Articles Tagged with presentment

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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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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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