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Legal News GavelAfter a jury awarded over $35 million to a woman in a medical malpractice case (later reduced to $32.5 million), the defendant appealed the verdict on a number of grounds. This case involves a woman who was a marathon runner and exercise class instructor who complained of dizziness. An MRI revealed that she had a “venous varix” in her brain, which is similar to an aneurysm. However, this was not found to be the cause of her dizziness. Her primary care doctor, an employee of the defendant, received a copy of this MRI but never noted the venous varix on her problem list.

A few years later she became pregnant. Since her obstetrician did not know about her venous varix, and she had no way of knowing it was relevant, she did not have a Caesarian section as recommended for people with the condition and instead gave birth naturally. Some hours after giving birth she suffered a debilitating headache and went into a coma for a month. After the coma her left side was paralyzed and she now has difficulty chewing, swallowing, and speaking. She will most likely need 24/7 care for the rest of her life. Based on these facts, at the initial trial the jury awarded her $35 million which was later reduced due to a calculation error. The hospital appealed.

If you or a loved one have been a victim of medical malpractice, you should contact an experienced Massachusetts medical malpractice attorney as soon as possible. They can help you to understand your rights and any recovery you may be entitled to under the law.

Legal News GavelThe Massachusetts Supreme Court recently decided a case about the duty of care that psychiatrists and psychiatric hospitals have to people who may be harmed by current or former patients. Specifically, in this case a man was involuntarily committed to a psychiatric hospital after acting bizarrely and making threats of violence toward family members. After he was released from the hospital he murdered his neighbor. This claim was brought as a wrongful death claim by the family of the neighbor. The neighbor’s family alleged that the hospital and the man’s psychiatrist were liable for wrongful death by negligently letting the man leave the hospital. If you have been injured or a loved one was killed due to the acts of another, you should contact a knowledgeable Massachusetts wrongful death attorney as soon as possible. You may be able to hold the wrongdoers accountable for their actions.

Involuntary Hospitalization

Massachusetts law allows physicians to hospitalize patients against their will if they have a reason to believe that without hospitalization the person would create a likelihood of serious harm due to their mental illness. The initial period for these hospitalizations is up to three days. However, the superintendent of a psychiatric hospital can initially petition for someone to be held up to six months against their will if they present a risk of harm. This involuntary hospitalization can be renewed if necessary.

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If you are injured at work, you may be eligible for workers’ compensation, and potentially other damages. However, for workers’ compensation purposes, you must be classified as an employee instead of an independent contractor. There are different tests that courts use to determine whether someone is an independent contractor or an employee. The Massachusetts Supreme Court clarified here that the appropriate test is the one in workers’ compensation law. If you are injured on the job, you should contact a skilled Massachusetts workers’ compensation attorney to help you get the benefits that you are entitled to. They can also help you to get any other damages you may be entitled to.

Facts of the Case

A woman worked delivering papers, but she could (and did) subcontract out some of the work. There was a specific time each day that the papers needed to be delivered by, but as long as she delivered them by that time she could deliver them when she wanted. She could choose her route and she used her own car. She worked not for the publishers of the paper, but a third party who employed people to do the delivering of the newspapers. She was delivering newspapers when she fell of a ramp and hurt her right knee and right hand. A few months later she fell again on the ice and hurt her right leg. She eventually needed two surgeries: one for her right hand and one for her right knee. She filed for workers’ compensation due to these injuries. She was denied because the administrative judge determined that she was an independent contractor and therefore not eligible for workers’ compensation.

A resident of a public housing development in Framingham was seriously injured after slipping and falling on the stairs. He filed a claim for damages against the Framingham Housing Authority, Musterfield Place, LLC, (a “controlled affiliate” of the housing authority), and the managing agent of the property. The owner and managing agent of the property filed a partial summary judgment motion that would classify them as public employers. Under the Tort Claims Act, public employers are only liable for damages up to $100,000. The court denied this motion and instead classified the manager and owners of the building as “controlled affiliates.” As “controlled affiliates” they are not public employers and thus do not get the benefit of the damage cap. If you are injured at your apartment building or at another location, you should contact a skilled Massachusetts premises liability attorney as soon as possible to help represent you. This decision allows injured people the ability to collect the full damages they are due for their injuries.Legal News Gavel

Facts of the Case

The building that Plaintiff lived in had been identified as being in need of rehabilitation in 2009. As the housing authority did not have the money themselves to fix the building, private investors bought in to the property partially to get the tax credits associated with the investment. In order to help raise money for low income housing, the housing authority allows these investors to buy and sell the tax credits that they have no use for, as they are not subject to federal taxes. These investors are then deemed “controlled affiliates.” A controlled affiliate is an entity that owns and manages public housing. In return for the tax credits, the affiliates must keep the property affordable for low and moderate income renters for 15 years.

