Massachusetts Injury Lawyer Blog

Thanks to an excellent series of articles in the Boston Globe, we now have some clear insight into what is driving the unconscionable increases in health insurance in Massachusetts: Secret agreements between the Partners HealthCare system and insurance companies. And while doctors and their insurance companies are quick to blame medical malpractice cases for exploding health care costs, the real increases can easily be blamed on the profit-driven expansion at Partners and increases in profits for insurance companies.

As the Globe has reported in a series of articles on the power and growth of Partners, the hospital corporation is now so large and powerful that it can freely bully insurance companies. The first up, Blue Cross and Blue Shield, which freely agreed to the demands of Partners in a "gentlemen's agreement" sealed with a handshake. A handshake? Yup, their lawyers were apparently too nervous to put the deal in writing.

The result: an increase of 70% in Blue Cross insurance rates over the last eight year. Not surpisingly, their profits have soared. If you are like most Massachusetts residents, you have not seen pay increases approaching anything like that. And most hospitals that compete with the Partners affiliates have not seen similar increases, instead suffering blows to their bottom lines.

Using its clout, according to the Globe report, Partners also whipped other insurance companies into line, threatening to stop accepting patients insured by Tufts Health Plan, and others, unless they gave Partners a major boost in reimbursement rates.

Where is the money going? Partners keeps its profit margin low by spending hundreds of millions on expansions. The cost of the new cardiac center at the Brigham and Women's Hospital was $382 million. A new building is popping up at Massachusetts General Hospital at the price of $686 million.   These numbers all dwarf the costs of medical malpractice claims in Massachusetts. (And whatever happened to the notion that these giant health care corporations were supposed to be "non-profit"?)

What does this mean for Massachusetts consumers? Your health insurance costs will continue to skyrocket, Partners will continue to corner the market for medical care in Massachusetts, their doctors will earn more, but the quality of your care will be no better and community hospitals will be threatened by Partners juggernaut. That's right, you pay more but get care that is no better than average, and lose health care choices in the bargain.

It is time for our legislators, the Governor, and our Attorney General to crack down on costs of health care that are driving Massachusetts consumers towards bankruptcy.

At Breakstone, White & Gluck we are concerned about health care quality, health care costs, and the truth about medical malpractice in Massachusetts. If you have a malpractice matter you would like to discuss with an experienced attorney, please contact us, toll free, at 800-379-1244.

More Information

A handshake that made medical history, Boston Globe, December 28, 2008 (third article in series)

This week, the Massachusetts Appeals Court continued its trend of expanding insurance coverage for victims injured in hit-and-run car accidents when it granted a trial to an 18-year-old woman who suffered injuries in a car accident as a passenger in a taxi cab.

In this case, the plaintiff suffered neck injuries when the taxi cab in which she was riding rear-ended another car. Although the drivers spoke to each other to assess the damage to their vehicles, neither driver called the police or exchanged information. The plaintiff, who did not think she was hurt, took down no information. In addition a police report was never filed.

After unsuccessfully trying to track down the identity of the cab driver after the accident, the plaintiff's attorney filed a claim for uninsured motorist benefits under her mother's insurance policy to cover the cost of her injuries. The policy provided coverage for accidents involving "uninsured or hit-and-run autos."

The trial court dismissed the case on summary judgment, ruling that the insurance company was not liable. However, the Massachusetts Appeals Court said, "Not so fast," and explored the question of whether or not the taxi cab in which the plaintiff was riding could be considered a hit-and-run vehicle.

In short, the answer is yes: the taxi cab could be considered a hit-and-run vehicle. The courts have broadly interpreted the phrase "hit-and-run" in order to protect victims like this passenger. In previous cases, the Supreme Judicial Court has found that uninsured motorist claims were viable in other, similar scenarios:

• A driver is forced off the road and into a guardrail by an oncoming vehicle, despite the fact the two cars never made contact with each other; and

• A passenger in a car that is rear-ended realizes that he is injured, hours after the two uninjured drivers had gone their separate ways after concluding that there was no property damage or injuries.

In summary, the court held, "a passenger in an at-fault vehicle who is injured in an accident and who, unaware of her injuries... leaves the vehicle without obtaining identifying information about the vehicle is entitled to recover under the hit-and-run provisions of the policy."

Importantly, however, the court noted that if a passenger realizes immediately after a car accident that he/she has been injured, the passenger is under an obligation to obtain identifying information from the driver(s), as long as his/her injuries are not so grave as to prevent an exchange of information.

The court also rejected the insurance company's claim that it was prejudiced by late notice. The court said this was a factual determination to be made at trial.

The name of this case is Pilgrim Insurance Co. v. Molard. Other key cases in this area of insurance law include Surrey v. Lumbermens Mut. Cas. Co., 384 Mass. 171 (1981) and Commerce Ins. Co. v. Mendonca, 57 Mass.App.Ct. 522 (2003), which each address the bulleted scenarios above.

Uninsured motorist insurance is statutorily required in the state of Massachusetts in order to provide financial protection to those injured by other negligent drivers.

