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In medical treatment, patients depend upon doctors and nurses to provide the best care available under the current standards of care. Patients also hope and expect the instruments and devices used by medical staff to work, aiding in their recovery. If one of these instruments or devices fails, a patient may experience a greater injury than the condition from which they suffered originally.  When this occurs, civil relief is available through a product liability lawsuit, as seen in Albright v. Boston Scientific Corporation (15-P-633). The injured patient, a lady from Ohio, filed suit against the manufacturers of the pelvic mesh surgically implanted to treat her Pelvic Organ Prolapse (POP). The injured woman had the mesh implanted to assist with weakened tissue in her pelvic area after a previous surgery provided minimal to no relief. Her surgeon implanted one of BSC’s devices, which was advertised as safe for treatment of POP. The FDA had cleared the device for sale, but through the § 510(k) process in which the device is substantially equivalent to another already on the market. Under the § 510(k) process, the device does not have to undergo clinical tests for approval. At trial, the injured patient provided expert testimony that concluded the mesh oxidized and reacted with the patient’s tissue in an unexpected, untested way. The trial court, however, excluded two letters from the FDA sent to the manufacturer, as well as the medical application caution sent by the supplier of polypropylene material, which addressed some of the potential issues with the mesh.

The injured patient appealed the exclusion of this evidence, which was offered for the limited purpose of showing knowledge and notice on the part of the manufacturer that they were aware of potential problems with the mesh’s material. Both sides offered witness testimony and opinion as to what caused the injury to the patient and whether the manufacturer should have known of the risks, based on the type of materials used. The injured patient and the manufacturer also presented evidence regarding whether or not the manufacturer advised her surgeon of the known risks in its use.

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In personal injury lawsuits, claims must be filed within a certain time limit set by law. Most must be brought within three years of when the date of the cause of action accrues or arises. The time begins to run when the injured party knew or should have known that he or she was harmed by the defendant’s conduct. In a recent Supreme Judicial Court opinion, Parr vs. Rosenthal (SJC-12014), the court formally adopted the “continuing treatment doctrine” for medical malpractice claims. Under this doctrine, the statute of limitations does not begin when the allegedly negligent physician continues to treat the patient for the same or a related condition. The idea behind the doctrine is to encourage recovery rather than litigation by promoting the doctor-patient relationship for conditions that require ongoing treatment.

In this case, the injured person was a boy born with a large lump on the back of his right calf. A team of doctors examined the lump and diagnosed it as a desmoid tumor, a benign tumor that can grow in a way that would hamper the normal growth of tissues and bodily functions.  For this patient, the tumor had already caused an abnormality in his gait. The team approached the defendant doctor to perform Radio Frequency Ablation (RFA) to remove the tumor. This process uses a long probe with heating tines that burn the tumor in a spherical area immediately surrounding the tines, but it does not distinguish between healthy and unhealthy tissue. The doctor is known as the “inventor” of this process, and he is considered a leader in the field. However, the defendant doctor had not performed this procedure on this type of mass prior to the date of the surgery.

Immediately before the procedure on November 4, 2005, the doctor did not explain the risks associated with the surgery to the parents, particularly the risks of burns to the skin.During the procedure, the doctor discovered he had burned more than the planned treatment area. The defendant doctor stopped the procedure and told the parents of the burn, but he assured them their child would “recover and be fine.” The boy did not recover, his nerves destroyed by the burn. Eventually, the child’s leg was amputated below the knee on March 20, 2006, due to continued problems with the burn. Even then, a second amputation became necessary on March 12, 2008, due to continued infections and insufficient muscles for a prosthesis. A little over a year later, on March 6, 2009, the parents filed suit. At trial, the injured boy proposed jury instructions that the statute of limitations did not begin until the treatment by the defendant doctor or the team of doctors was terminated. The judge declined to give such instructions, and the jury returned a verdict in favor of the defendant doctor, concluding that the injured person knew or should have known about the injury before March 6, 2006.

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Trusts can provide a way for an owner to enjoy her or his property during life, while ensuring the property held in trust pass to certain parties after her or his death.  In Mond vs. Pitts (15-P-686), the Massachusetts Appeals Court reviewed whether property held in two trusts with the same primary trustee and beneficiaries terminated, allowing the property to pass to the trustee’s heirs, or remained intact, passing to the beneficiaries after the settlor’s death.  At trial, the judge of the Land Court held the trust terminated after one of the trustees resigned and assigned her interest as trustee in both trusts at issue.  The beneficiaries appealed, and the appellate court reversed the prior ruling, agreeing with their argument that the trust remained intact.

