Articles Tagged with negligence

The Massachusetts Supreme Judicial Court ruled today that a hospital does not owe a third party a duty of care for injuries arising as a result of hospital treatment of a patient. Accordingly, a police officer who suffered personal injuries in a car accident responding to a pedestrian accident scene, cannot recover against the hospital after its patient was killed in the pedestrian accident.

The case was brought by Leavitt, a police officer for the town of Whitman, MA. He received an emergency call to respond to the scene of an accident where a pedestrian had been struck and killed by a car. On his way to the accident, Leavitt’s cruiser was struck, and he was seriously and permanently injured.

It was determined that the pedestrian had been treated earlier that day at the Brockton Hospital, where he had undergone a colonoscopy. As part of the procedure, he had received narcotic medication. He was allowed to leave the hospital without an escort, which was against hospital policy and, plaintiff alleged, good and accepted medical practice.

The Massachusetts Appeals Court recently reviewed a case in which the defendant homeowner, Johnson, hired a contractor to remove several trees from her land. The contractor subsequently hired a subcontractor/crane operator, West, to help with the project. The crane was damaged during the work, and the crane operator sued the homeowner. The jury found in his favor. His case was before the Appeals Court to determine whether the homeowner was liable for his damages.

Johnson had several conversations with the general contractor about the exact location of her septic system, which was important for him to know in order to safely remove the trees. The contractor apparently conveyed information about the septic system to his subcontractor, the crane operator. The day the crane arrived, Johnson noticed that it was set up in the location of the septic system. Though she was a surprised, she did not interfere with his work.

Soon after, the crane’s outrigger pierced the septic system and the crane tipped over, causing damage to the crane and to the house. The crane operator sued Johnson, cliaming that she had a duty to warn him about the septic system.

The Appeals Court determined there was no duty. Even though Johnson may have been suspicious of the crane’s placement, she did not have a further duty to give warnings. She retained no control over the work in general, and crane operator’s work in particular. Her only duty to the general contractor was to give accurate information about the septic system, which she did. It was the responsibility of the original contractor to oversee the actions of the crane operator.

Accordingly, the crane operator’s case was dismissed. The case is West v. Johnson, Mass. App. Ct. No. 08-P-130 (2009). 

As a homeowner, how can I protect myself from these types of lawsuits?

An important consideration in determining liability is control: the less control you have over a situation, the less likely it is that you will be liable for damages. One of the many benefits of hiring a general contractor to help with a residential construction project is the shift of liability from you to the contractor. If a contractor agrees to oversee all aspects of subcontractor performance, the homeowner will likely have no direct contractual agreements with the subcontractors and, therefore, retain no control over their work.

Before hiring a contractor, be proactive. Ensure that they are registered with the state, and are carrying adequate insurance. Review the details of your contract, don’t be afraid to ask questions, and ask for proof of his/her registration and insurance certificates. Browse the additional links below for more tips on how to choose a contractor. 

Additional links:

Homeowners FAQ’s – The Massachusetts Executive Office of Public Safety and Security
Choosing a Professional Contractor – The Eastern Massachusetts Chapter of the National Association of the Remodeling Industry

Continue reading

As the popularity of medical spas has sky rocketed, so have the injuries and complications suffered by customers of the spas. Patients and practitioners alike tend to view the cosmetic procedures completed at medical spas as less serious than those of traditional hospitals. However, there are risks which mainly stem from lack of training and state-licensing guidelines. That’s why some organizations and legislators are pushing for stricter regulations and more intensive educational programs.

After visiting one such spa in Chicago, a woman was told by hospital physicians that she may need to have her leg amputated after a routine mesotherapy, also known as lipodissolve, went awry and left her with severe dry gangrene. Luckily, the infection cleared before that was necessary, but she is still left with severe scarring on both of her legs.

A North Carolina medical spa is being sued by three women who all suffered kidney failure due after receiving buttocks-enhancing injections that were reportedly administered without proper medical supervision.

