Boston Accident Lawyer Blog

It’s no secret among people who know me, that, as a Boston Massachusetts product liability lawyer, I’m one of the sharpest critics in the legal community of the pharmaceutical industry, and particularly, pharmaceutical advertising. Yes, I’m fully aware of the societal value that pharmaceutical companies can and do bring to bear, in addressing a number of diseases and medical conditions. And I believe that they are entitled to make a healthy profit in so doing. But what I’ve – and we’ve – all witnessed in the last 10 or 12 years, is the way that pharmaceutical companies pimp their products to the general public through television, radio, and print advertising. It is often obscene, and in my opinion ought to be legislated as illegal. However, there’s a sticky little thing called "commercial free speech”, which delves into an entirely separate subject of First Amendment issues, which I won’t distract my readers with right now. Not that it isn’t very important, but I’ll save that for another day.

Long gone are the days when pharmaceutical company sales reps solely called on – of all things – doctors’ offices - to sell their products. No, they got around that. Their thinking: “Why rely on doctors to write prescriptions for our products, when we can generate demand at the consumer level? Yeah, we’ll flood print and broadcast media with ominous-sounding ads showcasing all kinds of diseases and medical problems, and in the process, get millions of people to march into their doctors’ offices, and demand to be given prescriptions for our products.” This seemed like an even surer bet than taking doctors out to lunches and dinners, and hosting them with everything from golf outings to “professional seminars” at warm, sunny destinations. (Which they still do, but that practice has been gradually dropping, as regulators see more and more how incestuous and unethical a practice it obviously is.)

Take a little test: The next time you’re watching a TV show (ideally during prime time, (8:00-11:00 PM,) keep a pen and paper next to you. Write down the number of advertisements that you see about any kind of drug or health product. Ninety per cent of the time, it's a pitch from a pharmaceutical company, talking about the horrors of this or that medical condition, and urging you to “Ask your doctor about_______.” Do the same thing the next time you’re reading a newspaper or a magazine. Or listening to the radio (except when driving.) Chances are you’ll realize that the average viewer, reader or listener is inundated, constantly, by drug companies trying to get you to “Ask your doctor” about whether you “might have” some medical problem or condition, and whether their product “might help you.” Not only are ads in newspapers across the country regular fare, but full page ads. Any idea what a full page ad in an average major city daily newspaper goes for, say, Monday through Friday? About $10,000.00 – and more on weekends. Hawking everything from Aspirin to Zithromax, for every condition from high cholesterol to depression to heart disease to smoking, they never cease their constant drumbeat to “Ask your doctor about ______.”

Not quite the harmless commercial activity it’s claimed to be (at least by the pharmaceutical companies.) You see, in the mad frenzy to get drug companies’ products to market so they could hawk them in this way straight to the general public, science and sound practices took a back seat. “Clinical Studies” were skewed. “Scientific research” became less important than scientific fact, and profits became the driving force in research and development. It doesn’t take a genius to see what flows from all this.

One glaring example of this is what happened with a diabetes drug manufactured, and quite forcefully marketed, by GlaxoSmithKline. The drug, Avandia, has become well-known for causing serious injuries in persons taking the drug. About 13,000 former Avandia users in the United States have suffered heart attacks and other serious injuries while using Avandia, and many of these users have filed suit against GlaxoSmithKline in state and federal courts. Product liability lawyers across the United States have known for years that this drug was dangerously defective and posed an extremely elevated risk of harm to those who used it. Now, a Harvard University study has shown that Avandia creates more than double the risk of heart attack in users, compared with other diabetes drugs. The study is slated for publication soon by the American Diabetes Association.

GlaxoSmithKline’s own study of Avandia, conducted with i3 Drug Safety, an independent drug safety firm, found that Avandia users have a 35 percent to 41 percent increased risk of heart attack over users of Actos, Avandia’s main competitor. The Harvard study analyzed clinical data from the medical records of 26,375 patients at several Boston area hospitals and clinics associated with Harvard Medical School. All the records reviewed involved a diagnosis of diabetes and the use of at least one oral diabetic medication used between 2000 and 2006. The researchers then scoured the records to find all patients who suffered “myocardial infarction” or heart attack. The incidence of heart attack was more than double for Avandia compared with its main competitor, Actos.

A company spokeswoman was unavailable for comment Wednesday. No surprise there. The 13,000 people who have filed suits against GlaxoSmithKline, are distributed across the United States, and the suits are filed in both federal and state courts. In California alone, almost 3,000 suits have been filed in state Superior Court. All of the suits accuse GlaxoSmithKline of falling to warn patients about the increased risk of heart attack, strokes and heart failure, and of aggressively marketing Avandia in the face of clear evidence of this elevated risk. On the federal court level, thousands of cases have been consolidated, initially into three bellwether test cases. Medical negligence is one thing. Negligence by definition involves an unintentional act. But from all indications in the Avandia case, GlaxoSmithKline intentionally hid damaging clinical information from the public, all in the name of higher sales and fatter profits. Nothing new there.

When will corporate America wake up and realize that the viral corporate greed that has previously infected so many companies, whether automobile manufacturers, tobacco companies, or toy manufacturers, doesn’t pay? When will they break out of their frenzied drive for more sales and profit at any cost, and place the interests of their customers first? When does this all end? The best and, in the real world – only answer to these questions is “When they get hit so hard in court, that none of them will ever think of it again." That’s why the tort system in this country is so critical. The day the average citizen loses his right to hold corporate America accountable for its misdeeds, is the day we will all suffer a loss that can not be replaced. Remember that the next time that some pro-business type tells you that "tort reform" is a good idea.

