Lawsuit can be amended after deadline to include wrongful death

A Massachusetts plaintiff can amend a medical liability lawsuit to include wrongful death even though the time allowed under the law to make the claim has expired, the state Supreme Judicial Court ruled in October.

However, the court set parameters on when a wrongful death claim may be substituted for a personal injury claim, ruling that:

• The trial must not have begun.
• The original complaint alleging malpractice must have been filed within the time frame that the law allows.
• The allegations of liability supporting the personal injury claim must be the same as those supporting the wrongful death claim.

"I don't think [the ruling] will open the floodgates," said John P. Barylick, an attorney with Wistow & Barylick in Providence, R.I., who represented the patient's family. "It is really fairly limited circumstances."

He noted that this is the first time the issue has come before the court in the more than 20 years since the Massachusetts Legislature enacted the law of repose that set the time limit.

The ruling in Sisson et al. v Lhowe et al. stems from a medial liability lawsuit filed before Richard Sisson Jr.'s wife, Dawn, died from osteosarcoma. In February 2006, Richard, Dawn and their three children alleged that between January and November 1999 a physician provided substandard care that resulted in Dawn's injuries, "including, but not limited to, expected premature death from [metastatic osteosarcoma]." Dawn Sisson died in March 2007.

In March 2008 -- after the seven years allowed under law to file a claim had expired -- the wrongful death claims were added to the lawsuit.

The Supreme Judicial Court's 4-1 ruling that the wrongful death claim could be added overturned a lower court decision that threw the claim out. The court said the circumstances in this case did not mesh with the reasons the Legislature had in enacting the law that limited the time plaintiffs had to file a wrongful death claim.

"The additional costs associated with defending stale claims do not manifest where a plaintiff dies during the pendency of a malpractice suit and the parties proceed to trial based on a claim of wrongful death rather than personal injury," the majority of the court wrote. "Regardless of whether a claim is for personal injury or wrongful death, where both claims are based on the facts supporting the malpractice action, the liability issue to be resolved remains the same, as will any problems of proof encountered by defendants during a pending action."

The court also said the damages sought before and after Dawn's death are "not substantially different either in nature or amount."

In a dissenting opinion, one justice said he believed the law's clear language "permits no conclusion other than that the Legislature intended to extinguish malpractice claims seven years after negligent acts or omissions," and that the wrongful death addition to the lawsuit should not be allowed.

An attorney for the physician and his employer named in the lawsuit did not return calls for comment.