The decision concerned a hospital worker who was killed when a heavily medicated woman lost control of her car and drove it into an entrance to the Brockton Hospital where the victim worked.  The victim's wife sued the doctors for her husband's wrongful death, alleging they had failed to warn the woman that it was dangerous to drive while on her medications.

Ordinarily, medical negligence cases may only be brought by a patient against his or her medical provider. However, third parties may bring claims against a provider if the provider failed to warn the patient of the effects of medication, and the patient then injured the third party. The exception is a narrow one.

The case clarifies pre-trial procedures in such third party cases, as it was unclear whether or not an injured non-patient was required to bring their medical malpractice claim before the tribunal.  However, with today's Massachusetts Supreme Judicial Court ruling, it is now clear that any person looking to bring a claim for personal injury resulting from medical malpractice must first present their claim to the medical malpractice tribunal, whether or not they were the patient.

The case was Vasa v. Compass Medical, P.C., SJC-10457, March 2, 2010.

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.

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. 

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

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. 

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 

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 

The recall is the result of a multi-agency investigation into a salmonella breakout in several states. While searching for the defective food agent causing the outbreak, FSIS discovered a strain of salmonella in a Daniele International sample product.  The tested product is similar to what people reported eating prior to becoming ill, but a direct link has not been established. 

The strain of salmonella found in the tested product does not match the strain being investigated.   In addition to recalling the ready-to-eat products, Daniele International presented information to FSIS and voluntarily recalled all products in commerce associated with black pepper, which the company believes is a possible source of contamination. 

Eating products contaminated with salmonella can cause salmonellosis, one of the most common bacterial foodborne illnesses.  The symptoms of salmonellosis include diarrhea, abdominable cramps, and fever within 8 to 72 hours of comsumption.  Additional symptoms may be chills, headache, nausea, and vomiting for up to a week.  Salmonella infections can be life-threatening to those with weak immune systems, such as infants, the elderly, and persons with HIV infection or undergoing chemotherapy.

The specific products recalled all carry a USDA mark of inspection bearing establishment numbers "EST. 9992" or "EST. 54.".  The following products can be returned to the retailer for a full refund:

For more information on the on-going investigation into the multi-state salmonella investigation, see the Center for Disease Control's website.  For a list of retailers that sold recalled products, see the FSIS recall website.  Consumers with questions about food safety can ask a virtual FSIS representative on the Ask Karen website.  Live chat services are available Monday through Friday, 10:00 a.m. - 4:00 p.m. Eastern Time (except Federal Holidays).

The goal of the new law is to reduce truck accidents and motor vehicle accidents caused by distracted driving.  According to the Federal Motor Carrier Safety Administration, drivers take their eyes off the road for an average of 4.6 seconds out of every six seconds while texting.  This means drivers who text are more than 20 times more likely to get in an accident than nondistracted drivers.

This is not the first move that the government has made to reduce the dangers of texting drivers.  Nineteen states have passed laws banning texting while driving.  President Obama has also signed an executive order requiring federal employees not to text while driving government-owned vehicles or with government-owned equipment. 

The attention on texting comes after several high profile accidents caused by texting motor vehicle operators.  In September 2008, a California commuter train engineer missed a stop signal while trading text messages with a friend, leading to a train accident resulting in the wrongful death of 25 people.  In May 2009, 62 people suffered personal injury after a Massachusetts Bay Transportation Authority trolley driver collided with another trolley while texting.

For more information about the dangers of distracted driving, see the Transportation Department's website www.distraction.gov.

Toyota announced the voluntary recall last Thursday, which includes about 2.3 million vehicles, "to correct sticking accelerator pedals on specific Toyota Division models."  The sticking pedals may fail to return, or return slowly, to the idle position, causing the cars to accelerate or maintain a high speed unexpectedly.

The recall comes after a recall on floor mats in September 2009 affecting 3.8 million vehicles. That recall was found to be insufficient to solve the accelerator problems. Investigators realized the product defect included more than just the floor mats after a family of four suffered wrongful deaths when their Avalon crashed into a lake. The floor mats were discovered in the trunk of that car.

In November 2009, the National Highway Traffic Safety Administration (NHTSA) called the removal of the offending floor mats an interim measure only, and said, "This remedy does not correct the underlying defect in the vehicles involving the potential for entrapment of the accelerator by floor mats, which is related to accelerator and floor pan design."

Unfortunately, Toyota has not yet proposed a plan to fix its millions of defective vehicles.

Massachusetts consumers who experience gas pedal problems are advised to apply firm pressure to the brake, and to pull off the road as soon as that can be done safely. The car should not be driven. In an emergency, the car can be put into neutral or the key turned to off. Push-button start controls can be turned off if the button is depressed for several seconds.

Models affected by the recall include:

• 2009-2010 RAV4


• 2009-2010 Corolla


• 2007-2010 Camry


• 2009-2010 Matrix


• 2005-2010 Avalon


• 2010 Highlander


• 2007-2010 Tundra


• 2008-2010 Sequoia.

Toyota customers affected by this recall should call the Toyota "Customer Experience Center" at 1-800-331-4331 with questions or concerns.

The most commonly reported tendon injuries have occured in the Achilles tendon, but ruptures have also occurred in the rotator cuff, hand, and tendons in other parts of the body. Tendon injuries can be extremely painful, are potentially debilitating, and may require surgery to correct. People using fluoroquinolones should seek medical attention if they have bruising in the tendon area after a possible injury, hear or feel a pop or snap, are unable to put weight on an injured area, or have other reason to believe that a tendon is not functioning properly. 

