William D. Kickham
William D. Kickham
Construction Accident
Car Accident
Nursing Home

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Consumers and product safety advocates won a victory recently, with a decision from the U.S. Court of Appeals for the 1st Circuit. This court is the federal appellate court for Massachusetts and surrounding states; it hears appeals from the U.S. District Court in Boston, and other federal District Courts in this immediate area. Because this is a federal decision, it will hold significant precedential weight in similar cases filed throughout the United States in the future.

The case began when a construction worker suffered a severe injury to his hand when using a bench-top table saw. The saw’s blade cut into his hand, causing permanent injuries. The saw was a Ryobi Model BTS 15 bench-top table saw, purchased at a Home Depot. Following the injury, the plaintiff sued the manufacturer, Ryobi Technologies, Inc., in U.S. District Court in Boston, seeking damages for his injuries. His suit claimed negligence and breach of the “implied warranty of merchantability,” which is a Massachusetts law that regardless of what a manufacturer’s written warranty may expressly state, the product carries an “implied” warranty, that it is “merchantable,” (safely usable,) and that it is fit for a particular purpose.

“Negligence?”, I’m sure you ask. “Why should a saw manufacturer be held liable if someone using the saw suffers an injury from the blade?” Why? Because, as a Boston, Massachusetts product liability lawyer I can assure you, there’s always a story behind the story – and there’s a story behind this one. Which is: It seems as though Ryobi Technologies was aware of a certain technology that had become known as a flesh-detection system called “SawStop.” This device basically stops the saw blade immediately whenever it senses some kind of flesh pressing against the spinning blade. At trial before the U.S. District Court in Boston, the plaintiff argued that as manufactured and sold, the saw was defectively designed, unsafe, and that the “SawStop” technology represented a reasonable and viable alternative design. Supporting this argument, the plaintiff presented testimony of his expert witness, the man who invented “SawStop” in 1999. That inventor testified that he had presented SawStop to several major saw manufacturers, including Ryobi, in 2000. All had refused to adopt the new safety technology, despite the fact that it worked. And why? The plaintiff argued that it was due to a “silent agreement” among several manufacturers that if even one of them adopted the safety system, the others would be forced to do the same, or face heightened liability exposure to liability if they didn’t. That’s called a “conspiracy of silence.” Typical corporate America.

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A fatal Massachusetts premises injury resulted earlier this week when a backyard deck that a homeowner was working on suddenly collapsed, crushing him underneath it. George Carroll, 78, of Melrose was working on the deck when it suddenly became detached from the house. Firefighters responding to the scene could not lift the heavy deck off the victim, and had to use inflatable airbags to gain access to him. Carroll was transported by ambulance to Melrose-Wakefield Hospital, but unfortunately, it was too late and Mr. Carroll was pronounced dead.

The reason why this incident is posted here is because it offers a powerful cautionary note in the area of law known as Massachusetts premises liability. In this incident, the homeowner himself was the one who suffered the fatal injuries, and therefore his estate cannot sue another person or a third party to recover for his death or pain and suffering. If the victim had been visiting another person’s home, and suffered the injuries at that person’s property, that person or his estate could sue the homeowner where the injury occurred, for negligence. Typically, the negligence alleged would be a failure to maintain the premises in a reasonably safe condition for persons such as the victim. In the event of such a claim, the homeowners’ insurance policy of the person who owned the property would, assuming liability were acknowledged, provide coverage for the claimed damages according to the policy limits. If the owner of the property did not have a homeowner’s insurance policy or other liability insurance, through which coverage would be available, things become more difficult. Without liability coverage, any settlement or jury verdict that a plaintiff might secure, would have to be collected directly from the homeowner’s personal assets. That process involves attaching real estate and other assets, and becomes much more complicated and time-consuming.

As a Westwood, Massachusetts premises liability attorney, I can tell you that the primary lesson from this very unfortunate incident is this: Whether you own property or rent, always carry a policy of liability insurance on the property, to protect you if others are injured on your premises. While the victim in this tragic incident in Melrose this week was the homeowner himself, it often happens the other way around. And lesson number two: When making repairs to house and building structures such as stairways and decks, always employ a licensed construction professional. Structures like these are notorious for causing injuries. Ask for a copy of the contractor’s trade license, and secure several customer references. Work like this must be done in accordance with local building codes. If you “do-it-yourself” and the finished work does not meet building codes, it could give your insurer an excuse to deny coverage.

