Massachusetts Injury Lawyer Blog

New Trial Ordered for Tenant Who Suffered Broken Hip

Have you been injured when you slipped and fell on ice? This case may be important to you.

The Massachusetts Appeals Court has granted a new trial to a plaintiff injured after falling on ice after the Superior Court justice misapplied the legal rule governing open and obvious dangers in a premises liability. The Court limited the application of the open and obvious rule in snow and ice cases.

At the trial, the judge allowed instructions on the defense of an "open and obvious" danger, and failed to instruct the jury on comparative negligence. The verdict was for the landowner which had failed to treat a large area of frozen slush with deep footprints in it.

The case made it clear: The open and obvious defense does not apply to snow and ice cases. Snow and ice do present obvious dangers to pedestrians, but often there is no safer route for a pedestrian to take. The proper questions for a jury is whether the landowner was reasonable in his or her effort to reduce the danger from an unnatural accumulation of snow or ice, and whether the plaintiff was comparatively negligent.

The case is good news for pedestrians, whose rights to recover for injuries in snow and ice cases are made stronger by the case.

For a more complete discussion of this case, please read the article on our website, Massachusetts Appeals Court Clarifies Law on Responsibility of Landowner to Remove Snow and Ice.

The case was Soederberg v. Concord Greene Condominium Association, Appeals CourtNo. 09-P-380, February 25, 2010.

If you have been injured after slipping and falling on ice: Please contact our office if you need legal representation for personal injuries caused by slipping and falling on ice. We have over 80 years of experience on these types of cases.

Radiation technology is on the rise, delivering both higher and more precise doses of radiation treatment and better detecting diseases, including cancer. However, as technology improves, patient safeguards and hospital systems are lagging behind, resulting in medical errors that go unnoticed. While there are no recent reports of error, given the large number of cancer treatments as specialized centers, patients in Massachusetts are certainly at risk for excess radiation exposure.

At a New Jersey hospital, 36 cancer patients were overradiated by a medical team that was inexperienced in operating new radiation technology.  The mistakes continued for months because the hospital did not have a system for catching the errors.  A man in Louisiana received 38 doses of overradiation because the machine used to treat him was so new that the hospital made a miscalculation, even with training instructors still on the grounds.

Although radiation mistakes resulting in personal injuries are rare and accident reports show that some mistakes could have been detected through standard protocol checking, some oncologists are warning that safety procedures need updating.  Adding to the safety concerns, hospitals may not have sufficient funding to operate the cutting edge technology correctly and manufacturers sometimes sell machines before computer errors have been resolved.  Mistakes in the application of radiation technology also raise questions about the training and supervision of medical physicists and radiation therapists.  Licensing and registration requirements vary greatly from state to state, and 16 states do not require licensing or registration at all. 

The radiation technology regulation regime creates the potential for injuries as well.  Laws protecting radiation patients are patchwork and poorly enforced, meaning hospitals that cause injury and fail to report mistakes go unpunished.  Additionally, the marketplace for radiation technology is largely unregulated.  New products receive only a cursory review by government regulators.  In a market where new technology is the key to attracting business, both manufacturers and hospitals are eager for new products quickly, even if that means technology with existing errors and operational uncertainties.

Over radiation can cause skin reactions, like rashes, fatigue, diarrhea, nausea and vomiting, trouble swallowing, weakness, headache, and hair loss.  Radiation can also increase the chance of getting certain cancers. 

For more information on radiation technology and its risks, see the New York Times article The Radiation Boom.  For more information on the risks and side effects of radiation treatment, see the Mayo Clinic website. 

Continue reading "As Radiation Technology Improves, Patient Safety is Left Behind" »

Anne Mitchell, a nurse from west Texas, was acquitted today for filing a complaint with the Texas Medical Board (TMB) alleging that a doctor she worked with was endangering his patients. Mitchell had filed an anonymous complaint that an emergency room physician, Dr. Rolando G. Arafiles Jr., at the Winkler County Memorial Hospital, had been improperly prescribing medications and doing surgical procedures when he had no surgical privileges.

