Chapter 224-reform law, which came into effect last year, pushes for the implementation of transparency in medical billings and procedures to give patients more freedom and control regarding the value of the health care services they are being offered. Patients must now be given the cost of an admission or service by health care providers upon request.

Another one of the significant goals of the reform law is to reduce medical malpractice, such as surgical errors, wrong diagnoses, or delayed treatment by enhancing patient-doctor communication and encouraging a clear-cut resolution from medical injuries they have suffered. Health Policy Commission General Counsel Lois H. Johnson said the law is about promoting the best practices in order to improve health care in Massachusetts.

The law will also require health insurance companies to reveal the cost of proposed medical services through a toll-free number by October 1.

As the victim of medical malpractice, you may be suffering a number of undue losses. At Crowe & Mulvey, LLP, our legal team may be able to help you get compensation for these losses. Call 617-426-4488 to discuss your situation.

In a previous post, I discussed the recent SJC case of Klairmont v. Gainsboro Restaurant, Inc., in which the Court held that building code violations that were significant and longstanding might serve as a basis for liability under the Consumer Protection Act, Chapter 93A.   That decision is also important for its extensive (and somewhat confusing) discussion of the interaction of damage claims available in wrongful death and survival actions.

As the Court noted, both parties mistakenly assumed that the wrongful death statute, G.L. c.229, Section 2, provides the sole avenue to recover damages for wrongful conduct that results in death.  Instead, the Court recognized that there may be other statutory causes of action–including 93A claims–brought on behalf of the decedent for his own losses.

The damages available to the decedent’s estate (so-called survival claims) recognize the loss to the decedent himself, while the wrongful death statute permits recovery for consortium-type losses to the designated beneficiaries.   Thus, claims for medical expenses and the decedent’s conscious pain and suffering preceding his death belong to the estate.  On the other hand, the Court held that loss of consortium damages were available only under the wrongful death statute, and not as part of the estate’s claim under 93A.

The Court then focused on the related claims for lost earnings and loss of earning capacity.  In a somewhat confusing exposition, the SJC decided that the decedent’s estate could recover only for lost earnings actually sustained in the time between the injury and the death.  Any claim for future lost earnings, the Court held, would impermissibly duplicate the statutory beneficiaries’ claim for loss of reasonably expected net income as provided in G.L. c.229, and thus would not be allowed.

This result ignores the reality that many statutory beneficiaries under the wrongful death statute are not financially dependent on the decedent–as was likely the case of the college student in Klairmont.  In such cases, the SJC’s claim that an award to the estate for loss of future earnings would duplicate the beneficiaries’ recovery under the death statute is factually incorrect.  Thus, the decision leaves Massachusetts plaintiffs in death cases with a continuing bar to recovery of damages for future earning capacity, except to the extent that there are financially dependent beneficiaries.  And defendants whose victims are children, unmarried adults and even non-working parents, escape liability for an important category of financial loss.

The end result in Klairmont was a virtual evisceration of the trial court’s damage award made pursuant to G.L. c.93A, striking more than $2 million in damages awarded for the decedent’s economic loss and the decedent’s parents loss of consortium, as well as $2 million in attorney’s fees.  The SJC instructed the trial court that the damage awarded had to be recalculated in light of its opinion, and that the amount of the legal fee should be reviewed in light of the dramatic reduction in the final damage award.

The discussion of damages in Klairmont is an important reminder to examine all available causes of action so as to insure the decedent and his family a full recovery.  There may be practical reasons not to bring all of these claims, but that decision should be made reflectively, not reflexively.

The Supreme Judicial Court’s opinions are available on its public website.

The Supreme Judicial Court held last week that violations of the Massachusetts building  code may form the basis for liability under the Consumer Protection Statute, General Laws Chapter 93A.  In Klairmont v. Gainsboro Restaurant, Inc., the SJC affirmed a judge’s finding of liability, holding that the defendant bar could be liable for the death of a college student who tumbled down a set of cellar stairs that violated multiple sections of the building code.

