Whaley v. Sharp, a case from the Supreme Court of the State of Kansas, involved a plaintiff who went to defendant’s emergency room for treatment. The day after being admitted, plaintiff was to be transferred to Wichita for additional treatment. She died in transit.
Plaintiff’s adult daughter was appointed personal representative of plaintiff’s estate and a submitted a claim to defendant’s attorney. Plaintiff claimed hospital was responsible for the negligent conduct of its employees and also failed to properly hire, credential, and supervise its employees. Damages were in the amount of $1.25 million according to court records.
Four days after submitting claims to the hospital, plaintiff filed two civil actions. The first was filed in the name of decedent’s estate, and the second lawsuit was filed in her personal capacity as a survivorship action. As our Boston personal injury attorneys can explain, before filing a wrongful death action, it is necessary to go the Family and Probate Court and become appointed personal representative (executor) for the decedent’s estate.
Both claims were subject to a two-year statute of limitations, which was about to expire. The lawsuits alleged two staff members were negligent when they provided care for decedent. Hospital was not named as a defendant in either action. For reasons not included in the court records, the lawsuit against one staff member was dismissed without prejudice. Without prejudice means the suit can be refilled at a later time upon a showing of good cause. A dismissal with prejudice means the case cannot be refilled at a later time.
The remaining defendant moved for summary judgment asking the case against him be dismissed. Grounds for this motion were that plaintiff had not waited the statutorily required amount of time after giving defendant notice of a claim before filing the lawsuit. State law required a plaintiff to wait 120 days after giving notice of a claim before filing a civil lawsuit.
Plaintiff argued the notice requirement only applied to lawsuits against municipal defendants and not employees of municipal agencies. Hospital was never named a defendant in this action so plaintiff contended the notice requirement did not apply. Trial judge disagreed with plaintiff and dismissed both lawsuits against remaining defendant.
Plaintiff filed an appeal to the dismissal of the case and a divided court of appeals affirmed trial court’s dismissal of the case. Plaintiff then appealed to the state supreme court. The appellate court held under relevant state law this notice requirement did not apply to a defendant who was sued in his individual capacity, and reversed and remanded the case for further proceedings consistent with its opinion.
If you have suffered a personal injury and one of the defendants is a governmental agency, it is important to speak with an accident lawyer who regularly handles these types of matters and has experience with additional requirements that may apply to your situation. You should also contact an attorney as soon as possible following the accident so you are not facing a fast approaching deadline to file a civil action.
If you are injured in an accident in Boston, call the Law Offices of Jeffrey S. Glassman for a free and confidential appointment — 1-888-367-2900.
More Blog Entries:
Wilkins v. City of Haverhill – Massachusetts Supreme Court Weighs Slip-and-Fall Claim, May 23, 2014, Boston Personal Injury Attorney Blog