As with all trusts, the construction of the document is the first place administrators and courts look at to determine the intent of the trustee. Both trusts in this case were created in the 1980s, for a term of forty hears and thirty years, unless the death of the settlor occurred first.  The 40 years trust named the settlor as the beneficiary, and then the two appellants, or their survivors, as the next beneficiaries if he died.  The trustees named in the document were the settlor and another woman, with a provision that either will become the sole trustee if the other dies or resigns.  The 30 years trust had similar language, with the same trustees and beneficiaries named.  It also had a similar provision assigning the remaining trustee as the sole trustee if one dies or resigns.  The settlor eventually became the sole trustee for both trusts after the other trustee resigned as trustee and assigned her interest.

The heirs of the settlor filed suit after his passing, arguing that the trusts terminated when the settlor became the sole trustee.  The land judge agreed, finding the paragraphs within the trust to be inconsistent with one another – with one paragraph naming the two appellants as beneficiaries and another within the trust document as heirs.  The judge also found that the doctrine of merger applied when the settlor became the sole trustee, becoming the sole lifetime beneficiary and trustee of each trust.  The appellate court disagreed with this analysis, finding that the second paragraph in question dictated the proceeds to be divided among the “beneficiaries if living”.  Both appellants were alive at the time of the settlor’s death.  The appellate court found reading the document as a whole consistently pointed to the appellants as beneficiaries of the trust.  The appellate court also disagreed with the land judge’s view of merger, pointing out that the designation of contingent beneficiaries precluded any merger.  The appellate court reversed the ruling of the land judge and remanded it to the lower court for the trust property to be distributed to the beneficiaries, as intended by the settlor.

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Before participating in a higher-risk activity like skydiving, bungee jumping, or community sports, the company running the program may require a participant to sign a release form, which shows she or he understands the risks involved with the activity and agrees not to hold the owners of the company or the organizers of the event responsible for any injuries that may occur. These help immunize, or protect, a company from liability if an injury-causing accident occurs. However, exceptions do exist, so a release does not provide a full shield from accountability in the civil court system.

In Markovitz vs. Cassette (15-P-1274), the Massachusetts Appeals Court looked at whether or not a trial court erred in granting summary judgment in favor of a horse farm. A student rider fell off a horse during a group riding lesson. She had ridden that particular horse three times before the accident, and she had taken classes on a regular basis at this location for over a year. Prior to the start of her classes, she signed a release that shielded the horse farm, including its owners, instructors, employees, and agents, from any and all responsibility for any injury sustained while on the premises. The release also contained notice of the applicable Massachusetts General Law that shields an equine professional from liability if there is an injury or death caused by an inherent risk of an equine activity.

The appellate court cited case law that regularly supported defendants’ use of release agreements and courts’ use of summary judgment to resolve cases with signed releases. The injured student claimed in her appeal that her injury was one of the exceptions to the statutory exemption. This exception removes immunity from suit when there was a failure to make a reasonable and prudent effort to determine the ability of the participant to safely manage the particular horse, based on the representations of the rider. The Court of Appeals disagreed with the injured person’s argument that the exception created a new duty of the horse farm in addition to those provided by common law. The court did not feel that the injured person’s circumstances rose above the bar to liability established by statute. Based on this, the lower court’s ruling was affirmed.
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As an injured Massachusetts worker, you want to ensure that all your benefits get paid by the entity or entities responsible for paying them. The Reviewing Board decision published this month, John Pastore v. Polaroid Corp., Inc. (Bd. Nos. 004718-89, 029283-13, 012201-13), dissects an agreement between a self-insured employer and an excess insurance carrier regarding the § 34A benefits and § 34B cost of living adjustments (COLA) of an injured employee. The worker in this case was injured in an industrial accident in 1983. His employer was a licensed self-insurer, obligated to follow the statutory requirements that come with being its own workers’ compensation insurance carrier. These included purchasing extra insurance as back up to help meet their workers’ compensation obligations through a “reinsurer.”

After the injury, the employer agreed to accept the claim and pay the weekly benefit, eventually agreeing to pay for the permanent and total incapacity (§ 34A) benefits at around $297.85 a week. The reinsurance company had a $250,000 policy, which the employer tried to utilize. The reinsurer initially denied the claim, since the employer voluntarily placed the employee on the § 34A benefits. Eventually, the employer and the re-insurer agreed to a settlement of $155,000 to reimburse the employer’s obligation to the injured worker. Neither the employee nor the Dept. of Industrial Accidents was made aware that this settlement occurred in 1998. Both became aware of this agreement after the employer’s bankruptcy action and exhaustion of bond set aside for benefits payment. The employee then filed suit for payment to resume.

