Articles Posted in Negligence

Attorney Marc Breakstone commented as a legal expert in a Boston Globe article this week on Worcester Polytechnical Institute’s (WPI) response to a negligence lawsuit, brought by a former student who was raped while studying abroad. The college responded that the student was partially responsible.

“It’s a strategy that, frankly, often backfires in trial because the jury gets incensed,” Attorney Breakstone said.

This is a comparative negligence argument. This is traditionally an argument defense lawyers try and make for slip-and-fall cases or other accidents. In these cases, juries are left to assign a percentage of blame on the defendant and the plaintiff. In this case, Attorney Breakstone called the use, “repugnant.”

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Poor communication between doctors and hospital staff hurts patients and causes many deaths, a new study reports. Electronic medical records should improve communication, but doctors are not always reading results.

Communication failures played a role in 30 percent of the medical malpractice cases examined by CRISCO Strategies of Boston. The study was released Monday.

The study reports on roughly a third of all paid medical malpractice claims nationwide, nearly 24,000 cases from 2009 to 2013. Over 7,000 cases involved communication failures which injured patients, including 1,744 resulting in wrongful death.

“Good communication in the medical record or in verbal reports is the hallmark of good medical care. We have seen many preventable deaths and serious injury cases that were the result of communication breakdowns,” Attorney Marc L. Breakstone said.

When Medical Mistakes May Happen

Electronic medical records may get doctors test results more promptly, but the study shows some are not reading them:

  • One woman’s cancer diagnosis was delayed for a full year. Her primary care doctor never read the lab result in her electronic medical record.
  • A patient was rushed to the emergency room and died after his lungs filled with blood. Less than two weeks earlier, his primary care doctor had referred him to a lung doctor. The two doctors failed to communicate about the lab results on the patient’s electronic medical record, which showed possible early congestive heart failure.

Many mistakes – 80 percent – happen as a result of miscommunication when doctors and medical staff transfer patient cases, according to the Joint Commission Center for Transforming Healthcare.

Across the country, 32 hospitals are trying to improve communication by adopting the I-PASS approach for how doctors and nurses communicate during shift changes, according to the medical publication STAT. One of these hospitals is Brigham and Women’s Hospital in Boston.

What Patients Can Take Away from This Study

Monitor Your Medical Records. If you have the option, monitor your medical records online. You will gain a better understanding of how your doctor and the medical practice approach your care. If you find a mistake, ask for a correction. On the other hand, if you do not have electronic access, remember you have the right to make a written request for medical records at any time.


When Shifts Change. Before the day of a surgery, ask when the surgeons and nurses change shifts. Ask what to expect if your procedure is delayed.


Patient Advocate. Bring someone you trust to your pre-operation appointment and to your procedure. Our article about the Massachusetts Patient’s Bill of Rights may be a helpful resource.


Research Online. Research if your doctor or surgeon has been disciplined or has paid medical malpractice claims in the Massachusetts Board of Registration database. You can also search Medicare’s Hospital Compare database for hospital information, ratings and practices.


Make Your Own Decision. Online databases and electronic medical records are important but make your own decision about your doctor’s communication. Observe their practices firsthand, ask questions and choose another doctor if you are concerned.

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A man who was injured by a driver who suffered a seizure due to his brain tumor could not sue the driver’s neurologist for allegedly failing to warn him not to drive, or for otherwise failing to control his driving.

On December 21, 2001, the plaintiff suffered serious personal injury when he was struck by a car operated by the defendant driver. The driver had been diagnosed with a brain tumor in September 2000 after he had suffered a grand mal seizure. The tumor was malignant and inoperable.

The driver waited six months before he began driving again, as required by Massachusetts law. His treating neurologist, Frederick Hochberg, M.D. of Massachusetts General Hospital, allegedly did not attempt to prevent his patient from driving again and did not warn him not to drive. 

After he was hurt, the plaintiff sued the driver’s estate (the driver had passed away). He also brought a medical negligence claim against Dr. Hochberg. The plaintiff claimed that Dr. Hochberg owed a general duty to the public who might be injured due to the nature of the underlying medical condition that he was treating. The plaintiff argued that the duty rose from the special relationship between a physician and a patient. The plaintiff argued that general negligence principles created a duty in Dr. Hochberg to warn his patient of the dangers of driving while suffering from the brain tumor. The Supreme Judicial Court rejected both arguments.

