M.G.L.A. 229 § 2. Wrongful death; damages

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 not 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 arising under Article 2 of chapter one hundred and six which results in injury to a person that causes death, shall be liable in damages in the amount of: (1) the fair monetary value of the decedent to the persons entitled to receive the damages recovered, as provided in section one, 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 to the persons entitled to the damages recovered; (2) the reasonable funeral and burial expenses of the decedent; (3) punitive damages in an amount of not less than five thousand dollars in such case as the decedent's death was caused by the malicious, willful, wanton or reckless conduct of the defendant or by the gross negligence of the defendant; except that (1) the liability of an employer to a person in his employment shall not be governed by this section, (2) a person operating a railroad shall not be liable for negligence in causing the death of a person while walking or being upon such railroad contrary to law or to the reasonable rules and regulations of the carrier and (3) a person operating a street railway or electric railroad shall not be liable for negligence for causing the death of a person while walking or being upon that part of the street railway or electric railroad not within the limits of a highway. A person shall be liable for the negligence or the willful, wanton or reckless act of his agents or servants while engaged in his business to the same extent and subject to the same limits as he would be liable under this section for his own act. Damages under this section shall be recovered in an action of tort by the executor or administrator of the deceased. An action to recover damages under this section shall 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, or within such time thereafter as is provided by section four, four B, nine or ten of chapter two hundred and sixty.

St. 1946, c. 614, § 1, approved June 15, 1946, struck out former §§ 1 to 5 of this chapter and inserted in place thereof present §§ 1 and 2 of this chapter.

St. 1947, c. 506, § 1A, an emergency act, approved June 7, 1947, omitted the provision for assessment of damages according to the degree of culpability, and made several other changes, making the section read:

"If the proprietor of a common carrier of passengers, including a corporation operating a railroad, street railway or electric railroad, by reason of his or its negligence, or wilful, wanton or reckless act, or by reason of the unfitness or negligence, or the wilful, wanton or reckless act, of his or its agents or servants while engaged in his or its business, causes the death of a passenger, or of a person in the exercise of due care who is not a passenger or in his or its employment or service, or if any person other than such a common carrier, except as provided in section one, so causes the death of a person in the exercise of due care who is not in his or its employment or service, he or it shall be liable in damages, in an amount not less than two thousand nor more than fifteen thousand dollars, to be assessed with reference to the pecuniary loss sustained by the parties entitled to benefit hereunder and recovered by the executor or administrator of the deceased person in an action of tort, commenced within two years after the injury causing the death and also within the time set forth in sections four and ten of chapter two hundred and sixty in the case of any cause of action subject to said sections, and distributed one half to the surviving wife or husband and one half to the children of the deceased dependent upon him for support at the time of his death, or, if there are no such dependent children, to the surviving wife or husband, or, if there is no surviving wife or husband, to the next of kin.

"Except as otherwise provided in chapter one hundred and fifty-two, an employer shall be liable in damages for the death of an employee in every case where such employer is liable for the injury causing the death or would have been liable therefor had it not resulted in instantaneous death, in an amount not less than two thousand nor more than fifteen thousand dollars, to be assessed, recovered and distributed in the manner provided in this section, subject, however, to all the provisions of section six of chapter one hundred and fifty- three relative to notice to the employer of the time, place and cause of injury, and the time within which the action to recover damages for death shall be commenced."

St. 1949, c. 427, § 2, approved June 14, 1949, struck out the then existing § 2, and substituted a § 2, which was similar to the former § 2 prior to the act of 1946.

St. 1958, c. 238, § 1, approved April 7, 1958, greatly expanded this section to make it cover various actions for wrongful death rather than merely actions for death caused by the negligence of a common carrier; and consolidated provisions of former §§ 2, 2A and 2C of this chapter.

Section 10 of St. 1958, c. 238, provided:

"This act shall take effect on January first, nineteen hundred and fifty-nine, and shall apply only to actions for death resulting from injuries sustained or accidents occurring on or after said date. The provisions of law applicable to actions for death, as in effect from time to time prior to the effective date of this act, shall continue to be applicable to such actions resulting from injuries which were sustained or accidents which occurred prior to the effective date of this act, in accordance with such provisions as in effect at the time the injury was sustained or the accident occurred."