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Unfortunately, bullying happens in schools all over Massachusetts every day. The Massachusetts Supreme Judicial Court issued a ruling earlier this year that clarifies who can be sued when a student suffers physical injuries from bullying. In the case at issue, an elementary school student was pushed down the stairs by a classmate in an act of bullying. The court affirmed a motion to dismiss after a lawsuit was brought against Lynn Public Schools, the school district in Massachusetts where the bullying occurred. The court held that the Massachusetts Tort Claims Act bars this case from going forward and essentially shields the district from liability for this and similar incidents. This does not necessarily mean the family of the injured student has no civil recourse; there may still be other people who could be held responsible for his injuries. Knowing who should be sued can be complicated due to laws like the Tort Claims Act and similar legislation. That’s why it’s so important to contact a skilled Massachusetts personal injury attorney if you are injured. If you don’t include all of the necessary parties, you may lose your chance to hold them accountable.

The Massachusetts Tort Claims Act

The Massachusetts Tort Claims Act specifies that public employers are liable for negligent or wrongful acts when they are committed by employees acting within the scope of their employment. However, the act includes an exception to liability when the violent or tortious act was committed by a third party, unless the employee was the original cause of the situation.

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If you have been injured by a faulty medication, you may be able to hold the drug company accountable for your injuries if your case meets certain standards. The Massachusetts Supreme Court recently heard a case regarding drug companies and their responsibilities regarding generic drugs and the required labeling. The court held that cases against drug companies based on medication injuries from generic versions of drugs can only go forward if the original manufacturer knew about possible injuries but intentionally failed to update this label. Cases against pharmaceutical companies are not only complicated, but they can also be expensive due to the resources that pharmaceutical companies have at their disposal. If you are concerned that you have been injured from a medication, along with seeking the necessary medical care to treat your injuries, you should also contact a knowledgeable Massachusetts product liability attorney as soon as possible to help you with your case.

Generic Labeling Requirements 

In order to bring a new drug to market, drug manufacturers must go through an onerous approval process with the Food and Drug Administration (FDA). Part of the process includes approval of the warning label for the drug that alerts consumers to potential side effects and other risks of the medication. The process for bringing generic versions of already existing drugs to market is much simpler. The manufacturers of generic drugs just need to prove that their medications are essentially the same as the name-brand drug in terms of active ingredients, strength, and route of administration. In order to get FDA approval, generic medications are legally required to show that the warning label is exactly the same as the name-brand medication. Therefore, a generic version is required to have the same label as the name-brand version.

A six-figure jury verdict against the manufacturer of an adhesive product called FM-37 was recently set aside by the Connecticut Supreme Court. The plaintiff sought to recover damages under the Connecticut’s Product Liability Act (CPLA) for the wrongful death of the decedent, claiming negligence and strict liability. The plaintiff contended that the decedent was exposed during his employment to an asbestos-containing product (FM-37) manufactured by the defendant and that the exposure contributed to his contraction of deadly mesothelioma. This type of theory is also relevant to cases brought by Massachusetts wrongful death plaintiffs.

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Malignant mesothelioma is a rare cancer that usually forms on the protective lining of the lungs and abdomen. The disease has no definitive cure, but advancements in conventional treatments along with emerging therapies are helping patients improve their survival rate. Incidence rates still hover around 3,000 new cases each year in the U.S., according to a 2017 report from the Centers for Disease Control and Prevention. However, scientific research and increased awareness are leading to earlier diagnoses and improved treatments. Exposure to asbestos remains the leading cause of mesothelioma. Asbestos, a mineral fiber, can release toxic chemicals in the air if improperly handled.

