Massachusetts SJC: Neurologist Not Liable for Patient’s Harm to Third Party; Failure to Warn Patient About Driving Does Not Create Liability

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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Massachusetts Court Requires Medical Malpractice Tribunal in Third Party Claims

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.

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Whistle-Blowing Nurse Acquitted in Texas

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

Radiologists May be Reluctant to Admit Medical Errors to Patients

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.”


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


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Massachusetts Patients Should Demand Surgical Safety Checklists

If you are traveling on an airplane, you can be comforted by the fact that the pilots and co-pilots run through pre-flight and pre-landing checklists designed to prevent accidents and injuries. So wouldn’t you think the same techniques would be used in hospitals for critical surgical procedures? Well. . . not necessarily.

In an article published in the New England Journal of Medicine today, researchers demonstrated that the use of a simple checklist for surgical procedures cuts the rate of complication by 36%. The checklist reduced the rate of infection, wrong site surgery, the need for re-operation, post-operative complications, and death. The study demonstrated improvements in each of the eight countries involved in the study. If implemented properly, the number of injuries and wrongful deaths caused by medical malpractice would decline.

The authors report that roughly half of surgical complications are avoidable. The authors utilized a 19-step checklist to improve verification, to require surgical team members to introduce themselves and share patient concerns, to verify antibiotic coverage, and to document concerns regarding the post-operative recovery period.  The first part of the list is designed to reduce wrong patient, wrong operation, wrong site complications which are still remarkably common. Requiring the team members to introduce themselves to each other increased teamwork and also reduced mistakes.

With such obvious improvements so readily available, one would think that hospitals and doctors would be jumping quickly onto this bandwagon. Not necessarily. Why not? Would a little more paperwork and a little extra time cut into profits? When patients’ lives, health and safety are at stake, one would hope that hospitals would instead rush to implement these guidelines immediately. Implementing checklists are clearly one way to reduce injuries, death, and medical malpractice claims.

What you can do: The 19-step checklist has been been published on-line by the World Health Organization. Print a copy for yourself, and if you are going to be having surgery, make sure your doctors use either your form, or are already using one just like it.
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Massachusetts Health Care Crisis Driven by Backroom Deals between Hospitals and Insurance Companies

Thanks to an excellent series of articles in the Boston Globe, we now have some clear insight into what is driving the unconscionable increases in health insurance in Massachusetts: Secret agreements between the Partners HealthCare system and insurance companies. And while doctors and their insurance companies are quick to blame medical malpractice cases for exploding health care costs, the real increases can easily be blamed on the profit-driven expansion at Partners and increases in profits for insurance companies.

As the Globe has reported in a series of articles on the power and growth of Partners, the hospital corporation is now so large and powerful that it can freely bully insurance companies. The first up, Blue Cross and Blue Shield, which freely agreed to the demands of Partners in a “gentlemen’s agreement” sealed with a handshake. A handshake? Yup, their lawyers were apparently too nervous to put the deal in writing.

The result: an increase of 70% in Blue Cross insurance rates over the last eight year. Not surpisingly, their profits have soared. If you are like most Massachusetts residents, you have not seen pay increases approaching anything like that. And most hospitals that compete with the Partners affiliates have not seen similar increases, instead suffering blows to their bottom lines.

Using its clout, according to the Globe report, Partners also whipped other insurance companies into line, threatening to stop accepting patients insured by Tufts Health Plan, and others, unless they gave Partners a major boost in reimbursement rates.

Where is the money going? Partners keeps its profit margin low by spending hundreds of millions on expansions. The cost of the new cardiac center at the Brigham and Women’s Hospital was $382 million. A new building is popping up at Massachusetts General Hospital at the price of $686 million.   These numbers all dwarf the costs of medical malpractice claims in Massachusetts. (And whatever happened to the notion that these giant health care corporations were supposed to be “non-profit”?)

What does this mean for Massachusetts consumers? Your health insurance costs will continue to skyrocket, Partners will continue to corner the market for medical care in Massachusetts, their doctors will earn more, but the quality of your care will be no better and community hospitals will be threatened by Partners juggernaut. That’s right, you pay more but get care that is no better than average, and lose health care choices in the bargain.

It is time for our legislators, the Governor, and our Attorney General to crack down on costs of health care that are driving Massachusetts consumers towards bankruptcy.

At Breakstone, White & Gluck we are concerned about health care quality, health care costs, and the truth about medical malpractice in Massachusetts. If you have a malpractice matter you would like to discuss with an experienced attorney, please contact us, toll free, at 800-379-1244.

More Information

A handshake that made medical history
, Boston Globe, December 28, 2008 (third article in series)

Medical Malpractice Risks Increased By Resident Fatigue

Everyone knows about the hazards associated with falling asleep at the wheel of a car. Workers are told not to operate heavy equipment if tired or impaired. We all have first hand experience with the effects of sleep deprivation on clarity of thought and reaction time. Would you knowingly put your life in the hands of someone who is at the end of a 30-hour shift? Would you feel confident in the judgments of a young doctor in training who has just put in an 80 hour work week? Well, if you have received treatment at a major teaching hospital in Massachusetts or anywhere in the country, you probably have already done this.

You have probably already seen this reality depicted on popular television shows like Grey’s Anatomy or ER showing the impossibly long shifts and adrenaline-pumping situations medical residents must face each week. Of course the show’s writers throw in a lot of extra drama, but real medical residents do typically work 80-hour weeks that include 30-hour shifts–sometimes with little or no sleep.