Here’s an interesting case – far from decided or even litigated yet – but interesting nonetheless. It’s a hybrid of both medical malpractice and wrongful death (actually, wrongful death arising from alleged medical negligence.)

The parents of two young children, whose mentally ill aunt literally carried them to their deaths on a Lowell highway in 2008 have sued McLean Hospital in Belmont, alleging that the hospital was negligent in treating the woman, Marcelle Thibault, 39, whose actions killed the children and herself.

Ken and Danielle Lambert, of Brentwood, New Hampshire, argue in the complaint filed in Suffolk Superior Court that the renowned Massachusetts psychiatric hospital provided negligent care to Danielle Lambert’s identical twin sister, Marcelle Thibault, and is therefore legally responsible for the wrongful deaths of their 5-year-old daughter, Kaleigh, and 4-year-old son, Shane. Thibault, the children’s aunt, was also was killed on Jan. 11, 2008, when she intentionally carried the children into high-speed traffic on Interstate 495 in Lowell. Following the deaths of their children and Thibault, the Lamberts told the Boston Globe that psychiatrists had diagnosed Thibault with bipolar disorder in September 2007 and discharged her six days later after prescribing psychotropic drugs and outpatient therapy.

However, the couple said, doctors at McLean never told family members about the risk Thibault might pose to herself or others. It is this failure that will form the basis of the plaintiffs’ suit against McLean Hospital. Two McLean psychiatrists and a licensed social worker are also named as defendants in the suit: Dr. Matthew E. Bernstein, Dr. Mia D. Pfleging and social worker Kathryn Healey. The plaintiffs are fundamentally arguing that these professionals breached the legal duty owed to them as family members, by not warning them of the risk of suicidal ideation (thoughts,) in Thibault, or at the very least warning persons such as themselves that Thibault could pose a risk of harm to herself or others. The Lamberts contend, naturally, that had they been made aware of this risk by the defendants, they never would have placed their children in the care of Thibault that night, and that this breach of duty caused their children’s wrongful death.

When commenting to the media later in 2008, the Lamberts said they thought they had no reason to worry when Thibault arrived at their house about 8 p.m. on the night the deaths occurred, to pick up Kaleigh and Shane to sleepover at her Bellingham house. According to the Lamberts, Thibault had been discharged from the hospital for four months, seemed nearly fully recovered, and was behaving normally when she picked up the children to take to her home for the night. Tragically, what Thibault did not tell the Lamberts, was that earlier that evening, State Police had come close to detaining her for a psychiatric evaluation when they found her behaving erratically on the median strip of I-495 in Andover, punching a motorist who had stopped to assist her. Reportedly, Thibault had told a state trooper during that encounter that she was having a “debate between good and evil,’’ according to State Police documents obtained by the Lambert family. After leaving New Hampshire with her niece and nephew, Thibault crossed the median of I-495, stopped her car in the wrong direction, undressed herself and the two children, and carried them to their deaths in oncoming high speed traffic. According to one eyewitness, Thibault was screaming about religion before she was hit.

A horrible story. What the plaintiffs here must specifically prove, by clear and convincing evidence, is that the defendants deviated from, and hence breached, the standard of care that was legally required by the defendants. This is true in all cases involving allegations of medical malpractice. The “standard of care” that will be applied in this case, will be that of a reasonably prudent psychiatrist (and licensed social worker,) under the same or similar circumstances, and of similar age, intelligence and experience. Assisting the jury in this general legal definition, may be one or more professionally-accredited medical journals or professional guidelines that might be offered into evidence (such as issued periodically by the American Psychiatric Association or American Medical Association.

A suit like this is not a legal “slam-dunk.” The Lamberts will encounter considerable legal hurdles in this suit, notably confidentiality laws that limit what medical providers such as these psychiatrists can disclose to third parties such as themselves, as well a decision last year by the Supreme Judicial Court, which narrowed the duty of medical professionals to protect third parties such as themselves. As a Massachusetts medical negligence lawyer, I think it’s going to be a challenging case, but with two young children killed and a mentally ill woman who committed suicide, it’s top-heavy with emotion and tragedy. And it’s cases like this, that define the legal responsibilities we owe to each other in life every day, and cases like this that stand out.

I’ll keep you posted.

It’s January. It’s snowing. It’s Massachusetts. Add it up, and you’ve got plenty of skiers here. As just as much as going to the beach in summer is popular here, so is skiing in winter. Though not all skiing is downhill (vs. cross-country,) most is – and without a doubt, most of the injuries that result from skiing, involve the downhill variety.

Downhill skiing is dangerous business. Anyone who’s ever done it, can attest to this. Even the least challenging “Bunny Trails,” can pose significant risk to a skier – whether novice or experienced. Witness the death last year of Natasha Richardson, Liam Neeson’s late wife. She was on skis, but barely moving, and fell down, striking her head against an icy surface. She died from a subdural hematoma that resulted from the impact. True, most ski injuries result from moderate to high-speed collisions, but this tragic event illustrates the point: Skiing is very dangerous.

