9 N.E.3d 299
Mass.2014Background
- Estate sues Commonwealth and hospital under Massachusetts Tort Claims Act for wrongful death due to negligent hospital staff conduct.
- Presentment under G. L. c. 258, §4 was made by the estate through its attorney, not by a duly appointed executor or administrator.
- Decedent Steven Gavin died August 11, 2008 after Huntington’s disease treatment; claim alleges dying from bacterial infection from improper reinsertion of a feeding tube.
- Executor/administrator of Gavin’s estate had not been formally appointed at the time of presentment (July 21, 2010).
- Attorney General forwarded the presentment to the Executive Office of Health and Human Services; there was no written indication of defect or timeliness concerns during presentment period.
- Temporary coexecutors (James and Mary Gavin) were appointed July 10, 2011, and formal executorship followed on July 27, 2011; the estate sought to amend to name coexecutors as plaintiffs on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether presentment by the estate before appointment satisfies §4. | Estate is a valid claimant under §4. | §4 requires a claimant with authority to settle; estate lacks authority before appointment. | Yes; estate qualifies as claimant for presentment. |
| Whether wrongful death action may be brought by the estate or only by executor/administrator. | Estate should be able to pursue wrongful death with presentment vindicated. | Wrongful death actions must be brought by executor/administrator under c.229 §2. | Remand to address plaintiff identity; wrongful death action requires proper plaintiff. |
| Whether presentment was made to the proper executive officer and is valid. | Presentment sent to Attorney General on behalf of Secretary of Health and Human Services was proper. | Presentment must be to correct officer and in proper form. | Presentment to the proper executive officer was adequate. |
| If presentment is valid, whether relation back can apply to allow amendment to pleadings. | Rule 15(c) relation back may apply on remand. | Relation back not applicable to presentment; issues settled earlier. | Relation back may be considered on remand; not barred. |
| Whether dismissal was appropriate given the estate’s presentment and suitability of amendment. | Dismissal improper; amendment should be allowed. | Improper presentment requires dismissal; amendment futile. | Judgment vacated; remand for further proceedings including potential amendment. |
Key Cases Cited
- Weaver v. Commonwealth, 387 Mass. 43 (1982) (presentment must be to the proper official; strict compliance.)
- MacDonald v. Moore, 358 Mass. 801 (1970) (wrongful death action must be brought by executor or administrator.)
- Marco v. Green, 415 Mass. 732 (1993) (voluntary administratrix cannot bind estate; authority to settle matters.)
- Weiss v. Worcester, 464 Mass. 261 (2013) (de novo review of dismissal orders; standard of review.)
- Bellanti v. Boston Public Health Comm’n, 70 Mass. App. Ct. 401 (2007) (presentment timing and proper officer; similar line of reasoning.)