Rather than being recognized as a whiste-blower concerned about the health and welfare of the patients, she was actually arrested and charged with the crime of "misuse of official information," which is a felony in Texas.

The trial took four days, but the jury needed less than an hour to acquit Nurse Mitchell.

Though this was a victory for a conscientious nurse, she has lost her job and her reputation has been damaged. The prosecution will tend to chill the efforts of others who are witnesses to medical mistakes.

Could this happen in Massachusetts? The Texas case appears to be unique, but there are other pressures brought on medical staff to look the other way when medical mistakes are made, and strict laws on so called "peer review" cloak investigations with nearly absolute privacy.

Boston medical malpractice attorney Marc Breakstone called the acquittal a victory for consumers everywhere. Breakstone pointed out, "Each year over 200,000 Americans are killed by medical malpractice and hospital infections. We need honest medical staff to bring these issues to light."

He added, "We have seen a number of medical malpractice cases in which doctors and other medical providers have attempted to hide the facts by altering medical records, and are aware of other cases where records have been 'lost.' Sometimes the truth never comes out, other times the medical mistakes are revealed."

Back in Texas Nurse Mitchell and another nurse who were fired are looking for justice. They want to clear their good names, and want compensation for this prosecution.

More Information

Whistle-Blowing Nurse Is Acquitted in Texas, NY Times, Feb 11, 2010

AstraZeneca is preparing for a products liability trial next week over claims that their antipsychotic medication Seroquel causes diabetes. About 26,000 lawsuits have been filed against the drugmaker, with one of many trials set for February 16th in New Jersey.  That trial will be the first of thousands filed in New Jersey alone.  Seroquel is the UK-based drugmaker's second most popular drug after Nexium, the well known heartburn relief medication, and is used to treat bipolar disorder and depression. AstraZeneca claims that the plaintiffs' evidence is insufficient to show that the drug was responsible for their alleged personal injuries.

In January, U.S. District Judge Anne Conway, who is overseeing all federal Seroquel litigation, ordered the parties to attend mediation.  The parties were unable to reach a settlement agreement after two days of talks.  The mediator, George Washington University Law Professor Stephen Saltzberg, said he expects further settlement negotiations to occur.  Judge Conway, who sits in Florida, has said that she will ask a panel of judges to return the 6,000 consolidated cases scheduled to come before her to their resident states, adding to the litigation headache.

Seroquel was introduced in 1997 and has long been linked to weight gain and diabetes.  The plaintiffs are claiming that AstraZeneca downplayed the risk of diabetes, cherry-picked positive trial results, and buried negative results.  Documents discovered in 2009 appear to substantiate the plaintiffs' claims.  As early as 1997, emails between AstraZeneca officials reveal that the drugmaker hid negative trial results from US and Canadian investigators.  AstraZeneca is not the first antipsychotic drugmaker to be hit with claims that its medication causes diabetes.  In 2009, Zyprexra-maker Eli Lilly agreed to pay at least $1.2 billion to similar settle lawsuits filed by about 31,000 patients.

For more information on Seroquel side effects, see the Seroquel website.  The Alliance for Human Research Protection has a collection of articles on the Seroquel product liability litigation. 

Continue reading "AstraZeneca Facing Over 25,000 Lawsuits--Antipsychotic Drug Claimed to Cause Diabetes" »

The state Attorney General is in the preliminary stage of a systematic review of the Massachusetts healthcare system and has already made some startling discoveries about healthcare costs. Martha Coakley's office found significant cost variations among hospitals and physicians based on factors other than quality of care.  Although the investigation is still ongoing, Attorney General Coakley has expressed concern about affordable and accessible healthcare if the identified systematic failures are not addressed and has urged policymakers to implement cost containtment measures.