With that reality in mind, and considering the number of persons who frequent commercial ski resort operators in this state every winter (hundreds of thousands) you’d think that there would be a lot of injuries each year, and a lot of lawsuits against ski operators. You’d be right as to the first, wrong as to the second. Why? Because the ski resort industry, both nationally and in Massachusetts, is very powerful. A multi-billion dollar industry, the ski resort industry has successfully exerted their influence in both the Massachusetts state legislature, and in the courts, to limit their liability for injuries occurring at their facilities. The result, historically, has been a very hostile environment for plaintiffs seeking to hold commercial ski resorts liable for injuries that occur as a result of their negligence. In the past 20 years, successfully bringing such a suit, never mind winning one, has been a daunting legal task. The reasons have been due to a combination of very strict legislative enactments pushed into law by the ski resort industry, as well as judicial rulings that have been very hostile to plaintiffs.

In recent years, however, that ice (if you will) has begun to thaw. While the legal and judicial attitude toward ski injury plaintiffs used to be, “This is an inherently dangerous activity, you assumed the risk,” some recent case decisions have allowed victims of ski injuries, their day in court. While historically it was extremely difficult to hold a ski operator or fellow skier liable for negligence, that attitude may now be changing. Now, ski resorts are more and more being held liable for not exercising ordinary and reasonable care in the operation of their business. The legal attitude is changing from one that said, “Operators of ski resorts are not liable for any injuries by patrons using their facilities,” to “Operators may be responsible for injuries that are due to evidence of negligence.” Skiing related injuries usually involve collision incidents, and lift mishaps. However, it is collisions with poorly located signs and poorly marked obstacles that are generating the greatest change in judicial attitude these days, as well as injuries resulting from inadequate slope maintenance by resort employees. Injuries suffered in the course of ski instruction or while under the care of the ski patrol, are also receiving increased judicial attention.

Recently, a case brought by an injured skier in U.S. District Court in Boston, against Jiminy Peak Ski Resort of Hancock, Massachusetts, has generated significant attention among plaintiffs’ injury attorneys. A skier who was injured when she struck an inadequately marked snow gun, sued Jiminy Peak in federal court, arguing that that the ski resort was negligent in both it providing her with inadequate rented ski boots and equipment, as well as negligence in placing a snow gun in a traveled ski lane and failing to adequately mark it for visibility.

The ski resort moved for what is known as “summary judgment.” This is essentially a legal motion that asks the court to throw the case out, on the grounds that the plaintiff does not have a legally adequate cause of action. The resort’s motion was filed for both of the plaintiff’s two counts alleging negligence, above. While the court allowed the defendant’s motion on the negligence count involving the ski equipment rental, it denied the motion as to the count alleging negligence in the placement and marking of the snow gun. The court’s decision on the defendant’s motion, cited the Massachusetts Ski Safety Act, a legislative law governing ski operators’ liability in this state: "Though the Act imposes a duty on skiers to ski within their ability and avoid collisions, it is also the ski area operator's duty to operate ski areas ‘in a reasonably safe condition or manner.' ... This duty is simply incompatible with the notion that a ski area operator could place an obstacle or create some other hazard on the skiable area of a trail and have no duty to mark the hazard. …The general duty to operate the ski area in a reasonably safe manner may in certain circumstances include a duty to pad specific obstacles. ... As there are factual questions regarding the actual location of the snow gun in relation to the skiable area of the trail and whether it was adequately marked and padded, Defendant's Motion for Summary Judgment will be denied as to this claim. Although the trial will present challenges for Plaintiffs, they are entitled to their day in court on this claim. ...”

Hence, the plaintiff here will at least get the chance to prove her claim to a jury. Even this, would not likely have been allowed as recently as 10 years ago.

Hence, as a Massachusetts injury attorney, I can advise you that the laws in the area of ski injuries in Massachusetts, and nationally, are gradually changing to a more plaintiff-friendly outlook. Not perfect yet, but the legal atmosphere in this area of law is improving. And to the more conservative, pro-business types who don’t like these changes, I say: Exposure to liability like this, is what causes businesses – especially big business – to operate with greater safety to the public. The life that may be saved by such changes, may be your own.

2009 ended with a big bang when it comes to Massachusetts injury law, specifically, Massachusetts medical malpractice. A lot of legal specialists such as me are paying close attention to a jury verdict that was handed down last month in a Suffolk County medical malpractice case: A $15 million award to the parents of a boy who died after being treated at Children’s Hospital in Boston.

The case, brought by the parents of a 3 year-old boy who died in December 2004 after undergoing surgery for a birth defect at Children’s Hospital, has caught the attention of both plaintiffs lawyers as well as insurance defense attorneys. The boy’s parents, Brian and Andrea Fox of Philadelphia, said they brought the suit because they believed that doctors at Children’s Hospital had lied to them about the treatment their son received at the hospital. After four days of deliberations in Suffolk Superior Court, the jury found that two doctors at the hospital caused the boy’s death: Dr. James Lock, and Dr. James A. DiNardo, an anesthesiologist. Dr. Lock had until last year been the physician in chief at Children’s Hospital.

