Massachusetts Injury Lawyer Blog

We are posting an urgent Action Alert  We Received from People Over Profits -- Please act today!

"You can help make a difference in the health care reform debate - and we need your help.  Now is the time to weigh in! Your rights are at stake.

"As Congress and the President prepare to make a significant overhaul of our health care system, there are those who believe that in order to achieve universal coverage, victims of medical negligence must surrender their legal rights and remedies.  In the hope of achieving "bi-partisanship," the Obama Administration has made several comments, indicating their willingness to enact medical malpractice reform in exchange for "bi-partisan" support of Obama's top domestic priority, health care reform.  In fact, this coming Monday, President Obama will deliver a speech to the American Medical Association ("AMA"), a group that supports as one of their top priorities limiting the legal rights of injured patients.

"Despite the rigid stance of many congressional Republicans, President Obama continues to "negotiate" in good faith, hoping that Republicans in Congress, the insurance industry, and the AMA will support his efforts.  The fact of the matter is that allowing the discussion on health care reform to focus on medical malpractice is a distraction from the real issue of quality care, preventable medical errors which are the 6^th leading cause of death in the United States, and the fraud, waste, and abuse of programs like Medicare.

"Please call the White House today, and express your view that under NO circumstance, does medical malpractice tort reform belong in a health care reform bill.  The tort system has always been a remedy that shines the light on past negligence, thereby reducing medical errors and improving patient safety.  We cannot allow special interest groups to put patient safety and protection at risk. We cannot compromise access to justice.

White House Comment Line: 202-456-1111
(Because the President's speech to the AMA is fast approaching, we are asking people to call in rather than email at this time.)

"We must not sit by and allow the opponents of health reform to mislead the American people.  We cannot allow the protections afforded to every American under the 7^th amendment to be sacrificed based on misperceptions propagated by those with a vested interest.  We need you, and your alliance of patient advocates to let the White House know that we will not allow special interest groups to hold hostage, the legal rights and remedies of medical malpractice victims.  During the 2008 presidential campaign, President Obama affirmed that access to healthcare was a right! The notion that one must relinquish a right embodied in the Bill of Rights in exchange for another right represents bad public policy.

"Thank you for your efforts on behalf of civil justice!"

Breakstone, White & Gluck partner David White testified at the Massachusetts State House on June 10, 2009 in support of changing Massachusetts laws to provide more treatment to non-violent drug offenders. White spoke in support of House Bill 1962, sponsored by Martin Walsh of Dorchester. Walsh's bill would offer diversion to drug addicted individuals who had been arrested for non-violent crimes. The programs which would be expanded would allow more individuals to obtain treatment instead of incarceration.

White was the president of the Massachusetts Bar Association from 2007 to 2008, and formed the MBA Drug Policy Task Force. The Task Force is making recommendations for reforming drug treatment and sentencing policies. Policy changes would save the taxpayers money, reduce the rate of crime, and help rebuild families and communities.

For more coverage of the story:

Ex-bar head: Public favors treatment over jail for addicts, Boston Herald, June 10, 2009.

The Massachusetts Supreme Judicial Court ruled today that a hospital does not owe a third party a duty of care for injuries arising as a result of hospital treatment of a patient. Accordingly, a police officer who suffered personal injuries in a car accident responding to a pedestrian accident scene, cannot recover against the hospital after its patient was killed in the pedestrian accident.

The case was brought by Leavitt, a police officer for the town of Whitman, MA. He received an emergency call to respond to the scene of an accident where a pedestrian had been struck and killed by a car. On his way to the accident, Leavitt's cruiser was struck, and he was seriously and permanently injured.

It was determined that the pedestrian had been treated earlier that day at the Brockton Hospital, where he had undergone a colonoscopy. As part of the procedure, he had received narcotic medication. He was allowed to leave the hospital without an escort, which was against hospital policy and, plaintiff alleged, good and accepted medical practice.

The court found that the hospital owed no duty of the plaintiff. Specifically, the court ruled that the theories of general negligence, of a special relationship, and of a voluntary assumption of a duty of care were all without merit. The duty of care in a special relationship is extremely limited in Massachusetts, and there is, the court concluded, simply no duty to control a patient who might be impaired by medication.

Going further, the court also concluded that the incident was outside the foreseeable risk of harm associated with the colonoscopy procedure. The court also rejected the application of the rescue doctrine, deciding that the risk would not reasonably be anticipated to arise from the rescue.

Importantly, the court did not disturb its earlier ruling in the case of Coombes v. Florio, 450 Mass. 543 (2006). In that case, the court held that a doctor may be liable for injuries caused to a third person if it is determined that the physician negligently failed to warn the patient of the effects of treatment. The court distinguished Coombes because no failure to warn was alleged in the case against the Brockton Hospital.

The name of the case is Leavitt v. Brockton Hospital, Inc., SJC-10296 (2009). 

Two recent Massachusetts car accidents have once again raised the issue of the safety of some elderly drivers. Last week a 73-year old woman lost control of her car and drove it into a crowd of people viewing "The Moving Wall," a traveling replica of the Vietnam Veterans Memorial in Plymouth, MA, injuring eight people. The same week, a 93-year old man plowed into a Wal-Mart in Danvers, MA, causing personal injury to six people including an infant.

For years, the debate over elderly driving has been waged in Massachusetts, yet nothing concrete has been done. Generally, once a person has passed the initial road test, only a vision test is required for renewal. Yet as the body ages, this simply is not safe. 

