Massachusetts Injury Lawyer Blog

The Supreme Judicial Court (SJC) of Massachusetts today changed the rules in slip and fall cases involving snow and ice.

The Massachusetts high court eliminated the distinction between natural and unnatural accumulations of snow and ice, replacing it with the standard rule of reasonable care for all property owners.

The change came in a case involving a Peabody resident who fell on ice in the parking lot of the Target department store at the Liberty Tree Mall in Danvers. The trial court determined the ice was a natural accumulation and found for Target and the landscaping company. The personal injury case was affirmed by the Appeals Court. The SJC took the matter on further appellate review and invited briefs on whether the time had come to reconsider the long-standing doctrine concerning unnatural versus natural accumulations of snow.

The court found for the plaintiff and eliminated the distinction in Papadopoulos v. Target Corporation, SJC-10529 (July 26, 2010). For additional analysis of the case, read our Lawyer Alert! The full text of the decision can be found by clicking here.

Continue reading "Massachusetts Legal Standard for Slip and Falls on Snow Changes" »

The warm weather is here and that means many Massachusetts residents can be found poolside. The pool is a fun spot for all ages, but it also poses safety risks. These risks can be reduced by the use of good judgment and common sense.

We want you and your loved ones to be safe. Sadly, each year, more than 300 children under 5 years old drown in residential swimming pools - often pools belonging to their own family. More than 2,000 children the same age are treated in hospital emergency rooms for pool-related injuries.

Here are common sense safety tips to help keep your family safe around the swimming pool:

• Learn CPR and make sure babysitters and older siblings have CPR training.


• Do not allow children to swim without supervision, even if they have attended swimming lessons.


• If a child is missing, check the pool first. Seconds count in preventing death or disability.


• Install a fence or barrier around your pool. The fence should be at least 4 feet high and have a self-closing, self-latching gate.


• If the fence is chain link, then no part of the diamond-shaped opening should be larger than 1-3/4 inches.


• Install a pool alarm to alert an adult when someone enters the pool area unauthorized. A key pad switch alarm allows adults to pass through without setting off the alarm.


• Keep rescue equipment and a phone with emergency numbers by the pool.


• If there are multiple adults at the pool, designate one person the pool-watcher to avoid distractions.


• Ladders leading from the pool to the ground or to a pool deck should be locked or removed when the pool is out of use.


• Remove toys that may attract children from in and around the pool when they are not in use.

Continue reading "Be Safe in Massachusetts Pools This Summer" »

An important Supreme Judicial Court decision this week affirmed the statutory right for admitting medical bills in Massachusetts courts, but opened the door for rebuttal.

In Law v. Griffith, SJC-10463 (July 20, 2010), Massachusetts' highest court ruled on a Middlesex Superior Court case involving G.L. c. 233, Sec. 79G. The Supreme Judicial Court affirmed an earlier opinion of the Appeals Court, reversed a Superior Court judge and ordered a new trial in a case where the judge improperly restricted evidence of medical expenses.

The high court's decision provides a window for attorneys to ask judges to tender jury instructions on medical liens.

Read the case and analysis from Breakstone, White & Gluck here.

Continue reading "Massachusetts Lawyer Alert: A SJC Ruling on Admissibility of Medical Expenses" »

A recent study published by The Journal of the American Medical Association highlights the need for more physicians to report colleagues who endanger patient safety.

The study, conducted by doctors at Massachusetts General Hospital, surveyed 3,000 doctors nationwide about reporting colleagues who are incompetent or who engage in substance abuse or other improper behavior. More than one-third responded that they do not fully support the idea that these doctors should be reported, according to a Boston Globe editorial on the study. Just over one-third of doctors with direct knowledge of a colleague's impairment kept quiet.

While many states mandate reporting, the study found many physicians did not act because they thought someone else was already handling the problem. Other reasons included fear of retribution and cultural differences. The study found minorities and doctors with degrees from overseas were less likely to report peers.

Beyond reporting mandates, the right to practice medicine is a privilege. Because patients' lives are at stake, there must be zero tolerance for physicians not reporting any medical professional engaging in suspect behavior.

Medicine is a profession, not a club where doctors should be allowed to protect each other above and beyond patients. Hospitals and senior physicians need to embrace the idea of reporting so other doctors understand their obligation.