St. 1962, c. 306, § 1, approved March 29, 1962, increased minimum and maximum amount of damages from $2,000 and $20,000 to $3,000 and $30,000, respectively.

Section 2 of St.1962, c. 306, provided:

"This act shall take effect on January first, nineteen hundred and sixty-three, and shall apply only to actions for death resulting from injuries sustained or accidents occurring on or after said date. The provisions of law applicable to actions for death, as in effect from time to time prior to the effective date of this act, shall continue to be applicable to such actions resulting from injuries which were sustained or accidents which occurred prior to the effective date of this act, in accordance with such provisions as in effect at the time the injury was sustained or the accident occurred."

St. 1965, c. 683, § 1, approved Sept. 7, 1965, increased minimum and maximum amount of damages from $3,000 and $30,000 to $5,000 and $50,000, respectively.

Section 2 of St.1965, c. 683, provided:

"This act shall take effect on January first, nineteen hundred and sixty-six, and shall apply only to actions for death resulting from injuries sustained or accidents occurring on or after said date. The provisions of law applicable to actions for death, as in effect from time to time prior to the effective date of this act, shall continue to be applicable to such actions resulting from injuries which were sustained or accidents which occurred prior to the effective date of this act, in accordance with such provisions as in effect at the time the injury was sustained or the accident occurred."

St. 1967, c. 666, § 1, approved Oct. 9, 1967, changed the limitation in the last sentence, from "one year" to "two years".

Section 2 of St.1967, c. 666, provided:

"This act shall take effect on January first, nineteen hundred and sixty-eight and shall apply only to actions for death resulting from injuries sustained or accidents occurring on or after said date."

St. 1971, c. 801, § 1, approved Sept. 22, 1971, and by § 2 made effective Jan. 1, 1972, increased the maximum amount of damages from $50,000 to $100,000.

St. 1972, c. 440, § 1, approved June 19, 1972, increased the maximum amount of damages from $100,000 to $200,000.

Section 2 of St.1972, c. 440, provided:

"This act shall take effect on January first, nineteen hundred and seventy- three, and shall apply only to actions for death resulting from injuries sustained or accidents occurring on or after said date."

St. 1973, c. 699, § 1, approved Aug. 27, 1973, rewrote the provisions preceding the exception clause in the first sentence, which prior thereto read:

"A person who (1) by his negligence causes the death of a person in the exercise of due care, or (2) by wilful, 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 not 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 wilful, 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, shall be liable in damages in the sum of not less than five thousand, nor more than two hundred thousand dollars, to be assessed with reference to the degree of his culpability and distributed as provided in section one; except that * * *".

Section 1 of St. 1973, c. 699, also deleted an exception clause following "act" at the end of the second sentence reading "except that the damages shall be assessed with reference to the degree of culpability of his agents or servants".

St.1973, c. 957, § 1, approved Oct. 29, 1973, extended the limitation period from "two" to "three" years in the last sentence.

Section 2 of St.1973, c. 699, and § 2 of St.1973, c. 957, both provided:

"This act shall take effect on January first, nineteen hundred and seventy- four, and shall apply to causes of action arising on or after said date."

St. 1979, c. 164, § 1, approved May 14, 1979, without reference to St. 1973, c. 957, § 1, purported to substitute "three years" for "two years" in the last sentence.

Section 2 of St.1979, c. 164, provided:

"This act shall apply to all causes of action arising on and after the effective date of this act."

St.1979, c. 164, was repealed by St.1982, c. 634, § 14, an emergency act and corrections bill, approved Jan. 4, 1983.

St. 1981, c. 493, § 1, deleted the former fourth sentence, which prior thereto read: "No recovery shall be had under this section for a death which does not occur within two years after the injury which caused the death."

