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warningAs the end of the work day approaches, the streets are congested with employees exiting the premises to call it quits for the day.  Highways jam up with cars and trucks lining the road hoping to make it home before an unsavory hour.  In the month of December this situation can be magnified due to the unforeseen nature that New England weather bestows upon us.  This is something we have come to expect.  However, on December 10, 2011, when Richard Medina was traveling home from work, traffic and weather were the least of his concerns.

On that day, Robert Riskind was also traveling home from work and suffered a grand mal seizure.  As a result, he lost control of his vehicle and hit Mr. Medina.  The seizure that Mr. Riskind suffered was caused by an inoperable brain tumor that he had been receiving treatment for.  Dr. Hochberg had diagnosed him and was treating him for said condition.  As a result of the accident, Mr. Medina sustained serious and severe personal injuries that entailed a multitude of surgeries.

Mr. Medina brought a cause of action predicated in negligence against Dr. Hochberg, alleging that he owed a duty of care to him to control his patient’s behavior.  Additionally, Mr. Medina claimed that the doctor breached this duty of care by failing to warn Mr. Riskind not to drive.  After a few complicated procedural moves, the case was ultimately dismissed on the basis that the Plaintiff had not submitted enough material facts in dispute that rose to a triable level.  The Plaintiff appealed his case. Continue reading →

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juryIn July of 2008, Genevieve Calandro was a patient at a nursing home in Danvers, Massachusetts.  After an injury in which Ms. Calandro fell from her chair she was brought to the hospital where she was found to have pressure ulcers on her back side, appendicitis, a urinary tract infection, kidney failure, and a slew of other ailments that one might think would be remedied in a nursing home or long term care setting.  Instead, due to the inaction on part of the nursing care facility, these ailments were exacerbated due to the neglect of those that were charged with taking care of the elderly patient.  While doctors and nurses at the hospital made their best attempt at helping Ms. Calandro, she ultimately succumbed to death due to the host of problems that her estate claims were a direct result of the negligence on part of the health care facility.

The estate of Ms. Calandro brought a wrongful death suit against Radius Health Care Center, claiming that the facility was grossly negligent in the care and treatment of the decedent.  The family of Ms. Calandro claimed that they were repeatedly assured that Ms. Calandro was doing well and progressing as she should in light of complaints Ms. Calandro made to her family.  In response to various questions and criticisms by the family, the facility claimed that Ms. Calandro was just experiencing a flu that was going around the facility.  Little did the family know that any potential flu was the least of her problems.

Among the causes of action put forward by the estate, the Plaintiff claimed that the Defendant facility was grossly negligent.  Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence.  In order to support a finding of gross negligence, the conduct of a defendant must be characterized by a high degree of culpability and indifference to duty.  Gross negligence is commonly defined as very great, or excessive, negligence.  It is something more than momentary thoughtlessness (such as a car accident) or a slight error of judgment.  It implies an extreme departure from the ordinary standard of care individuals or organizations may owe to another. Continue reading →

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medicationsIn recent years there has been a lot of litigation concerning pharmaceutical drugs and the dangers associated with them.  In 2001, Gladys Mensing went to her physician and was prescribed Reglan to treat her diabetic gastroparesis.  The active ingredient in Reglan is metoclopramide, which is available in both branded and generic forms.  When Ms. Mensing went to her local pharmacy to get the prescription filled, she received generic metoclopramide.  This drug was manufactured by Pliva, Inc.  Ms. Mensing took the drug, as prescribed, for a period of four years.  As a result, she claimed that the long term use of metoclopramide caused her to sustain a tardive dyskinesia (a severe and irreversible neurological disorder characterized by grotesque involuntary movements of the mouth, tongue, lips, and extremities, involuntary chewing movements, and a general sense of agitation).

Ms. Mensing, the Plaintiff, sued the manufactuer of the metoclopramide claiming a state-law products liability claim for a failure to warn.  The case alleged that the Defendant provided inadequate warnings regarding the risk of tardive dyskinesia from long term metoclopramide use and that the absence of adequate warnings of that risk caused her injuries.  The Defendant moved to dismiss the case based on federal preemption.