The stairs in question led from a back hall down to a cellar used for storage, and had been constructed in the early 1980s without obtaining required building permits.  The plaintiffs produced evidence that the stairs did not comply with several applicable sections of the building code, including the lack of a self-closing door, a landing at the top of the stairs, specific riser and tread dimensions, and a hand rail.   A kitchen manager at the restaurant had complained to the owner that the stairs were dangerous, and that both she and a sales representative had fallen on the stairs.

The plaintiffs’ son, a student at Northeastern, had apparently entered the back hallway to find a quiet place to take a phone call.  An employee found him a short time later at the bottom of the stairs with a fractured skull and a brain bleed, which proved to be fatal.  A jury found the bar negligent, but that the negligence did not cause the young man’s death; the judge, as permitted by G.L. c.93A, decided the causation question in favor of the plaintiffs.

While finding that not every building code violation would serve as a basis for liability under G.L. c.93A, the Court held that code violations that were “unfair or deceptive acts” that occurred in the course of trade or commerce might warrant recovery.   The Court noted that the defendants had knowingly violated the building code for more than 20 years, thereby creating a hazard in a place where alcohol is served.

The application of 93A, with its potential for multiple damages and attorney’s fees, is a powerful weapon for plaintiffs in premises liability cases.   While the SJC was careful to note that only a limited class of building code violations would rise to the level of 93A violations, in appropriate cases, a 93A claim will give the plaintiff important options to a traditional negligence action.   This remedy has long been available to plaintiffs in other types of personal injury claims, such as defective products.

An interesting feature of Klairmont is that the judge found in favor of the plaintiff after a jury had rejected their negligence claim.   This is permitted because the judge, who is the factfinder in the 93A claim, is not bound by the jury’s decision, and is free to make her own, in this case contrary, factual findings.  This result underscores what many experienced plaintiff’s lawyers have known for years–that jury-waived trials are not always to be feared, as many judges have not fallen prey to the tort reform propaganda that has infected many jury pools.

Klairmont also contains an extensive discussion of what damages may be recovered on the 93A claim, which will be the subject of a post later this week.

The Supreme Judicial Court’s decisions are available on its public website.

Reversing a lower court decision, the Supreme Judicial Court yesterday held that a homeowner who created a dangerous condition on his property may be liable to a visitor injured by the danger, even if the risk of harm was obvious to the visitor.  The case, Dos Santos v. Coleta, marks the second time this week that the SJC has ruled that the potential liability of a tort defendant turns on whether the defendant’s negligence was a factor in creating the danger–as opposed to simply failing to warn of the danger–the first case was discussed in a previous post.

Dos Santos involved a man who suffered a serious spinal cord injury when he attempted a flip off a trampoline into an adjacent wading pool.  Despite acknowledging that he knew it might be dangerous, the defendant homeowner had deliberately placed the two-foot-deep pool next to the trampoline–and even positioned the trampoline’s ladder in the pool–because he thought it would be “fun.”  In fact, a warning against jumping and diving (in the plaintiff’s and defendant’s native Portuguese) and an accompanying pictograph were clearly printed on the side of the pool.

The homeowner in Dos Santos raised the “open and obvious danger” defense–a legal principle that states that a landowner has no duty to warn about dangers on his property that would be “obvious to a person of average intelligence.”  The Court agreed that the property owner had no duty to warn visitors, but ruled that he could still be responsible for his negligence in failing to remedy an open and obvious danger that he himself had created and maintained.  The Court noted that the homeowner admitted that he had seen visitors jumping from the trampoline into the pool–not surprising given his testimony that he had chosen the location for the trampoline specifically to permit this activity.

The Court took pains to distinguish Dos Santos, where an affirmative, deliberate action of the landowner created the danger, from other cases such as O’Sullivan v. Shaw, where the only negligence alleged was a failure to warn about the danger.  This distinction is important for lawyers considering similar cases, in the need to focus on actions, rather than inactions of the defendant.  Where the potential defendant had a hand in creating the dangerous condition, the principle of Dos Santos would impose liability, even if the danger was apparent.

