Boston Accident Lawyer Blog

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.