Medical residency programs are designed to be rigorous, to prepare doctors for difficult situations and to expose them to as many medical procedures as possible over their 3-7 years in residency. There are teaching hospitals throughout Massachusetts, including Boston, Worcester, Springfield, Cambridge, Waltham, and Framingham.

Now a new report by the Institute of Medicine of the National Academies says that residents are not just tired, they are fatigued. And this fatigue is leading to preventable mistakes–medical mistakes that sometimes lead to wrongful death.

In 2003, the Accreditation Council for Graduate Medical Education limited the number of hours a resident could work to 80 hours per week. The new report is not looking to decrease this number, simply to regulate how the hours are carried out.

IMNA’s report offers several concrete recommendations that will improve patient care and prevent many fatigue-related medical mistakes.

  • Residents working a 30-hour shift should have at least a five-hour break after 16 hours of work.
  • When residents “moonlight,” or take on additional paid health care work, these hours should count toward their 80-hour cap.
  • Experienced physicians should more closely supervise residents.
  • The number of mandatory days off each month should be increased.
  • When scheduling residents, an overlap period should be included between shifts to increase communication.

However, implementing these suggestions means that teaching hospitals would need an additional $1.7 billion in funding each year. This fact alone may keep the recommendations from becoming a reality, even though the cost would most likely be offset by the decrease in fatigue-related errors and medical malpractice claims. Costs aside, the people suffering are the patients who are receiving sub-standard treatment.

We’ll just have to wait and see what happens to the IMNA’s recommendations. For the time being, residents are still working while fatigued, which means that fatigue-related errors and injuries are occurring all the time.

If you have suffered an injury due to a resident’s fatigue or any medical malpractice, contact the medical malpractice lawyers at Breakstone, White, and Gluck, P.C. We have years of experience in medical malpractice claims and our attorneys would be happy to discuss your case with you. Our toll free number is 800-379-1244, and there is no charge for our consultation.

More Resources

Resident Duty Hours: Enhancing Sleep, Supervision and Safety, Institute of Medicine, November 2008.

Is Defensive Medicine Driven by Fears of Medical Malpractice in Massachusetts?

The Massachusetts Medical Society has published a report suggesting that doctors in Massachusetts are ordering thousands of tests as a result of “defensive medicine.” As a result, the Society argues, health care costs in Massachusetts are increasing unnecessarily. The Society also argues that in order to trim these rising costs, medical malpractice reforms are necessary.

These claims have, of course, been made before. For over twenty years doctors have been claiming that malpractice claims have driven them to excessive testing. However, independent analysis in 2004 at the Congressional Budget Office found the evidence that defensive medicine was contributing to soaring insurance costs to be “weak and inconclusive.” And, as Marc Breakstone, a member of the firm of Boston medical malpractice firm of Breakstone, White & Gluck, PC, pointed out in the Boston Globe today, managed care and utilization review reduce medically unnecessary tests.

Ronald Gluck, another member of the Massachusetts malpractice firm, Breakstone, White & Gluck, P.C., explained to the National Law Journal that there were serious questions about the survey data. He also pointed out that many tests must be approved by insurance companies, which help reduce unnecessary testing.

There are, of course, other sides to this story. Physicians who order more tests may be increasing their own revenues by billing for the tests.  And hopefully, the extra testing has some benefit for patients, who can be reassured when conditions are actually ruled out.

The claims of the Medical Society are quite stark. They report that 83% of the doctors they surveyed reported practicing some level of defensive medicine. The report also indicates 18-28% of tests and procedures, and 13% of hospitalizations were ordered to avoid lawsuits.
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Just Say “NO THANKS” to “I’m Sorry” Legislation

When your doctor makes a mistake, it is only fair to expect to get a truthful explanation about what happened. After all, there is the Patient Bill of Rights under state
and federal law. There are professional ethics. And then there is plain old human decency. All of them tell us that our physicians and other medical
practitioners should quickly tell you about any mistakes they made, especially if your medical treatment is affected.

Well, we’re sorry to tell you that the truth can be an elusive stranger. In our practice we have seen altered and destroyed medical records and more than a handful of lying witnesses. When one of our clients was left on the table during his twelve hour back operation so his surgeon could go cash a check, nobody even told him what
the doctor did or that his doctor had his hospital privileges immediately revoked.

Now Massachusetts doctors and hospitals are proposing legislation that will shield admissions of liability for admission at trial as long as they use the magic words “I’m sorry” when they explain what went wrong. So, for example, if the doctor says to his patient, “I’m sorry I cut off the wrong leg,” you could not quote him in court.

There are two pending bills under review at the Legislature which would shield medical admissions from being used at trial.  We oppose this legislation. We encourage doctors and hospitals to recognize their moral obligations to be open and honest with their patients. If there is negligence, that is what insurance is for.

Protect your rights, and oppose this legislation and other bills that would restrict your rights as a victim of medical malpractice.

It’s Your Medical Record–Get It!

If you believe you have suffered personal injury due to medical error, it is essential that you promptly obtain your medical records. Under Massachusetts law, you have the right to get a copy of your hospital and physician records.  The procedures is not complex, though sometimes there can be delays.

For details on how and why you should get you records after you may have suffered an injury due to medical malpractice, please read our detailed article on our medical malpractice web page.

What Should You Do If You Have A Medical Malpractice Case?

The lawyers at Breakstone, White & Gluck, PC have many years of experience representing
medical malpractice victims. If you think medical malpractice has caused you an injury, or caused wrongful death to a family member, you should promptly contact a qualified malpractice lawyer. Learn more about choosing a Massachusetts medical malpractice attorney