Hi. My mom died shortly after a surgery and we are thinking about suing the doctor. My brother (not a lawyer) says that, under Massachusetts law, we probably assumed the risk when my mother signed all the paperwork before the surgery, so that now we cannot sue. Is he correct?
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The Editor, Mark Bernardin, is an attorney living in MA. Please send your suggestions or comments to: TheEditor@malawforum.com
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Editor's Response
Well, if that were the case nobody could ever sue a doctor and prevail. Massachusetts, like most jurisdictions, recognizes the doctrine of Assumption of Risk: If a person knowingly and voluntarily takes some action and is injured as a result of the action, then a defendant can raise Assumption of Risk as a defense. For example, if you are playing soccer and an opponent accidentally kicks your leg causing injury, you probably cannot successfully sue the person who injured you, because you assumed the risk of the injury when you decided to play.
However, whether the defense of Assumption of Risk is applicable in any case depends entirely on the unique facts and circumstance of the incident that caused the injury. The best way to determine if your claim is barred by this defense is to talk to an attorney who specializes in personal injury and allow her to review the relevant facts and documents. Good luck.