plaintiff in the above mentioned scenario has suffered a tragic loss, the Defendants argued that the Plaintiff was not the appropriate person to bring the lawsuit- because legally- he was not the “type” of person the wrongful death statute sought to protect.

As the court articulated, the Wrongful Death Statute in Massachusetts allows an action to be brought by the decedent’s executor or administrator (also referred to as a Personal Representative) on behalf of the designated beneficiaries.  However, “there is no independent cause of action that may be brought by individual persons suing in their own right.”  Gaudette v. Webb, 284 N.E.2d 222, 226 (Mass. 1972).  While Mr. Evans may be the statutory beneficiary, he could not sue the Defendants because he was not the Personal Representative of the estate.  Mr. Evans chose to sue the Defendants in his individual capacity and not on behalf of the Estate of his mother.  As such, Mr. Evans’ claims predicated on Wrongful Death were dismissed as he had no standing as an individual. Continue reading →

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footRichard Angelo was a member of a triathlon organization, USA Triathlon since 2011.  As part of his membership, he electronically signed and agreed to a waiver and release of liability.  Additionally, he purported to have assumed any risk of his involvement with the organization and agreed to indemnify and hold harmless the organization from any claims associated with any potential injury.  On February 17, 2012, Richard registered for a National Age Group Championship with the defendant organization that was to be held that summer. While participating in the triathlon, Richard tragically died during the swimming portion of the event.  Richard’s wife was named the Personal Representative of his estate and subsequently brought a claim for wrongful death against the defendant organization.  Additionally, she alleged conscious pain and suffering, gross negligence, and negligent infliction of emotional distress in Essex Superior Court.

The defendant organization counterclaimed for indemnity against any liability and legal costs associated with the pursuit of the claim pursuant to the indemnity agreements that Richard signed prior to his involvement with the organization.  The organization asked for the court to award a motion for summary judgment in it’s favor due to the fact that there was no genuine dispute as to any material fact.  Put differently, a court may award summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case.

The defendant argued that because the decedent (Richard) signed a release and indemnity agreement for all claims that were to arise from his participation in the National Age Group Championship, no liability can attach to the organization.  The Plaintiff, in response, argued that the release would not pertain to her claims for wrongful death or for negligent infliction of emotional distress. The Court held that contracts of indemnity can survive a person’s death and be considered an obligation of a decedent’s estate.  However, as the Court further articulated, a claim for wrongful death is brought by a personal representative on behalf of the designated categories of beneficiaries.  Any and all money that is acquired in pursuit of the claim is not a general asset of the estate but designated for distribution to the statutory beneficiaries.  The Court, relying on previous case law on the matter, detailed that wrongful death is not a claim of the decedent, but rather, the beneficiaries of the estate. Continue reading →

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bossWhile the use of Latin has become a dying language, there are few words and phrases that have stood the test of time and made their way into common vernacular.  These words are often associated with legal concepts that remain in full force long after their first utterance.  One of the more popular Latin phrases that has a legal connotation is respondeat superior.  The literal translation of this phrase is, “let the master answer.”  Respondeat Superior is legal term of art that generally means that an employer should be responsible for the acts of his or her employee.  This concept arises mostly in the world of agency and tort law.

Massachusetts courts have held that, “[C]onduct of an agent is within the scope of employment if it is of the kind he is employed to perform …; if it occurs substantially within the authorized time and space limits …; and if it is motivated, at least in part, by a purpose to serve the employer…. The fact that the predominant motive of the agent is to benefit himself does not prevent the act from coming within the scope of employment as long as the act is otherwise within the purview of his authority.”  Wang Labs., Inc. v. Business Incentives, Inc., 398 Mass. 854, 859–860, 501 N.E.2d 1163 (1986).

Respondeat Superior is most often used when an injured person seeks to recover damages for the negligence of an employee from the employer.  The injured party must first prove that he or she sustained personal injury or property damage due to negligence, that the tortfeasor was an actual employee of the defendant-employer, and that the employee was acting within the scope of his or her employment at the time of the injury. Continue reading →

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lockWhen it comes to personal property, the law of torts allows for an aggrieved person to use one of two causes of action to pursue a case for damages.  While the two causes of action may seem similar, they are in fact quite different.  These two methods of recovery are not interchangeable.  Rather, depending on the destruction of the personal property or the deprivation to the owner of his or her personal property, these factors will weigh heavily in determining which method of recovery you and your lawyer will utilize to maximize your recovery.  The two causes of action, trespass to chattels and conversion, will each be discussed in turn.