Massachusetts juries have awarded medical malpractice awards of this size before (awards this high don’t happen often, but they have happened.) What’s unusual about this jury award is not only its amount, but the fact that most jury awards, and non-jury settlements, of this amount, are given when the victim is still alive, and will require several or many years of specialized medical and custodial care. Awards and settlements of that size are designed to pay for the future expenses of such care, which over time can easily cost millions. So when a jury awards damages that are this high, in a case where the victim is deceased, it’s very noteworthy. Also important: The boy’s parents will not receive the full $15 million, but an un- unspecified, lesser sum. This is because the attorneys for the plaintiffs and the defendants entered into an agreement before the case went to the jury, informally called a “High-Low Agreement.” This agreement is designed to guarantee the plaintiffs a minimum amount of damages, regardless of the jury's verdict, in exchange for a cap on a possibly higher damages figure that the jury may award. Lawyers for both parties would not reveal what this figure is, and that too is standard procedure: These agreements are under seal. The jury did not know this, however, and what’s outstanding here is, not knowing this, how much they awarded the plaintiffs.

The case had an interesting history: The patient, Jason Fox, was born in July 2001 with a medical condition known as “Tetralogy of Fallot”, a complicated but usually treatable birth defect, which restricts the flow of blood through the heart. Jason’s case was particularly serious, and prevented oxygen from being transported to his organs and limbs. During his first two years, the boy was treated at Children’s Hospital of Philadelphia, where he underwent open heart surgery and seven separate cardiac catheterizations, all to widen the arteries that transported blood to the lungs. When the boy’s condition did not improve, his Philadelphia doctors referred Jason to Dr. Lock in Boston, who had pioneered the use of cardiac catheterization to repair these kinds of birth defects. Dr. Lock agreed to try to undertake this procedure with Jason. However, on April 18 2003, just hours after the second catheterization, the boy suffered a seizure. A CAT scan revealed that contrast dye, which is injected during the procedure to better highlight the cardiac anatomy, had leaked into his brain. Bad went to worse: Following his seizure, Jason had two MRIs to gauge the extent of his brain damage – and it was discovered that a tiny fragment of metal had become lodged in the boy’s brain. Though his doctors concluded the fragment probably originated from a medical instrument, no one could determine whether it happened during a procedure at Children’s in Boston, or previously at another hospital.

When the boy left Children’s Hospital in Boston, he was unable to walk or speak. He died shortly thereafter. His father, Brian Fox, testified that Jason entered Children’s “A playful and active little boy.” “When he came out of the hospital, he was flown by air ambulance to a neurological rehabilitation facility near where we lived.’’ But William J. Dailey Jr., the Boston lawyer for Lock and DiNardo and two other doctors, who were found negligent but not responsible for the death, said he was stunned by the verdict. “If something could have been done in Boston, it would have been extraordinary,’’ Dailey said. As a Boston medical malpractice lawyer viewing this jury award, I can sense even from a distance, that this jury felt there was some type of effort either by these doctors, or the hospital, to tell less than the full story of what happened here. This sense if reinforced that the Massachusetts Board of Registration in Medicine (which investigates complaints aganst doctors,) is still investigating Dr. Lock and one of the other physicians who was found negligent, a Dr. Peter Laussen, who directed the cardiac intensive care unit. The Board reopened the investigation last year, after learning that the hospital may not have provided complete information about the treatment doctors gave Jason.

Not a happy ending for anyone. As a Boston injury attormey, I can assure you that none of these cases are. But if this case can serve as a lesson about anything, it is that doctors and hospitals must – no matter how compromising they think the information might be – reveal everything and anything that may have caused a patient’s injuries or death. I think this jury sensed that such full disclosure wasn’t forthcoming to the parents of this boy, and whether phrased as “punitive” damages or not (and none were,) they decided to inflict some punishment here.

In my last post, I discussed the importance of a jury being able to see the amount of medical bills that were generated to pay for a plaintiff’s medical care – vs. the amount of discounted medical bills actually paid by a health insurer (as part, of course, of a suit alleging injuries caused by a defendant’s negligence). At trial in July 2006, in the case I blogged about previously, the defendant (Griffith) argued that because the plaintiff (Law) did not have to pay the full $112,269 that was billed for her care by her medical providers, only the lower, discounted figure that was actually paid by her health insurer - $16,387.14 – should be shown to the jury for the purpose of their assessing any damages. In that Superior Court case, the judge in that case agreed with the defendant – a highly unusual ruling, given state precedent in these cases. The result: The jury was only allowed to see the $16,387.14 figure. And the result of that? The jury awarded this plaintiff – who suffered substantial injuries which generated over $112,000.00 in medical bills - only $48,500. Undaunted, the plaintiff appealed this judge’s ruling to the Massachusetts Appeals Court, and that court ruled that the Superior Court judge erred on the medical bills issue, and ordered a new trial. Not to be outdone, the defendant then petitioned the Massachusetts Supreme Judicial Court (SJC) for a final answer, and that is where the case sits now. How’s that for some “legal tennis?” Not uncommon.

As a Boston injury lawyer, I can assure you that the stakes behind this case are enormous: Juries are not “experts,” or vocational economists, in case valuation. When assessing damages that they might wish to award a plaintiff for personal (physical) injuries, they rely on the amount of the medical bills put before them. If they see a total figure that is relatively small (i.e., the amount of medical expenses actually paid,) as opposed to a much higher figure (i.e., the amount of medical expenses billed,) they will intentionally reduce the amount of any award they render. That is only common sense. Think of it this way: Assume you or someone you love is seriously injured due to someone else’s negligence – it could be a car accident, a slip-and-fall injury, or any variety of injuries. Assume that the medical expenses involved in the treatment of these injuries amount to $100,000. That figure reflects a number of things, but most importantly, it reflects and illustrates the severity of the injuries suffered. This is key for any jury reviewing the matter, later – when all the physical results of those injuries are not always visible to the eye. Assume that the plaintiff’s health insurer negotiated with the medical providers, to pay 20 cents on the dollar – a total of $20,000. Now, assume that instead of the jury being allowed to see these $100,000 in medical expenses, they are only allowed to see only what the insurance company actually paid - $20,000.