The Boston medical malpractice lawyers at Breakstone, White & Gluck have extensive experience handling complex medical malpractice claims, including medication errors, failure to diagnose cancer and surgical malpractice. We have seen first-hand how doctors who ignore a colleague's improper actions endanger patient safety. These doctors need to remember there are consequences and in their profession, those consequences can come at a moment's notice.

To read an abstract of the study, visit The Journal of the American Medical Association.

To read an editorial about the study, visit The Boston Globe.

Continue reading "Doctors Must Protect Patients and Report Unsafe Colleagues" »

Just weeks after a massive children's crib recall, a portable playard tent linked to a young boy's fatal strangulation has been pulled for safety.

The U.S. Consumer Product Safety Commission (CPSC) and Health Canada, in cooperation with Tots in Mind Inc. of Salem, New Hampshire, has announced the voluntary recall of 20,000 Cozy Indoor Outdoor Portable Playard Tents Plus Cabana Kits. An additional 85 tents were recalled in Canada.

The tent is a white dome-shaped covering designed to fit over playards that contain a child. In December 2008, a two-year-old boy from Vinalhaven, Maine died when he climbed out of the playard. He was found hanging with his neck entrapped between the playard frame and the metal base rod of the tent. In this case, the tent had been tied to the playard with pieces of nylon rope and partially attached with the tent's clips because the child knew how to remove the clips.

In three other incidents, children removed the clips on the tent and were able to place their necks between the tent and the playard. The children were not injured.

The unsafe cribs were made in China and sold at Walmart, Amazon and various baby stores from January 2005 to February 2010.

Consumers should immediately stop using the playard tents. They can contact Tots in Mind to get free replacement clips. Replacement clips will be available in late August or early September.

This is the second major product safety recall affecting parents and children in recent weeks. In June, the CPSC recalled two million cribs because of an unsafe drop-side rail, which created a gap where a baby's head could become trapped. Government officials say this could lead to suffocation or strangulation.

The companies involved in the recall include Evenflow, Delta Enterprises Corp., Child Craft, Jardine Enterprises, LaJobi, Million Dollar Baby and Simmons Juvenile Products Inc.

Continue reading "Product Safety Recall: Baby Tents Pose Strangulation Risk" »

Massachusetts and several other states have been awarded $25 million in patient safety grants from the Department of Health and Human Services. The funds will be used to implement medical care reform and establish plans for reducing future errors.

The funding is part of a patient safety and medical liability initiative announced by President Barack Obama in September 2009.

The Massachusetts Department of Public Health received funding to involve clinicians, patients, medical malpractice insurers and state officials in a discussion about medical errors and malpractice. The goal is to improve efficiency in all aspects of medical care and reduce medical errors resulting in severe personal injury and death.

The grants were awarded in two categories. Three-year awards of up to $3 million will allow states and health systems to implement and evaluate patient safety and medical liability demonstrations. One-year grants of up to $300,000 are for states and health systems to establish a plan for reviewing patient safety in the future.

Health and Human Services Secretary Kathleen Sebelius said: "This new research is the largest government investment connecting medical liability to quality and aims to improve the overall quality of health care."

The Boston medical malpractice lawyers at Breakstone, White & Gluck view this grant as a critical move in improving medical care. Each year, 195,000 people die as a result of preventable medical errors and even more sustain life-altering personal injuries.

Continue reading "Massachusetts Patient Safety Grants Target Medical Liability" »

Massachusetts has banned the commercial use and sale of lacquer sealer, a highly flammable wood floor finishing product linked to deadly home fires.

Gov. Deval Patrick signed the safety bill into law this week. The bill had strong support from MassCOSH (the Massachusetts Coalition for Occupational Safety and Health), which convened a Floor Finishing Safety Task Force to investigate the problem.

The task force was convened after a 2004 house fire in Somerville claimed the lives of two Vietnamese floor sanders and burned their co-workers. Shortly after, a Vietnamese flooring contractor died in a Hull house fire. Both fires involved the use of lacquer sealer used in floor finishing.

"This groundbreaking law will save lives and end floor finishing fires that have caused so much pain and destruction," said Marcy Goldstein-Gelb, executive director of MassCOSH. "We owe a great deal of thanks to the Governor and Legislature for recognizing these grave dangers and taking action to protect workers and residents."