The court found that this doctor-patient relationship was not a “special relationship” which would give rise to a duty to prevent harm to a third person. Absent such a special relationship, the court said, “there is no duty to control another person’s conduct to prevent that person from causing harm to a third party.”

In 2007, the court had found, in Coombes v. Florio, 450 Mass 182 (2007), that a physician may have a duty to warn his or her patient about the side effects of medication being prescribed. The court ruled that this duty extended to third parties who might be injured if the warning had not been given. But the court refused to extend that ruling to include medical conditions under treatment.

The Coombes case was seen by the court as a very narrow exception to the general rule that a physician owes no duty to third parties who might be injured by a patient. The court stated that the duty sought by the plaintiff would “impose on physicians an affirmative duty … to nonpatients to warn patient of the risks of driving due to any underlying medical condition. We conclude this is an unwarranted and ill-advised expansion of liability for several reasons.”

The main concern of the court was that the physician did not do anything to increase the likelihood of harm by the patient, compared to the physician who might be liable for prescribing medication and thus creating additional risk. The court also believed that further imposition of duty would intrude on the doctor-patient relationship and might increase collateral costs. 

This case represents the second time the court has stated that it will not be expanding the duty recognized in the Coombes case.  At least that narrow exception survived.

The case is Medina v. Hochberg, SJC-11178 (May 13, 2013).

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The fire on April 26, 2013 at 87 Linden Street in Allston, the second serious fire in less than two years on the same block, is a tragic reminder of what can happen with overcrowded, substandard student housing.

The Fire Marshall will now investigate the cause of the Allston fire. In addition, The Boston Inspectional Services Division should examine whether the unit was overcrowded in violation of the Boston Zoning Ordinance, and whether housing codes and accessibility codes were violated. Enforcement of city ordinances is,
unfortunately, inconsistent, and usually after the fact. Knowing this,
landlords and realty companies frequently violate these ordinances in the name of profits. The victims are often unsuspecting college students. As a result,
students, who pay high rents, are subjected to increased risks from their overcrowded housing.

The law in Massachusetts governs how homes must be safely maintained in order to prevent personal injury to occupants of the property. In Boston, zoning ordinances require building owners to declare whether their properties are single-family or multi-family units. In either case, under Boston’s zoning ordinances, under the definition of “family,” no unit may be occupied by more than four unrelated students unless the building meets much stricter building requirements.

It is also generally illegal for a landlord to create bedrooms in basements, and it may be against code to create a bedroom in an attic. No matter how it is configured, every house or apartment must have working smoke detectors throughout the unit.

Once a unit exceeds the four unrelated-occupant threshold, it technically becomes a rooming house, which makes it subject to very strict fire-prevention regulations under M.G.L. c. 148, Sec. 26I and other regulations. For example, a rooming house must have walls and ceilings made from fire-rated materials to slow flames in the event of a fire. Smoke detectors must be in every bedroom,
and must be interconnected. Even more important, every boarding house must have a working sprinkler system. Boarding houses must also meet accessibility guideline and provide multiple means of egress for upper floors, which may include fire escapes.

Real estate brokers and leasing agents share responsibility for student overcrowding and exposure to risk from substandard housing. A quick look at any leasing agent’s website will reveal scores of units available for student occupancy which are intended to house more than four unrelated individuals. Leasing agents collect a single month’s rent, sometimes more, for their services. Since they also take the responsibility to collect signatures on leases, they know exactly how many students will be in the unit. Leasing agents simply cannot claim ignorance of the laws regarding overcrowding.

Who May Be Liable
It is our firm’s opinion that violations of the boarding house rules are evidence of negligence and may create liability for the responsible landlord.
We also believe that knowing and willful violations of the boarding house rules by real estate companies or leasing agents may subject them to liability as well. Violations of these standards may also be violations of the Massachusetts Consumer Protection Act, which may subject landlords and their leasing agents to multiple damages and attorneys’ fees.

Other Cases
Injuries and death from substandard housing may also lead to criminal charges against landlords. For example, in January 2012, two absentee landlords were convicted of manslaughter after a fire in an illegal apartment in Quincy led to the deaths of three tenants. The landlords were accused of wantonly violating building and fire codes.