Do you think such a jury would view your injuries as being as severe as they actually were, if it sees medical expenses of only $20,000? It won’t. Appearances are everything to juries; they are comprised of human beings, and as my late father used to caution me, “You cannot remove the human element” in any trial. It’s unavoidable.

In this legal debate, the insurance industry is “at it again.” In essence, this is one more attempt by the insurance industry to enact more “tort reform” - this time through judicial decision, rather than legislative enactment. Actually, two types of insurance industries are at work here: The health insurance companies want to be able to use their economic muscle to “negotiate” medicals bills down with hospitals and doctors, to pay them just cents on the dollar for medical bills. As if that weren’t bad enough, the liability insurance companies – the ones who pay jury awards and settlements – want to come in after the health insurers are through hacking down a patient’s medical bills, and allow juries to only see medical expense actually paid, not billed.

All this may seem confusing to a non-lawyer. But the impact of this decision on Massachusetts personal injury suits will be serious and wide-ranging. Unlike a bill before the legislature, there is nothing any non-lawyers can do to affect the outcome of this decision.

All the public, and the plaintiff’s trial bar who stand up for them, can do, is wait, and hope. I’ll keep you posted. Oh, and by the way - Happy New Year to all my readers. Let's hope that 2010 is a better year, in many ways, economic, social and otherwise, than was 2009.

I have a favorite saying (which my wife Debbi would readily tell you,) that “The devil is in the details.” Along those lines, the Massachusetts Supreme Judicial Court is now considering a case that has very serious implications for anyone filing a Massachusetts personal injury suit in the future. The entire focus of the case that the SJC is weighing, (Law v. Griffith; SJC No. 10463) centers on medical bills and how juries assess damages that they may award to plaintiffs.

You see, juries are allowed to take into consideration a number of factors when assessing and awarding damages when they find in favor of a plaintiff. Some of these factors can include:
• Evidence of conscious pain and suffering
• Evidence of lost income – past and future
• Past medical bills
• Expert testimony regarding future medical bills
• Loss of consortium – that is, the sense of society, companionship that a married person enjoys with a spouse
• And other factors

Juries in Massachusetts are allowed to consider all these factors, if and when they award damages to a plaintiff in a personal injury action. Of these, however, one of the most important is the amount of (past) medical bills that were generated to provide for hospital and/or medical care for the plaintiff, as the result of the injuries that were caused by a particular defendant’s negligence. The medical costs that are involved to treat a plaintiff’s injuries are heavily relied upon by juries when assessing total damages, and at issue in the case under review by the SJC, is whether medical bills that are issued - as opposed to medical expenses that are actually paid - should be admitted into evidence for a jury to consider. This is not a small, technical matter – it is an extremely important difference, which could affect the value of every single personal injury suit filed in Massachusetts in the future.

A little history as to what brought this case before the SJC: In February 2001, a Ms. Joanne Law (the injured party and plaintiff) was struck by a Mr. Daniel Griffith (the defendant,) in a car accident in Woburn. The evidence indicated that Griffith caused the accident by running a stop sign. In July 2003, Ms. Law commenced a personal injury suit against Griffith in Superior Court, alleging negligence. As a result of the accident, Ms. Law suffered neck, arm and wrist pain and later underwent neck surgery to treat these injuries. Although Law incurred a total of $112,269.94 in medical bills by the time the trial began, MassHealth, the state agency who was her health insurer, paid her health care providers only $16,387.14. Note: It is not at all unusual for a health insurer, private or public, to pay a medical a provider far less than the amount actually billed. You may have seen this yourself, if you’ve ever reviewed or compared statements between what a doctor or hospital billed you for care, and what your health insurer actually paid that provider. Health insurers use their large size and economic muscle to “negotiate” these bills down to a lump-sum payment that is usually cents on the dollar. As a great many hospitals and health care providers operate under great financial stress, health insurers can usually succeed with this tactic. Most hospitals these days are hurting financially.

I’ll detail what happened once the jury in this case saw these medical "expenses", in my next post. Until then, Happy Christmas!

In my final post in this case, let’s ask who are the real targets of this suit – the nurse practitioner, the supervising doctor, or Harvard University? For those of you who said “Harvard University” (thinking correctly that it’s the world’s most famous university with billions of dollars in assets and endowments,) you’d be wrong. You see, shockingly enough, Harvard University, as an educational institution, is considered legally to be similar to a “charitable organization”, and as such in Massachusetts, enjoys limited immunity against liability suits. The operative statute is referred to among lawyers as the “charitable immunity cap.” Created by the legislature many, many years ago, its purpose was to shield charities such as hospitals and educational institutions from high liability judgments, such as might result from a medical negligence suit, so that they could be safeguarded in their "charitable" missions, from potential financial 'ruin.' Currently, the “charitable immunity cap” is $20,000.00; meaning that is the maximum they can be held civilly liable to pay in any liability judgment against them.

