Massachusetts Injury Lawyer Blog

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" »

A commonly prescribed class of antibiotics have been issued the strongest available warning by the Food and Drug Administration (FDA) due to the risk of potentially debilitating personal injury. Levaquin (levofloxicin) and Cipro (ciprofloxacin) are in the class of antibiotics, called fluoroquinolones, and are used to treat illnesses like sinus infections, urinary tract infections, pneumonia, kidney infections and several types of skin infections. People using Levaquin and other fluoroquinolones are at increased risk for tendonitis and tendon ruptures, especially those over 50 years of age, those taking steroids, or people that have had a lung, kidney or heart transplant.  Tendonitis and tendon ruptures have also been reported in people without elevated risk factors, and can even occur months after discontinuing the drug.

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.

Continue reading "Massachusetts Consumers Should Take Care If Using Certain Antibiotics--FDA Warns of Tendon Trouble" »

Graco Children's Products of Atlanta, Georgia, has recalled approximately 1.5 million baby strollers which may cause finger amputations in small children. The company is offering a free repair kit to eliminate the hazard caused by the defective product.

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.

Continue reading "Baby Stroller Recall Affects Massachusetts Consumers" »

One of the leading causes of motor vehicle accidents for Massachusetts drivers may be the device in the driver's pocket.  A recent Harvard University study concluded that 2,600 wrongful deaths and 570,000 personal injuries are caused each year by cell phone distractions. According to a Virginia Tech study, drivers using cell phones are more impaired than a legally drunk driver.  Despite the known dangers of in-car electronics, car makers are taking driver distractions one step further with in-car "infotainment" systems.   

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.   

Continue reading "In-car Electronics Create Distractions and Impair Driving" »

Many of the over 9 million trucks on the roads in this country are operating with serious safety problems, according to a recent study performed by the Federal Motor Carrier Safety Administration, a division of the U.S. Department of Transportation. Twenty-eight motor carrier companies, representing more than 200,000 trucks, were found to have trucks in violation of federal safety laws. These violations include defective brakes, overly worn tires, excessive loads, and undertrained or impaired drivers. All of these factors contribute to the likelihood of a serious truck accident.

While the public is largely unaware of the problems with the nation's large truck fleet, it is at significant risk due to these safety violations. Although trucks make up fewer than 4 percent of vehicles on the road, they are involved in 12 percent of motor vehicles fatalities, with over 4,000 deaths and 80,000 serious injuries occurring every year. Government data shows that many trucking accidents are not reported, suggesting the numbers above are underestimates. Citizens of Massachusetts, with its older highway system, are left at risk.

Many of these deaths and injuries are preventable, and would be avoided if trucking companies fully complied with safety laws. Unfortunately, many companies fail to perform critical maintenance and repairs in order to save money. As the government's inspection and enforcement resources are limited, the chances of being caught are small, and the companies that are forced to take its trucks off the road simply change their name and continue operations as before.

Compounding this unsafe situation is the fact that many trucking companies carry insurance in amounts that are inadequate to compensate the victims of trucking accidents, especially when someone is seriously injured or there are multiple victims. Congress set the minimum level of insurance for tractor trailers at $750,000 in 1980, and has not changed it since. Although many companies carry higher amounts, carrying the minimum insurance is common in small trucking companies, which is of great concern, as 87 percent of the companies in violation of safety standards had fleets of ten trucks or fewer.

Continue reading "Trucks Found to Have High Rates of Safety Violations, Inadequate Insurance" »

In a recent article in the medical journal Radiology, a study of several hundred radiologists reveals that mammographers may be reluctant to reveal medical mistakes, even if the mistakes relate to potential risk of breast cancer.

In the study the radiologists were given a hypothetical question. They were asked to assume that films were read out of order; that the calcifications in the films were actually increasing and not decreasing, and that they discovered the mistake after initially reading and reporting the results to their patients. Calcifications may be associated with the growth of breast tumors.

Only 14% of the physicians said they would definitely disclose the error. Twenty-six percent said they would probably report the error. The rest would either disclosed the error only if asked by the patient, or not at all.

In the hypothetical conversations with the patients after the mistake was revealed, only 15% of the doctors polled would admit that they made a mistake during the reading of the films.

Failure to diagnose breast cancer due to mammography errors is a common cause of medical malpractice claims, and almost half of the doctors in the study had been party to a suit alleging negligence.

The authors concluded that even though there is a trend towards more physician openness regarding mistakes, disclosure is "the exception, not the rule."

More Information 

Radiology: Radiologists reluctant to disclose mammo errors to patients. www.healthimaging.com. October 30, 2009.

Continue reading "Radiologists May be Reluctant to Admit Medical Errors to Patients" »

A Brockton, Massachusetts meat packaging company has voluntarily recalled over a thousand pounds of ground beef patties and steaks due to possible contamination with E. coli O157:H7 bacteria, according to the U.S. Department of Agriculture. People exposed to the contaminated meat have suffered personal injuries.

