Boston Accident Lawyer Blog

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 case that one can only hope will produce civil justice (vs. the criminal justice that's already been obtained,) the parents of a 16-year-old Massachusetts murder victim have filed a $1 million lawsuit against her killer and his mother.

Joshua C. Whitaker, 23, was sentenced to life in the maximum security prison in Shirley, Massachusetts, after being convicted of the grisly murder of Kelsea L. Owens, who was murdered in Hampden, Massachusetts on August 15 2006. At his trial, Whitaker’s defense lawyer admitted to jurors that Whitaker bludgeoned Owens with pruning shears, a log and a set of dumbbells. Whitaker admitted to a paramedic: "I'm a murderer." Testimony at the defendant’s murder trial established that Whitaker’s mother, Linda Whitaker, is the person who initially called police to report "a girl being assaulted and missing."

Now, a wrongful death lawsuit has been filed in Hampden Superior Court against the Whitakers. The suit alleges that Joshua Whitaker had a "long history of violent and deviant behavior," and centrally, claims that Whitaker’s mother, who he lived with, Linda Whitaker, knew or should have known about her son's violent personality, and undertaken efforts or measures to monitor or control it. The Owens' lawsuit alleges that Joshua Whitaker had previously been undergoing psychiatric treatment for violent tendencies, that his mother Linda Whitaker knew this, that she was at home at the time of the murder, and that she should have known her son had not been complying with his psychiatric treatment and medication regimen for a considerable period of time prior to the murder. In legal parlance, the suit alleges that "Linda Whitaker negligently and carelessly failed to properly monitor, supervise and observe Joshua Whitaker, who she knew ... had a history of violent and deviant behavior.” The complaint also accuses the Whitakers of "conscious pain and suffering" and infliction of emotional distress.

I’ve previously written about relatives of murder victims filing wrongful death lawsuits against persons who have been accused – but not yet convicted – of the murder of their loved one. A recent example of this in Massachusetts was the Richard Stryker case, in which the family of Dr. Linda Goudey sued another doctor, Dr. Richard Stryker, for murdering her in 1993. The family won that civil suit, and secured a $15 million judgment against Stryker. To secure payment of that jury verdict, I am sure the family attached all the assets in Stryker’s name that they possibly could – and as a physician, Stryker had the means to make payment, even if not in one lump sum. Illustrating the impact of such wrongful death jury verdicts, Stryker was later charged and convicted in 2008 of hatching an elaborate scheme to produce a “new witness” who he tried to use to obtain a new trial on that civil judgment, in the hopes of reversing the judgment and freeing himself from the prior $15 million awarded to her family. Stryker sits in a jail cell now, convicted not of Linda Goudey’s murder, but of the scheme to defraud the court in attempting to procure a new trial on the wrongful death verdict. When he’s released from prison, he’ll still have that unsatisfied (unpaid) judgment on his back, with interest accrued – and everyone involved can feel good about that.

However, the Stryker case, and its famous forbearer, the OJ Simpson wrongful death suit, both involved defendants that had considerable present financial assets, or possible future financial assets, to pay those judgments. I don’t see any such parallel here, in the civil suit against Joshua Whitaker. He’s about 21 years old, and in all likelihood, doesn’t have and never will have a dime to his name. That’s a further frustration for the family of Kelsea Owens, but it illustrates the central focus of wrongful death suits, and that is to financially punish the defendant for his, her or their acts in causing the death of the plaintiff’s loved one. Assuming an optimistic outcome for this family, and assuming they secure the $1 million judgment they seek, it’s doubtful they will ever receive any substantial money.

However, here’s a critical key: The Owens family appears to be basing its suit against the Whitakers on a negligence theory. The suit is basically saying that Linda Whitaker was negligent in not monitoring her son’s medication to control his violent and deviant behavior. Because this is a negligence claim, any homeowners’ policy that Linda Whitaker may have had at the time, may be accessible to pay any judgment awarded. If the Owens family obtains a financial judgment but there is no liability insurance policy available, they could attach her real estate and personal assets, and force the sale of those assets to satisfy part or all of the judgment. But those assets would need to be worth a considerable amount of money to cover the $1 million this suits demands. Unless they can access some type of very valuable assets in the defendant’s name or his mother’s name, or access a homeowners’ liability policy held by him or his mother, collecting on any eventual judgment is going to be a challenge.