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As a Dedham and Boston, Massachusetts medical malpractice lawyer, I frequently see Massachusetts personal-injury cases that could have been possibly avoided. In the latest example of this, a 65-year-old man was belatedly diagnosed with cancer of the sigmoid colon, which proved fatal.

This case settled prior to trial for $1.5 million, for the delayed diagnosis of colon cancer resulting in death.

The plaintiff claimed that the defendant doctor was negligent in that he failed to offer or perform an annual colon cancer screening. The defendant physician, who acknowledged that the medical standard of care required a colon cancer screening, claimed that he would only have been required to conduct those tests if he had been the patient’s primary care doctor. But he claimed that the man was only a private-pay patient who was only seeing him for blood-pressure checks and he did not want the full services of a primary-care physician.

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Medical negligence and medical malpractice usually involve mistakes in judgment on the part of a physician, nurse, or other health care provider. But an interesting source of medical negligence is on the rise in many American hospitals: It’s called “alarm fatigue”, and it most commonly affects nurses rather than doctors.

Think back to the last time you were on a patient ward in a hospital. Chances are, a great many of the patients were hooked up to some type of electronic patient monitoring system – whether for the purpose of monitoring heart rate, breathing, blood pressure or other vital signs. These machines are highly sensitive, and are designed to sound an alarm to the nursing station in the event of the slightest change in a patient’s medical status. That sounds good – until you consider the practical reality that if a patient so much as leans too much on a tube, or unintentionally pulls a wire out of its input, an alarm will sound. Sometimes, if a patient sneezes and breathing is momentarily interrupted, an alarm will sound. Now combine this with the reality that on any given hospital patient ward, there are perhaps 50 or more patients at any given time. The result? Patient monitor alarms going off left and right. The practical reality is that a cacophony of alarm noises can result at nursing stations, and eventually, the alarms no longer produce the result they were designed to: An immediate human response to investigate any medical emergency. The Boston Globe reported on this new development recently (click on link for story.)

All of this poses an interesting legal question: Should nurses and hospitals be held legally liable for medical malpractice if medical harm or death results from a patient not being responded to appropriately, due to ‘alarm fatigue’? As a Dedham, Massachusetts personal injury lawyer, my professional opinion is thus: It depends. Nurses are human beings. They are responsible for the care of several different patients at any one time. If a hospital floor or patient ward is regularly experiencing a cacophony of alarms, many of which are non-emergent or not life threatening, this can produce a desensitizing effect among the nursing staff. To my knowledge as a Boston, Massachusetts medical malpractice lawyer, there are no accurate statistics yet available as to what percentage of patient monitor alarms are in fact false alarms, but if the actual number were high, it would be understandable, from a human behavior perspective, why some nurses would not respond as quickly as if the false alarms were very low. The unfortunate result is that, eventually, a patient in genuine medical distress is not going to be responded to appropriately – and a medical negligence suit is likely to follow. One Massachusetts medical negligence lawsuit based on ‘alarm fatigue’ has already been brought.

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Almost everyone knows about the tragedies of drunk driving. What a lot of people don’t know about, is the subject of civil liability that can attach to drunk driving. When people do think of this subject, they commonly think of the damages that a victim of drunk driving might be able to receive from the insurance company that insured a car driven by the drunk driver. That’s very common in Massachusetts car accident cases, and it’s an area that our firm specializes in.

But what a great many people don’t know about is the liability that can attach to the business or other source that provided or served the alcohol to the drunk driver. Categorically, these sources are usually restaurants, bars & taverns, or non-commercial hosts of parties, receptions or similar events. Civil liability law permits individuals who are injured as the result of negligent service of alcohol to bring suit against any of these categories of potential defendants. When the defendant is a business such as a bar or restaurant, the liability is usually based on “Dram Shop Laws“, which are specific state statutes that impose liability on liquor license holders or their promotional partners (known legally as “licensees.”) Such statutes are designed to encourage responsible alcohol service, and to provide a mechanism for third parties to file suit for injuries or deaths that result from a liquor law violation. When the defendant is not a business such as a restaurant or bar, but is instead a homeowner who threw a party or function at which alcohol was served, and injuries resulted allegedly due to over-serving someone alcohol, the liability is known as “social host liability.” This liability stems from specific laws stating that social hosts (i.e., non-commercial hosts of a party or function, etc.) who provide alcohol to their guests can be held legally responsible for injuries or damages that may result to someone if alcohol has been provided irresponsibly to an attendee of the function.