Both financially and legally, the real targets here are both the doctor and the nurse practitioner. Why? Because each of them is required to carry policies of professional liability insurance. These professional (malpractice) liability policies typically provide coverage of at least a million dollars each, and it is these policies that would provide indemnification (liability coverage) for each of these defendants. This type of insurance would pay for the verdicts or judgments issued against each defendant, subject to each policy’s limits. Harvard University is being named as defendant here, in its legal capacity as the employer of each of these to defendants. This is known as the legal doctrine of “respondeat superior.” Notwithstanding that Harvard would be named as a defendant in the suit, the university’s legal liability is still limited to the charitable immunity cap that it enjoys. So in the practical sense, this lawsuit, like all Massachusetts medical negligence or Massachusetts wrongful death cases, is a suit against the individual medical professionals who are alleged to have committed the specific negligence alleged.

Will this family win this suit? Obviously, I haven’t reviewed any of the relevant pleadings, or been party to any discovery yet conducted. It’s too early to say. But, as a Boston medical malpractice lawyer with over 15 years experience in this field, the facts as reported don’t look too promising for these defendants. Regardless of what happens, I wish the family of this young man the best in the days ahead. The loss of a child, never mind to suicide, is a devastating event for any family.

Continue reading "Anatomy of Medical Negligence Suit - Part 3 of 3" »

In my previous post, I reported on a wrongful death and medical malpractice lawsuit filed by the family of a Harvard University student who committed suicide while under the care of the school’s Health Services Department. Now I’ll explain the legal basis for why this suit is being filed, and why the family is accusing the defendants here with negligence.

The fact that patients taking Accutane, Prozac or Wellbutrin should be monitored for development of any suicidal thoughts is not news to anyone – certainly not to anyone in the medical community. Furthermore, according to the suit, young Edwards told the nurse who prescribed these drugs that he had taken Prozac when he was younger, but that it made him experience feelings of being “out of control.” Despite this, the nurse prescribed allegedly him the combination of Adderall, Wellbutrin and Prozac – knowing that he was also taking Accutane, known to create a higher risk of suicide in many patients. What this family (the plaintiffs) must legally prove here (as must all plaintiffs in medical malpractice suits or medically-related wrongful deaths suits,) is that the actions of both this nurse practitioner and her supervising doctor fell below the “standard of care” required of medical professionals of the same qualifications, intelligence, and experience, operating under similar circumstances.

The term “standard of care” refers to professionally-recognized, widely-accepted routine custom and practice in any given profession. There is no one standard of care applicable to all professions, but different ones that apply to and are particular to, different professions. For example, in this case, professional organizations such as the American Medical Association and the American Psychiatric Association will have published certain minimum steps and “best practices” that should be followed when evaluating and treating a young adult presenting with certain mental health complaints. Expert witnesses and academic authorities can also tesify to certain minimum standards of care that these defendants were required to adhere to in caring for a patient such as young Mr. Edwards. Whether or not their care deviated from or fell below these standards, has yet to be determined.

Specifically, the plaintiffs here must show that the defendants knew or should have known that prescribing the combination of these medications, without rigorous and frequent medical evaluation follow-up as well as psychotherapeutic counseling, posed an unreasonable risk of harm to the victim.

As to the supervising physician, negligence may well be found here regardless of whether or not she knew that Edwards was being prescribed these specific drugs, because according to the suit, she failed to supervise the nurse practitioner, as the professional standard of care under these circumstances very likely required her to do. The nurse involved here did not have the medical training that a physician has; the plaintiffs will argue that this nurse should not have been left to make these decisions and prescribe these drugs on her own. The plaintiffs will argue that the nurse was writing prescriptions for powerful drugs that were known among the medical community to be inappropriate in this combination and that are widely associated with an increase of suicide.

In my next and last post on this case, I’ll talk about what kind of legal exposure these defendants have, and – not that any amount of money can ever “compensate” for the death of a loved one - what the damages in a case like this might be valued at.

My apologies for not having posted here for awhile – I’ve been sidelined with either a minor flu or bad cold. Not a big deal; worse things can happen to people.

As the story behind today’s post makes very clear. This is the story of a very promising young student attending Harvard University, where he was embarking on a career toward medical school, and who showed all the promise that one could ask for. Tragically, that promise was cut short when the student, John Edwards of Wellesley, aged 19, committed suicide on November 29 2007. This past week, his parents filed a wrongful death suit against Harvard University, alleging that Edwards received substandard care from the University’s Health Services, which caused or contributed to his suicide.

Edwards originally sought help at the college’s health services office, because he reported that he was unable to study or concentrate for long periods of time. A nurse practitioner at the school’s infirmary prescribed Edwards "Adderall", which is a drug that is designed to treat attention deficit hyperactivity disorder (“ADHD”, as it’s sometimes referred to.) In what I as a Massachusetts medical malpractice lawyer find surprising to say the least, the nurse prescribed this drug, even though Edwards had never been diagnosed with this condition. Some time afterward, when Edwards complained of anxiety and depression, the nurse practitioner also prescribed Edwards two additional medications: Prozac and Wellbutrin, which of course are powerful antidepressants. An important element in all this, is that Edwards was already taking another medication to treat acne, Accutane, and this drug is been widely linked to generating suicidal thoughts in patients who take it.