Asbestos litigation has been going on for decades, ever since the substance was linked to mesothelioma. Individuals affected by this disease have sued companies that made products containing asbestos. Last month, for example, a Massachusetts developer agreed to pay $100,000 to settle a lawsuit over accusations that workers improperly removed and disposed of asbestos. According to the lawsuit, unlicensed workers were allowed to remove materials containing asbestos without taking proper safety precautions. The lawsuit also alleged the company threw away unsealed asbestos near apartment buildings.

In a Massachusetts tort case, a prisoner who was incarcerated at FMC Devens filed a pleading captioned as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. He alleged that while he was incarcerated at FCC Butner, prison staff members negligently failed to secure his personal property while he was in the special housing unit. As a result, his property was stolen. On March 3, 2017, he filed with the Bureau of Prisons (“BOP“) an administrative tort claim concerning the loss of his property. The government denied the claim, concluding that there was not any evidence of negligence on the part of any BOP staff member. The plaintiff sought $663.95 in damages.

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The U.S. District Court for the District of Massachusetts held that the pleading failed both as a habeas and as a tort action. This blog post will focus exclusively on the tort issue.

The Federal Employees Reform and Tort Compensation Act of 1988, or the “Westfall Act,” 28 U.S.C. § 2679(b), provides that a lawsuit against the United States under the Federal Tort Claims Act (“FTCA“) is the exclusive remedy for property loss, injuries, or death arising or resulting from the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office.

A Massachusetts farmer owned a dump truck for hauling soil. One morning in April 2009, he was seen at his farm working on the truck. Later that day, he was found dead underneath it, with his clothing caught up in a spinning universal joint (U-joint) that was part of the mechanical system used to tilt the truck. The medical examiner identified the cause of death as accidental asphyxiation.

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As an executrix of his estate, his widow filed a Massachusetts wrongful death action. She sued, among others, Mack Trucks, which manufactured the original version of the truck, and Parker-Hannifin Corporation, which had acquired the assets of Dana Corporation. Dana manufactured a piece of equipment known as a “power take-off” (PTO), which was another part of the system used to tilt the dump body of the truck. In two separate summary judgment rulings, different superior court judges ruled in favor of each of these defendants. The Massachusetts Court of Appeals affirmed the judgments.

On appeal, the plaintiff did not argue that the incomplete vehicle that Mack Trucks sold, or the PTO that Dana sold, contained any design defect. Instead, the gravamen of her claims was that the manufacturers had a duty to warn installers and end users about the dangers posed by the use of unguarded auxiliary drive shafts and U-joints because such future uses were foreseeable. After all, she argued, the transmission of the truck was designed so that it could accept a PTO, and PTOs could be operated to power an auxiliary drive shaft. In fact, the plaintiff maintained that the foreseeability of the risks posed by exposed auxiliary drive shafts and U-joints was best demonstrated by the fact that Mack Trucks and Dana each provided some warning about them (warnings that the plaintiff claimed ultimately were inadequate). In the alternative, the plaintiff argued that even if the defendants did not face an independent legal duty to warn about such dangers, they voluntarily assumed such a duty when they provided their warnings about such uses.

A plaintiff, in his capacity as the personal representative of the estate of a victim, brought a Massachusetts nursing home negligence action against Park, Marion, and Vernon Streets Operating Company, LLC d/b/a Brookline Health Care Center (BHCC), and John Doe Physicians and Jane Doe Nurses. As alleged in the complaint, as a result of the defendants’ negligence, the victim choked to death when she was left unsupervised to eat in the dayroom of the assisted living facility in which she resided.

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The victim was admitted to BHCC in April 2012 for nursing care and rehabilitation after a hospitalization for seizures and falls, and she remained there until her death in May 2014. Throughout this period, she was deemed to be at risk for falls. Her medical records also indicated that she was on a soft diet, customized for her diabetes, and at variable times during her residency at the facility, she required continual supervision while eating, since she was at risk for aspiration. On the morning of May 7, 2014, a resident in the day room alerted the nurses to help the victim, who was holding her chest and in distress. A nurse’s note later in the day said that the victim was seen holding her neck and tapping on her chest and that she became unresponsive as she was being assessed by staff.

When ambulance personnel attempted to insert an endoctracheal tube, they had to remove a silver dollar-sized piece of food before they were able to successfully intubate her. The victim was pronounced dead upon her arrival at Beth Israel Hospital. The cause of death was respiratory distress, secondary to aspiration.

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