In addition, suits for damages resulting from the over-service of alcohol can also be based on common negligence. This body of law defines “negligence” as the failure to act in a manner that a reasonable person would act under the same or similar circumstances. These types of lawsuits can be brought by innocent victims who are injured by an intoxicated person, and they can also be brought by the intoxicated person himself. Juries can award monetary damages to compensate victims for the damages they suffered due to the intoxicated person, and sometimes, they can issue punitive damages to further punish the defendant when particularly egregious evidence is presented. Awards can range from a few thousand to millions of dollars.

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“A dog is man’s best friend.” That maxim has a lot of truth in it – dogs truly can be the kind of friend many people wish they had in their human relationships: Loyal, understanding, forgiving, compassionate. I myself have always loved dogs (though the less noise they make, the better.)

But it’s also true that man’s best friend can get ugly at times – often very unpredictably. When that happens, when a dog attacks a person – horrific physical and psychological injuries can often result. A dog’s teeth are extremely sharp, and their ability to inflict devastating injuries was given to them by their generic ancestors – wolves and prairie dogs. Most dogs can bite with incredible speed and ferocity. Their teeth are built to tear the flesh off of their victims or attackers with their powerful jaws. That’s not how most people see their own or their neighbor’s pet, but that is how evolution created them. Clearly, some breeds, such as pit bulls, are notorious for being unpredictably violent, but as a Dedham, Massachusetts dog bite lawyer, I can assure you that all dogs have it within them to be violent if provoked.

An example of this was seen recently with the pre-trial case settlement of a dog bite case in Massachusetts. The plaintiff was a 23-year-old woman, who was invited to a friend’s home along with two other friends. Why were they invited? To bid farewell to the friend’s dog, which was scheduled to be euthanized (i.e., put to sleep) the next day. Sounds kind of touching, doesn’t it? It would have been, but for the exception of one slight detail: The plaintiff’s friend never told the plaintiff that the reason the dog was going to be put to sleep, was that the dog had attacked her (the friend) just one week earlier. Just a minor detail ….

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Much of life can be cruel, and even ironic. So it was that a 17 year-old boy, who was only weeks away from getting his much-awaited driver’s’ license, was killed last Thursday while skateboarding in Taunton, Massachusetts. Nicholas Silva-Thomas was killed by a car driven by a hit-and-run driver, as yet unidentified.

The youth was skateboarding on Bay Street in Taunton, after leaving Watson Park with other skateboarding friends to go to a pizza shop. At about 9:40 PM, as Silva-Thomas was skateboarding on a street he hoped to be driving on in the near future, he was struck by a driver who fled the scene and abandoned the youth, lying in the street with a fatal head injury. Witnesses said that not only did the driver leave the scene, he or she turned their lights off while doing so, to make the license plate on the car harder for any witnesses to see. No one was able to identify the license plate as the car sped away. Hopefully, there really is a thing called hell, and hopefully, there is a spot reserved for people like this driver.

This is a tragic story, but if it can do any good at all, let it illustrate the enormous and grave dangers connected with not only skateboarding as a sport, but skateboarding and Massachusetts motor vehicle accidents. I am fully aware that skateboarding has become very popular in recent years. When I was a kid, in the 1970’s and ’80’s, skateboarding was popular, then it fell out of vogue. In the past ten years or so, it’s come back with a rage. Michael J. Fox made it popular in 1986’s “Back To The Future” – though his skills were computer-animated. I understand the thrill of sports like this, and I understand kids (like many adults) want thrills. The problem is that seemingly all caution is thrown to the wind with so many of these activities: A reminder: No matter how adept at using a skateboard, no one can navigate, turn, or stop on these things with the same precision as even a bike. In an emergency, you cannot evade or escape a collision with anywhere near an “acceptable” margin of safety while on a skateboard.

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Scientists at the Institute for Aging Research at Hebrew SeniorLife in Boston, Massachusetts released a study today that indicates that nursing home patients who are given SSRI antidepressants are at increased risk of suffering falls. SSRI’s are a class of anti-depressants known as Selective Serotonin Reuptake Inhibitors, which in general act to increase levels of serotonin in the brain. Common names for these drugs include Prozac, Paxil, Lexapro, Celexa, and Zoloft.

The study, published in the Journal of Gerontology: Medical Sciences, examined 1,181 cases of nursing home falls. The study reportedly discovered a five-fold increase in patient falls within 48 hours of receiving a new SSRI, or being administered higher doses of an existing SSRI that they were already taking. However, the rate appeared to decrease each day after the prescription change. In a press release, Dr. Sarah D. Berry, a scientist at the Institute for Aging Research of Hebrew Senior Life and the lead author of the study, said that “Our results identify the days following a new prescription or increased dose of a non-SSRI antidepressant as a window of time associated with a particularly high risk of falling among nursing home residents.” Berry theorized that the increased risk of falling after receiving an SSRI might be due to coordination problems caused by the medications. Berry commented that the benefits of these medications may still outweigh the increased risk of falling, so long as patients are closely monitored in the days immediately following administration of the drugs.

