Articles Posted in Negligence

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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By David White

In a case of first impression, the Massachusetts Supreme Judicial Court ruled today that the provisions of G.L. c. 186, § 19 apply to commercial leases, and accordingly, a commercial property owner may be liable for personal injuries on the premises after receiving notice of a defect of proper repairs are not made. The property owner may be liable even if the tenant is in possession of the entire premises, if the injury is not in a common area, and if the tenant is responsible for repairs under the lease. 

The plaintiff operated a tanning salon in a single-story building which she leased from the defendant real estate trust. In 2000, the plaintiff sent a certified letter to the trustees complaining of leaks and cracks in the ceilings around the skylights. She was injured when she was struck in the eye by falling plaster; she fell and suffered injuries.
At the close of the evidence in the trial the Superior Court judge granted the defendant’s motion for a directed verdict. The judge ruled that G.L. c. 186, § 19 only applied to residential leases; that the plaintiff had not contracted for repairs; and that there was no gross negligence in the previous gratuitous repairs of the roof. The plaintiff appealed.
The SJC reversed. The court found § 19 did apply to commercial premises, provided the landlord has received written notice of the unsafe condition.
The case is Bishop v. TES Realty Trust, SJC-10696 (March 1, 2011).
To read more about this case, please see our the article on our website: Commercial Liability Expanded by Recent Massachusetts Supreme Judicial Court Ruling. Continue reading

It is hard to imagine that experienced surgeons, anesthesiologists and nurses would need a checklist to avoid obvious mistakes in surgical procedures, but the hard evidence is that simple checklists make an enormous difference in patient outcomes. Complications and medical malpractice rates are cut dramatically. The evolution of the checklist is chronicled in a recent book by Boston surgeon Atul Gawande. books[1].jpg

In his book, The Checklist Manifesto (Metropoliltan Books 2009), Dr. Gawande, who practices at the Brigham & Women’s Hospital in Boston, points out that the average American has seven operations in his or her lifetime; that there are fifty million operations performed every year; and that there are “upwards of 150,000 deaths following surgery every year–more than three times the number of road fatalities.” And, research has shown, “at least half our deaths and complications are avoidable.”
Inspiration for the procedural checklists for surgery came from the airline industry, which has always used checklists for routine and emergency procedures. Thousands of hours are spent honing the lists so they are not overwhelmingly detailed and difficult to follow. And they work.
Working with the World Health Organization, Dr. Gawande and the research team studied complication rates in a variety of hospitals around the world, some teaching institutions in wealthy countries, some from the most impoverished countries, and some in between. Complications and deaths were assessed. The checklist was implemented and changes were studied. Within months, major complications had dropped by 35% and deaths had dropped by 47%.
The 19-point checklists now in use include some remarkably simple steps: The operating room personnel introduce themselves and state their roles; they discuss any known risk factors; they make sure they have the right patient, the right procedure, and the right part of the body. The list also includes more details such as confirming medication allergies, reviewing the anesthesia plan, discussing concerns about blood loss, identifying pathology specimens, confirming sponge and needle counts, and sending important information to the recovery room.
These simple procedures have saved lives, reduced complications, and saved probably hundreds of millions of dollars and immeasurable pain and suffering. A checklist that costs almost nothing to perform (just a few minutes of everybody’s time) is easily saving far more than any possible medical malpractice “reform” that is being considered in the halls of Congress or state houses around the country.  Further fine-tuning of medical practices, not punishing the injured, is the correct path to malpractice reform.
Advice to Consumers: If you are planning for a surgical procedure, make sure your surgical team is using a checklist to avoid complications in your case. According to Dr. Gawande, over 94% of medical professionals say they would want a checklist for themselves.

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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.

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.

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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

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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.

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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.

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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.

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.

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