The plaintiff’s case isn’t out of the woods yet, however.  The SJC’s decision focuses only on the defendant’s conduct, and  at a second trial, the jury will be told to consider whether the man was negligent in attempting the flip into the pool, and to compare that negligence to the homeowner’s conduct.

The Supreme Judicial Court’s decisions are available on its public website.

The Massachusetts Supreme Judicial Court ruled today that a doctor who told his patient that it was safe to drive was not liable to another motorist injured when the patient suffered a grand mal seizure and lost control of his car.  The Court’s decision in Medina v. Hochberg restricted the application of the Court’s earlier opinion imposing liability on physicians.

The patient, Robert Riskind, was being treated by a Massachusetts General Hospital neurologist, Fred Hochberg, for an inoperable brain tumor.  The tumor caused Riskind to suffer seizures on several occasions, including a previous grand mal seizure which, under Massachusetts law barred him from driving for six months.  Riskind followed Hochberg’s instructions, and did not drive during this period.

Hochberg continued to treat Riskind, and several months later, told him that he could pursue his normal activities, including driving.  Riskind, again following Hochberg’s instructions, was driving on December 10, 2001, when he suffered another grand mal seizure, and lost control of his car, injuring Richard Medina, who was on his way home from work.  Medina brought suit against Riskind and Hochberg, claiming that Hochberg was negligent in permitting Riskind to drive given his numerous medical problems.

The Court chose to narrow the application of an earlier decision, Coombes v. Florio, in which it had held that a doctor could be liable to a non-patient who was injured as a consequence of a doctor’s failure to warn a patient of side effects of a prescribed medication.  Although this decision caused much hand-wringing among malpractice insurers, who are always active in trying to limit patients’ rights, it has resulted in very few lawsuits, and does not require doctors to do anything they shouldn’t already be doing.

Distinguishing Coombes, the Court in Medina held that a doctor has no liability to non-patients who are injured as a result of complications or effects of the patient’s underlying medical condition, as opposed to consequences of an affirmative act by the doctor, such as a prescribed treatment or medication.  A doctor is only liable if his treatment of the patient “creates or increases” the risk of harm to the general public.

In reaching its decision, the Court also relied heavily on numerous “public policy” grounds urged upon it by doctors and their insurance companies.  The Court gave short shrift to the concern that the public may be endangered by patients whose medical conditions put others at risk, instead focusing on the supposed cost to doctors of increased litigation and the privacy rights of the ailing patients whose conduct causes harm.

The result is that there is an entire class of injuries that doctors have the ability, but not the obligation, to prevent. Without question, the doctor would be liable to the patient if the patient himself were injured by the doctor’s failure to give him important safety information.  Yet when the injured party is not the patient, the doctor escapes liability for not doing what good medical practice would require him to do anyhow.  Proper information and warnings given to the patient protect not only the patient, but the public as well.

And in focusing on the potential liability of the doctor, the court fails to recognize that in some cases, it will be the doctor, rather than the patient, who is in the best position to prevent harm to others.  A patient may be completely unaware of the potential danger he creates by driving or otherwise engaging in activities that could harm himself or others–as in the case of Mr. Riskind, who was simply following his doctor’s advice when he crashed into Mr. Medina.

The Supreme Judicial Court’s decisions are available on its public website.

In an earlier post, I offered some information to help answer questions raised by many clients about how they could have learned more about their doctor’s malpractice history.  Although they are far from perfect, many state medical board websites have some information available for patients who know where to look.  They don’t include any pending claims, and sometimes even paid claims are mysteriously absent.  But many patient advocates feel they are better than nothing.

Not unexpectedly, the physician profiles are full of disclaimers that downplay the significance of malpractice payments in evaluating a doctor’s competence.  They offer a wide variety of reasons why the information that they are posting should be ignored.  But many patients would disagree with the medical boards, believing that they are better off avoiding doctors with a history of malpractice claim(s).