Following the three fatal fires, the Floor Finishing Safety Task Force issued a 2005 report stating Boston had seen 25 fires involving lacquer sealer over the 10 previous years and Needham had seen two in the prior year that threatened worker safety.

In the 2005 report, the task force recommended the state promote use of non-flammable water-based finishers to protect Massachusetts worker safety and prevent worker deaths.

The task force observed the problem of flammable lacquer sealer was targeting Massachusetts' Vietnamese community, which has a large concentration of workers in the floor finishing industry.

The bill proposing the ban was jointly filed by state Rep. Martin Walsh and Sen. Patricia Jehlen.

Breakstone, White & Gluck of Boston is a supporter of MassCOSH and its work to protect Massachusetts construction workers and other employees.

To learn more, visit the MassCOSH website.

Continue reading "Massachusetts Law Bans Highly-Flammable Floor Sealer" »

Toyota recalled 270,000 Lexus and Crown vehicles sold around the world this week due to possible contamination during valve spring manufacturing. The company has now recalled more than 8.5 million vehicles for sticking gas pedals, anti-lock brake software glitches and a host of other safety problems.

Massachusetts Lexus owners impacted by the motor vehicle recall will receive official notice from Toyota by first-class mail. Owners will be asked to contact their local Lexus dealer to have the engine's valve spring replaced at no charge.

Toyota said a foreign substance involved in manufacturing may have contaminated a small number of the valves. If a vehicle is defective, drivers may notice idling or abnormal engine noise. The engine could also stop while the vehicle is in operation.

Of the 270,000 recalled vehicles, 138,000 were sold in the United States, 91,903 in Japan, 15,000 in Europe, 10,000 in the Middle East, 6,000 in China and 4,000 in Canada.

The vehicles were sold between July 2005 and August 2008. They include Lexus models GS350, GS450h, GS460, IS350, LS460, LS600h, LS600hl and Crown models.

This Lexus recall comes just days after Toyota recalled another Lexus model - the Lexus HS250h - because it spilled too much gasoline during crash tests. The tests were part of yearly safety reviews by the National Highway Traffic Safety Administration (NHTSA).

In May, Toyota paid a record $16.4 million fine in the United States for responding too slowly when motor vehicle safety problems emerged. The fine was the largest civil penalty ever assessed against an auto maker by the NHTSA.

The NHTSA has linked 89 motor vehicle deaths and 57 injuries over the last decade to Toyota accelerator problems. Overall, it has received more than 6,200 complaints involving unintended acceleration in Toyota's cars.

Toyota faces more than 200 lawsuits in the United States. The cases involve defective automobiles, lower resale value of Toyota vehicles and stock price declines. The lawsuits, including 130 class-action lawsuits, are being heard in Southern California, near Toyota's Torrance headquarters.

Continue reading "Toyota Recalls Lexus Models: What to Do if You're a Lexus Owner" »

It's always a tragedy when someone leaves a bar after a night of drinking, steps in his or her car, and causes a motor vehicle accident resulting in personal injury.

For years, that tragedy was compounded by Massachusetts law, which let bars and restaurants operate without liquor liability insurance. Like other businesses, Massachusetts restaurants and bars have traditionally carried general commercial liability insurance covering on-site problems, including slip and falls and other injuries. But this insurance offers no assistance to drunk driving accident victims.

In late May, Massachusetts lawmakers corrected this and passed a law requiring restaurant and bar owners to carry liquor liability insurance. Establishments must carry a minimum of $250,000 per person/$500,000 per accident coverage. In other words, policies must provide a minimum $250,000 for bodily injury or death of one person and a total of $500,000 per incident involving bodily injury or death.

Innocent victims of drunk driving accidents still face the traditional hurdles in proving their cases against bars. One hurdle is strong juror bias. Juries do not hesitate to hold the drunk driver responsible. But juries are often reluctant to blame a drinking establishment for over-serving a patron, even though the law is perfectly clear that a bar has a legal duty to not serve someone who is intoxicated.

Restaurants and bars seek to avoid liability for over-serving patrons, and they typically claim they did not recognize that the patron was intoxicated. The recent Massachusetts Appeals Court case of Rivera v. Club Caravan, Inc., 77 Mass. App. Ct. 17 (2010), reviewed the legal standards for "dram shop cases." Generally the plaintiff must prove the patron showed outward signs of intoxication by the time he or she was served her last drink. However, circumstantial proof can also be sufficient. If the patron had consumed excessive quantities of alcohol, a jury can draw an inference that he would have been visibly intoxicated. So, where a patron is served fourteen drinks in two hours, as in the Rivera case, or was served six or more white Russians, as in another Massachusetts case, the circustantial evidence is strong enough.  

