Boston Accident Lawyer Blog

A Suffolk Superior Court judge has awarded more than $6.7 million to the family of a Northeastern University student who died after falling down a set of stairs at a Boston bar in 2007, following a night of drinking. What’s surprising about the award in this Massachusetts premises liability case is that the judge’s award followed a prior jury verdict in this case, where the jury ruled that although the bar violated the city building code, it was not liable for the 21-year-old’s death.

Jacob Freeman died in a fall down a staircase at the Our House East Restaurant on Gainsborough Street in Boston in the early morning hours of April 1, 2007. Freeman’s family sued the bar, Gainsborough Restaurant, Inc., claiming that it was negligent in both its maintenance of the property and the staircase on which Freeman fell down, as well as alleging that the bar was in violation of the City of Boston building code, as well as other licensing violations. Approximately three months ago, a civil jury returned a verdict which said that while the bar had indeed violated building code mandates, it was not liable for Freeman’s death. To Freeman’s family, that verdict seemed contradictory – and it was. In all likelihood, the jury did not like the fact that Freeman’s blood alcohol level at the time of the accident was quite high, and it felt that if it held the bar liable and awarded damages, it would be in essence “rewarding” bad behavior.

As a Boston, Massachusetts accident lawyer, I find this kind of reasoning specious, given the evidence in the trial. Some of that evidence included the following: 1) The staircase lacked required hand rails; 2) The staircase was poorly lit; 3) It did not have a landing, among other hazards; 4) Management of the bar was aware that patrons had used the stairs on prior occasions; and 4) Freeman’s view of the staircase was obscured by vinyl stripes.

Suffolk Superior Court Judge Elizabeth M. Fahey said that, notwithstanding the jury’s prior verdict, she ordered the bar to pay Freeman’s family $6.7 million in damages on the grounds that the bar violated the city’s permitting process for decades and ignored the several safety hazards that were presented by the stairs that Freeman fell down, in addition to several other violations. The judge made the above four conclusions in what is called a “Finding of Facts” in her ruling, which is otherwise known as a Judgment Notwithstanding the Verdict (or “JNOV”, in legal parlance. A Judgment Notwithstanding the Verdict allows a trial judge to modify or override a jury’s findings, if he or she finds that doing so is necessary to avoid a miscarriage of justice. Here, it seems that this judge felt that the jury was punishing the family of this deceased young man, due to the fact that he was intoxicated at the time if his injury. This ruling makes sense: The staircase this person fell and died on was not safe. The bar's owners knew this for several years, yet did nothing to correct or remove these hazards. The bar’s owners also had failed to obtain required building and city safety inspection permits, for many years.

For the jury to confirm that all the above was true, yet deny any compensation to the estate of this injury victim, would have been manifestly unjust. To those who disagree, or feel that this type of ruling ignores the jury’s decision: Bear in mind that judges have the power to reduce jury awards that are not warranted by the evidence, also. This is called a remittitur. So remember, the judicial ax swings both ways. And in the meantime, the restaurant plans to appeal the ruling.

If You Have Questions or Concerns About a Slip & Fall Case, or any Injury Case, contact us for a free consultation. The Law Office of William D. Kickham has almost 20 years of experience handling slip & fall accidents, as well as a variety of Massachusetts personal injury cases. We know how to provide you with the best advice possible, adn how to obtain the highest compensation possible for your injuries.

In my previous post on this subject, I noted how President Barack Obama had raised the subject of “medical malpractice reform” in his State of The Union speech last week, and of how a Massachusetts medical malpractice case that just settled this week, illustrates how severe and unjust typical “tort reform” measures would have been in this case.

Just how bad was the medical malpractice alleged in this case? Consider these facts:

• Rebecca was prescribed Seroquel – a powerful antipsychotic commonly used in very serious, and primarily obvious, cases of psychosis.
• She was also prescribed Clonidine – a powerful sedative and anxiolytic
• She was also prescribed Depakote – a powerful anti-seizure medication.

The amount of Clonidine alone was enough to kill Rebecca, never mind these other powerful drugs. None of these medications is approved by the FDA for the treatment of psychiatric issues in children as young as Rebecca was. All of these drugs were prescribed by Dr. Kayoko Kifuji “off-label.”

Again, according to court documents, Dr. Kifuji diagnosed a 2 ½ year-old child as “bi-polar”, and prescribed all of these three powerful psychoactive medications, at her very first meeting with Rebecca. According to court documents, Dr. Kifuji made no inquiries whatsoever to school teachers or school nurses concerning the child’s alleged behavior, her environment or other non-medical factors concerning her home life. To fail to conduct such an inquiry before diagnosing a 2 year-old child as “bi-polar” after one appointment, and flooding her with three powerful anti-psychotic and psychoactive medications, is beyond any rationale understanding. Even more shocking, people outside the family who were in a position to observe Rebecca, such as her teachers, reported Rebecca’s lethargic, “floppy doll” like state to Dr. Kifuji’s. Her response? She did nothing to change these medications, did not bring Rebecca in again for re-examination, and told the foster parents that they could adjust the medications up or down – on their own - “as needed.”

Not long afterward, Rebecca Riley died from toxic levels of these medications in her system. For me or most professionals in the legal or medical field to comprehend how a physician could diagnose a 2 ½ year old child as “bi-polar” after just one appointment, make no inquiries whatsoever of school teachers or nurses overseeing the child, and fill her full of three powerful psycho-active medications that were not even FDA-approved for use with very young children, is beyond description.

Attorneys representing the estate of Rebecca Riley announced late last month that they have settled their medical malpractice lawsuit against Dr. Kifuji, acting in her capacity as a staff psychiatrist at Tufts Medical Center, for $2.5 million. Proceeds from the settlement will be distributed to Rebecca’s two surviving siblings, mentioned above. The $2.5 million is the maximum provided by Kifuji’s medical malpractice policy. Any amount above that figure would have had to come from Kifuji’s personal assets, which were reported to be minimal. Officials from Tufts Medical Center said that they decided to “spare Rebecca’s siblings more heartache” (which would result from a jury trial.) Translation, in my opinion as a Massachusetts medical malpractice lawyer: "We know our doctor botched this child's care beyond words, and we're not going to risk even higher damages by putting this case in front of a jury."

If “medical malpractice reform” of the kind usually talked about had been enacted in Massachusetts when this case was brought, it probably would have capped any damages flowing from this case, at a maximum of $500,000. That’s it. $500,000 for the suffering and death of a 4 year-old child, because of the actions of this doctor. I don’t know who in any good conscience could say that such a result would be fair, or wise, or even decent. And the worst part is, that there are hundreds of cases of medical malpractice, as egregious as this and even wore, that occur in Massachusetts and the United States every year. The framers of our Constitution assured our citizens the right to have their civil case heard by a jury, without onerous and unjust limitations. This right lies at the core of our civil justice system. I’ve warned previously, as have organizations like the American Association for Justice (previously “ATLA”): Once these civil justice rights are taken away, they will not be restored. While theoretically possible to restore these rights, the practical result is that once "reform" like this passes, they will be gone for good.

Don’t believe it when you hear that medical malpractice "reform", or other versions of “tort reform”, is a “good idea.” It isn't. And you just may find out how wrong you are, if and when you (or someone you care about) are injured and you want to sue for damages. Only then it will be too late - for you and others.