There is some scientific support for their belief.  A number of authors have studied malpractice insurers’ closed claim files to determine whether doctors who are successfully sued one or more times are more likely to be sued again.  The answer is generally yes.  The majority of doctors are never sued at all.  Very few have more than one claim.  But there are a number of repeat offenders.

As in many areas, however, the law does not mirror reality!  Despite a number of statistical analyses showing that doctors with one or more malpractice claims are more likely to be sued again, the law considers each case individually.  Clients (and some lawyers) are usually surprised to learn that a doctor’s malpractice history is not admissible in court.  Thus, a jury never hears whether a doctor has paid malpractice claims in the past, or has never been sued at all.  The legal theory is that the jury is not deciding whether the defendant doctor is a good doctor or a bad doctor, but whether he or she was negligent in the particular case in question.  The fear is that, if a jury learns that a doctor has been sued before, or has settled claims, it will assume that the doctor has done it–committed malpractice–again.

Doctors with malpractice histories are not alone in benefiting from this rule.  A driver who causes his fifth accident can rest assured that the jury will never be told about the four previous crashes.  And the same rule is carefully applied in criminal cases: in most cases, a jury never learns about a defendant’s prior convictions.

The goal of insuring that each case is judged on its own merits is admirable; certainly no one would want to be adjudged liable or guilty solely on the basis of past misdeeds.  However, the absence of information about past accidents or crimes may lead jurors–who aren’t told about the rule excluding such evidence–to believe that there are none, and to give the defendant the benefit of the doubt.

To be sure, there are many reasons why a claim may be paid that don’t reflect on a doctor’s competence or overall quality of care.  On the other hand, there are habitually careless doctors who manage to escape liability for years.  While a malpractice history should not be the only factor a patient uses to choose a doctor, it’s still worth considering.

Read a few studies finding that a history of prior claims is a risk factor for more claims here and here and here.

It sounds like a fairly obvious question, and it’s often one that a client will ask at the first meeting with a lawyer.  But in most situations, a lawyer who claims to know the answer at that point is lying—or at least trying to attract the client with an optimistic answer.  And at best, the lawyer is guessing.

For a number of reasons, questions about value cannot be answered with any degree of accuracy very early on in the case.  When a client relates his story to the lawyer, that story is only a tiny fraction of the information necessary for the lawyer to make a knowledgeable evaluation.   Some clients omit information that they don’t realize is important.  Some clients simply aren’t aware of important facts.  And, yes, some clients deliberately hide facts to make their cases look more attractive to the lawyer.  At best, the client only knows one side of the story.

The other side of the story—the defendant’s side—may dramatically affect the value of the case, in either a positive or a negative way.  And that side of the story is usually only available after a lawsuit is filed.  Sometimes that information makes the case stronger for the victim, and sometimes it makes the case weaker—but either way, it affects the value of the case.  The development of that information–and having the knowledge and the resources to find and use it–are some of the most important things a lawyer does.  Company policies, emails and other computer data, security videos, phone messages, and independent witnesses are some examples of the many types of evidence lawyers may look for.

Other factors that may not be immediately apparent also affect a case’s value.  How will the client and her family present as witnesses?  How about the defendant or its employees?  Will the client make a good or a poor recovery from a recent injury?  How much insurance coverage is available?  Does the defendant want to settle the case—or is he adamant that the case be vigorously defended?

A related question is whether a case will settle or go to trial.  For the same reasons, an accurate answer is virtually impossible at the beginning of the case.  A lawyer may be able to provide some general statistics—for example, that 80% of similar cases settle before trial—but without a full picture of both sides of the case, it is very difficult even for an experienced lawyer to predict the outcome for a specific case.

The same considerations make it dangerous for clients to compare their cases to other cases that may be reported in the news or described by family and friends.  Even cases that sound similar have unique facts that may make one worth much more or much less than another.  Many times when you read about a settlement or jury verdict that seems very large, there is a reason behind the amount that may not be obvious from the news story.