And the FDA has reported the deaths of two people as a result of misuse of topical anesthetics during laser hair removal procedures. Laser and intense pulsed light (IPL) procedures have also been known to casue permanent scarring, skin discoloration, and serious burns.

Fortunately for Massachusetts residents, state regulators are already beginning to address the problem. In a published recommendation, the Massachusetts State Board of Registration’s Medical Spa Task Force suggested that legislation be developed to require the “Department of Public Health to license medical spas for renewable terms of two years, similar to clinic and nursing home licensure already performed by the Department.”

Medical malpractice insurance companies are also helping to shape the industry; many are requiring physicians who are not formally trained in aesthetic procedures to attain accredited Continuing Medical Education (CME) credits in aesthetic medicine before being eligible for favorable insurance coverage.

While all of this is certainly a step in the right direction, Massachusetts medical spas are not currently licensed. Nor are there state-required education criteria specifically related to aesthetic procedures. Nor is there an official “board certification” available for the field of aesthetic medicine, making it more difficult to discern which practitioners are reputable. That is why it is especially important that patients thoroughly research a facility before undergoing a procedure.

Medical malpractice is a reality, but the lack of regulation places patients who visit medical spas, wellness centers, and anti-aging clinics at a higher risk than necessary. Massachusetts needs to take action to protect patients and clients of these spas.

Continue reading

Massachusetts has reached a final settlement in the Big Dig tunnel ceiling collapse case that caused the wrongful death of Boston resident Milena Del Valle and the injury of her husband.

Gannett Fleming, the company which designed the ceiling, will pay $50,000 to the city of Boston and $1.5 million for maintaining the Big Dig tunnels. Additionally, they will forfeit $150,000 in payments from the Massachusetts Turnpike Authority.

Sika Corp., which made the epoxy glue that held the ceiling in place, has agreed to pay $200,000. This money will go directly into a trust fund that has been designed to fund the upkeep of the Boston tunnel complex.

Two claims were dismissed: those against Sigma Engineering International Inc., a structural engineering company, and Conam Inc., a materials inspection company.
Both were determined to have no liability for the ceiling collapse.

After the tragic accident, resulting from the negligent design and construction of the tunnel, Massachusetts undertook a thorough examination of the tunnel system. The resulting settlements have provided funds that will assist in proper upkeep and maintenance in years ahead.

More Information

AG settles with final two firms in fatal collapse of Big Dig tunnel, Boston Globe, March 27, 2009

Continue reading

On January 7, 2003, 16-year-old Trista Zinck was struck and killed by an underage drunk driver, William White, as she walked with her boyfriend, Neil Bornstein, along Ferry Road in Newburyport. Bornstein survived, but was seriously injured. Before the accident, White had been drinking at his friend Brendan Kneram’s house, whose parents were away. Earlier that day, White, Kneram and their two friends pooled some money, and Kneram used his fake New Jersey driver’s license to purchase a 30-pack of beer at The Gateway Country Store in Seabrook, NH.

Since the accident occurred in Massachusetts, Zinck and Bornstein’s families brought actions for negligence in the Massachusetts Superior Court against both the driver and Gateway Country Store, alleging that the store negligently sold beer to an underage buyer, a transaction that was the proximate cause of the accident that killed Zinck and injured Bornstein. In 2004, an Essex County jury decided that the liquor store was partially responsible for the wrongful death and injuries, and awarded the families nearly $9 million in damages, which the defendants promptly appealed.

On appeal, Gateway admitted that it sold the beer to the underage Brendan Kneram, but argued that because it was William White who became intoxicated and caused the accident, the store should not be held liable. In Massachusetts, to be liable for negligent conduct, the plaintiffs had to prove two primary elements:

  • First, they had to prove that the defendants owed a duty of care, and that they breached that duty. Businesses that sell alcohol owe a duty of care to the public, by law. In this case, the jury found that Gateway breached this duty by selling alcohol to someone whom the store clerk reasonably should have known was under 21.
  • Second, the plaintiffs had to prove that there was a causal link between the breach (the sale of the alcohol) and the harm (the car accident). Gateway argued that its liability ended once Kneram served the beer to his friends, but the jury did not agree.