Personal injury attorney Ronald Gluck called the new law "a step forward" for the safety of Massachusetts residents.  "Restaurants and bars will want to have strong policies in place--and to follow them--not just to avoid liability but also to avoid large increases in their insurance premiums. The new liquor insurance law should help reduce drunk driving accidents in Massachusetts."

Click here for the full text of the law.

Continue reading "Massachusetts Bars Must Now Carry Liquor Liability Insurance" »

The recent news that more than 200 EMTs in Massachusetts fraudulently obtained re-certification revealed serious safety lapses in the system. We applaud the state's swift move to suspend the EMT licenses and call on the Department of Public Health (DPH) to closely monitor future re-certifications.

An anonymous caller tipped off DPH officials to the EMT scandal when she reported an EMT-paramedic for a private ambulance company had received re-certification without attending the required classes. When state officials investigated, they learned the fraud ran much deeper, touching more than 200 EMTs throughout the state.

The impacted fire departments include Haverhill, Boston, Lexington and Belmont among others. Haverhill had 30 EMT licenses suspended while Boston had 21.

The abuse was most rampant among private ambulance companies. Armstrong Ambulance of Arlington had 41 EMTs working with fraudulent certification while Trinity EMS had 35 EMTs and Cataldo Ambulance of Melrose had 46 EMTs, according to media reports. For Cataldo, the majority of the involved EMTs came from the company's Atlantic Ambulance Service division on the North Shore.

The state suspended most of the EMT licenses for 90 days to nine months. Lexington firefighter Mark Culleton and former Trinity Ambulance paramedic Leo Nault, the instructors involved in the fraud, have been permanently banned from practicing in Massachusetts.

Emergency medical technicians in Massachusetts are required to undergo between 24 and 36 hours of retraining every two years. The training serves as a refresher course and updates EMTs on new medications, techniques and equipment.

"This ongoing training is critical for EMTs because they are called upon to make life and death medical decisions in the field," said Boston medical malpractice lawyer Marc Breakstone. "The Department of Public Health must maintain a zero tolerance policy towards any fraud or misrepresentation regarding the training and qualifications of the front-line medical providers."

In 2001, Breakstone negotiated a $10.2 million settlement for a Massachusetts family whose toddler was left severely brain-damaged by paramedic negligence. There were significant delays in the care. The ambulance crew got lost on the way to the home, forgot the keys to their medical cabinet and later falsified records in an attempt to hide the medical negligence. As a result of that case, the Massachusetts Department of Public Health established guidelines that made reporting of serious medical errors by EMTs mandatory.

For more information, see these articles from The Boston Globe: "Phone Tip Led to EMT Card Scam" and "State Officials Examining EMT Retraining System"

Continue reading "Massachusetts' Zero Tolerance Policy in EMT Scandal Critical for Safety" »

Welcome news today as the Massachusetts Legislature has finally agreed on a new law that will make it illegal to text while driving. Once the bill is signed by the Governor, Massachusetts will be in line with twenty-eight other states that have already outlawed text messaging while driving.

This law comes in the wake of several tragic text message-based accidents. In May 2009, 62 people suffered personal injury after a Massachusetts Bay Transportation Authority trolley collided with another trolley because the driver was texting his girlfriend. In September 2008, a California commuter train engineer missed a stop signal while trading texts with a friend, leading to a train accident resulting in the wrongful death of 25 people. In addition, there have been several high profile motor vehicle wrongful death cases in recent memory which were caused by inattentive drivers who were texting as they drove.

The law has several other public safety improvements. The new law will require that older drivers renew their licenses in person and take an eye exam every five years beginning at age 75. Older drivers were involved in several serious car accidents in 2009 in Massachusetts. Further, the law will forbid anyone under the age of 18 from using a cell phone while driving.

Boston personal injury attorney David White said of the new law, "Distracted driving is a serious safety problem. The use of cell phones and text messaging are two of the biggest distractions for drivers. These new provisions will vastly increase the safety of Massachusetts roadways."

