Massachusetts Injury Lawyer Blog

Good news for trial advocates and their clients: Massachusetts courts are continuing to expand voir dire of prospective jurors. But Massachusetts state courts still lag behind courts in other states when it comes to screening citizens for possible selection on juries in our civil and criminal trials. The vast majority of states outside of the commonwealth permit a process whereby the judge and the attorneys inquire of potential jurors regarding their attitudes and beliefs on issues involved in the case. This process, called voir dire, is an important tool for identifying individuals who may have strong feelings or biases which would prevent them from fairly deciding the issues in the case.

Until recently, most judges in the Massachusetts state courts would simply ask a series of vague and basic questions to the entire prospective jury panel, which, in essence, asks the individuals to evaluate whether or not they can be fair and follow the court's instructions. The system had one advantage: it was fairly quick. But the basic statutory questions are notorious for failing to eliminate potentially biased jurors.

States such as Rhode Island and New York permit extensive questioning by attorneys in the case directly with the prospective jurors. Voir dire in those states allows the attorneys on both sides to ensure that jurors with potential bias are not seated in the case.

In the last five years, the majority of judges in Massachusetts have begun a modified approach called "individual voir dire." These judges bring each prospective juror to the side bar where the judge questions them about their beliefs and attitudes related to the issues in the case. Some of these judges allow attorneys to ask questions in follow up. Others allow attorneys to conduct the entire voir dire process. Most judges have found that this process is as efficient and expeditious as the old standard questions approach. In those cases where the process takes a little longer, there is the benefit of having a better jury for the case.

Under the new approach, judges are asking open-ended questions designed to encourage prospective jurors to express their feelings and beliefs. The basic premise of voir dire is that not every citizen is right for every case. For example, the parent of three young girls might not be an appropriate juror for a criminal case involving sexual assault on a minor. Similarly, an individual who feels there are too many frivolous lawsuits, might not be appropriate for a significant personal injury trial.

Continue reading "Massachusetts Judges Moving Towards Expanded Voir Dire" »

The Massachusetts Medical Society has published a report suggesting that doctors in Massachusetts are ordering thousands of tests as a result of "defensive medicine." As a result, the Society argues, health care costs in Massachusetts are increasing unnecessarily. The Society also argues that in order to trim these rising costs, medical malpractice reforms are necessary.

These claims have, of course, been made before. For over twenty years doctors have been claiming that malpractice claims have driven them to excessive testing. However, independent analysis in 2004 at the Congressional Budget Office found the evidence that defensive medicine was contributing to soaring insurance costs to be "weak and inconclusive." And, as Marc Breakstone, a member of the firm of Boston medical malpractice firm of Breakstone, White & Gluck, PC, pointed out in the Boston Globe today, managed care and utilization review reduce medically unnecessary tests.

Ronald Gluck, another member of the Massachusetts malpractice firm, Breakstone, White & Gluck, P.C., explained to the National Law Journal that there were serious questions about the survey data. He also pointed out that many tests must be approved by insurance companies, which help reduce unnecessary testing.

There are, of course, other sides to this story. Physicians who order more tests may be increasing their own revenues by billing for the tests.  And hopefully, the extra testing has some benefit for patients, who can be reassured when conditions are actually ruled out.

The claims of the Medical Society are quite stark. They report that 83% of the doctors they surveyed reported practicing some level of defensive medicine. The report also indicates 18-28% of tests and procedures, and 13% of hospitalizations were ordered to avoid lawsuits. 

Continue reading "Is Defensive Medicine Driven by Fears of Medical Malpractice in Massachusetts?" »

All four attorneys in the Boston personal injury firm of Breakstone, White & Gluck were again recognized in the annual Best of Boston Magazine's Massachusetts Super Lawyer edition. We are pleased to share the news that Marc Breakstone, Ronald Gluck and David White were all recognized as Super Lawyers in various personal injury fields, and Heather Engman was recognized as a Rising Star. Recognition was also given in the New England edition.

The recognitions from Boston Magazine are not the first for our firm. All of the attorneys have achieved Super Lawyer or Rising Star recognitions in the past, and the firm has garnered other awards and recognition. Please visit our website, and our personal injury lawyers pages, for more information about our Boston personal injury law firm.

Read the full story on the Firm News page of our personal injury web site.

The Massachusetts Appeals Court has made it clear in a premises liability case that the "open and obvious" defense does not apply to a person falling into a sunken living room. The Suffolk County case arose from an accident at a residence. The plaintiff did not notice that there was a single step from the hallway into the sunken living room. She fell and broke her hip and required surgery and rehabilitation. She claimed that she did not see the step because the floor in the hall and the floor in the living room were both the same, light-colored tile, and the light from the windows and skylight obscured the step.

It is well known that single steps with no warnings, or with no changes in color from level to level, are a common cause of premises liability accidents. Even a cautious person can easily miss a single, but dangerous, step; you just don't expect a drop from one room to another, and you instinctively rely on visual clues to warn you of dangerous steps.

Back to the case: The defendants argued that the construction of the house, and the condition of the step down to the sunken living room, was open and obvious. They also argued that, as a matter of law, they should receive summary judgment (which means judgment as a matter of law). They were able to persuade the trial judge to grant them summary judgment. But the plaintiffs appealed, and the Appeals Court reversed the trial judge and agreed that the plaintiffs were entitled to receive a jury trial.

The Court visited some familiar principles of premises liability law. Homeowners are required to keep their premises reasonably safe, and they are required to warn of known dangers. They do not have to warn of open and obvious dangers. While the court did not explain in detail its reasoning regarding open and obvious dangers, the general principle that applies is that a homeowner can rely on a visitor exercising care for his own safety when the hazards are blatantly obvious.

Continue reading "Massachusetts Appeals Court Defines Victim Rights in Premises Liability Accident, Fall at Home in Sunken Living Room" »