Massachusetts Injury Lawyer Blog

The Supreme Judicial Court (SJC) of Massachusetts today changed the rules in slip and fall cases involving snow and ice.

The Massachusetts high court eliminated the distinction between natural and unnatural accumulations of snow and ice, replacing it with the standard rule of reasonable care for all property owners.

The change came in a case involving a Peabody resident who fell on ice in the parking lot of the Target department store at the Liberty Tree Mall in Danvers. The trial court determined the ice was a natural accumulation and found for Target and the landscaping company. The personal injury case was affirmed by the Appeals Court. The SJC took the matter on further appellate review and invited briefs on whether the time had come to reconsider the long-standing doctrine concerning unnatural versus natural accumulations of snow.

The court found for the plaintiff and eliminated the distinction in Papadopoulos v. Target Corporation, SJC-10529 (July 26, 2010). For additional analysis of the case, read our Lawyer Alert! The full text of the decision can be found by clicking here.

Continue reading "Massachusetts Legal Standard for Slip and Falls on Snow Changes" »

It's always a tragedy when someone leaves a bar after a night of drinking, steps in his or her car, and causes a motor vehicle accident resulting in personal injury.

For years, that tragedy was compounded by Massachusetts law, which let bars and restaurants operate without liquor liability insurance. Like other businesses, Massachusetts restaurants and bars have traditionally carried general commercial liability insurance covering on-site problems, including slip and falls and other injuries. But this insurance offers no assistance to drunk driving accident victims.

In late May, Massachusetts lawmakers corrected this and passed a law requiring restaurant and bar owners to carry liquor liability insurance. Establishments must carry a minimum of $250,000 per person/$500,000 per accident coverage. In other words, policies must provide a minimum $250,000 for bodily injury or death of one person and a total of $500,000 per incident involving bodily injury or death.

Innocent victims of drunk driving accidents still face the traditional hurdles in proving their cases against bars. One hurdle is strong juror bias. Juries do not hesitate to hold the drunk driver responsible. But juries are often reluctant to blame a drinking establishment for over-serving a patron, even though the law is perfectly clear that a bar has a legal duty to not serve someone who is intoxicated.

Restaurants and bars seek to avoid liability for over-serving patrons, and they typically claim they did not recognize that the patron was intoxicated. The recent Massachusetts Appeals Court case of Rivera v. Club Caravan, Inc., 77 Mass. App. Ct. 17 (2010), reviewed the legal standards for "dram shop cases." Generally the plaintiff must prove the patron showed outward signs of intoxication by the time he or she was served her last drink. However, circumstantial proof can also be sufficient. If the patron had consumed excessive quantities of alcohol, a jury can draw an inference that he would have been visibly intoxicated. So, where a patron is served fourteen drinks in two hours, as in the Rivera case, or was served six or more white Russians, as in another Massachusetts case, the circustantial evidence is strong enough.  

Personal injury attorney Ronald Gluck called the new law "a step forward" for the safety of Massachusetts residents.  "Restaurants and bars will want to have strong policies in place--and to follow them--not just to avoid liability but also to avoid large increases in their insurance premiums. The new liquor insurance law should help reduce drunk driving accidents in Massachusetts."

Click here for the full text of the law.

Continue reading "Massachusetts Bars Must Now Carry Liquor Liability Insurance" »

Welcome news today as the Massachusetts Legislature has finally agreed on a new law that will make it illegal to text while driving. Once the bill is signed by the Governor, Massachusetts will be in line with twenty-eight other states that have already outlawed text messaging while driving.

This law comes in the wake of several tragic text message-based accidents. In May 2009, 62 people suffered personal injury after a Massachusetts Bay Transportation Authority trolley collided with another trolley because the driver was texting his girlfriend. In September 2008, a California commuter train engineer missed a stop signal while trading texts with a friend, leading to a train accident resulting in the wrongful death of 25 people. In addition, there have been several high profile motor vehicle wrongful death cases in recent memory which were caused by inattentive drivers who were texting as they drove.

The law has several other public safety improvements. The new law will require that older drivers renew their licenses in person and take an eye exam every five years beginning at age 75. Older drivers were involved in several serious car accidents in 2009 in Massachusetts. Further, the law will forbid anyone under the age of 18 from using a cell phone while driving.

Boston personal injury attorney David White said of the new law, "Distracted driving is a serious safety problem. The use of cell phones and text messaging are two of the biggest distractions for drivers. These new provisions will vastly increase the safety of Massachusetts roadways."

A recent study found that texting while driving makes a person twenty times more likely to get into a car crash or near-crash. The problem is most severe for inexperienced drivers. It is hoped that this new law will raise awareness to this growing epidemic of serious personal injuries caused by careless texting motorists.