Under Article VI, Clause 2 of the United States Constitution:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

Put differently, federal law- including administrative rules and regulations are the supreme law of the land and will supersede and control when there is a conflict between state and federal laws.  In the Mensing case, the Plaintiff argued that state products liability law should control and that the Defendant manufacturer violated a duty to put adequate warnings on labels.  The Defendant argued that the state law is not controlling.  The Defendant argued that Federal drug regulations, as interpreted by the FDA, prevented the generic drug Manufacturers from independently changing their generic drugs safety labels. Continue reading →

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hospital-corridor-1057587-mKimiyoshi Matsuyama went to his doctor’s office for a routine physical examination. Medical records of the visit indicate that Mr. Matsuyama complained of heartburn and difficulty breathing that was associated with eating and lifting. Mr. Matsuyama’s doctor, Dr. Birnbaum, did not order any tests to determine the origin or cause of his patients complaints. At a subsequent trial, Dr. Birnbaum testified that he was aware that Mr. Matsuyama had a history of smoking and was at significantly higher risk for developing gastric cancer than was the general population of the United States. Instead, the doctor diagnosed his patient with gastrointestinal reflex disease and recommended over the counter treatments.

Dr. Birnbaum treated Mr. Matsuyama for approximately three more years. Each time that Mr. Matsuyama complained of an ailment or discomfort he was experiencing (such as a suspicious mole), he was told that it was not something to be fearful of. Subsequently, a mass was found in Mr. Matsuyama’s stomach and he was diagnosed with infiltrative gastric adenoid carcinoma. He began treating with specialists for his condition and subsequently passed away due to the gastric cancer.

The Estate of Mr. Matsuyama brought a complaint against the Defendant Doctor alleging wrongful death. The complaint alleged that Dr. Birnbaum breached the applicable standard of care in evaluating and treating Mr. Matsuyama which resulted in his death. An expert retained by the estate opined that, “in light of Matsuyama’s complaints, symptoms, and risk factors, including the presence of H. pylori, his Japanese ancestry, his having lived in Japan or Korea for extended periods, his smoking history, and other well-known risk factors, an internist exercising the expected standard of care would have ordered an upper gastrointestinal series X-ray or an endoscopy, or referred Matsuyama to a specialist for endoscopy, beginning in 1995.” The Estate argued that had the doctor ordered the appropriate testing as early back as 1995, the cancer that Mr. Matsuyama ultimately died of would have been diagnosed and treated in a way where it may have been curable. Continue reading →

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field-trip-205687-mIn April of 1993 Jason Robinson was a student at Darmouth High School.  In the early morning hours of the school day, three assailants were involved in a violent altercation at the school with two other of Jason’s classmates and possibly Jason himself.  After the altercation the assailants fled the school and Jason was detained by school officials.  A classmate of the individuals informed school officials that the three individuals who were the assailants planned to return to the school and retaliate against Jason.  The assailants did in fact return some hours later, this time, heavily armed.  The assailants were unimpeded by school officials and made their way to an upstairs classroom where they stabbed Jason to death.

The individual who stabbed Jason was subsequently convicted of murder in the second degree by the Massachusetts court system.  Jason’s mother, Elaine Brum, filed an action in Superior Court against the town of Darmouth and various town and school officials alleging a failure to maintain adequate security measures at the school which amounted to negligence.  The Defendants filed a motion to dismiss the mother’s claim based on Massachusetts General Law Chapter 258 § 10(J), which does not allow a lawsuit to be filed against the Commonwealth or any of its political subdivisions where the claim is:

“based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer.”