The question of the enforceability of rooming house regulations is also pending at the Massachusetts Supreme Judicial Court. In that case, civil claims were brought against a Worcester landlord for violation of the Worcester zoning bylaw. In that city, no more than four unrelated persons can occupy a home. The city brought the violation because there were more than four students in the unit. The decision in that case is expected to be handed down in the next few weeks.

Update: The City of Boston later cited the owner of the two-family structure, Anna Belokurova, for running an illegal rooming house and not obtaining the permits needed to create bedrooms in the basement, according to The Boston GlobeRead more.

Related:

Woman killed, firefighters and occupants injured in raging Allston fire, Boston Herald.

One dead, 15 injured in Allston house fire, The Boston Globe.

Jury finds landlords guilty of involuntary manslaughter in Quincy apartment fire, The Patriot Ledger.

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If you exercise at a health club, you may not be aware that Massachusetts law protects you in many ways from unlawful club contracts.  But many local health clubs – yours may be included – are regularly violating the law.

Health clubs are serving larger numbers than in the past. Over 50.2 million Americans now hold gym memberships, a 10 percent increase over the past three years, according to the International Health, Racquet & Sportsclub Association.

The industry has been known to make it challenging for members to cancel or put their memberships on hold. Sometimes, after you sign the cancellation agreement, they require you to pay until month’s end, then another full “last month.” In addition to monthly membership fees, many are also now adding new fees for “annual” memberships and equipment maintenance. Some are even charging cancellation fees up to $200. This is still legal in Massachusetts, though not at all consumer friendly.

But did you notice the fees clearly posted the last time you visited your gym? If not, your gym is violating the law. The Massachusetts Office of Consumer Affairs and Business Regulation recently inspected 15 local health clubs and found none were displaying fees or informing consumers of their right to cancel within three days, according to WBZ-TV. The office is referring the results to the state Attorney General’s office.

Health clubs cannot ask a member to sign a waiver of liability but, surprisingly, many still do. While waivers of liability, also known as releases, are generally enforceable in Massachusetts, G.L. c. 93, Sec. 80 specifically states, “No contract for health club services may contain any provisions whereby the buyer agrees not to assert against the seller or any assignee or transferee of the health club services contract any claim or defense arising out of the health club services contract or the buyer’s activities at the health club.”

This means gyms have a duty to properly maintain their premises and equipment and make sure they are being used in a safe manner, according to the manufacturer’s guidelines. If they do not, and they were negligent, they may be responsible for your damages. If you have been injured in a Massachusetts gym, the court should find the liability waiver void. Over the years, our injury lawyers have successfully challenged these agreements.

Gyms also cannot ask members to sign up for terms longer than 36 months or require that members agree to financing that lasts longer than one month beyond the membership period. Members cannot be required to agree to monthly automatic withdrawals from a bank account.

If you are joining a gym, the best thing you can do is read the fine print on your member agreement before signing. Research the organization online through your local Better Business Bureau website.

Consumer remedies for health club violations are limited. No health club will be permitted by the courts to enforce an illegal contract. A consumer may bring claims under the Massachusetts Consumer Protection Act, G.L. c. 93A, but damages will usually be  nominal, although attorneys’ fees would be available.

Recent Court Ruling

The possibility of class actions was virtually eliminated by the recent ruling by the Supreme Judicial Court in Tyler v. Michaels Stores, Inc., 464 Mass. 492 (2013). An invasion of a consumer’s rights may be a violation of G.L. c. 93A, but unless the consumer has suffered a separate, identifiable harm arising from the violation, there will be no remedy. This case put a disappointing crimp into collective consumer action to prevent violations of the Consumer Protection Act, leaving overworked state officials to take up the slack.

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Last week the Massachusetts Supreme Judicial Court issued an important and strongly pro-consumer decision in the case of Rhodes v. AIG Domestic Claims, Inc., 461 Mass. 486 (2012). The decision erased uncertainties created by an Appeals Court decision in the same case (78 Mass. App. Ct. 518 (2010). The decision sends the message that insurance companies will have to pay when they do not treat consumers fairly.  Attorney David W. White has written an in-depth summary, which you can read by on our website.

In this case, the plaintiff’s car was hit from behind by an 18-wheel truck. The impact fractured her spinal cord and left her paraplegic. She also suffered broken ribs. She brought claims, along with her husband and her children.

