In August of 2008, Steven Gavin died due to a bacterial infection that was allegedly caused by the improper reinsertion of a feeding tube. Additionally there were allegations of improper monitoring by physicians, nurses, and staff at Tewksbury State Hospital. Two years after his death, in July of 2010, an attorney representing the estate of Steven Gavin sent a presentment letter to the chief executive officer of the hospital and the Attorney General of Massachusetts alleging that the negligence of the hospital and the staff amounted to a wrongful death. At the time of the letter, no estate proceedings at commenced in the Probate and Family Court.
The Commonwealth of Massachusetts moved to dismiss the case claiming that the Plaintiff’s presentment letter was deficient because it was not sent by an executor/administrator/personal representative of the Estate that had been properly appointed by the court. The lower court agreed and reasoned that the Plaintiff’s presentment was in fact deficient because at the time the letter was sent, the Plaintiff was not a “claimant” or an executor or administrator with the capacity to commence suit or settle a wrongful death claim. Plaintiff’s claim was dismissed.
A civil action shall not be instituted against a public employer on a claim for damages under this chapter unless the claimant shall have first presented his claim in writing to the executive officer of such public employer within two years after the date upon which the cause of action arose, and such claim shall have been finally denied by such executive officer in writing and sent by certified or registered mail, or as otherwise provided by this section.