As part of the investigation, the Attorney General's office reviewed documents from insurance companies and healthcare providers representing the bulk of the healthcare market in the state to examine healthcare costs and costs drivers. Specifically, the Attorney General examined insurance contract prices between insurance providers and hospitals between 2004 and 2008. The concern is that although Massachusetts has improved access to the healthcare market--97 percent of the population has healthcare coverage--this improvement could be compromised by cost increases.  Attorney General Coakley warned if left unchecked, price disparities in the market could create a  provider marketplace dominated by expensive "haves" as lower priced "have-nots" are forced to close down or consolidate with higher priced providers. 

The initial findings of the investigation showed that:

• In the same geographic area and across similar levels of service, prices paid by insurance carriers to hospitals and physician groups varied, at the extreme in excess of 200%.
• Price variations are not correlated with quality of care, complexity of the illness or population being served, extent of patients on Medicare or Medicaid, or whether the provider is an academic or research facility.
• Price variations are correlated with the relative market position of the hospital or physician group as compared to hospitals within a geographic region or within a group of academic medical centers.
• Price variations on a per-member, per-month basis are not correlated with the method of payment (e.g. globally or fee-for-service).
• Price increases cause most of the healthcare cost increases in the state.
• Contracting practices distort the commercial healthcare market and reinforce disparities in pricing.
• The report noted that health care costs are increasing much faster than wages.

The investigation is expected to be completed by March 16th and the findings will be presented to the Massachusetts Office of Health and Human Services, Division of Healthcare Finance and Policy.   

For more information on Massachusetts' unique approach to healthcare access, see the following website on the state mandate and statute.  If you need to obtain health insurance coverage, see the following guide to choosing a health plan.

If you have questions about medical negligence or medical malpractice, please feel free to contact our firm for a free consultation at 800-379-1244 

Toyota faced another round of bad news this week with the announcement today of a probe by the National Highway Traffic Safety Administration (NHTSA) into braking problems in the popular Prius hybrid model. NHTSA has received at least 124 complaints about momentary braking problems in the defective vehicles. As least four car crashes have been reported. The problems are apparently associated with speed bumps, potholes, and icy roads--three things Massachusetts drivers see plenty of. The investigation concerns the 2010 Prius model year.

The Prius investigation is the third in a string of product defect recalls which are tarnishing Toyota's reputation for safety and reliability. On top of that, it seems that Toyota has been less than forthright about the problems in its cars. According to CNN (February 4, 1010), "Toyota has known about brake problems in its popular Prius cars for some time, going so far as to fix it in new production vehicles, but has kept Prius drivers in the dark about the problem until the Japanese government called for an investigation."  And the sticking gas pedal was first blamed on floor mats, and then later extended to the mechanics of the pedal itself. The Federal government has now demanded that Toyota demonstrate that the problem isn't more serious, and that it does not include other parts of the throttle control systems. Defects relating to the gas pedals have been linked to several wrongful deaths.

U.S. Transportation Secretary Roy LaHood set off a brief panic on February 3rd when he said owners of the defective Toyotas should "stop driving them."  He later clarified his statement, saying instead that owners should have them repaired as quickly as possible.

NHTSA itself has been criticized for its slow response to consumer complaints about Toyota acceleration problems, some of which date back to 2003. According to Joan Claybrook, a former head of NHTSA, several investigations were opened, then closed based upon information provided by Toyota. According to NPR, she said, "I think as a result, some people have been killed and injured that wouldn't have otherwise." (NPR, Feb 4, 2010.) 

Consumer Alert

This week Toyota finally began shipping replacement parts to dealers for the gas pedal recall. Checks with some dealers in Massachusetts revealed that free rental vehicles are available. If the dealer does not have the part, it should still provide you with a free car should you choose to leave it at the dealer for repair. Many Massachusetts consumers are rightfully fearful that their car could be involved in a motor vehicle accident.

The same courtesy should apply to the defective Prius models, and consumers should feel free to demand that the dealer provide them with a safe, alternative vehicle until their cars are fixed.

Affected Vehicles 

Continue reading "Toyota's Headaches Continue--Massachusetts Prius Owners Should Be Aware of Defective Brakes" »