Flouroquinolones have also been linked to other serious side effects and personal injuries, such as renal failure, and users have reported side effects that feel like fibromyalgia and chronic fatigue syndrome.  Some people experience an alleviation of side effects shortly after stopping use of the antibiotic.  Others experience long-term or even permanent side effects.  While sometimes the use of fluoroquinolones cannot be avoided, patients should inquire into alternative medications. 

To report an adverse effect resulting from the use of Levaquin or another fluoroquinolone antibiotic, call the FDA MedWatch program at 1-800-FDA-1088 or visit the MedWatch website.

The defective strollers were sold throughout Massachusetts at stores such as Burlington Coat Factory, Babies "R" Us, Toys "R" Us, K-Mart, Sears, Target, Wal-mart. The defective products affected include the following stroller lines: Graco's Passage, Alano and Spree Strollers and Travel Systems.

The defective strollers are known to have caused at least five fingertip amputations and other personal injuries in children who got their fingers caught in the stroller's canopy hinge mechanisms.

For more information relating to this product liability issue, please see the Consumer Product Safety Commission's official recall notice.

As recently unveiled at the 2010 Consumer Electronics Show, car makers and internet companies are teaming up to equip cars with interactive screens on the dashboard that display maps, videos, and internet sites.  Safety advocates are concerned about the risk of car accidents and pedestrian accidents caused by distracted drivers watching the screen instead of the road.  A recent New York Times article on these new systems discusses how the danger of crashing dramatically increases when a motorist looks at a screen, even a GPS screen. 

Car makers assure that safety mechanisms will be in place to minimize the risk of driver distractions, such as voice controls or blocking internet use when the car is in motion.  However, some safety advocates are questioning whether car manufacturers are placing profit concerns above safety. It only takes two seconds for the likelihood of a crash to increase exponentially.   

Communities across the country, including some in Massachusetts, have started installing "in roadway warning light systems" or IRWLs, at dangerous crosswalks.  Flashing beacons are installed on the side of the road, in the crosswalk pavement, or in an overhead mast.  When a pedestrian activates the system, either by automatic detection or manually, lights flash outwards toward the approaching vehicle.  As an intentional design factor intended to prevent a feeling of false security, pedestrians cannot see the flashing lights.  Studies have shown these IRWL enhanced crosswalk systems are effective in reducing pedestrian accidents. 

Pedestrians can protect themselves further by being aware of whether they or motorists have the right-of-way.  Massachusetts laws and regulations set forth the rights-of-way of pedestrians and motorists where traffic control signals are not present.  Where a pedestrian is crossing at a crosswalk where no traffic control signals are in operation, Massachusetts law requires that motorists must yield to the pedestrian.  Pedestrians crossing at a point in a road that does not have a crosswalk must yield to the right-of-way of motorists.  Further, once they being to cross, pedestrians should continue to look in the direction of on-coming or turning traffic. Pedestrians should always face the on-coming traffic when walking or running in the road.

The Pedestrian and Bicycle Information Center has additional information on pedestrian and bicycle safety. 

First, try to avoid driving in bad winter conditions.  If driving is necessary, try to drive during daylight hours only, plan ahead to avoid rushing, and wait until snow removal crews have eased road conditions.  Check wiper blades and tires and make sure they are suited for winter driving conditions.  Also, if you are traveling far from home, equip vehicles with a winter emergency kit including blankets, food, water, matches, candles, flares, sand for traction, and jumper cables.

Seat belts can save lives but only if they are worn properly.  A properly fitting seat belt will fit tightly across the lap, snugly across the chest, and will cross at the shoulder.  A seat belt should never cross at the neck or back  Seat belts with lap restraints only are ineffective and should be avoided.  An improperly fitting belt can actually make personal injuries worse. Heavy jackets will intefere with proper seat belt operation and should be avoided or removed once the car is warmed up.

Pedestrians face special problems since sidewalks are not always plowed and it may be necessary to walk in the street. One should walk facing the traffic in order to be able to observe the approaching traffic--and to take evasive action if necessary. At night, lightly colored clothing is important. Motorists need to be especially aware of pedestrians and even bicyclists during the winter months. Massachusetts General Laws c. 89, Section 14 requires motorists to slow when approaching pedestrians or bicyclists, and to pass only when it is safe to do so.  

Finally, focus on safe and strategic driving.  Stay at least nine car lengths behind the vehicle ahead to allow plenty of room to stop.  Unless you have anti-lock brakes, If brakes begin a lock, ease off the brake.  Be aware that bridges and overpasses freeze before the road.  To regain control of a vehicle if rear wheels begin to skid, ease off the gas and steer in the direction the car should go.  If the car starts to go too far in one direction, keep steering opposite ways until the vehicle is under control.  If the front wheels are skidding, ease off the gas and let the vehicle slow down until traction is regained.  If stuck in the snow, do not hit the gas.  Try to remove snow and ice from around the wheels, and use sand for traction.  Some vehicles can also be "rocked" by alternating between drive and reverse, while gently pressing the gas.

For more information on winter safety, please see the following articles:

State Police Issue Winter Driving Safety Tips

Uncleared Sidewalks Imperil Pedestrians

Massachusetts Emergency Management Agency--Tips to Ensure Safe Winter Driving