The claims management company was AIG Domestic Claims, Inc. (AIGDC). The company delayed making a settlement offer, then finally made a very low one. Another offer came during trial, this one only slightly better.

Boston Medical Malpractice Attorney Marc L. Breakstone Comments on His Experience with Medical Record Cover-Ups in His Record-Breaking Recoveries

marcbreakstone_125.jpgBOSTON – (February 9, 2012) – Boston medical malpractice attorney Marc L. Breakstone said today, “The Mongan Institute for Health Policy Survey concerning doctors’ adherence to medical standards confirms what we have learned through years of litigation experience: Doctors often conceal their errors to avoid the consequences of their mistakes.”

Mr. Breakstone, who has recovered two of the largest medical negligence awards for individuals in Massachusetts history ($10.2 million and $7.5 million), said that he has seen numerous cases in which doctors have altered medical records or created false medical records to “cover their tracks.” In these two cases, it was shown that physicians, nurses, EMTs and others had either altered, destroyed or recreated falsified records.

These bogus records were revealed after years of investigation and intensive discovery efforts. Mr. Breakstone pointed out that “these falsified records appeared genuine to the patients’ families. It was not until we dug up original pre-altered records that the cover-ups were revealed.” Mr. Breakstone lamented that the falsification of medical records is rarely disclosed. Without the civil justice system, “most wrong-doing would go unnoticed and unpunished,” he said. He also said that it is rare for a physician to admit they had made an error, big or small.

Mr. Breakstone added that it is important for patients to learn as much as they can about their medical procedures and conditions so they can ask hard questions if matters become complicated. “Patients have a right to review their records at any time, even while in the hospital, and this is one way to make sure mistakes are not buried.”

Mr. Breakstone is available for further comment on the Mongan Institute Report as well as other patient safety issues. For more information, call 978-284-3401 or 617-723-7676.

Click here to read: Doctors Admit They Lie to Patients and Hide Mistakes, Survey Reveals, The Boston Globe, Feb. 9, 2012.
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courtcolumns.jpgAn appeal by a plaintiff in a medical malpractice case involving a failure to diagnose cancer has led to a new trial. The Appeals Court reversed the directed verdict, entered by Superior Court Judge Patrick Brady, after finding that the judge had improperly allowed the defendant’s motion for a directed verdict.

The case arose from the treatment of a patient who was having complaints of hoarseness and acid reflux. After several months of delay, a CT scan on the neck was finally performed, which revealed the presence of tumor near the esophagus and in the lung; the tumor was affecting the nerves which controlled the vocal cords. A biopsy revealed a non-small cell cancer which was staged at Stage 3B. Treatment was unsuccessful, and the patient died a year and a half later.

Claims were brought for medical malpractice resulting in conscious pain and suffering, wrongful death, and negligent infliction of emotional distress, among others. At trial, the plaintiff’s expert was prepared to testify that if it had been diagnosed in a timely manner, the cancer would have been at Stage 2 or possibly Stage 1. Judge Brady would not permit the testimony of “possibly Stage 1” and eventually foreclosed any meaningful expert testimony on his opinion about the stage of the cancer. Those rulings set the stage for the judge’s allowance of the defendant’s motion for a directed verdict.

On appeal, the Massachusetts Appeals Court found that the testimony about the tumor being “possible Stage 1” was properly excluded, but that the testimony about the tumor being likely Stage 2 was improperly excluded. Accordingly, the judge’s ruling was reversed, and the plaintiff will now have a second chance at trial.

The Appeals Court also recapitulated the necessary evidence for cases involving the loss of a chance when a physician fails to diagnose cancer. Loss of a chance cases require opinion evidence on the stage of the cancer at the time the diagnosis should have been made. The evidence does not require exact staging; a range of stages is permissible. Also required is evidence on the likelihood of survival after a timely diagnosis. The evidence must include an opinion about the difference in likelihood which more probably than not resulted from the delay. Citing Matsuyama v. Birnbaum, 452 Mass. 1 (2008), the Court noted:

    Under a loss of chance theory, a “plaintiff must prove by a preponderance of the evidence that the physician’s negligence caused the plaintiff’s injury, where the injury consists of the diminished likelihood of achieving a more favorable medical outcome.” Id. at 17. The court explained: “[P]robability of survival is part of the patient’s condition. When a physician’s negligence diminishes or destroys a patient’s chance of survival, the patient has suffered real injury. The patient has lost something of great value: a chance to survive, to be cured, or otherwise to achieve a more favorable medical outcome…. Thus we recognize loss of chance not as a theory of causation, but as a theory of injury.” Id. at 16.