At the hearing, the Administrative Law Judge (ALJ) held that the employee was now “uninsured” and that the Workers’ Compensation Trust Fund (WCTF) was obligated to pay the benefits. The WCTF, on appeal, disagreed with the assessment, arguing that the reinsurer was the entity obligated to pay the benefits to the injured employee. The Reviewing Board agreed, reversing the prior decision and directing the re-insurer to pay the benefits. In its analysis, the Board first pointed out that the WCTF was not created until after the worker was injured, and the injured worker would not be considered to be “uninsured” because the employer was a self-insurer. The Board then pointed out the difference between standard insurance agreements for settlement and the obligations of workers’ compensation insurers under Massachusetts law. Self-insurers are regulated by the Department of Industrial Accidents, rather than the Commissioner of Insurance. Workers’ compensation insurers are all beholden to the intent of the Workers’ Compensation Act, which was designed to protect injured workers. The Board found that the agreement reached between the now-bankrupt employer and the re-insurer was valid and that the re-insurer was responsible for both the § 34A and the COLA benefits.
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In any civil lawsuit, the plaintiff must ensure the at-fault party or parties receive notice of the claim so that they can appropriately respond. In Massachusetts medical malpractice actions, the General Laws specifically require that an injured patient or estate give written notice to a provider of health care 182 days before the case begins. (See G. L. c. 231, § 60L.) The claim must include the factual basis for the claim, the standard of care alleged by the claimant, the breach of the standard of care, the course of action that should have been taken, how the breach injured the patient, and the names of all the health care providers that the injured person intends to sue.

In the recent decision of Arsenault vs. Battacharya (15-P-197), the Massachusetts Appeals Court looked at whether or not dismissal without prejudice was too harsh a remedy when an injured party failed to provide notice in accordance with G. L. c. 231, § 60L. In this case, the injured patient went to her general practitioner, the defendant in this case, for carpal tunnel in her wrists. The primary care physician injected her wrists with cortisone, with two separate injections on each wrist over three visits. Later, after surgeries on both wrists, she discovered that the tendon ruptures were caused by cortisone injections.

The filed complaint alleged that the doctor should have known that multiple cortisone shots would increase the risk of rupture to her wrists. The knowledge this was a possibility can be seen in a letter written by the doctor for the injured person’s workers’ compensation claim. The injured patient alleged that she became totally and permanently injured as a result of the negligently administered cortisone shots. The claim was filed nearly six years after the first injection to one of her wrists but within three years of the start of the statute of limitations, which began when she was told by an Independent Medical Examiner that her ruptures were caused by the shots. The defendant doctor moved for dismissal, alleging non-compliance with G. L. c. 231, § 60L, and the motion was granted by the trial court.
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When an injury occurs in a Massachusetts workplace, an injured employee can receive payment for the medical treatment of the injury as long as it was related to the workplace accident. In Thomas A. Novack’s Case (15-P-1090), a nursing home employee sustained a lower back injury while on the job. He eventually received a lump-sum payment with an agreement that the insurer would keep paying for medical treatment that was adequate, reasonable, and stemming from the workplace injury. The injured employee received treatment from various providers after the settlement, and those costs were paid by the insurer for the next five years. The insurer then ceased payment, and Medicare began paying for all of the medical treatment received thereafter.

The employee filed for reimbursement from the Department of Industrial Accidents for the treatment paid for by Medicare. The Administrative Law Judge (ALJ) pondered whether the injured employee could even seek reimbursement when a third party made the payment, but the ALJ ultimately stopped at the finding that the treatment was not adequate, reasonable, or causally related to the workplace injury. The ALJ also noted in the decision that there was a lack of proof that bills were submitted to the insurer before they were given to Medicare. The request for reimbursement was denied, and the injured employee appealed.

The Appeals Court looked at the conclusions of the ALJ to see if the evidence supported the findings. The ALJ did not find the treating physician’s letters persuasive in their attempt to show the connection from the back treatment to the workplace accident. The appellate court felt the ALJ documented sufficient evidence to rule against the injured employee. The ALJ’s ruling in favor of the insurer was affirmed.
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The Commonwealth’s Appeals Court recently reversed and remanded a personal injury lawsuit originally dismissed by summary judgment in favor of the business. In Belanger vs. Boys in Berries, LLC (15-P-1263), the injured customer fell when she tripped on a large octagonal cardboard box and pallet at the end of the checkout counter. The box was visible from the checkout line, but the pallet underneath was hidden from view. Testimony during trial revealed the injured customer commented on the shape of the box. After the customer paid for her items, she caught her right foot on the corner of the pallet, seeing it only seconds before contact. She fell down, injuring her hip and shoulder. Even though the box had arrows to help warn about the pallet, the warnings were obscured from the sightline of anyone standing in the checkout line. There was a large crate of melons near the pallet and box, but there wasn’t any debris on the floor, nor was there poor lighting.