A few weeks after Edwards was taking both Prozac and Wellbutrin, he emailed this nurse practitioner that he was experiencing increased anxiety, and asked whether his medications should be changed. The nurse practitioner reportedly replied by email that she was concerned over this report, and requested that Edwards come back in to see her. Two days later, Edwards committed suicide by suffocating himself with a plastic bag, in a bathroom at Harvard Medical School. This wrongful death suit, filed by Edwards’ father John B. Edwards II of Wellesley, alleges gross negligence by the nurse practitioner, Marianne Cannon, and also alleges gross negligence on the part of Dr. Georgia Ede, who was Cannon’s supervisor at Harvard’s University Health Services Department. The suit also names Harvard University as a defendant.

A tragic outcome, anyone would say. But why sue these two individuals and Harvard University? What, if anything, did they do wrong?

Two principal legal reasons answer that question: 1) The supervising physician in this matter was responsible for overseeing all of the nurse practitioner’s professional actions – and it appears that she may not have done so. A nurse practitioner is not a physician; is not a psychiatrist, and is not a mental health professional. While nurse practitioners are talented professionals and are authorized to write prescriptions, it does not appear (from what I am aware of) that this nurse practitioner was qualified to be medically treating a patient with two powerful antidepressant, psychoactive medications – especially without requiring that the patient undergo simultaneous psychotherapy with a psychologist or qualified mental health counselor. The supervising physician in this case should have been closely, directly involved with this patient’s care, overseeing all of this nurse practitioner’s actions in the care of this patient. 2) It is well known among the medical profession that the US Food and Drug Administration (FDA) has warned that anyone taking Accutane, Prozac, or Wellbutrin should be monitored closely for suicidal thoughts. Despite these warnings, it does not presently appear that any such steps were taken to monitor Edwards.

I’ll explain the legal implications of these two allegations, in my next post.

In a type of case that is a hybrid between a Massachusetts personal injury suit and a civil rights claim, the City of Attleboro, Massachusetts has agreed to pay a 17 year-old girl $100,000 in damages to settle a suit against the city alleging excessive use of force, and police brutality.

Esther Durex, then 16 years old at the time of the incident on October 12 2008, said she was beaten by police after leaving a party on that date last year. The settlement was negotiated with the city by the youth’s attorney, and was approved recently by Judge Robert Kane of Fall River Superior Court. Reportedly, the settlement will be paid by the city's insurance company. The settlement required a judge’s approval because the plaintiff is a minor.

Durex’s attorney, David Cass, calling her a "model student," said the Attleboro High School senior was stopped and eventually arrested by police after leaving a party on the date in question. He said his client was struck by officers with clubs in the head, legs and arms. Durex suffered a broken wrist in the incident. The victim incurred approximately $2,700 in medical bills and has had to receive psychological counseling as a result of the incident, according to her attorney.

According to a police report filed in the incident, officers who had been called to investigate a loud party found the girl walking on Leedham Street in Attleboro. Officers claimed in the report that Durex was swaying and slurring her words as though under the influence of alcohol or drugs. The report also said the girl refused a ride home, used profane language and had to be restrained after becoming disorderly and wandering into the street. Police also charged the teen with assaulting officers Matthew Cook and Christopher Ulbrich, along with disorderly conduct and disturbing the peace. The teen denied ever assaulting the police. Further, All charges against Durex were dismissed in juvenile court, according to her lawyer for that proceeding. Police Chief Richard Pierce could not be reached for comment by reporters.

This settlement isn’t reported here to advance the idea that police officers regularly abuse innocent civilians. In my experience as a former Special Assistant District Attorney for Norfolk County and a practicing Boston personal injury lawyer, I believe the majority of police officers are ethical and responsible law enforcement professionals. But occasionally, as in any profession or vocation, there are a few bad apples, and it’s important to be vigilant about this possibility, especially when dealing with authority figures such as police officers. When such civil rights violations occur, they can be prosecuted in either state or federal court, depending on the circumstances, and jury verdicts and settlements can be substantial, assuming the evidence in the plaintiff’s favor is persuasive. It should be noted that the evidence in this case (with a 16 year-old girl suffering a broken wrist,) was apparently quite clear, thus providing for a rapid and appropriate financial settlement with the city.

Our office has handled such claims in the past. If you feel that you or someone you now has clearly been the victim of such excessive force, contact us for a free consultation.

I've been traveling out of office for a couple of weeks, and I haven't posted anything for too long - my apologies to my loyal readers. Today, I want to send this brief message: I've been given a lot of good things in this life. I've had my share of suffering and personal losses, also, but I am grateful for what I have. Most importantly, for the gift of my beautiful wife (who had a birthday yesterday,) and for those I am close to. We are all at different places in life, and we all have different blessings and burdens. But I think we can all agree that, unfortunately, there are always those who have less then we do, and that we can all be grateful to varying degrees for what we have in life. Debbi and I are blessed to be here in Hawaii over Thanksgiving, and while this is a beautiful place, it is also marked by a very high cost of living, and by the sadness of too much poverty for too many who live and work here. We hope we can do our part to leave this place having extended some kindness and benevolence to those who live here, especially on Thanksgiving Day during our visit.

I passed a Buddhist statuary today, and a particular contemplation struck me as important: "When Wishes Are Few The Heart Is Happy." That is a tall order in a world dominated by a consumerist-mentality and by nonstop messages of "Buy, Get, Acquire." But these age-old words are important to remember, or it becomes hard to be grateful for anything.

And so I give thanks for the blessings I have, including my loyal readers, my friends and my clients.