 For more information

Boston Globe

Virgina Tech Transportation Institute Research Project

Continue reading "Massachusetts Law Will Ban Text Messaging While Driving" »

Boston bicycle safety has markedly improved over the past two years with several new safety initiatives, including the creation of new bike lanes, publication of the city's first biking map and installation of hundreds of bike racks.

But Boston bike safety is back in focus this month after three bicycle accidents within the city, including one fatal bike accident that claimed the life of a 22-year-old cyclist and another causing serious personal injuries.

"The biggest problem compared to other cities I've ridden in ... whether people are biking, walking or driving around the city, everyone has this 'me first' attitude," David Watson, executive director of the Massachusetts Bicycle Coalition, recently told the Boston Metro newspaper. "That's a huge issue - changing the way everybody thinks."

We applaud Boston Mayor Thomas M. Menino for calling the city's first Bicycling Safety Summit after the accidents to provide bicyclists and city officials a chance to discuss ways to prevent bicycle accidents in Boston.

The reality is that both drivers and bicyclists need to take responsibility for co-existing with each other, along with walkers. This means education, especially considering the fact that the laws governing bicycling were amended by the Massachusetts legislature in 2009. Drivers still need to learn their new responsibilities when overtaking cyclists, when turning, and when opening doors in traffic. 

For anyone thinking about enjoying the city on two bicycle wheels this summer, we encourage you to register for one of the Massachusetts Bicycle Coalition's upcoming bike safety classes on May 6 or May 19 at City Hall. The move could save a life.

Our firm supports cycling programs and bicycle safety in Massachusetts. We are proud supporters of MassBike, the Northeast Bicycle Club, the Charles River Wheelmen, Bikes Not Bombs and the New England Mountain Bike Association.

Continue reading "Boston Bike Safety Gets Much-Needed Attention During Summit" »

Guidant LLC, a division of Massachusetts' company Boston Scientific, has plead guilty to two misdemeanor counts alleging the medical device maker failed to disclose product changes involving over 20,000 implantable heart monitor devices.

The medical device manufacturer plead guilty Monday, April 5 and will learn over the next few weeks whether U.S. District Judge Donovan Frank will accept a proposed $296 million plea deal - the largest criminal assessment ever proposed against a medical device company.

The Department of Justice accuses Guidant of changing the design of its implantable cardioverter defribrillators, or ICDs, and failing to notify the Food and Drug Administration (FDA) of subsequent problems that lead to a Class 1 medical recall - the most serious category which indicate a defective product has the potential to cause serious personal injury or wrongful death. 

Guidant's implantable cardioverter defribrillators, Ventak Prizm 2 DR and Contak Renewal 1 and 2, were designed to monitor patients for abnormal heart rhythms and deliver electric shocks to keep the heart beating properly. But Department of Justice officials say Guidant discovered as early as 2002 that Ventak had the potential to suffer an electric arc, which could short-circuit the device. Although problems continued with the defribrillator, Guidant didn't issue a warning until 2005. In at least seven cases, the devices failed to issue a lifesaving shock and the patient died.

In 2005, Guidant sent a product update to doctors, advising that a yellow warning screen indicated a potentially serious problem. However, the FDA says the company should have sent a product correction, rather than a product update, since the change reduced the risk of serious injury, and should have notified the FDA of the change within 10 days. Guidant ultimately recalled its three devices in 2005. 

Attorneys for the affected patients are now urging the court to reject the plea deal because it will not provide restitution payments to victims.  The government prosecutor has argued that the victims have other remedies for compensation and that the applicable law does not require restitution.  The prosecutor points to the fact that most of the victims have settled civil suits with the company and the company has paid out over $650 million in settlement and warranty payments.  Additionally, $42 million of the plea amount is forfeited funds and victims can petition the Justice Department for their share.

For more information on the plea deal, see this Boston Globe article and this Star Tribune article.

Continue reading "Defective Product Leads to Proposed Plea Deal in the Largest Criminal Penalty Ever Assessed Against a Medical Device Company " »

The Massachusetts Appeals Court has affirmed the broad admissibility of certified medical reports under M.G.L. c. 233, § 79G. The case, O'Malley v. Soske, Appeals Court No. 09-P-315, (March 31, 2010), is an important reminder of the intent of the legislature when the statute was amended in 1988. In short, in any proceeding commenced in any court, commission or agency, the judge should admit properly certified medical reports.

The plaintiff was injured in a car accident in Boston. She claimed that she suffered neck and back injuries, and required surgery. The defendant contested the nature of the injuries.

The court upheld the admission into evidence of the report of Dr. Lupien, an orthopedic surgeon, who is usually identified as a defense expert, who had examined the plaintiff for the defendant. His opinion was that the accident had not caused serious trauma. The plaintiff lost at trial on the issue of medical causation and her lawyer appealed. The Appeals Court affirmed the judgment.

