Pin It

Mass Appeals Court: Improper Presentment of MA Wrongful Death lawsuit fatal to Medical Malpractice death Lawsuit!

MA Wrongful Death lawsuit Can someone proceed with a wrongful death case under Massachusetts Law when they were not executor or administrator of the deceased estate at the time of the presentment of the case?Can someone proceed with a Mass. Wrongful death case when the MA Superior Court complaint was not brought by the administrator or executor of the estate?

The Massachusetts Appeals Court sitting in Middlesex County MA emphatically answered these 2 questions ‘NO’! affirming the lower Court dismissal.(It is unclear whether there is an appeal pending to the Supreme Judicial court)


(Editor Note: Sadly a man died in a tragic accident and the heirs of the estate will not be compensated unless the Accident lawyer committed legal malpractice by improperly presenting the case. There is not enough public info to determine whether there was malpractice or not in this case. In the event of legal malpractice, the claimants would need to file a legal malpractice case against their Massachusetts Wrongful Death Attorneys alleging the lawyers botched the case.)

In August 2008, Mr. Gavin died from a “bacterial infection allegedly due to the improper re insertion of a feeding tube and improper monitoring by physicians and staff at Tewksbury State Hospital.” Id. He had a will when he died naming his parents as executors of the estate.

“In July 2010 (approximately 20 days prior to the two year presentment requirement required by Massachusetts law) an attorney for the Plaintiff sent a demand letter to the hospital; and the Attorney general seeking damages on account of a wrongful death.” Id. “The presentment letter set forth in detail the basis of the claim of wrongful death. At the time of the presentment, no Probate and Family Court filings had occurred, and no executor or administrator of Gavin’s estate had been appointed.” Id.

The plaintiff filed Suit In March 2011, only months prior to the 3 year Statute of Limitations. For More info on MA Statute of Limitations and the Medical Malpractice and wrongful Death so please see:

Read the Wrongful Death Statute of Limitations:

A motion to dismiss was filed by the defendants. The plaintiff scrambled to get their case in order. “The plaintiff promptly opposed the motion and made some preliminary attempts to address the fact that there was no duly appointed personal representative empowered to bring the wrongful death action. On May 10, 2011, Thomas and Mary were appointed temporary coexecutors of Gavin’s estate. As well, on May 13, 2011, the plaintiff moved to amend the complaint, bringing it in the name of “James T. Gavin and Mary Gavin, as Coexecutors of the Estate of Steven Gavin.”

A MA Superior Court judge dismissed the cause of action finding that the Plaintiff lacked “legal capacity to make a valid presentment” because the claimant who made the presentment was not the “executor or administrator with the capacity to commence suit or settle the wrongful death claim” Id.

Read more about Wrongful Death in MA here

The Appeal Co0urt reasoned that presentment was not meaningless and there was strong public policy behind the presentment requirement. “Establishing presentment as a mandatory prerequisite to suit reflects a legislative choice to permit the public employer to investigate any claim in full and to negotiate, arbitrate, compromise, or settle any such claim as it sees fit. Id. See Weaver v. Commonwealth, 387 Mass. 43, 47–48, 438 N.E.2d 831 (1982); Holahan v. Medford, 394 Mass. 186, 189, 474 N.E.2d 1117 (1985)”

The Appeals Court also ruled that “The failure of an authorized claimant to make a presentment within the two-year period prescribed by G.L. c. 258, § 4, was a fundamental obstacle to suit under the Act.” Furthermore the action was dismissed because the “complaint for wrongful death was not brought by the duly authorized executor or administrator on behalf of the heirs at law and next of kin.”

(Editors note: the plaintiff appeared to be in a quagmire because the case according to the Appeals Court was not presented properly as required by Mass law. Plaintiff also filed the case based on the same faulty presentment. Plaintiffs tried to cover their tracks by filing a probate case to be named executors but then the two years had expired and it was too late to make a proper presentment. To make matters worse, the Plaintiff was denied a request to change the name of the Plaintiff in the lawsuit to the proper name. It appears doubtful that it would have made any difference if the motion to amend the complaint was granted since the initial presentment was deficient and the two year deadline expired for proper presentment of the claim. What a mess! )

(Editors note: Did the MA Personal Injury lawyers rush this claim to meet the 2 year presentment requirement deadline required by MA law? The presentment was only approximately 20 days prior to the two year deadline. A Probate case had not been opened and an executor had not been appointed and therefore the presentment was not in the name of the executor of the estate.)

It is unclear whether the MA personal injury lawyer was hired at last minute or the wrongful death attorney made a tragic mistake by waiting until the last minute and then not filing an estate and bringing the presentment by the executor or some other mistake was made. At the end of the day: what is clear- is that someone dropped the ball big time and a mistake was made and as a result this man’s estate will not be compensated for this tragic death. (There is not enough information here to explain what went wrong.)

Be Sociable, Share!