This point illustrates the reality that almost all civil litigation that seeks compensation for personal injuries or the death of a loved one, needs to first identify some type of financial assets that can be accessed to pay any eventual judgment. Most of the time, a policy of liability insurance is involved, but other assets can be attached also. Remember, anyone can be sued for negligence, for any kind of injuries or loss that someone has sustained. If you or someone you know needs to consult with an attorney about negligence and liability issues, please call my office anytime.

Here’s a story of an interesting case involving a Massachusetts Wrongful Death claim. On December 9, 2000, the unthinkable happened to a young couple living in central Massachusetts.

Sherylann Miller, a 38 year-old married woman and the mother of a young girl, had been hired as a restaurant manager by a local KFC-Taco Bell franchise. The store site was still under construction, on Main Street in Clinton, and Ms. Miller was accepting job applications from prospective employees as the site was still being constructed on Dec. 9, 2000, the last day of her life. It was the last day of her life because a particularly pathetic excuse of a human being by the name of Quillie Merle Spray III, a 36-year-old tile setter from Oklahoma who had been hired by the restaurant’s general contractor to work in the restaurant at the time of the slaying, attacked Ms. Miller without any provocation, inflicting six fatal stab wounds to her head and neck. While this psychotic waste of space was later convicted of first-degree murder in Mrs. Miller’s death and sentenced to life in state prison without the possibility of parole, Mrs. Miller is still dead, and this psychotic murderer clearly should never been hired by the General Contractor who hired him. The victim’s husband, Thomas G. Miller was left a widow, and their daughter left without a mother. While, thankfully, criminal justice was served in the conviction of this psychotic murderer, should these victims be left without any civil remedy here?

As a Massachusetts Wrongful death attorney, I can assure you the answer is No. Enter a civil lawsuit against the responsible parties, for "Wrongful Death.” Thomas Miller did just that, filing the civil suit in 2003 as administrator of the estate of his late wife, Sherylann Miller. Named as defendants in the suit were the now-murder convict, Quillie Merle Spray; his brother, Gary Spray, who was working with him at the time of the slaying; and Boss Contractors Inc. of New Hampshire, the general contractor for the restaurant construction.

The suit, which included claims for negligent and grossly negligent wrongful death and conscious pain and suffering, accused the defendants of negligently failing to protect Mrs. Miller from her killer. Her husband alleged in the lawsuit that Quillie Merle Spray III was a substance abuser with a criminal record and a propensity for violence, and that the civil defendants who had control over this restaurant construction could have and should have known this (a principal legal test of negligence in Massachusetts.)

In what is probably a sign of the increased resistance of insurance companies to settle civil tort claims nowadays that clearly call for pre-trial settlement, the defendants and their insurers would not settle this case before trial, and the case proceeded to trial in Worcester Superior Court. At the 11th hour, a settlement was reached this past Tuesday, while the jury was in its second day of deliberations. The trial was entering its fourth week and the jury’s deliberations came to a close without a verdict after the settlement was negotiated. The financial terms of the agreement are confidential.

If you’ll take a look at my website, under the “Wrongful Death” Section of our Practice Descriptions, you’ll see that a wrongful death suit is a particular kind of “tort”: A wrongful death suit differs from other Massachusetts personal injury lawsuits such as product liability, construction site accidents, car accidents, medical malpractice and premises liability/slip and fall cases, in that the actual victim (called the “decedent”) is not bringing the suit. Rather, it is usually a family member or a representative of the deceased victim’s estate. A wrongful death suit alleges that the victim’s death would not have occurred but for the actions or inactions of the civil defendants, and this type of suit seeks the recovery of monetary damages for the surviving family's or the estate's benefit as a result of the victim's death.

Money can never replace the loss of a loved one. Once a tragedy like this strikes, the only thing the law can do is to provide a judicial remedy, assuming negligence can be established on the part of another party, for family members left behind. A wrongful death suit in Massachusetts allows a potential award of damages for the economic and non-economic harm done to the victim’s family. While expert testimony can usually estimate the loss of present and future income potential that a deceased victim of wrongful death would have earned for his or her family, as well as for medical expenses related to the victim’s death, “non-economic” damages compensate the victim’s family for the loss of companionship, love and affection that they will suffer as a result of the victim’s death.

In order to bring a Massachusetts Wrongful Death suit, the suit must be filed prior to the expiration of the Statute of Limitations, or the suit will be forever barred in the future. Hence, if you have lost a loved one due to what you suspect may be the negligence of another, it is extremely important that you speak with a qualified wrongful death attorney as soon as possible after the event which caused the victim’s death. We are very experienced in this area of litigation, and you are encouraged to contact us for a free, no obligation consultation.

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