Property owners must maintain their property in a reasonably safe condition. They must consider the likelihood of injury to others, the seriousness of the injury, and the burden to avoid the risk. If there are unreasonable dangers, the property owner must warn any visitors of those dangers if they are aware or should have been aware that they exist. The exception to this is if the danger itself was open and obvious. The appellate court, in its analysis, pointed out that the pallet use itself wasn’t necessarily unreasonably dangerous, but its placement could be. The court looked at Massachusetts case law regarding whether a landlord is liable for the negligent placement of an obstruction in a common area. The court felt a reasonable jury could have found that the store created an unsafe condition by placing a box on top of a pallet in the path from the checkout line to the exit.

The appellate court also felt that the evidence at trial presented a legitimate question of whether the pallet fell under the case law exception as an open and obvious danger that did not require a warning. The court felt there was a possibility that a reasonable jury could find that the box wasn’t really visible until a customer turned to exit the store, so it was not an open and obvious danger. Since the evidence available to the jury presented genuine questions of fact, the Appeals Court felt that the evidence was just strong enough to survive summary judgment. The ruling in favor of the defendant store was reversed, and the case was remanded.
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Breach of duty and causation are two of the main elements to prove in personal injury lawsuits. Even if a breach occurred, it must also be the cause of the alleged injury. In Milambo vs. Catlin (15-P-687), the Appeals Court of Massachusetts reviewed a wrongful death lawsuit brought by the father of a child who was stillborn, on behalf of the child’s estate. At the trial, one of three doctors was found by the jury to be negligent but not a substantial contributor to the child’s death. The estate alleged that the doctors who participated in the child’s delivery were negligent by delaying a c-section.

At trial, the defendants argued that the child died within the womb due to an undetermined cause. The defendants pushed back against the estate’s claim that they delayed the caesarean with the assertion that the mother delayed in giving her consent to the c-section. As part of the defense, the doctors emphasized the mother’s medical history, which included several previous surgical procedures preceding the delivery of her stillborn child. On the date of the delivery, the mother went to the hospital, complaining of constipation and abdominal pain. A fetal heart monitor was placed on the mother, which showed normal results for about five hours. After six hours, the monitor results went from normal to poor, and a c-section was determined to be necessary. The defendants claimed that the father argued with them that the baby was fine and asked for his wife’s gynecologist, asserting they didn’t know what they were doing, and the pain medication was causing the problems.

Forty-five minutes passed between the time the doctors first told the mother a c-section was needed and when consent was given. Nearly two hours after she was told a c-section was needed, the surgery was performed, and the child was delivered stillborn. The cause of death was certified as “unknown intrauterine fetal demise.” The lone expert for the estate was an obstetrician/gynecologist who testified that the consent form signed four months before should have been valid, that there should have been constant fetal monitoring, and that the delay violated the standard of care governing physicians in their specialty. The defendants had two experts who testified that the three treating physicians followed the standard of care, based on their review of the care provided to the mother and the need to receive her consent on the day of the delivery. The perinatal pathologist who testified for the defense also confirmed that the cause of the stillbirth was unexplained and undetermined.
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The Commonwealth’s Appeals Court recently released an opinion looking at whether or not a niece appointed as attorney-in-fact interfered with an inheritance by not releasing funds held in a joint account from the sale of a house that would have been distributed as part of the estate. In Sarro vs. Ciancarelli (14-P-230), the testator’s health began to diminish in the 1980s, and her niece began providing care and assistance with financial matters. During this time period, the niece opened a joint account to help pay for her aunt’s living expenses. This account was in both of their names and became a focal point of this appeal.

After the niece was made attorney-in-fact, she sold a residence that was a part of the estate to her own son and his girlfriend for $135,000. This residence had previously been conveyed to her brothers, with the testator retaining a life estate, but was eventually restored to the testator after the niece advised her uncles that the transfer to their sister was necessary for Medicare purposes. The proceeds of the sale were placed in the joint account, and some were used for the funeral and final expenses of the testator. $90,000 was left in the account but was retained by the niece.

The testator’s brothers eventually filed a complaint against the niece with several allegations, including interference with inheritance and unjust enrichment. The case went to a jury trial. During deliberations, the jury asked a question about whether the funds from the sale of the house would have gone to the testator’s estate. The judge answered that it would depend on the intentions of those on the account and the terms under which the account was opened. The jury found the niece liable for interference with inheritance and unjust enrichment, awarding the testator’s brothers $45,000 each.
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