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No Way Around Worker’s Compensation

The Supreme Judicial Court last week blocked a plaintiff’s attempt to circumvent the exclusivity provision of the Massachusetts workers’ compensation statute, General Laws c.152 s.24, holding that a corporate employer’s directors were entitled to the benefit of immunity from suit.  In Moulton v. Puopolo, the Court ordered the entry of summary judgment against the estate of a woman who was killed by a violent resident while working as a mental health counselor.

As most tort lawyers know, the workers’ compensation statute creates a trade-off for employees.  Unless the right to bring a tort suit is preserved at the time of hiring, the employee gives up the right to sue the employer if injured on the job, in exchange for the right to receive worker’s compensation payments without proving that the employer was at fault in causing the injury.  With the exception of a brief time when there was a loophole for consortium claims by family members, see, e.g., Ferriter. Daniel O’Connell’s Sons, Inc., 381 Mass. 507 (1980), this provision has consistently been applied to claims–including those for wrongful death–dependent on the employee’s injury.

The plaintiff in Moulton tried a novel way to avoid the workers’ compensation bar by suing the directors of the non-profit corporation that operated the residential treatment facility, claiming that they were negligent in failing to adopt policies that would have prevented the placement of the attacker at the facility, and thereby prevented the decedent’s death.  In an opinion, review of several basic principles of corporation law, the SJC held that the corporation can act only through its directors, and that, because they were acting as Moulton’s employer, they shared the corporate employer’s immunity under the statute.

The decision makes sense, both on legal and policy grounds.  In order to be responsible for Moulton’s working conditions and the residents she supervised, the directors would have to control her activities–the hallmark of an employer=employee relationship.  This allegation of control, while necessary to support the plaintiff’s theory of liability, was at the same time fatal to her claims.  And, as the Court noted, the exclusivity provision of G.L. c.152 has always been broadly interpreted, and this interpretation of director immunity is consistent with the purpose of the statute.  The fact that the corporation was a non-profit organization only served to make the public policy of protecting those in an employment relationship more compelling–although the Court noted that the same reasoning would likely apply to for-profit enterprises.

The plaintiff’s attorney in Moulton gets credit for creativity and a game effort.  Unfortunately, as with most recent efforts to attack the exclusivity provision, it was doomed to fail.

Read the SJC’s opinion in Moulton v. Puopolo here.


Arbor Hospital System Cited for Continuing Failures

A recent article in The Boston Globe highlighted problems with one of the Commonwealth’s major providers of mental health care.  In a piece entitled  “Staff Failures Cited in Deaths at Arbor Psychiatric Centers,” reporter Chelsea Conaboy describes three patient deaths that occurred at Arbor facilities in the last few years.  The “staff failures” were basic: failure to follow emergency response policies, and in one case, a patient suffering from unexplained head trauma and multiple bruises.

Unfortunately, the problems uncovered by the Department of Mental Health (DMH) are not new.  Our firm represents the family of a patient who died at Arbor Fuller Hospital in Attleboro in December 2007, because of some of the same problems recently reported.  The most significant include the failure of the hospital staff to conduct regular safety checks on patients, and the inadequate emergency response when a patient is in distress.

In two of the more recent cases reviewed by the DMH, patients were found unresponsive, and there was an inordinate delay in bringing emergency equipment and beginning resuscitation.  The hospital chain–owned by a Fortune 500 corporation called Universal Health Services based in King of Prussia, Pennsylvania–claims that it responded to the deaths by implementing new policies and retraining its staff.

Coincidentally, that’s exactly what Arbor and UHS told the state investigators in 2007, when they were being investigated on account of our client’s death in the Attleboro facility.  She, too, was found unresponsive and there was a delay in response, including a lack of proper resuscitation.  An extensive DMH investigation revealed a security videotape that showed a 40-minute gap between the time a staff member noticed a problem with the patient and the time he reported to it to his supervisor.  And even when the problem was reported, and the nursing supervisor saw the patient unresponsive, the staff was shown walking calming around the floor, with no regard for the urgency of the situation.  The DMH interviewed 16 people and issued a lengthy and damning report.

It would seem that if the hospital had responded properly to that tragic event, a similar situation would not have been repeated–TWICE–a few years later.  And there’s no doubt that UHS was aware of the incident: two staff members were fired and a nursing supervisor demoted, all on the order of the company’s CEO.  Policies were supposedly rewritten, and staff was supposedly retrained.

So why does the Arbor system continue to have multiple violations and patient deaths?  Without question, many of these mental health patients are challenging to care for.  But they need caring and compassionate staff who understand and are trained and equipped to deal with those challenges.  Arbor’s track record of poorly trained staff who are at best overworked and indifferent to their patients’ needs, and at worst in blatant violation of corporate policies should concern anyone who cares about mental health care in Massachusetts and elsewhere.