In its opinion, the Massachusetts Appeals Court reiterated the test of causation, which the trial judge had instructed the jury to apply: If an intervening act (Kneram giving the beer to his friends) was foreseeable by the defendant, then the original negligent act (the sale of the beer) remains a proximate cause of the harm (the car accident).

Another important part of this test is that the plaintiff does not need to prove that the defendant could have foreseen the exact harm that occurred, but only the injuries that could have occurred in “substantially the manner” in which they did. In this case, plaintiffs had to show the jury that the liquor store clerk could have reasonably foreseen that selling 30 cans of beer to an underage man with an out-of-state license, on a snowy, January evening, with a car full of other underage teenagers waiting in the parking lot, is an action that could potentially cause a fatal drunk driving accident.

Here are two more general, important points to keep in mind about causation and the role of the jury in these types of cases:

This is a civil case, not a criminal case, so the burden of proof is much lower than “beyond a reasonable doubt.” A jury only needs to find “more likely than not” that the defendant was negligent. The two elements of negligence (breach and causation) are questions of fact for the jury to sort out after evaluating the defendants’ and plaintiffs’ versions of the events.

It should be noted that under Massachusetts law, the driver and the liquor store were found jointly liable, meaning both are responsible for the full amount of the damages. The plaintiffs will be able to recover the balance of the damages from the liquor store since the insurance on the driver will be inadequate to cover the damages.

The name of the case above is Zinck vs. Gateway Country Store, Inc., 72 Mass. App. Ct. 571 (2009).

Continue reading

In Massachusetts, a general contractor which retains responsibilities for oversight of safety on the job site may be liable for injuries caused by the negligence of a subcontractor, according to a recent decision of the Massachusetts Appeals Court. The court affirmed this long-standing principle, affording protection to workers who suffer construction site accidents.

When a general contractor subcontracts work at a large construction

project, frequently more than one level of subcontracts is required. For

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.

After the September fatal Metrolink

train crash in Los Angeles, California, which was clearly linked to text messaging by

the engineer, a new focus is being brought on the many distractions which are

Rising gas prices have led to an increased in bicycle use around the country. Unfortunately, that trend has led
to an increase in bicycle accidents as well.

Statistics are not available for the current year, but bicycle traffic is up dramatically in Massachusetts
metropolitan areas. In other areas, there is an increase as well. For example, in one California city, bicycle traffic was up 14% but accidents increased by 40%. Fatal accidents in Chicago and New Jersey were also noted to be
significantly increased this year.

The most recent crash statistics from the National Highway Transportation Safety Authority (NHSTA), through 2005, indicate that the highest rates of injury are in the 10-19 year old range, but the highest rate of fatalities is in males 35-54. Death rates were approaching historical highs in 2005. The most common causes of bicycle accidents are left-turning vehicles which fail to yield the right of way, and vehicles which overtake a cyclist, and then turn in front of the cyclist.

In a city like Boston, where bicycle transportation has historically received little attention from transportation officials, Mayor Menino has promised to make Boston more bicycle-friendly. This means the city will be adding more bike lanes to major streets. But Boston has a long ways to go, if the ratings from Bicycling Magazine are any indication. Boston has been rated the worst city for bicycling for three years. Mayor Menino’s promise is to move Boston to the “Best” column for cyclists.

Continue reading

Improperly designed nail guns and negligently operated nail guns are leading to tens of thousands of accidents, injuries, and wrongful death claims among construction workers and consumers. Each day over 100 injuries occure, and roughly two-thirds of those injuries were construction site accidents. In addition to injuries caused to workers, bystanders, people working nearby, and people passing worksites have often been injured.

The number of injuries as well as a number of wrongful death claims have led to calls to make nail guns safer. The American National Standards Institute (ANSI) recommended in May, 2003 that “manufacturers install sequential-trip triggers on certain types of nail guns before distribution.”  This is a voluntary standard.

What Should You Do If You Suffer a Nail Gun Injury?

Contact Information