Wrongful Death

Practice Area

Wrongful death claims refer to actions brought against another individual or parties, including businesses, corporations, or municipalities, where their intentional or negligent act caused the death of a family member. These claims are governed by statute rather than at common law like other personal injury claims.

In Massachusetts, a wrongful death claim is brought by the administrator or executor for the decedent’s estate who was either named in the decedent’s will or, if no will exists, was appointed by the court. Most death claims arise out these common personal injury claims:

Motor vehicle accidents
Construction and industrial accidents
Premises Liability
Defective products (product liability)
Medical malpractice
Intentional acts (homicide)

Who are the Beneficiaries in a Wrongful Death Claim?

By statute, the spouse and children of a decedent are the beneficiaries. If the decedent was not married and had no children, then the parents may recover. If there is no spouse, children or surviving parents, the decedent’s siblings are the beneficiaries. Otherwise, the next of kin is eligible.

When Can a Wrongful Death Claim be Brought?

The administrator generally has 3-years from the date of death to file a wrongful death claim in court. The statute of limitations can be extended to 3-years from the date when the cause of death was or should have been known. This may apply in defective product or medical malpractice cases where the cause may not be known for a few years after the decedent’s death.

Damages in Wrongful Death Claims

Damages in a wrongful death claim are not the same as in a typical personal injury claim. They may include the following:

Funeral and Burial Expenses

Medical Expenses
If the decedent survived for a time following a motor vehicle or industrial accident, then the medical expenses incurred before death are included. Medical care costs for an individual who suffered a debilitating illness or from the consequences of a defective product may also be recoverable.

Expected Net Income
The beneficiaries, such as the children or spouse of the decedent, who would have received the benefit of the decedent’s net income or projected earnings over his/her expected working career, may recover this aspect of damages. Usually, a forensic economist is retained to estimate its present-day value.

Loss of Consortium
This category of damages reflects the intrafamily relationship. The life expectancies of the decedent and beneficiaries are considered. Loss of consortium refers to the loss of the decedent’s love, counsel, companionship, guidance, support, and advice. The closer the decedent was to his/her family, the greater the value of the loss.

Conscious Pain and Suffering
The state’s survivor statute permits the beneficiaries to recover damages if the decedent was observed to have suffered physical pain, mental distress, impairment, embarrassment, or any other mental anguish before succumbing to injuries or a fatal condition. If the decedent was comatose, a medical expert might be able to attest to the decedent’s mental state.

Punitive Damages
Punitive or exemplary damages are awarded only if the defendant’s conduct was malicious, willful, wanton, reckless or deliberately indifferent to the safety or life of the decedent. If the defendant was highly intoxicated and speeding at 90 mph, or a drug company purposely hid adverse test results, this might qualify as grossly negligent or malicious conduct.