Continue reading →
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mallOn April 24, 2011, Jackie and Ricky Cox, a husband and wife, went to a Wal-Mart to purchase some goods.  As Mrs. Cox made her way through the entrance, she fell and sustained serious personal injuries in connection with her fall.  An uninterested witness, an observer some twelve feet away, watched the fall take place.  He testified that for an hour before the fall he had observed the door threshold rising up approximately one half inch whenever a customer or cart crossed the threshold.  The witness testified that he observed this to occur due to the fact that the threshold plate was not secured tightly to the ground.  As a result, whenever a person stepped on one side of the metal plate, the other side would rise up.  He further observed, and subsequently testified, that when Mrs. Cox stepped on the plate with one foot, her other foot caught the plate causing her to fall.  A manager for Wal-Mart denied any sort of occurrence predicated on a rising plate.

Mrs. Cox filed a complaint in her home state of Mississippi and it was ultimately removed to Federal Court.  Mrs. Cox claimed that it was negligent of the store to allow a defect to exist on the property and that such a defect was unreasonably dangerous to persons such as herself.  The Defendant store argued that the purported defect in the threshold was not unreasonably dangerous.  A lower court agreed with the defense and held that a door threshold is among those dangers which are usual and which customers normally expect to encounter on the business premises, such as thresholds, curbs and steps.  As a result, the Plaintiff’s claim was dismissed.

The Plaintiff filed an appeal in the matter which was heard by the United States Court of Appeals in the Fifth Circuit.  The Court, on appeal, held that while there are certain dangers which are usual for a customer to expect, a defect is not one of those dangers.   A defect, the court detailed, is not a condition that one would normally encounter in the normal course of operations or mode of operation of a business.   The Court reversed the prior court’s ruling and allowed the Plaintiff to proceed to litigate her case on the merits. Continue reading →

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recordsIn the electronic world we find ourselves in, many records from a variety of sources have gone digital.  In an effort to streamline and increase efficiency, records ranging from office visits to business transactions are scanned in for easy dissemination.  Additionally, records from offices are sometimes shipped to third parties for copying and scanning if a particular office does not have the capacity to do so.  While this may not have any real implication for some documents- when it comes to highly sensitive information such as medical records, litigation has boomed.

In some situations patients have been apprised by hospitals, clinics, or doctors’ offices that there has been an unauthorized disclosure of their medical records.  Sometimes this comes in the form of requested medical records being sent to the wrong office, or an office receiving the wrong medical records, or even a mistake as to a name.  For instance, if Jane Doe (born in 1967) requests her medical records and she receives the medical records belonging to Jane Doe (born in 1990)- there has been an unauthorized access of medical records.  Medical records contain some of our most highly personal, sensitive, and confidential information- and as such- when those records are disseminated without our permission, this can be actionable.

Under M.G.L. Chapter 214 § 1B:

A person shall have right against unreasonable, substantial or serious interference with his privacy.  The superior court shall have jurisdiction in equity to enforce such right in connection therewith to award damages.

Continue reading →

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xrayIn a traditional case of negligence, the fact that the Defendant did a bad act is not necessarily enough for the Plaintiff to recover sums of money.  Our judicial system is grounded on the fact that we want to compensate victims, not punish wrongdoers.  As such, if a Plaintiff suffers a harm by a Defendant but has no lasting injury or damages to show for it- it will be very difficult for that Plaintiff to recover any compensation.  In addition to showing a duty that was owed to the Plaintiff, which was breached by the Defendant, the Plaintiff also has the burden of showing and proving that this breach caused him or her to sustain damages.

The evaluation of pain and suffering and of the other aspects of damages requires a determination of how badly the plaintiff was hurt—the nature, extent, severity, permanency, and effect of the injuries.  While any sort of physical pain or injury may have been small, this is not a bar to recovery.  Courts in Massachusetts have articulated that even if a bodily injury may have been very small, if it caused mental suffering to the plaintiff, that suffering was a part of the injury for which he/she was entitled to damages.