These findings are important because far too many nursing home patients are prescribed antidepressants, because they exhibit symptoms of depression. Ask yourself: What nursing home resident have you ever met who wouldn’t have reason to be depressed? If the average American knew what life (or more accurately, “existence,”) was really like in a nursing home, they’d be shocked. The response of most Primary Care Physicians and nursing home medical directors to dealing with the predictable depression that results when a patient is placed in a nursing home, is to put the patients on yet another medication – antidepressants. This practice has even increased in the recent past, now that medical studies have proven that administering anti-psychotic medications to nursing home residents suffering from dementia produces an increased risk of death to patients suffering from dementia. For years, patients suffering from senility and Alzheimer’s Disease were routinely prescribed anti-psychotics, due to the symptoms the disease would cause. Finally, medical studies proved that giving anti-psychotic medications to dementia patients could be fatal, so doctors switched over to prescribing these same patients antidepressants. Now, new research shows that antidepressants can cause elderly patients to lose their balance and suffer debilitating falls.

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A Worcester, Massachusetts gun manufacturer has agreed to pay the families of two men, one of whom was killed and one who was wounded, to settle a Massachusetts wrongful death suit that resulted after the men were shot from a gun manufactured by Kahr Arms.

Before you wonder why a gun manufacturer would be named as a defendant in a civil suit for damages stemming from the use of a gun that it manufactured: Remember, there is always (as here) a story behind the story: You see, the man who shot the victims was an employee of Kahr Arms, who stole the gun from his employer and then used it to shoot the two victims outside a Worcester nightclub in 1999. That employee had a criminal record that his employer never checked into, and the suit alleged that Kahr should have conducted employee background checks prior to hiring the employee, who was quite dangerous. The suit also claimed that the company should have employed better employee theft-prevention methods to prevent an employee from stealing a gun for illegal use, such as installing metal detectors at the plant to prevent employees from stealing the guns they manufactured.

Guzman’s family and the man who was wounded filed a wrongful death suit against Kahr Arms, and eventually Kahr Arms agreed to pay $600,000 to settle the case before going to a jury. As a Boston/Dedham Massachusetts wrongful death lawyer, it’s easy for me to see why the defendant settled this case. Instrumental in the litigation and settlement of the case was the Brady Center to Prevent Gun Violence in Washington, D.C., named after President Ronald Regan’s Press Secretary who suffered a permanent brain injury in the assassination attempt against Reagan. The Brady Center termed the settlement the largest damages payment to date made by a gun manufacturer accused of negligence in the criminal use of a gun.

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Nursing home abuse and neglect is, tragically, still a “dirty little secret” for most of society. While public consciousness has been raised in the past two decades due to the efforts of plaintiffs’ tort lawyers and brave families, I don’t think enough people, or enough media, truly appreciate just how pervasive this problem really is. Massachusetts nursing home abuse and neglect (and nursing home abuse that occurs everywhere) is caused by the willingness of far too many nursing home companies, to allow the safety and well-being of their paying residents to suffer, in the name of maximizing their profits.

Making matters worse, corporations that own nursing homes in Massachusetts still cannot be held criminally responsible for the acts of their employees. Note: I am talking here about a corporation being held responsible for criminal acts, not specific individuals. While a specifically named nursing home employee who is accused of committing a criminal act against a nursing home resident, such as an assault and battery, can be criminally convicted, the corporation still, as of this time, cannot be.

In my view as a Norfolk County Massachusetts nursing home abuse lawyer, that itself ought to be a crime. The Massachusetts Attorney General tried to change that law in a novel criminal indictment a few years ago. Sadly, that noble effort did not succeed. The indictment charged a parent corporation that owned a nursing home with involuntary manslaughter and criminal neglect, based on its collective knowledge of the conduct of several of the corporation’s employees. What made the case novel was that the indictment did not single out any one employee of the corporation for criminal acts — instead, the corporation itself was indicted. This legal approach to indicting a corporation for the criminal acts of its unnamed employees, had never before succeeded. The case was Commonwealth of Massachusetts vs. Life Care Centers of America. This case represented the first attempt by the state of Massachusetts to criminally indict a corporation for manslaughter and neglect in the death of a nursing home resident.

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