The case decided was Carreri v. Isihara, Mass.App.Ct. No. 10-P-109 (August 25, 2011).

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Every year, Massachusetts families and organizations come together to honor the men and women who are killed and injured while on the job. This year, on April 28, the Massachusetts Coalition for Occupational Safety and Health (MassCOSH), the Massachusetts AFL-CIO, and the Greater Boston Labor Council are co-sponsoring Workers’ Memorial Day and are publishing the 2011 report: Dying for Work in Massachusetts: Loss of Life and Limb in Massachusetts Workplaces.

“It is critical that Massachusetts employers improve the safety of their workplaces to protect their workers. The high rate of death and injury on the jobsite is still taking a horrible toll on Massachusetts workers and their families. It is also unfortunate that enforcement continues to suffer budget cuts,” said Boston personal injury lawyer David White.

As stated in this sobering report, its purpose is to “highlight the fact that work continues to kill and maim workers in epidemic and alarming numbers. The saddest aspect to this loss in lives and limbs is that work-related injuries and illness are preventable.”

The report describes in clear detail the tragedy facing Massachusetts workers and their families. In 2010 alone, 47 Massachusetts workers lost their lives while on the job. (Breakstone, White and Gluck has the privilege and honor of representing the family of one of these deceased workers in their claim for his pain and suffering and wrongful death while on the job.)

The top three causes of fatalities among Massachusetts workers in 2010 were transportation (12 deaths: drivers or workers on roads involved in motor vehicle accidents and plane/helicopter crashes), falls (9 deaths: half being construction site accidents), and commercial fishing (4 deaths).

On Workers’ Memorial Day, we honor the fallen by demanding stronger workplace health and safety protections under the Occupational Health & Safety Administration, because it is every person’s right to be safe in their own work environment.

Join us on Thursday April 28, 2011 from 12:15 to 1:15 p.m. outside the Massachusetts State House as we mourn for the dead and fight for the living.

Breakstone, White & Gluck is a proud sponsorof MassCOSH, an organization with a great reputation for protecting workers and improving workplace safety. 

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A salmonella outbreak in Rhode Island now includes at least twenty-one people with severe illness, and one death, according to reports from public health officials in that state. Health officials are investigating another eighteen illnesses to see if they are tied to the salmonella outbreak.

Officials are focused on zeppole and other pastries which were made by Defusco’s bakery in Johnston, Rhode Island. According to news reports, investigators found pastry shells stored in boxes contaminated with raw eggs, and also found that custard used as filling was not being properly chilled.

Investigators have identified the particular strain of salmonella, known as Salmonella heidelberg, as the suspected organism responsible for the illnesses. They are now trying to determine whether the death of the elderly Rhode Island resident was caused by that particular strain.

The investigation into the food poisoning outbreak began on March 25, 2011, after nearly a dozen elderly residents of a Warwick nursing home became sick after eating pastries from Defusco’s bakery. Since March 12, two dozen victims have required hospitalization for severe illness.

Salmonellosis, the disease caused by salmonella infection or salmonella toxins, leads to diarrhea, fever, vomiting and abdominal cramps. Most people recover without treatment, but in the elderly, in infants, or people with compromised immune systems, the disease can be very severe, requiring hospital admission for rehydration and antibiotic treatment to prevent the spread of infection. Severe infections can lead to reactive arthritis and death.

Prevention of salmonella illnesses is straightforward. Food which may contain the bacteria, such as chicken or pork, must be prepared properly to kill the organism and destroy any salmonella toxin. Eggs and milk, and their products, must be properly prepared, handled, and refrigerated. Infections can also occur from contact with reptiles, pet rodents, and tainted fruits and vegetables. Proper hygiene–washing hands before and after handling food–is also a common sense method of reducing the likelihood of food poisoning.

Each year over 140,000 people suffer from salmonella poisoning in the U.S. and dozens die from the illness.

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