Presentment by Estate’s Attorney Held Proper under Massachusetts Tort Claims Act – Gavin v. Tewksbury State Hospital

Under sovereign immunity, governmental entities may be immune from lawsuits arising from the negligence of their employees. Over the years, the courts carved out several exceptions to the doctrine, and in 1978 the Commonwealth passed the Massachusetts Torts Claims Act, Mass. Gen. Laws c. 258, § 4 (the “Act”), specifying the circumstances in which immunity is waived and the procedural requirements for making a claim.

Although every malpractice case has its own complexities, claims against the government present some unique procedural challenges. If you have been injured or lost a loved one due to the medical negligence of a governmental employee, you need an experienced medical malpractice attorney working on your case.

The Facts of the Case

Recently, the Supreme Judicial Court of Massachusetts ruled on a tricky procedural issue under the Act.  In Estate of Gavin v. Tewksbury State Hospital, the plaintiff estate commenced an action against the defendant state hospital, alleging that a state employee’s negligent insertion of a feeding tube had led to the decedent’s death. The hospital moved to dismiss the complaint on the grounds that the estate had failed to comply with the presentment requirement under the Act.

The decedent died in August 2008. His will named his father as executor and his two children as his sole heirs. In July 2010, the estate’s counsel sent a presentment letter to the Attorney General and the chief executive officer of the hospital. At the time, no executor or administrator had been appointed for the estate. The Attorney General forwarded the presentment letter to the general counsel of the Executive Office of Health and Human Services, requesting an investigation. In August 2010, the general counsel wrote to counsel for the estate, advising that the claim would be reviewed to see if a settlement offer was warranted. In March 2011, the estate filed suit in superior court. The Commonwealth moved for dismissal on the grounds that a) presentment had not been made by a duly appointed representative of the estate, as required under the Act, and b) the wrongful death statute requires that a wrongful death claim be brought by the appointed executive or administrator. Thereafter, the decedent’s parents were appointed temporary co-executors, and the estate moved to amend the complaint to include the co-executors as plaintiffs. The trial judge granted the hospital’s motion to dismiss, agreeing with the Commonwealth that the presentement was defective because it was made by the estate and not the executor or administrator. The appellate court affirmed.

The Applicable Law – Massachusetts Tort Claims Act

One of the requirements of the Act is that written notice of a claim be sent to the governmental entity against which a party wishes to seek damages. This is to be done within two years after the date upon which the claim arose and before the filing of a formal lawsuit. The wrongful death statute, codified at Mass. Gen. Laws c. 229,  § 2, states that an action for wrongful death is to be brought by the deceased’s executor or administrator.

The Issue

For purposes of presentment, was the estate a proper claimant under the Act?

What the Court Decided

The court reversed the lower courts’ rulings, holding that the letter from the estate’s attorney met the statutory requirement of presentment. According to the court, the Act does not define “claimant,” and thus the usual meaning, “one who asserts a right or demand,” was to be used. The court rejected the hospital’s argument that a claimant under the Act was the same as a claimant under the wrongful death statute, which clearly requires that a wrongful death action be brought by the executor or administrator of the deceased. In so holding, the court noted that the Commonwealth had not been prejudiced in any way by the estate’s filing of the presentment because it knew the nature of the claim and the beneficiaries of any potential settlement. According to the court, the Act’s dual purpose was to allow plaintiffs with valid causes of action a method of recovery and to preserve the stability of the government by allowing only valid claims in reasonable amounts.

Notably, the court agreed with the hospital’s argument that the temporary co-executors were not proper plaintiffs under the wrongful death statute. However, during the course of the litigation, the temporary co-executors had been appointed actual co-executors. On remand, the estate was to seek leave to amend the complaint to identify the proper plaintiffs.

Help If You Have Been Injured Due to the Negligence of a Governmental Employee

Claims against the government have a very specific timeline. Those wishing to file such a claim need a skilled attorney to make sure the claim is handled properly and all the procedural requirements are met in a timely manner. Cape Cod attorney John C. Manoog, III is an experienced lawyer who handles medical malpractice and other personal injury claims. He offers free initial consultations, so there is no charge to discuss your case. Call 888-262-6664 or contact us online for an appointment. Someone is always available to talk about your claim.

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