Boston Accident Lawyer Blog

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.