Under the theory of conversion, a person may recovery for the distinct and unauthorized act of dominion or ownership that is exercised by a person who is not the owner of the property.  Put differently, if John owns item X and Jane takes item X without John’s consent and ultimately destroys it, Jane is liable under the theory of conversion.  Other acts which may constitute conversion under the laws of Massachusetts:

(1) depriving another of their property;

(2) destroying or altering the property;

(3) using the property in a manner which seriously violates the right of the owner to control its use;

(4) receiving possession of the property from another with intent to acquire it for himself or for another;

(5) refusing to surrender the property upon reasonable demand after a reasonable opportunity to identify the true owner. Continue reading →

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stop-this-watch-487816-mIn October of 2011, a pregnant Maureen Ogiemwonyi was taken to North Shore Medical Center for delivery of her baby.  During the ceasarean section that was performed, Ms. Ogiemwonyi was caused to sustain serious and severe personal injuries.  She brought suit against two doctors and the health care facility alleging medical malpractice.  Because one of the doctors was a federal employee, acting within the scope of her employment at the time of the alleged misconduct, the case was transferred to federal district court.  Additionally, because the doctor was a federal employee, the United States was added to the case as an additional defendant in the matter.  Thereafter, the Defendant moved to dismiss the case on the grounds that the Plaintiff, through her attorney, failed to comply with strict notice requirements in federal court.

Similar to the requirements in Massachusetts, in order to bring a tort action against the United States, a party seeking redress must timely provide notice of his or her claims in writing to the administrative body (agency) in which he or she is claiming is ultimately responsible for the alleged wrongful conduct.  Once this notice is sent to the appropriate agency, a party must wait six months prior to filing suit in federal district court.  This allows for the federal agency to make an attempt to resolve a potentially costly claim, and to do a thorough investigation of the matter in which there are allegations of liability.  Under 28 U.S.C.A. § 2401:

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

If the administrative body fails to make a denial in writing, the absence of a denial can be taken as a “constructive” denial for purposes of a party bringing forward his or her case.  While a party must wait six months for the denial of a claim, another clock starts to the tick:  the time in which a party has to file suit. Continue reading →

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questionAfter a lawsuit is filed, the attorneys for both sides of the case engage in an exchange of information.  They is generally referred to as the “discovery” stage of litigation.  One side to the case, such as the Plaintiff, may ask that the Defendant respond to written questions (referred to as interrogatories), product requests for the production of documents, and even respond affirmatively or negatively to single questions (referred to as admissions).  While this information can form the landscape of the case and be vital in determining whether or not a case may win or lose, often, the single most important part of discovery deals with the parties themselves- depositions.

Under Massachusetts Rule of Civil Procedure, Rule 26 governing discovery:

(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods except as otherwise provided in Rule 30(a) and Rule 30A(a), (b): depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise, or unless otherwise provided in these rules, the frequency of use of these methods is not limited.

A deposition is a formal meeting between the parties in which questions are asked, under oath, to one of the parties.  Typically, the party being asked the questions (the deponent) will be present with his or her attorney, the attorneys representing the other parties to the matter, and a stenographer.  After the stenographer puts the deponent under oath, the deposition gets under way.  Depositions allow the parties to truly flesh out their case and ask any questions (within reason) that they’d like to in an effort to get a better understanding of the underlying allegations for the matter.  For instance, if you are the Plaintiff in a medical malpractice action, the attorney for the nurse or physician may depose you through his or her attorney.  The attorney would then ask you questions ranging from your childhood, your educational background, the alleged incident in question, whether you have been convicted of any crimes, your relationship status with your significant other, how you were after the accident, other cases you’ve been involved in, etc.. Continue reading →

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penIn 2006, Scott Barrow admitted his mother at a nursing home in Massachusetts.  As part of the admission process, Scott filled out various paper work including consents for treatments, a physician consent, and a resident and facility arbitration agreement.  Around the same time his mother was admitted to the facility, she signed a health care proxy that designated her son to be her health care agent.  At no time was Scott ever a power of attorney over his mother.  Under M.G.L. c. 201D § 5:  An agent shall have the authority to make any and all health care decisions on the principal’s behalf that the principal could make, including decisions about life-sustaining treatment, subject, however, to any express limitations in the health care proxy. 

Three years later, Ms. Barrows roommate at the facility attacked her and put a plastic bag over her head causing her death.  Scott filed a wrongful death action against the nursing home alleging that the roommate demonstrated a propensity for violence on numerous occasions while his mother was a resident at the nursing home.  Additionally, Scott claimed that due to the nursing home’s failure to address the violent tendencies of the roommate, his mother was caused to sustain a gruesome death.

