Recently, in Atchue v. Benchmark Senior Living LLC, 98 Mass. App. Ct. 572 (2020), the Appellate Court considered whether the Survival Statute M.G.L.c. 228 § 1(2)(a), encompasses a complaint for discovery involving personal injuries sustained by a deceased plaintiff.
On December 19, 2015, Mary T. Atchue sustained a broken foot and contusions while under the care of an assisted living facility known as Tatnuck Park in Worcester, Massachusetts. Mrs. Atchue’s family repeatedly requested records and reports concerning the incident, however, Tatnuck Park failed to produce the requested records. Subsequently, Mrs. Atchue’s attorney served a complaint for discovery and a M.G.L.c. 93A demand letter which alleged Tatnuck Park or its agents negligently failed to abide their own care plan, which required Mrs. Atchue to be transported using a gait belt. Tatnuck Park denied any liability and alleged the plaintiff’s legs “gave out” and she fell to the ground. Additionally, they denied their care plan required gait belts when they transported Mrs. Atchue. In the complaint for discovery, Mrs. Atchue stated “she ‘believes that she has a viable claim for negligence against [the defendants …] but that she requires the information contained in the incident report […] to assess the viability of her claim.’” At the time of the incident, Mrs. Atchue was elderly and displayed cognitive deficiencies which lead to inferences she may not have been able to identify the individuals involved or specific negligent acts that caused her injuries. In June of 2018, Mrs. Atchue’s complaint for discovery was filed with the trial court and subsequently dismissed. In December of 2018 she filed an appeal. Following the appeal, Mrs. Atchue passed away. The Appellate Court, however, took the matter under review.
On appeal, the defendants argued the matter was moot because Mrs. Atchue had passed away. The Court noted, “litigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome and where the court cannot order any further effective relief.” At common law, tort actions did not survive a party’s death, however, the Legislature enacted the Survival Statute M.G.L.c. 228 § 1(2)(a) to include tort actions to common law contract claims. M.G.L.c. 228 § 1(2)(a) provides, “[i]n addition to the actions which survive by the common law, the following shall survive: (2) Actions of tort (a) for assault, battery, imprisonment or other damage to the person.” The defendant’s countered by suggesting the plaintiff’s complaint for discovery is neither a contract nor a tort claim to survive death under M.G.L.c. 228 § 1(2)(a). The Court disagreed stating, “the defendants' argument overlooks the fact that a complaint for discovery is an equitable remedy in aid of an action at law. We discern no reason why, where the administrator of an estate has the ability to pursue an action at law on behalf of a decedent, the administrator of the estate would not have the same ability as the decedent to obtain prelawsuit discovery through a complaint for discovery.” Further, the Court looked to the plain language of M.G.L.c. 228 § 1(2)(a), specifically, “or other damage to the person” and held that this phrase was intended to incorporate other torts that involve damages. Ultimately, the Court found that “because Atchue's potential negligence claim survives her death, so too does her complaint for discovery.”
From a defense perspective, at common law, death no longer defeats a personal injury suit or even pre-suit inquiries of discovery, therefore compliance with such requests are required, unless there are independent grounds to object.