Overview of Massachusetts Wrongful Death Action
Although we are based in Maryland, our attorneys are often retained to handle wrongful death cases all over the United States. Below is a detailed discussion on the status of the wrongful death law in Massachusetts:
Questions Presented: (1) Who can bring, and benefit from, a wrongful death action under Massachusetts law? (2) What damages can be recovered for wrongful death? (3) Is there a cap on non-economic damages?
(1) Who can bring, and benefit from, a wrongful death action under Massachusetts law?
The entire statutory scheme for wrongful death recovery in Massachusetts is contained in G.L. c. 229. The basic principles for liability for wrongful death are set forth in G.L. c. 229, § 2, which provides:
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 no 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 . . . which results in injury to a person that causes death, shall be liable [for] damages. . . .
G.L. c. 229, § 2. Thus, the statute allows recovery for death resulting from negligence, breach of warranty, or reckless or intentional conduct.
The proper party to bring a wrongful death suit under G.L. c. 229, § 2 is the administrator or executor of the decedent’s estate. G.L. c. 229, § 2. The personal representative brings the action to enforce the rights of the estate and the statutory beneficiaries. The beneficiaries may not sue in their own names for any damages resulting from wrongful death. See Stockdale v. Bird & Son, Inc., 399 Mass. 249 (1987). A wrongful death action may be brought against any person or corporation who causes the death of a person. G.L. c. 229, § 2.
General Laws c. 229, § 2 provides that the damages recovered for wrongful death shall be for the benefit of those persons entitled to recover pursuant to G.L. c. 229, § 1. The beneficiaries set forth in § 1 are either (1) the spouse and children of a married decedent, or (2) the “next of kin” of an unmarried decedent. See G.L. c. 229, § 1(1)-(4). Under Massachusetts law, who is considered “next of kin” is determined by reference to the statutory rules of intestate succession. See Harding v. DeAngelis, 39 Mass. App. Ct. 455 (1995). The statutory beneficiaries set out in G.L. c. 229, § 1 are exclusive and no other relatives may share in the recovery. Therefore, where the decedent is survived by a spouse, the decedent’s parents have no right to recovery even though they would have been beneficiaries if their child had been unmarried. See Bratcher v. Galusha, 417 Mass. 28 (1994).
(2) What damages can be recovered for Wrongful death?
The Massachusetts wrongful death statute establishes a “consortium”-type recovery in which the measure of damages is the loss to certain identified family members of the decedent. This philosophy is distinguished from that of other states, which focus more on the decedent’s own loss or the loss suffered by the decedent’s estate (i.e. so-called survival statutes).
General Laws c. 229, § 2 sets forth the damages which the beneficiaries enumerated in § 1 are entitled to recover. These damages include “(1) the fair monetary value of the decedent to the persons [as set forth in section 1], including but not limited to compensation for the loss of the reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent [that they would have received but for the death]; (2) the reasonable funeral and burial expenses of the decedent; [and] (3) punitive damages in an amount of not less than five thousand dollars in such cases where the decedent’s death was caused by the malicious, willful, wanton or reckless conduct of the defendant or the gross negligence of the defendant. . . .” G.L. c. 229, § 2.
Reasonable Expected Net Income
Reasonable expected net income is distinguishable from lost earning or loss of earning capacity. The calculation of reasonably expected net income generally starts with the decedent’s projected earnings over his expected working career and then makes appropriate deductions to arrive at the amount the beneficiary would actually have received from the decedent. See Lane v. Meserve, 39 Mass. App. Ct. 659 (1985).
In calculating damages for the loss of net income, the surviving beneficiaries are entitled to only those amounts which the decedent would have contributed to them or for their benefit if the decedent had not died. See MacCuish v. Volkswagenwerk A.G., 22 Mass. App. Ct. 380, 397 (1986), aff’d, 400 Mass. 1003 (1987). When awarding these damages, juries are advised to take into consideration the life expectancies of the decedent and beneficiaries.