After suit was filed, an attorney for the defense moved to compel arbitration of the issues based on the document that was signed by Scott for his mother’s admission to the nursing home facility.  Put differently, the defense argued that the estate of Ms. Barrows waived any and all right to a trial by jury based on the signing of the arbitration agreement when Ms. Barrows was being admitted to the facility.  A judge agreed with the defense and an arbitration followed.  Once at arbitration, the arbitrator determined that there had been no wrong doing on part of the nursing facility.  As a result, the claims against the facility were dismissed and the estate of Ms. Barrows was without recourse.  The estate of Ms. Barrows appealed the original decision of the court that compelled arbitration. Continue reading →

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shredderAs a precursor to becoming a lawyer, every hopeful bar applicant must be familiar with certain core foundations of law.  One of the most important, which governs almost every aspect of trials, are the rules of evidence.  These rules shape the way in which trials are to be conducted, how evidence may be admitted, how witnesses may be qualified to speak, and which statements may or may not be deemed “hearsay” for the purpose of testimony.  The federal rules of evidence range from rule 100 to rule 1000.  Along the way there are over twenty exceptions to issues such as hearsay.  Additionally, Massachusetts has a counter part to the federal rules called the Massachusetts Guide to Evidence, that details additional and somewhat different rules that need to be followed in the courts.

One of the more interesting concepts that is articulated within the rules is the notion of privilege.  Generally, a party may be able to prevent the introduction of certain testimony or evidence under this principle of law.  The party seeking to assert that the testimony or evidence is “privileged” must make a showing that it falls into a category of speech (or evidence) that has previously been deemed as a confidential and private.  For instance, under section 504 of the Massachusetts Guide to Evidence, “a spouse shall not be compelled to testify in the trial of an indictment, complaint, or other criminal proceeding brought against the other spouse.”  Marriage has been an area of society that the legal system has deemed to be sacred, and therefore, impervious to the judicial system’s forced compulsion of speech- instead granting a privilege (or exception) to the general idea that one must testify when subpoenaed or called to the stand. Continue reading →

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handshakeWhen a person gets into an accident, suffers a loss, or attempts to remedy a wrongdoing, there is a mistaken belief that most cases culminate in a trial at district or superior court.  This is a falsehood.  Many cases are resolved between the parties through alternative dispute resolution such as arbitrations or mediations.  In some situations the court requires the parties to mediate, in other situations the parties have bound themselves to be before an arbitrator to adjudicate the case on the merits much like a judge and jury would.  Mediations and arbitrations are very different and have vastly different results.  We will look at each in turn.

To begin with, the ultimate hope for an arbitration or a mediation is that the parties resolve the matter.  This is called a settlement.  A settlement is normally effectuated by the parties dismissing the underlying action, or agreeing to waive any right to a trial by jury to pursue their causes of action, in return for the requested relief.  The requested relief is typically a sum of money that may or may not be disclosed depending on the confidentiality agreements the parties sign at the end of discussions.  Attorneys typically encourage settlement prior to litigation as juries are unpredictable.  Some of the greatest attorneys have lost what appear to be the best cases due to perceptions and insights of the members of the jury.  In many situations it is necessary for the parties to go to court when they cannot agree on what a person may (or may not) be entitled to.  In the event that the parties are open to meaningful settlement discussions they can come in two flavors: mediations and arbitrations. Continue reading →

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psychAs we have discussed in an earlier post, a medical professional owes no duty to a third person arising from any claimed special relationship between the medical professional and a patient.  However, when the health care professional is a mental health professional, the situation is entirely different.  This particular issue was raised when a lawsuit was filed against mental health professionals claiming that they owed a duty to warn a potential victim of their patient.

Jason Potter had a longstanding history of mental health issues and was hospitalized at various times in 1997-1998.  At one particular hospitalization it was noted by professionals that he was disorganized, confused and depressed.  Mr. Potter was admitted to the hospital as a safety precaution.  It should be noted that this was a voluntary admission- meaning he had the capacity to check himself out.  During his stay doctors indicated that Mr. Potter was paranoid and experiencing racing thoughts.  Mr. Potter checked himself out after a two day stay at the hospital, against his doctors advice who recommended a longer stay.  Mr. Potter’s medical records indicated that he was impulsive and a noncompliance risk but not a danger to himself.

A licensed clinical social worker, Jean Semexant, performed an evaluation of Mr. Potter a day after his release.  Mr. Potter attended this meeting with his mother.  Semexant knew that Mr. Potter resided with his mother and stepfather, and that the stepfather had recently been released from jail for violating an abuse prevention order.  Medical records indicate that Mr. Potter denied having any suicidal thoughts or homicidal ideations.  Semexant did not intend to hospitalize Mr. Potter as a result.  Following this evaluation, Mr. Potter returned to his home where he brutally stabbed his mother and stepfather to death.  He was tried for two counts of murder and was found guilty by reason of insanity. Continue reading →

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