Showcasing damages may come in a variety of flavors.  For instance, if the injury causes or contributes to cause the development of a pre-existing disease, the person liable for the injury is also liable for the resulting aggravation.  A court may also look to the loss of earning capacity sustained by the Plaintiff.  When deciding such an amount the factfinder (be it judge or jury) may take into consideration what type of person the plaintiff is, the talents he or she has, the contributions plaintiff has made to society, etc.   Another category of damages is loss of enjoyment of life.  This is measured by his or her status in community affairs, personal interests and hobbies, contribution to society, etc. A plaintiff may recover reasonable medical and hospital expenses incurred in treating the injuries caused by a defendant’s purported negligence.  It is not necessary that the plaintiff actually paid the expenses, just that they were incurred (such as through insurance). Continue reading →

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darkIn September of 2009, Michael Eason reserved a room at the Boston Marriot Burlington Hotel for an overnight stay.  After checking into the hotel at approximately 8:00 pm, he made his way to his rented room.  After opening the door to his hotel room, Mr. Eason admitted that the room was dark except for the faint glow emanating from the partially open door and a small gap in the curtain hanging over the windows.  As he stepped further into the hotel room, the light became even fainter as the door fully closed.  Mr. Eason took a few more steps in his room and unexpectedly encountered a coffee table that caused him to sustain a serious fall.  Mr. Eason alleges that it was negligence on behalf of the hotel that caused or substantially contributed to the injuries he sustained in connection with his fall.  A suit was commenced in Middlesex Superior Court but was ultimately moved to federal court for litigation.  The Defendant Hotel filed a motion for summary judgment in hopes of getting the case dismissed.

In order to succeed in a claim predicated on negligence a plaintiff must establish that the defendant owed the plaintiff a duty of care, that there was a breach in the purported standard of care, and due to the breach the plaintiff was caused to sustain damages for which he or she should be compensated.  In discussing the duty in this matter, the Judge reiterated that:

“While a landowner has a duty to lawful visitors of its property to maintain reasonably safe conditions and to warn of unreasonable dangers, landowners “are relieved of the duty to warn of open and obvious dangers on their premises because it is not reasonably foreseeable that a visitor exercising (as the law presumes) reasonable care for his own safety would suffer injury from blatant hazards. . . Stated otherwise, where a danger would be obvious to a person of ordinary perception and judgment, a landowner may reasonably assume that a visitor has knowledge of it . . . .””

Continue reading →

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hallwayIn March of 2008, Frank Battaglia was a resident and patient of the Concord Health Care Center in Concord, Massachusetts.  Mr. Battaglia alleged that the Defendant Health Care Center had a duty to provide competent nursing and other care to the Plaintiff.  Additionally, the Plaintiff alleged that the Defendant negligently failed to provide proper and competent care, it carelessly and negligently failed to design and adhere to an appropriate plan of Care, it negligently failed to provide a safe living facility and environment to the Plaintiff, it failed to provide adequate and proper supervised care as needed, and it failed to properly assess and monitor the Plaintiff’s underlying medical condition.  As a result of the purported negligence by the Health Care facility, the Plaintiff alleged that he was caused to suffer permanent loss of function and mobility and ultimately filed a suit that proceeded to the United States District Court in Massachusetts.

In addition to the negligence claims brought above, the Plaintiff claimed a violation of Massachusetts General Law Ch. 93A, the consumer protection statute.  The Plaintiff alleged that while the Defendant was engaged in a trade or commerce (as defined by the statute) the Defendant misrepresented the quality of the services it would provide and failed to provide services in compliance with existing state and federal statutes, rules, and regulations.  As such, it was alleged that these actions (or inactions) rose to the level of unfair or deceptive trade practices for purpose of the statute, which allows for triple damages and the possibility of attorney’s fees in certain circumstances.  The Defendant filed a motion for summary judgment in response to the Plaintiff’s 93A claim.

The Health Care facility argued that the Chapter 93A claim should be dismissed based on a previous ruling by the Supreme Judicial Court in Darviris v. Petros, 812 N.E.2d 1188 (Mass. 2004).  In that case, the court held that medical malpractice was not remediable under Chapter 93A.  However, the court did hold that a Chapter 93A case may be allowed in certain circumstances.  Specifically, the court wrote: Continue reading →

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