Wrongful Death

Wrongful death is when someone is killed as a result of someone else’s misconduct. Learn how wrongful death claims can compensate surviving family members for their loss.

The death of a loved one is always emotional and painful no matter the circumstances. If that death was caused by the wrongful act of someone else, Massachusetts law may allow for recovery under the wrongful death statute. 

Wrongful death can be the result of someone’s intentional actions, negligence, or misconduct. Learn more about the specific laws in Massachusetts giving rise to wrongful death claims. If you have questions about a wrongful death claim involving a loved one’s death, a SUGARMAN attorney can help you. 

On this page, you'll learn:

The Basics of Wrongful Death Claims in Massachusetts

What does a wrongful death lawsuit mean?

In Massachusetts, it must be proven that a person or company caused the death of another by:

  • Negligence or failure to take reasonable care
  • A malicious, wanton, or reckless act; or
  • A breach of warranty (where a defective product, device or equipment is involved)

In all of these cases, the deceased person could have filed a personal injury case for negligence, wantonness, recklessness, or breach of warranty if he or she had lived. When there is a wrongful death, another person has to make the claim on behalf of the person who died. A wrongful death claim is separate from criminal charges that may also be brought against the person or company.

Who can file wrongful death?

Not everyone can file a wrongful death claim if a loved one dies. In Massachusetts, only an executor or personal representative of a deceased person’s estate can bring a wrongful death claim on behalf of the surviving loved ones. An executor is someone that is nominated in the will of the deceased person. If there is no executor, then a Probate Court can appoint a personal representative. An estate can have co-representatives.

What is the statute of limitations on filing a wrongful death suit?

In Massachusetts, a wrongful death suit must be filed within three years of the date of death. In a wrongful death suit involving medical malpractice, the claim must be brought within seven years of the negligent medical act, no matter when the death occurs.

What are the different types of wrongful death?

  • Car, truck, and motorcycle accidents
  • Medical malpractice
  • Workplace accidents
  • Nursing home abuse or neglect
  • Defective products
  • Aviation accidents
  • Drowning or boating accidents
  • Slip and fall accidents

This is not a complete list, by any means.

What damages are awarded in a wrongful death lawsuit?

The surviving spouse, children, or next-of-kin may recover for the economic and non-economic damages recovered in a wrongful death case. Depending on the facts of the case, the damages may include:

  • Medical expenses
  • Funeral expenses
  • Out-of-pocket expenses
  • Lost household or other services
  • Loss of support and income
  • Punitive damages
  • Parental guidance
  • Pain and suffering prior to death
  • Lost companionship and comfort

How Wrongful Death Cases Work

What happens in a wrongful death suit?

When a person dies as a result of someone else’s negligent actions, whether intentional or not, the executor or representative of the estate may file a wrongful death suit on behalf of the Estate and the survivors. The case must be filed in time to meet the three-year statute of limitations in Massachusetts or within seven years of the negligent medical act. In order to prove a wrongful death claim, there must be proof that the defendant owed the victim a duty of care, that the defendant failed to comply with that duty of care (was negligent), and that the loved one died as a direct result.

What are the steps in a wrongful death lawsuit? How do I start a case?

    1. Contact an attorney to investigate the claim: During this meeting, we will learn about your loved one who passed away, about their life, and what happened to them.
    2. Identify survivors: This may include the person’s spouse, children, or parents.
    3. Determine all damage claims: From medical bills to pain and suffering, your attorney will work with you to determine what claims for damages can be brought under Massachusetts law.
    4. Executor or Personal Representative Appointed: The executor or personal representative must be formally appointed and approved by a Probate Court before a lawsuit can be filed. This also needs to be done in order to collect medical records or other information.

    How do I choose a lawyer to pursue a wrongful death case?

    Often, clients are referred to personal injury law firms by local general practice lawyers or by a family attorney. Careful consideration and vetting are required in order to identify real-world client results. Many lawyers claim to be experts in or specialize in wrongful death claims, but very few have the necessary experience and financial resources to pursue these claims. Reviewing personal injury law firm websites can help you learn more about various firms before making an informed decision, but it is also important to research whether the lawyers are recognized by their peers and legal organizations as being expert and ethical attorneys. Just because a lawyer is on TV or a billboard does not mean that lawyer is a good one or able to handle a wrongful death case.

    Other Common Questions about Wrongful Death Claims

    What is the difference between malpractice and wrongful death?

    Medical malpractice is negligence in the medical care and treatment provided by a doctor, nurse, or other healthcare professional. There are many types of medical malpractice including childbirth errors, failure to diagnose or misdiagnosis, anesthesia errors, surgical injuries, spinal cord injuries, medication errors, and many more. Medical malpractice can lead to death, in which case a wrongful death claim could be made against a medical professional or the facility where the care was rendered.

    What is the difference between wrongful death and negligence?

    The difference is simply the severity of harm or injury that results. Death by negligence can include a driver who runs a stop sign, a doctor prescribing a medication that a patient is documented to be allergic to, a manufacturer selling a product it knows is dangerous if used as intended. Some of these situations can tragically result in the death of another person, in which case, the victim’s family could file a wrongful death claim.

    What is the difference between wrongful death and survival action?

    A wrongful death claim is made on behalf of the surviving family members of a victim. A survival action (brought at the same time as the wrongful death claim) is a claim made on behalf of the deceased person’s conscious pain and suffering prior to death (if there is any).

    Can wrongful death be filed in case of suicide?

    In Massachusetts, a person can be held responsible for another person’s suicide if it can be proved that the person knew action or inaction would likely lead the victim to commit suicide. For example, under Massachusetts state law, therapists, psychologists, and psychiatrists must report suicidal thoughts or tendencies of any patients who are minors. Doctors and other medical professionals can also be held accountable if they do not act when it is clear they know or should know that their patient was in danger. Pharmaceutical companies can be liable if they fail to advise patients on the potential risks and side effects of medications known to increase suicidal thoughts.

    What is comparative negligence?

    Comparative negligence is the legal concept that a jury can not only find that a defendant is negligent in causing injury, but that they can also find that a plaintiff’s negligence played a role in causing the injury as well. This is a defense that has to be raised by a defendant at the early stages of a case. In Massachusetts, it may be raised in any wrongful death action. At trial, a jury is asked to assign a percentage of “blame” as to each party’s role in causing the accident or injury.

    Massachusetts follows the “51 Percent Rule” with respect to a defense of comparative negligence. This means that if the person making the claim is found to be more responsible for causing the injury (51% or more at fault), that person cannot collect damages, not matter how great they may be. If the person is 50% or less at fault, they can recover damages, but the awarded damages will be reduced by the percentage of fault.

    In a wrongful death claim where the defense is raised, the jury will be asked to decide whether the deceased person had a role in causing the accident or the injury, in this case death. If the jury finds the deceased person to be 50% at fault and awards $1,000,000 in damages, the award would be reduced by 50% to $500,000.