The take-home message for clients: questions about the value of your case are perfectly appropriate to ask your lawyer, but don’t be surprised if you don’t get a terribly precise answer right away.  And beware of using information from other sources–even well-meaning friends and family–to make your own assessment.  You and your case are unique–and you deserve to be treated that way.

Attorneys Phillip J. Crowe, Jr., and Michael J. Harris of Crowe & Mulvey, LLP, recently secured a $375,000 settlement for a woman who was hit by a car while volunteering at a food drive. The plaintiff suffered serious injuries, including multiple fractures and tears, after the defendant backed into her. Allegedly, the defendant was intending to apply the brakes to his vehicle when he accidentally pushed the accelerator.

The plaintiff has improved considerably since her accident, but still experiences difficulties with a number of tasks, including moving from a sitting to a standing position, wearing certain pairs of shoes, and running. Her attorneys were able to secure an impressive settlement in this case, six times the amount of special damages. The plaintiff’s total medical bills were approximately $60,000.

To read more about this case, click here.

A study designed to identify the safest oxygen levels for premature babies is under heavy fire for causing high levels of blindness, and perhaps even unnecessary deaths, among the 1316 very small infants who were enrolled.  Critics charge that 23 major research hospitals, including noted New England facilities Tufts Medical Center, Brown University, Women & Infants Hospital and Yale University, subjected babies to added risks, while failing to tell their parents about the potential dangers.

The SUPPORT (Surfactant, Positive Pressure, and Oxygenation Randomized Trial) study, conducted from 2004 to 2009, was designed to find out whether premature babies whose immature lungs required oxygen support were more likely to die or become blind if their oxygen levels were targeted to either a high or a low range.  As with any medical research study, the participants—or in this case, their parents—signed a consent form that was supposed to make sure they fully understood the risks and benefits of the study.  Yet in March of this year, the Office for Human Research Protections (OHRP), an arm of the federal Department of Health and Human Services (DHHS), charged the University of Alabama Birmingham (UAB), one of the lead participating hospitals, with failing to tell the parents that the amount of oxygen their baby received might affect whether the baby would develop blindness, a brain injury, or even die.  Instead, the only risk mentioned was that the device used to monitor the baby’s oxygen levels might cause skin breakdown.  While the consent form suggested to parents that babies who received lower levels of oxygen might have fewer eye problems, it failed to point out that the converse might also be true: babies assigned to receive more oxygen would be at higher risk for ROP.  And nowhere in the consent does it say that a baby might be at higher or lower risk of death, depending on the random assignment to one group or the other.

A month later, Public Citizen, a private non-profit group that advocates for patient safety, fired off a letter to DHHS Secretary Kathleen Sebelius, claiming that the violations occurred at all of the participating hospitals, not just UAB, and calling for OHRP to go further by requiring the facilities to apologize to parents for what they had done, and to institute corrective measures to prevent similar lapses in the future.

Several parents whose babies died have already filed lawsuits against UAB.  As the deficiencies in the consent form, and the adverse effects on some of the babies become more well-known, it is likely that there will be more, including here in Massachusetts and Rhode Island.

The cause of the controversy focuses on the researchers’ decision to assign babies randomly to receive either a higher (91-95%) or lower (85-89%) oxygen concentration.  Normally, the amount of oxygen a premature baby receives is carefully individualized depending on the infant’s medical condition and other treatments he is receiving.  Neonatologists attempt to keep the oxygen levels as low as possible to avoid the complication known as retinopathy of prematurity (ROP), where an abnormal growth of blood vessels in the eye can lead to blindness and other vision problems. The results from the study showed a statistically significant (unlikely to be due to chance or coincidence) increase in blindness for the babies who received higher oxygen levels, and in death for babies who received lower levels.

Not surprisingly, the researchers have their defenders.  They claim that all of the oxygen levels received by babies in the study were within the standard range of treatment, and pointed out that, in fact, the babies in the study had a lower death rate than a supposedly similar group of premature infants.