Crocetti's Oakdale Packing Company, also known as South Shore Meats, was investigated by Massachusetts and Rhode Island health officials after approximately twenty students at a Plymouth camp became ill following a meal using ground meat traced to the company. The USDA has declared a class I recall, due to the potential for serious illness and death from the O157:H7 strain of E. coli.

This type of bacterial infection usually manifests as diarrhea, which is often bloody, and several days of abdominal cramping. More severe cases may progress to hemolytic-uremic syndrome (HUS), which causes breakdown of blood cells, kidney failure, and sometimes death. Children under five and the elderly are at the highest risk for the severe forms of illness.

Contaminated meats are the most common cause of E. coli O157:H7 infection, but the bacteria may come from other sources, as seen in the recall of prepackaged cookie dough this past June.

Click here for a list of contaminated products.

Safety Tips:  Proper preparation and storage of meat can help to prevent illness. Ground beef should be cooked to an internal temperature of 160 degrees. Newly purchased meat and poultry should be refrigerated promptly, as should leftover cooked meat. Proper washing of hands and utensils that touch raw meat is also important, in order to avoid contaminating other food or surfaces with bacteria.

Click here for more information from the USDA.

Continue reading "Beef Products Recalled Due to Possible E. coli Contamination--Brockton, Massachusetts Meat Packer Blamed " »

The Massachusetts Appeals Court has allowed the claim of a child who was bitten by a dog to proceed to trial against the landlords, even though the landlords did not own the dog.  The ruling reverses a lower court ruling in favor of the landlord.

The plaintiff was ten years old when he was attacked by a pit bull named Tiny. Tiny belonged to another tenant in the same 4-family building. Tiny had been found in the woods and adopted by the family. Tiny had demonstrated some aggressive behavior prior to the date of the incident.  The plaintiff's family maintained that they had lodged multiple complaints with the landlords about not just the presence of the dog, but also its aggressive behavior. The landlords were also informed that Tiny was allowed to roam unrestrained, a violation of the Waltham leash law. The landlords claimed they had no knowledge that the dog might be dangerous.

The landlords had a no-dog policy for the premises, but failed to enforce that policy with regard to Tiny.  In fact, the plaintiff's family had previously given up its dogs because of the landlords' policy.

On the date of the incident, Tiny was sitting on a porch, unrestrained, then ran across the yard, jumped a fence, and bit the plaintiff who was playing in the neighbor's yard. The ten-year old had mulitiple dog bite injuries to his leg.

The Superior Court judge ruled that the landlords were not negligent, and that the fears of the pit bull were "subjective."  The Appeals Court disagreed.

In Massachusetts, a third party such as a landlord, is not liable under the Massachusetts strict liability statute governing dogs. While a dogs owner or keeper is strictly liable for injuries caused by their dog, a third party can be liable only if he or she is negligent. A landlord does not insure that the property will be safe, and has a duty to use reasonable care for the premises.  Thus, in this case, the plaintiff is required to prove that the landlord knew or should have known of the dangers of the dog.  The landlords could not be held liable just on the fact that the dog was of a dangerous breed, but could be held liable if they had knowledge of its dangerous behavior.

The Appeals Court also noted that negligence cases are ordinarily best left to a jury's consideration, since the cases often turn on disputed facts. Given the disputed facts in this case, namely whether the landlord had received reports of the dog's dangerous behavior, the case was sent back to the Superior Court for trial.

The name of the case is Nutt v. Florio, Appeals Court No. 08-P-81 (October 19, 2009).  

Continue reading "Massachusetts Appeals Court Allows Dog Bite Case Against Landlord to Proceed" »

There has been another train accident on the commuter rail, this time at South Station in Boston. The Boston Herald reports that approximately 9AM, train 512, which originated in Worcester, failed to stop in time and collided with the end-of-track bumper at South Station, the last stop on the route.  Of the approximately 100 passengers on the train, at least 18 people suffered personal injuries, many of whom were treated at local hospitals. 

Although the train was allegedly traveling at a speed of 5 miles per hour at the time of the collision, many passengers were standing in preparation for getting off the train and were thrown to the floor and suffered personal injuries.  Many patients were taken off the train on backboards by emergency personnel.  Boston Medical Center activated its emergency plan in case a large number of injured passengers.

Transportation officials have already suggested that operator error contributed to the collision.  Investigations by the MBTA and the National Transportation Safety Board are underway.  Preliminary reports have ruled out signal, dispatching, or equipment problems as a cause.  The Boston Herald has reported that the train's engineer told supervisors that he misjudged the stopping distance at the South Station platform. The engineer will be tested for drugs and alcohol.

Ordinarily, trains stop dozens of yards back from the bumpers, which are the emergency devices designed to stop the train at the end of the track and to protect people in the train station. There are no recent reports of other crashes into the bumpers.

If you would like more information about what to do if you were injured in this train accident, please call us at 1-800-379-1244 or visit us at www.bwglaw.com.

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