For a complete analysis of this case, please see the Practice Alert on our website.  

James Delayo, the former chief crane inspector for New York City, has plead guilty to accepting more than $10,000 in bribes to fake inspections and crane operator licensing test results.  Delayo has admitted to accepting bribes between 2002 and 2008 to file paperwork indicating that a Long Island-based crane company had passed inspections that never happened and to say an employee passed a licensing exam never taken.  For these and other favors, Delayo received from $200 to $3000 in individual payoffs.  An official and employee with the involved Long Island crane company, Nu-Way Crane Service, have plead not guilty to bribery and record tampering.  Delayo is currently out on bail until his sentencing on May 4th. His plea deal calls for two to six years in prison.

Delayo was arrested back in 2008 after the second of two serious construction accidents caused by massive cranes collapsing. The accidents caused the wrongful deaths of nine people. Authorities said at the time that Delayo's case was one in a series of cases against builders and inspectors accused of accepting tainted money.  Consistent with that claim, Delayo is not the only person in trouble after the 2008 crane collapses.  A crane rigging contractor has been charged with manslaughter for one collapse and a crane owner and former mechanic have been charged with manslaughter for the other collapse.  Since the 2008 accidents, New York City building officials have made changes to crane training requirements and exam procedures for some operators.  Additionally, some inspections are now performed by a national group.

To see additional coverage of this story, see this Boston Globe article.

Continue reading "Ex-NYC Chief Crane Inspector Put Lives in Danger by Accepting Bribes" »

The very people who take an oath to do no harm may be undermining patient safety systems, despite hospitals' focus on reducing medical errors. In the last decade, hospitals have ramped up patient safety systems by promoting protocols, checklists, and procedures to prevent medical errors. Hospitals have also pushed to increase transparency and disclosure of medical errors. However, studies are showing that doctors are not reporting incidents of medical negligence as often as they should. Some experts point to doctors' fear that an incident report with their name on it could damage their career permanently.

The Joint Commission Journal on Quality and Patient Safety reported last month that most medical residents have never filed an incident report. This is despite the fact that many residents are in fact reponsible for personal injuries or wrongful death of patients during their training. Additionally, young doctors are entering practice without being educated in patient safety, according to a report issued by experts working with the Lucian Leape Institute at the National Patient Safety Foundation. Dr. Lucian Leape, chairman of the report's committee, blames the culture of medical education for the lack of attention to patient safety. Dr. Leape believes the hierarchy, humiliation, and stress of medical education does not allow doctors' the time, sense of community, or support to disclose errors.

After historically ignoring patient safety, some medical schools and clinical training programs have introduced the subject into their curriculum. Not all institutions have succeeded, having difficulty securing financial support or experienced physician-teachers with training in patient safety. However, those institutions that have successfully implemented training programs have benefitted. The University of Illinois at Chicago College of Medicine instituted an extensive patient safety education program six years ago. Graduates of the school have gone on to be leaders in the field of patient safety. More recently, patient safety training was integrated into the residency program. Residents now submit over 100 incident reports- up from zero.

For more information on patient safety, see the National Patient Safety Foundation report. Also, see the New York Times article Learning to Keep Patients Safe in a Culture of Fear.

Continue reading "Patient Safety and Doctors' Fear--Improving Systems to Reduce Medical Error" »

The Massachusetts Supreme Judicial Court has ruled that non-patient claims for personal injury resulting from medical malpractice must first be presented to the Massachusetts medical malpractice tribunal.  The tribunal's job is to review medical malpractice personal injury claims and decide whether there was actual medical malpractice involved or if the injury was merely an unfortunate medical result.

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.

Continue reading "Massachusetts Court Requires Medical Malpractice Tribunal in Third Party Claims" »

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

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" »

The U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) has announced that Daniele International, with operations in Rhode Island, has recalled 1,240,000 lbs of ready-to-eat Italian sausage products currently in commerce due to risk of salmonella contamination. The recalled products include salami coated with black pepper.

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).

Continue reading "Massachusetts Consumers: Take Care in the Deli Department--Rhode Island Company Recalls Salami Products Due to Salmonella Risk" »

The Federal Government is taking a firm stand against the dangers caused by texting drivers. U.S. Transportation Secretary Ray LaHood announced Tuesday that, effective immediately, commercial bus and truck drivers are prohibited from texting while driving. Texting truck and bus drivers face civil or criminal penalties of up to $2,750. 

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.

Continue reading "New Law Against Texting Intended to Reduce Distracted Driving and Truck Accidents--Rule Should Improve Safety for Massachusetts Drivers" »