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Every wrongful death case requires careful attention to the applicable statute of limitations and, among other factors, assessment of the plaintiff’s theory of negligence and causation.

Egan, Flanagan & Cohen has a long history of successfully pursuing wrongful death cases. Perhaps most notably, in 2015, Jack Egan of Egan, Flanagan & Cohen served as lead trial counsel in a wrongful death action in which he obtained a $32,369,024.30 jury verdict on behalf of the estate of a woman who was killed at a dangerous convenience store in Chicopee, Mass.

Above: Attorney Jack Egan argues on behalf of a client in Hampden Superior Court.

The $32 million dollar jury verdict was the largest amount ever awarded in Massachusetts for a wrongful death claim where the death was instantaneous. Large verdicts of this kind are no accident. Rather, they are the result of careful preparation and analysis of the facts and law by the attorney handling the case.

Timing and the statute of limitations

Of course, a suit must be filed in compliance with the applicable statute of limitations. In Massachusetts, M.G.L. c. 229, § 2 provides that a wrongful death claim must be “commenced within three years from the date of death, or within three years from the date when the deceased’s executor or administrator knew, or in the exercise of reasonable diligence, should have known of the factual basis for a cause of action….”

If the defendant is a government entity, the statute of limitations may be shorter. A family who has suffered the death of a loved one at the hands of another should always immediately consult an experienced wrongful death attorney as soon as possible.

A wrongful death case, especially if it stems from medical malpractice or a complex fact pattern, will require investigation and review in advance of filing. Therefore, it is important to contact an attorney soon to provide for adequate review and evaluation.

Also, the only party that can bring a wrongful death suit is the decedent’s estate. The representative of the estate must bring the action to enforce the rights of the estate and statutory beneficiaries. The representative must be formally appointed to the position by the probate court for the county in which the decedent last resided prior to the time of death. All of this must occur before filing.

A failure to pursue a timely claim can result in the claim being barred forever.

Typically the estate representative is determined by a will that named the specific person whom the decedent wanted to be appointed. If there was no will, the surviving family members can agree naming the representative.

Of course, this raises an important issue in choosing counsel. Many clients find that it is preferable to engage a law firm, such as Egan, Flanagan & Cohen, which is equipped with a fully staffed Probate Department, which can fulfill the Probate Court requirements correctly before the lawsuit is commenced.


Every case requires a careful analysis of the plaintiff’s theory of negligence. It is not sufficient to merely blame another for one’s death.

In the case of Jupin v. Kask, 447 Mass. 141, 146, 849 N.E.2d 829 (2006), the Massachusetts Supreme Judicial Court held that in order to prove a negligence claim “a plaintiff must prove that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relationship between the breach of the duty and the damage.”

In a wrongful death case, the decedent’s family must contact a lawyer immediately so that there is time to have the representative appointed and file the suit before the statute of limitation runs.

Assessing negligence requires a careful review of the facts leading up to the decedent’s death, and whether any other party breached a duty of care causing the decedent’s injuries and/or death.

In a medical malpractice case, for example, this will include a detailed review of medical records and any “adverse event” letters provided by the healthcare provider. Some cases require expert review and consultation as to whether the potential defendant did or did not breach his or her duty.


Under Massachusetts law, “[i]t is fundamental that the plaintiff bears the burden of establishing causation by a preponderance of the evidence.” See Johnson v. Summers, 411 Mass. 82, 91 (1991); see also Woronka v. Sewall, 320 Mass. 362, 365 (1946).

With respect to wrongful death cases that involve medical malpractice, for example, some states have adopted increased risk of harm or lost chance causation for medical negligence cases.

In the case of Matsuyama v. Birnbaum, 452 Mass. 1, 17 (2008), the Massachusetts Supreme Judicial Court held that “[i]n order to prove loss of chance, a plaintiff must prove by a preponderance of the evidence that the physician’s negligence caused the plaintiff’s likelihood of achieving a more favorable outcome to be diminished.” However, “injury” need not mean a patient’s death. Matsuyama, 452 Mass. at 16.

The Court held that, “[w]hen a physician’s negligence diminishes or destroys a patient’s chance of survival, the patient has suffered real injury.” Id. The Court recognized that “[t]he patient has lost something of great value: a chance to survive, to be cured, or otherwise to achieve a more favorable medical outcome.” Id.

In such a case, “the plaintiff must prove by a preponderance of the evidence that the physician’s negligence caused the plaintiff’s injury, where the injury consists of the diminished likelihood of achieving a more favorable medical outcome.” Matsuyama, 452 Mass. at 17 (citing Jorgenson v. Vener, 2000 SD 87, 616 N.W.2d 366, 371 (S.D. 2000)).

In Massachusetts, a plaintiff must still prove by a preponderance of evidence, or more likely than not, that the defendant’s actions reduced the plaintiff’s chance of a better outcome. Thus, the loss of chance doctrine “makes no amendment or exception to the burdens of proof applicable in all negligence claims. Matsuyama, 452 Mass. at 17.

The wrongful death statute provides families with the ability to seek justice for their loved ones when death is caused by the negligence of another. However, the statute is fraught with pitfalls. Any wrongful death analysis must meticulously adhere to the statute of limitations and study both negligence and causation with respect to the party at fault.

In any wrongful death case, the experienced attorneys at Egan, Flanagan & Cohen are always available to discuss the best strategy going forward. Call or email today for a free consultation.

ABOUT THE AUTHOR: Attorney Michael G. McDonough, Esq., ( is one of many talented trial lawyers at Egan, Flanagan & Cohen.

This material has been prepared by Egan, Flanagan & Cohen. for informational purposes only and should not be construed as legal advice for any individual case or situation. Instead, you should contact the above attorney and schedule a consultation. Transmission of the information is not intended to create and receipt does not constitute an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional legal counsel. No part of this material may be disseminated without this paragraph.

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