The treatment of the patients and parents in the SUPPORT study is particularly disturbing, because it involves very vulnerable babies and parents who most likely would go to the ends of the earth to improve the outcome for their children.  Understandably, the researchers wanted to increase participation in their study–for which they needed the parents’ consent.  But however well intentioned the doctors were, there is no justification for making decisions based on random assignments rather than the best interests of each individual baby.  In this case, it is likely that the lack of information induced many parents to enroll their babies in the study when they would not otherwise have done so.

There is no question that medical research can lead to tremendous improvements in patient care and outcome.  But particularly in studies like SUPPORT, where the subjects are tiny premature babies, the institutions conducting such research must be vigilant to insure that their patients’ rights are protected.  It is likely that many of the study participants’ parents are still unaware of the harm their babies faced—or even actually suffered—as a result of their decision to participate.   It is never too late for the hospitals to explain to these parents what actually happened, and to try to atone for the breach of trust and, in some cases, physical damage, they have caused.

Read the letter to the UAB from OHRS here

Read Public Citizen’s letter to DHHS Secretary Kathleen Sebelius here

Read the original published report of the SUPPORT trial here

Jurors decide based on what they know–or more importantly, what they think they know.  It is unrealistic to expect a juror to discard a lifetime of learning or professional knowledge and instead rely only upon what someone says in the courtroom.  And that means that a juror who has pre-existing knowledge about one or more issues in a case is a very dangerous juror for someone.

In my last post, I talked about some of my observations about jurors deliberating after a mock trial exercise.  One of those jurors was a doctor–something that would probably never happen in a personal injury case in real life.  And, predictably, his “knowledge”–although not completely correct–was very persuasive to his fellow jurors.  It was an excellent reminder about the perils of leaving an “expert” on a jury.

The case involved a young boy who claimed to have suffered a closed head injury on a roller coaster ride  According to the testimony, while riding the coaster, the boy complained to his father that his neck had “popped,” and then slumped down in his seat.  He stumbled off the ride, nauseated, and soon passed out and was taken to the hospital.  Radiology studies showed a brain bleed and a neck fracture, along with some other signs of trauma.

The doctor on the panel told the rest of the jurors that causation–whether the roller coaster caused the boy’s brain injury–was a “slam dunk.”  There was no question in his mind; he only needed to decide whether the amusement park was negligent.  And the other jurors went along without question.

The problem is that the cause of the boy’s brain bleed was far from a slam dunk.  Deliberately created to give each side some strong points, the case had some facts that permitted the defense to argue that the boy had a congenital blood vessel anomaly or aneurysm, that suddenly burst even under forces that would be safe for most people.  There was even a suggestion that the bleed had occurred in a recent soccer game.

In that respect, the case mirrors real life, where cases that are slam dunks for one side or the other never reach trial.  If the plaintiff’s case is very weak, it is usually dismissed or never brought in the first place.  If the defense can’t come up with any way to rebut the plaintiff’s claims, the most likely result is a settlement.   If a jury is asked to decide a case, both sides usually have something to talk about.

In the mock trial, the doctor, who was a retired pediatrician,  knew just enough to sound like an expert, but not enough to recognize the subtleties in another medical discipline.  Yet his fellow jurors hung on his every word, not even questioning his statement or analyzing the evidence that favored the defendant.  While the position he took was probably correct, it was really not as clear as he made it sound.

An “expert” on the jury is dangerous for both sides, because that juror is likely to be a leader and his opinions to carry undue weight during deliberations.  A lawyer who allows an “expert” juror to  remain on a jury is gambling that the juror will favor his or her side of the case.  If the gamble pays off, the juror may well lead others to follow his opinions, resulting in an easier path to victory.  However, if the lawyer has misjudged the “expert” juror’s inclination or reaction to the evidence, the result could be disastrous.  For this reason, the prudent course is most often to avoid jurors with specialized relevant knowledge.