Articles Tagged with Personal Representative

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postIn 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.

Under Massachusetts General Law Chapter 258 § 4:

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.

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old-cemetery-1239425-mThe loss of a friend, family member, or significant other can have a devastating impact on the individuals in that person’s life. While any loss is a tragic and unfortunate event, in certain situations, the death of the beloved (or in legal terminology, “the decedent”) is due to the actions or inactions of another person. As a result, the Massachusetts legislature enacted Massachusetts General Law Chapter 229– the Wrongful Death Statute. The statute was originally enacted in 1840 by the legislature, but subsequently underwent a great deal of change due to a 1973 amendment to the law. The resulting law establishes recovery for the statutory beneficiaries of the decedent by measuring the loss of the family member to the beneficiaries.

Under § 2 of the law: A person who…

  1. by his negligence causes the death of a person, or
  2. by willful, wanton or reckless act causes the death of a person under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, or
  3. operates a common carrier of passengers and by his negligence causes the death of a passenger, or
  4. operates a common carrier of passengers and by his willful, wanton or reckless act causes the death of a passenger under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, or
  5. is responsible for a breach of warranty arising under Article 2 of chapter one hundred and six which results in injury to a person that causes death, shall be liable in damages.

If a person dies due to the negligence of another, the above referenced statute is applicable. However, not just anyone can step into the shoes of the decedent to pursue a claim against a responsible person or organization. Continue reading →