Some elderly advocates say that the media has been blowing elderly driving accidents out of proportion, while similar accidents by younger drivers go unnoticed. Research indicates that risk begins to increase around age 70, and increases significantly after age 80.  

For the last two sessions one state senator, Brian Joyce of Milton, MA, has proposed a bill that would require drivers 85 or older to pass another road test before their licenses could be renewed. However, this bill is always stalled by advocates for the elderly who cry age discrimination. This year Governor Patrick has indicated his support for the bill. Representatives from the RMV say that the agency would be willing to support a study on the issue as is proposed in a bill sponsored by Sen. Stephen Buoniconti.

In some states, doctors are required by law to report to the registry when a person is unfit to drive, but not in Massachusetts. Right now there are no state laws or tests in place to protect residents from unfit elderly drivers. Sometimes a police officer or a family member will report a medically impaired driver, but so far only 8,000 cases have come under review.

We support enhanced testing of elderly drivers, just as we supported the stricter regulation of younger drivers which are now the law in Massachusetts. We have handled many cases where we have seen that the age of a driver has been a factor in the accident.

Of course if an elderly driver causes an accident, their license may be revoked or suspended. But sometimes it is too late. If you have been injured by a medically unfit driver in Massachusetts, contact the Massachusetts personal injury law firm of Breakstone, White & Gluck, P.C. for a free legal consultation.

More Information

Pressure mounts to test elder drivers, Boston Globe, June 8, 2009.

Family and Friends Concerned about an Older Driver, National Highway Traffic Safety Adminsitration 

The Massachusetts Appeals Court recently reviewed a case in which the defendant homeowner, Johnson, hired a contractor to remove several trees from her land. The contractor subsequently hired a subcontractor/crane operator, West, to help with the project. The crane was damaged during the work, and the crane operator sued the homeowner. The jury found in his favor. His case was before the Appeals Court to determine whether the homeowner was liable for his damages.

Johnson had several conversations with the general contractor about the exact location of her septic system, which was important for him to know in order to safely remove the trees. The contractor apparently conveyed information about the septic system to his subcontractor, the crane operator. The day the crane arrived, Johnson noticed that it was set up in the location of the septic system. Though she was a surprised, she did not interfere with his work.

Soon after, the crane's outrigger pierced the septic system and the crane tipped over, causing damage to the crane and to the house. The crane operator sued Johnson, cliaming that she had a duty to warn him about the septic system.

The Appeals Court determined there was no duty. Even though Johnson may have been suspicious of the crane's placement, she did not have a further duty to give warnings. She retained no control over the work in general, and crane operator's work in particular. Her only duty to the general contractor was to give accurate information about the septic system, which she did. It was the responsibility of the original contractor to oversee the actions of the crane operator.

Accordingly, the crane operator's case was dismissed. The case is West v. Johnson, Mass. App. Ct. No. 08-P-130 (2009). 

As a homeowner, how can I protect myself from these types of lawsuits?

An important consideration in determining liability is control: the less control you have over a situation, the less likely it is that you will be liable for damages. One of the many benefits of hiring a general contractor to help with a residential construction project is the shift of liability from you to the contractor. If a contractor agrees to oversee all aspects of subcontractor performance, the homeowner will likely have no direct contractual agreements with the subcontractors and, therefore, retain no control over their work.

Before hiring a contractor, be proactive. Ensure that they are registered with the state, and are carrying adequate insurance. Review the details of your contract, don't be afraid to ask questions, and ask for proof of his/her registration and insurance certificates. Browse the additional links below for more tips on how to choose a contractor. 

Additional links:

• Homeowners FAQ's - The Massachusetts Executive Office of Public Safety and Security
• Choosing a Professional Contractor - The Eastern Massachusetts Chapter of the National Association of the Remodeling Industry

Continue reading "Massachusetts Homeowner Found to be Not Liable for Subcontractor's Damages" »

While dogs have long been considered "man's best friend," the sad fact is that approximately 4.5 million people suffer from dog bites each year. About one in five of those bitten require medical attention for personal injury. Even seemingly friendly, mild-tempered canines can suddenly become agitated in certain situations or with certain individuals. However, there are actions you can take to decrease the odds of a serious dog bite.

Tips for Dog Owners:

• Don't allow your dog to roam outside without a leash.
• Spay or neuter your pet.
• Never leave your dog unattended with a young child or baby.
• Don't play rough/aggressive games with your pup. This can inadvertently teach aggressive behaviors.
• Plan social activities into your pet's schedule--like walks in the park or dog play groups. 
• If your pet does develop aggressive behavior, seek professional advice immediately from a veterinarian or trainer.

Tips for Interacting with Dogs:

• Don't attempt to pet a dog through its fence; seemingly friendly dogs are often territorial.
• Always ask the owner before reaching to pet any canine.
• If you meet an unattended dog, do not shout or run. 
• If the dog approaches you, avoid eye contact and remain motionless until the dog passes by.
• Do not approach a dog that is eating, chewing a bone, or sleeping.
• Teach your children appropriate dog interaction skills.

Massachusetts has laws that make dog owners strictly liable for injuries caused by their dogs, as long as the person who was bitten was not teasing, tormenting or abusing the dog, or not trespassing at the time of the bite.  Ordinarily, these injuries are covered by insurance, although some insurance companies have begun to limit coverage for certain breeds of dog.  If you are a dog owner, you should make sure injuries by your pet are covered.

Continue reading "Tips from Dog Bite Prevention Week to Help Keep Massachusetts Residents Safe" »