Important Consumer Tips 

• If you are in a car accident and are wondering what to do, it is usually best to err on the side of caution, and obtain identifying information from the other drivers. For more tips about what to do if you are in an accident, visit the Mass. Registry of Motor Vehicles' Driver's Manual page.
• Always notify your insurance company promptly if you are in an accident, even if you are a passenger is somebody else's car.
• Make sure you have enough car insurance to protect yourself if you are injured. You should have enough uninsured and underinsured coverage on your cars to protect yourself from injuries caused by other drivers. Please see our car accident insurance information for Massachusetts drivers.
  

If you were injured as a passenger in a car accident, or are the victim of a hit-and-run accident, call the Massachusetts injury attorneys at Breakstone, White & Gluck at 800-379-1244 for a free consultation.

Everyone knows about the hazards associated with falling asleep at the wheel of a car. Workers are told not to operate heavy equipment if tired or impaired. We all have first hand experience with the effects of sleep deprivation on clarity of thought and reaction time. Would you knowingly put your life in the hands of someone who is at the end of a 30-hour shift? Would you feel confident in the judgments of a young doctor in training who has just put in an 80 hour work week? Well, if you have received treatment at a major teaching hospital in Massachusetts or anywhere in the country, you probably have already done this.

You have probably already seen this reality depicted on popular television shows like Grey's Anatomy or ER showing the impossibly long shifts and adrenaline-pumping situations medical residents must face each week. Of course the show's writers throw in a lot of extra drama, but real medical residents do typically work 80-hour weeks that include 30-hour shifts--sometimes with little or no sleep.

Medical residency programs are designed to be rigorous, to prepare doctors for difficult situations and to expose them to as many medical procedures as possible over their 3-7 years in residency. There are teaching hospitals throughout Massachusetts, including Boston, Worcester, Springfield, Cambridge, Waltham, and Framingham.

Now a new report by the Institute of Medicine of the National Academies says that residents are not just tired, they are fatigued. And this fatigue is leading to preventable mistakes--medical mistakes that sometimes lead to wrongful death.

In 2003, the Accreditation Council for Graduate Medical Education limited the number of hours a resident could work to 80 hours per week. The new report is not looking to decrease this number, simply to regulate how the hours are carried out.

IMNA's report offers several concrete recommendations that will improve patient care and prevent many fatigue-related medical mistakes.

• Residents working a 30-hour shift should have at least a five-hour break after 16 hours of work.
  
• When residents "moonlight," or take on additional paid health care work, these hours should count toward their 80-hour cap.
• Experienced physicians should more closely supervise residents.
• The number of mandatory days off each month should be increased.
• When scheduling residents, an overlap period should be included between shifts to increase communication.

However, implementing these suggestions means that teaching hospitals would need an additional $1.7 billion in funding each year. This fact alone may keep the recommendations from becoming a reality, even though the cost would most likely be offset by the decrease in fatigue-related errors and medical malpractice claims. Costs aside, the people suffering are the patients who are receiving sub-standard treatment.

We'll just have to wait and see what happens to the IMNA's recommendations. For the time being, residents are still working while fatigued, which means that fatigue-related errors and injuries are occurring all the time.

If you have suffered an injury due to a resident's fatigue or any medical malpractice, contact the medical malpractice lawyers at Breakstone, White, and Gluck, P.C. We have years of experience in medical malpractice claims and our attorneys would be happy to discuss your case with you. Our toll free number is 800-379-1244, and there is no charge for our consultation.

More Resources

Resident Duty Hours: Enhancing Sleep, Supervision and Safety, Institute of Medicine, November 2008.

The Massachusetts courts have continued to expand the liability of individuals and companies which contribute to drunk driving accidents. On November 26, 2008, the Massachusetts Supreme Judicial court ruled that limousine driver have a responsibility to prevent their passengers from drinking and driving, and to prevent drunk driving accidents.

In the accident leading to the case, one man was killed and several others were injured in a car accident caused by the drunk driver. The driver, along with several other men, had been drinking at a bachelor party on the night of the crash. The men, expecting to become intoxicated during the party, had hired a limousine service to provide safe transportation. The limo driver picked the men up at a bar in South Boston, where they had been drinking, and drove them to a strip club in Rhode Island, stopping along the way to purchase even more alcohol. The limo driver allowed the men to drink in the limo on the return trip. The limo driver knew the passengers were drunk.

At 2:10 A.M., the limo driver dropped at least one man off at his car near the South Boston bar. The bar was closed. The MBTA was closed. It was plainly foreseeable that the drunk limo passenger would attempt to drive home.

The victims of the drunk driving crash sued the limo service for wrongful death and personal injuries, arguing that its driver knew, or should have known, that his passenger was drunk, was going to drive home, and would likely injure or kill someone. The trial court threw the case out, saying the limo driver had no responsibility. But the Massachusetts Supreme Judicial Court found that the limo driver had the duty or responsibility to use reasonable care to avoid discharging its passenger "who they knew, or should have know, was intoxicated" and likely to drink and drive.