In addition to loss of reasonably expected net income, the wrongful death statute enumerates elements which are descriptive of various aspects of the interfamilial relationship. These elements are thought to provide compensation for the loss of the relationship between the decedent and each of the beneficiaries. Since the statute is compensatory and not punitive, Massachusetts courts recognize that this loss may differ among various beneficiaries depending on the nature of their relationship with the decedent.
Conscious Pain and Suffering
General Laws c. 229, § 6 permits the recovery of damages for the decedent’s own conscious pain and suffering between the time of the injury and the time of death. See G.L. c. 229, § 6. A claim under § 6 is essentially the survival of what could have been the decedent’s own claim for personal injuries had he or she lived. The plaintiff must prove by a preponderance of the evidence that the movement, acts, or appearance of the decedent following the injury were the result of, or indicative of, conscious effort or suffering. See id.
Under Massachusetts law, the estate of the decedent is entitled to recover the reasonable medical expenses incurred in caring for the decedent’s injuries that were caused by the defendant’s negligence. While medical expenses are not specifically mentioned in the wrongful death statute, a claim for these expenses survives the death of the injured person and, as such, is generally recoverable in a wrongful death action. See Gill v. Northshore Radiological Assocs., Inc., 10 Mass. App. Ct. 885 (1980).
General Laws c. 229, § 2 permits the recovery of punitive damages in the amount of no less than $5,000 where death was caused by “the malicious, willful, wanton or reckless conduct or by the gross negligence of the defendant.” However, this standard is particularly difficult for the plaintiff to meet. In order to demonstrate malicious, willful, or wanton conduct, the plaintiff must show that the defendant’s actions went beyond even gross or culpable negligence, amounting to quasi-criminal activity intentionally committed with the knowledge that it was likely to result in serious injury. See Silver’s Case, 260 Mass. 222 (1927). Whereas reckless conduct involves an intentional or unreasonable disregard of a risk that presents a high degree of probability that substantial harm will result to another. See Pratt v. Martineau, 69 Mass. App. Ct. 670, 680-81 (2007). If the plaintiff meets this burden, there is no cap on the amount of punitive damages that may be awarded under this section.
(3) Is there a cap on non-economic damages?
Generally, there is a $500,000 cap on non-economic, pain and suffering damages in an action brought against a health care provider for malpractice or negligence. See G.L. c. 231 § 60H. However, § 60H specifically provides for an exception to this cap where the action is brought under the wrongful death statute, G.L. c 229, § 2. Id. Section 60H reads as follows:
In any action for malpractice, negligence, error, omission, mistake or the unauthorized rendering of professional services, other than actions brought under [G.L. c. 229, § 2], against a provider of health care, the court shall instruct the jury that in the event they find the defendant liable, they shall not award the plaintiff more than five hundred thousand dollars for pain and suffering, loss of companionship, embarrassment and other items of general damages unless the jury determines that there is a substantial or permanent loss or impairment of a bodily function or substantial disfigurement, or other special circumstances in the case which warrant a finding that imposition of such a limitation would deprive the plaintiff of just compensation for the injuries sustained.
G.L. c. 231 § 60H (emphasis added).
Section 60H does not contain a definition for “provider of health care.” However, commentary discussing Medical Malpractice and Negligence actions in Massachusetts have stated that the definition for “provider of health care” set out in G.L. c. 231, § 60B will likely apply. See 51 Mass. Prac., Professional Malpractice § 11.1. The definition for “provider of health care” in § 60B is “a person, corporation, facility or institution licensed by the commonwealth to provide health care or professional services as a physician, hospital, clinic or nursing home, dentist, registered or licensed nurse, optometrist, podiatrist, chiropractor, physical therapist, psychologist, social worker, or acupuncturist, or an officer, employee or agent thereof acting in the course and scope of his employment.” G.L. c. 231, § 60B.