Legal Memorandum: Wrongful Death Damages in MA

Issue: Can medical expenses be recovered as an element of damages in a wrongful death action pursuant to Mass. Ann. Laws ch. 229,  2?

As a matter of statutory construction, Mass. Ann. Laws ch. 229, § 2 (Law. Co-op 1986 & Supp. 2000) must be read as listing the kinds of damage that may be recoverable in a wrongful-death action.  Section 2 states that wrongful-death damages shall include three kinds of damages: (1) compensatory damages relating to decedent’s “fair monetary value”; (2) funeral and burial expenses; and (3) punitive damages of at least $5000.  Id.  The most logical place for medical expenses to be listed if they were recoverable is between the compensatory damages and the funeral/burial expenses.  But since medical expenses are not specifically listed, they cannot be recovered. 

The word “including,” used to define the sorts of compensatory damages that may be recovered, does not limit the sorts of items that may recovered.  The statute uses the phrase “including but not limited to” and then sets forth examples of what may be recovered.  Medical expenses clearly cause a monetary loss of a person’s value.  Thus they are recoverable in a wrongful death action.

In Massachusetts a wrongful-death recovery is not an asset of the decedent’s probate estate.  It is viewed as a statutory trust fund, with the administrator as trustee responsible for distributing the proceeds to the statutory beneficiaries.  Sullivan v. Goulette, 344 Mass. 307, 182 N.E.2d 519 (1962).  Chapter 229, § 6A amply demonstrates that point.  It provides that when the decedent’s estate is insufficient to pay “the charges of administration and funeral expenses . . . , all medical and hospital […]