The SJC stated, "[a] private carrier, engaged in the business of transporting persons consuming alcohol, is in a primary position to use care to avoid leaving an intoxicated passenger at a location where it is likely the passenger will drive." The case will now go to trial.

This case is important because it defines responsibility on private carriers, such as limo drivers, to make sure passengers who have been drinking do not drive home drunk after they are dropped off. Private carriers are required to exercise "reasonable care" to ensure that its passengers are not going to drive home drunk at the end of the night.

In addition to limo drivers and private carries, bars and restaurants also have a legal duty to prevent people from drinking and driving. Bars are prohibited from serving customers who are visibly intoxicated. If a bar serves someone who is visibly intoxicated, and that person drives home and causes a car crash, the bar is legally responsible for injuries caused by the drunk driver. This is known as "dram shop" liability.

Continue reading "Massachusetts Court Says Limo Service May Be Liable For Drunk Driving Accident Caused by Passenger" »

Whether you celebrate Christmas, Chanukah, Kwanzaa or Boxing Day, December is likely to bring many new toys and gifts into your home. As a parent, it is important that you not only know how to shop for safe toys yourself, but also how to identify potentially dangerous and defective toys received as holiday gifts from others. You should also double check for defective products currently around the house.

The holidays are meant to be a time of joy and wonder for your little ones--not a time for pain and recovery. However, in 2007 there were 18 toy-related wrongful deaths and over 170,000 emergency-room personal injuries due to toy product liability.

One of the best things you can do as a parent, in addition to keeping a close watch on how your children play with new toys, is to sign up for the U.S. Consumer Product Safety Commission's email alerts at www.CPSC.gov.

The following list includes the most common safety hazards related to children's products:

Lead Poisoning 

Babies tend to put things in their mouths--it's a fact we have to deal with. A surprisingly high percentage of recalls result when lead levels in paint or other parts of a product are higher than the federal lead paint standard. When lead is ingested--at any age--it can cause adverse health effects, but for children the risks are even greater. Due to their smaller body sizes and developmental stages, children are more susceptible to neurological damages. In extreme cases, lead poisoning can cause kidney failure, convulsions, coma, or even death.

If you visit www.CPSC.gov, you'll find a long list of recalls for toys that contain high levels of lead. One of the largest November recalls is from the trendy jewelry and accessory store Claire's Boutiques Inc., which is especially popular with the pre-teen crowd. The store voluntarily recalled about 67,000 Best Friends Yin Yang Necklace Sets due to their high levels of lead. Additionally, the Disney Store recalled 8,000 Tinker Bell Wands, which were found to violate the federal lead paint standard.

Continue reading "Avoid Dangerous and Defective Toys During the Holiday Season" »

A Suffolk Superior Court jury today awarded $3.98 million to a South End woman who was run over by an MBTA bus on September 13, 2005. The verdict, with interest, will result in a judgment over $5.4 million for Rita Traybman, who lost her right leg when it was crushed by the bus. She was run over while crossing the street in a crosswalk.

The verdict is believed to be one of the largest ever in Massachusetts for an injury of this kind.

Ms. Traybman's lawyer, Boston attorney Marc L. Breakstone, who has handled several bus accident and train accident cases against the MBTA, said, "This verdict will help Ms. Traybman cope with the terrible injuries she sustained. She will be able to obtain appropriate housing and medical care for her life-long disability."  Mr. Breakstone is a member of the personal injury law firm Breakstone, White & Gluck, PC, in Boston, MA.

The incident occurred when Ms. Traybman was struck from behind in the crosswalk at the corner of Washington Street and East Newton Street in Boston. The 58-year-old woman was crossing the street with the "Walk" signal when she was struck.

Mr. Breakstone explained, "Ms. Traybman suffered the loss of her right leg and she continues to suffer daily from extreme pain known as phantom limb pain. Her disabilities make her dependent on others for much of her basic care."

Plaintiff presented evidence at trial that the bus driver failed to check for pedestrians in the crosswalk, and that he made an improper turn in violation of MBTA guidelines. The jury found that the bus driver was 100% at fault for the injuries sustained by the plaintiff.

Plaintiff also presented evidence that she would need continuing care to make her apartment more wheelchair accessible, and to provide for the care she needs around the clock. Ms. Traybman suffers not only from the phantom limb pain, but from pain in her shoulders and elbows which further impair her mobility.

Prior to trial the MBTA made no offer of settlement, despite the fact that its driver admitted the accident was his fault; despite the fact that the MBTA police and internal investigations also confirmed the accident was the driver's fault; and despite the severe injuries sustained by the plaintiff. Instead, the MBTA forced the case to trial.

Ms. Traybman immigrated to the United States from Ukraine and lived independently prior to the accident.

Mr. Breakstone had previously thanked the Suffolk County jury, which heard nine days of testimony and deliberated for two days. 

Listen to the WBZ 1030 podcast interview with Marc Breakstone.

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The law firm of Breakstone, White & Gluck, PC, specializes in the representation of injured persons, including pedestrians who have suffered personal injuries.