St.1981, c. 493, § 1, was approved Oct. 29, 1981, and by § 2 made applicable to causes of action arising on and after Jan. 1, 1982. Emergency declaration by the Governor was filed Oct. 29, 1981.

St. 1982, c. 634, § 14, an emergency act and corrections bill, approved Jan. 4, 1983, repealed St. 1979, c. 164.

St.1989, c. 215, § 1, approved July 11, 1989, in the last sentence, inserted ", 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,".

In action for medical malpractice arising from injuries suffered during and as result of stillborn delivery of plaintiffs' child, and for wrongful death of that child, plaintiffs were required to show causal relationship between defendant hospital's negligence and their injuries, but they were not required to show exact cause of their injuries or to exclude all possibility that they resulted without fault on part of hospital. Samii v. Baystate Medical Center, Inc. (1979) 395 N.E.2d 455, 8 Mass.App.Ct. 911. Health  684

Although, in action for medical malpractice arising from injuries suffered during and as result of stillborn delivery of plaintiffs' child, and for wrongful death of that child, defendant hospital's witnesses testified that danger of stillborn delivery in circumstances suffered by plaintiff wife was unlikely, jury was not precluded from finding that hospital was negligent in allowing wife to remain unattended and without examination by physician or resident and thereby exposing her to danger which involved unreasonable risk of harm. Samii v. Baystate Medical Center, Inc. (1979) 395 N.E.2d 455, 8 Mass.App.Ct. 911. Health  823(9)

In action for medical malpractice arising from injuries suffered during and as result of stillborn delivery of plaintiffs' child, and for wrongful death of that child, there was sufficient evidence to warrant jury consideration of whether defendant hospital was negligent in care and treatment of plaintiff wife, given testimony of plaintiff husband, a doctor, that, for various reasons, it was not good medical practice to admit woman experiencing labor into hospital without having her examined by physician and thereafter to place her in labor room attended by nurse who would call physician only if she determined that medical problem existed. Samii v. Baystate Medical Center, Inc. (1979) 395 N.E.2d 455, 8 Mass.App.Ct. 911. Health  823(9)

Statute making liability insurer's responsibility absolute whenever loss or damage occurs and prohibiting insured's satisfaction of final judgment from being condition precedent to insurer's obligation to make payment did not move point of insurer's liability backward in time from moment of judgment to moment of injury to victim and, therefore, did not require Medical Malpractice Joint Underwriting Association (JUA) to pay prejudgment interest in excess of policy limits. Mayer v. Medical Malpractice Joint Underwriting Ass'n of Massachusetts (1996) 663 N.E.2d 274, 40 Mass.App.Ct. 266, review denied 665 N.E.2d 1003, 422 Mass. 1110. Insurance  2281(3)

10. ---- Medical malpractice, time and computation

Entire amount of award to patient in medical malpractice action, including award for future lost wages, was subject to award of prejudgment interest under statute, even though damage award was broken down into past and future components. Kuppens v. Davies (1995) 649 N.E.2d 164, 38 Mass.App.Ct. 498, review denied 651 N.E.2d 410, 420 Mass. 1105. Interest  39(2.50)

Award of prejudgment interest on award of future damages to patient in medical malpractice action was proper even though jury had been instructed to discount future damages to present value where physician failed to object at trial despite disharmony in award of interest on amount already discounted. Kuppens v. Davies (1995) 649 N.E.2d 164, 38 Mass.App.Ct. 498, review denied 651 N.E.2d 410, 420 Mass. 1105. Interest  39(2.50)

In proceedings under this section in any action which has been heard by the medical malpractice tribunal established pursuant to section sixty B, the decision of the tribunal may be introduced as evidence relevant to whether a claim was wholly insubstantial, frivolous and not advanced in good faith.

Trial court properly permitted defendants in medical malpractice action to amend answer, after convening of tribunal, to include request for attorney fees and costs, even though plaintiffs' pro se status may preclude such an award. O'Leary v. Nepomuceno (1998) 693 N.E.2d 701, 44 Mass.App.Ct. 683, review denied 700 N.E.2d 268, 427 Mass. 1108. Costs  199