My best wishes to all of you.

Thankfully,

Bill Kickham

Massachusetts dog bite cases just got a little easier to bring in court and to win, at least those involving injuries caused by pit bull terriers. That’s good news for victims of these horrible attacks, which can scar a person for life not only physically, but in cases involving children and other vulnerable victims, emotionally as well.

A recent ruling by the Massachusetts Appeals Court, in the case of Nutt v. Florio, has held that in future dog bite cases involving pit bull terriers, plaintiffs will no longer have to first demonstrate that the attacking dog had a “vicious propensity,” or that it had previously attacked others, before being allowed to argue the case before a jury. Up until now, when bringing suit against a defendant for injuries suffered as the result of a dog bite or dog attack, plaintiffs in Massachusetts needed to first make an evidentiary showing that the defendant “knew or should have known” that the dog had “vicious propensities” or that it had attacked other persons previously. In these types of cases, the defendant is usually either the owner of the dog, the owner of a house where the dog was kept, or the landlord of a building where a tenant kept the dog. When such cases have been brought in the past in Massachusetts, the defendant’s attorney (who, in almost all cases, is actually the attorney representing the liability insurance company that insures the defendant through either a property owner's or automobile owner's liability policy) will review the plaintiff’s complaint that has been filed in court. If the defendant’s attorney sees that there is little evidence to support the claim that the defendant knew or should have known that the dog in question had either vicious propensities or had attacked others in the past, the defense will file what is known as a “Motion for Summary Judgment.” This motion is designed to get the case dismissed before trial, because up to present in Massachusetts, a plaintiff had to show that the defendant knew the dog displayed vicious propensities, or knew that it had attacked others previously, in order to bring a case before a judge or jury.

With this Appeals Court ruling, that requirement has now been eliminated – for cases involving attacks by pit bulls. In this case, the court found that a landlord could be held liable for injuries suffered by a 10-year-old boy injured by a pit bull attack, even though the dog had never before attacked anyone, the landlord was not aware of any previous aggressive behavior by the dog, and even though the landlord had no particular knowledge about the controversial breed’s propensities. This ruling means that, for cases alleging attacks and/or injuries caused by pit bulls, injured victims (plaintiffs) will no longer have to show that the defendant either knew or should have known that the dog had vicious propensities prior to the attack that caused the plaintiff’s injuries, in order to argue the case before a jury. It means that a jury will be allowed to hear that this breed of dog is known to be especially aggressive, and that they will apply ordinary standards of negligence in deciding whether a defendant should be held liable for a plaintiff’ injuries. (Because, of course, a lawsuit involving a dog bite is a negligence action alleging personal injuries.)

That is a major departure from previous case law involving dog attack cases in Massachusetts. For at least this breed of dog only at present, this ruling allows injured victims of dog bites to survive a defendant’s motion for summary judgment – a defense technique to get these cases “thrown out” before they ever get to a jury. The ruling does not hold that defendants in future cases involving attacks by pit bulls will be held “strictly liable” – a type of liability usually involving “inherently dangerous activities” or “unavoidably unsafe products” for which few defenses exist (that’s a separate subject) – but it does hold that a defendant’s knowledge of that breed can be a factor considered by a jury in determining whether a defendant was negligent under common-law principles.

What actually set the stage for the Appeals Court to make this ruling, was a ruling handed down in 2008 by the Massachusetts Supreme Judicial Court, in a criminal case, Commonwealth v. Santiago. That decision involved the constitutionality of a "no-knock" search warrant where police officers knew that a pit bull was on the premises. The SJC ruled that that pit bulls are "commonly known to be aggressive," and allowed the officers search due to ‘exigent circumstances’ created by the presence of a pit bill at the crime scene. Taken together, these completely separate cases, from two different Massachusetts courts, are critical to Massachusetts dog bite cases, because they make very clear that there is now a recognition among Massachusetts courts that this breed of dog presents a more threatening level of circumstances in dog attack cases.

This case is what lawyers call “good law” (at least plaintiffs’ lawyers like me do). While insurance defense lawyers will rail against this ruling as unwise, the fact is that almost everyone knows that pit bulls are an especially aggressive and dangerous breed of dog. This has been shown time and again, and it’s news to no one. Notwithstanding, the insurance defense bar has said that this decision will impose a difficult burden on property owners, to determine if a particular dog is a pit bull, before allowing it to be kept on their premises. Correct, and why shouldn’t they? While pit bull owners will say that this breed is no more aggressive or dangerous that a poodle, any reasonable person knows otherwise. As a Norfolk County Massachuetts personal injury lawyer, I’d like to ask any insurance defense lawyer who opposes this decision as unreasonably casting pit bulls as aggressive and possibly dangerous this question: “I assume, then, that you would go up to a pit bull and pat it just as easily as you would a beagle or a poodle?” Makes me think of the scene in Erin Brockovich where Julia Roberts, playing Brockovich, laid out glasses of drinking water for each of the defense lawyers who were seated at conference table to discuss the case (involving, of course, drinking water poisoned by a major utility company). As one of the defense lawyers reaches for her water to take a sip, Roberts nonchalantly announces, “I hope you like that water. We got it from the well next to your plant.” The lawyer looks aghast at the glass and pushes it away from her, as fast as she can.

So once again, I assume that every insurance defense lawyer reviewing this decision, will go out and cuddle up to a pit bill? Send me the pictures. Please.