A recent study found that texting while driving makes a person twenty times more likely to get into a car crash or near-crash. The problem is most severe for inexperienced drivers. It is hoped that this new law will raise awareness to this growing epidemic of serious personal injuries caused by careless texting motorists.

 For more information

Boston Globe

Virgina Tech Transportation Institute Research Project

Continue reading "Massachusetts Law Will Ban Text Messaging While Driving" »

It's important to know who's providing your medical treatment and their safety record, but many Massachusetts health care consumers fail to ask the question.

The good news is the information is just a few keystrokes away. The Massachusetts Board of Registration in Medicine offers Massachusetts consumers the Physician's Profile database right online.

Click here to learn more about what you'll find on the Massachusetts physician database and for a link to the site.

Continue reading "Know Your Doctor's Safety Record" »

It's summer and that means it's time to enjoy the pool - and think safety. Each year, thousands of children are injured in drownings and hundreds lose their lives. So enjoy your backyard or community pool this summer, but commit to protecting your children and family.

Keep these safety tips in mind:

• Supervise children at all times. If you're in a group, it's easy to get distracted so consider designating someone a "pool watcher."
• Learn how to swim and teach your children.
• Get CPR training.
• Keep a phone with you at the pool.
• Make sure you have proper rescue equipment and keep it nearby.
• Keep your pool inside a fence at least four-feet tall and secure it with a durable lock when not in use.
• Remember small children can drown in kiddie pools and watch them accordingly.
• Check your pool's drains. Suction from a pool's drain can be powerful enough to trap both children and adults underwater. Do not use any pool or spa with broken or missing drain covers. At community pools, ask the operator if the pool complies with the Pool and Spa Safety Act.

Why it's important:

• Pools were involved in the overwhelming majority of emergency room visits for drownings and submersion injuries from 2006 to 2008 across the country. They accounted for the majority of reported drowning fatalities from 2004 to 2006.
• From 2006 to 2008, there were on average 3,100 pool and spa related emergency department visits nationwide involving drowning injuries.
• Children ages one and two accounted for 62 percent of drowning injuries from 2006 to 2008 nationwide.

For more information on pool safety, visit www.poolsafety.gov.

The statistics from this article come from the Consumer Product Safety Commission and is available here.

Continue reading "Thinking Pool Safety Saves Lives" »

A new federal study found many same-day surgery centers have serious problems with infection control procedures.

The Centers for Disease Control and Prevention visited 68 centers in Maryland, North Carolina and Oklahoma and found 67 percent of the centers had at least one lapse in infection control. Some 57 percent were cited for deficiencies. The patient safety lapses included failure to wash hands, wear gloves and clean blood glucose meters. Clinics also reused medical devices meant for one person. The study did not examine if the lapses led to patient infections.

The study, reported in the Journal of the American Medical Association this week, comes as the nation's 5,000-plus outpatient centers perform more than 6 million procedures and collect $3 billion from Medicare each year.

"This study should be a wake up call to physicians performing relatively minor surgical procedures at walk-in clinics," according to Boston attorney Marc L. Breakstone. "All surgeons must have zero tolerance for lax infection control procedures, which can expose patients to life-threatening infections." According to Breakstone, the risks of serious injury to patients from staph and hepatitis infections are as great in the small center as in the large hospital setting.

The study was prompted by a hepatitis C outbreak in Las Vegas believed to be caused by unsafe injection practices at two clinics. The clinics have been closed.

For more information, read this Boston Globe article about infection control problems at US same-day surgery centers.

Continue reading "Patient Safety Falls Short at Same-Day Surgery Centers, Study Finds" »

If you're a bicyclist, you know safety's first. Knowing the rules of the road and riding defensively are the best ways to protect yourself from harm. But you must also think finances in case of personal injury. Between lost wages and medical costs, the bills can add up fast. Even if a motorist's involved, their car insurance may not cover all your expenses.

There's good news. You can protect yourself financially in a bike accident with a few changes to your own car insurance. The two smartest things a cyclist can do are:

• Purchase adequate amounts of Underinsured and Uninsured Motorist coverage


• Purchase adequate Medical Payments coverage

These coverages are affordable. In fact, you can access up to $100,000 of Medical Payments coverage for just $71! Read on as Boston personal injury lawyer David White shares his advice to cyclists for keeping safe and protecting their wallets.

Click here for full article.

Continue reading "Massachusetts Bicyclists Can Protect Themselves With Car Insurance" »