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Initiatives to slow down speeding violators along I-495 in MA

The Massachusetts police and the state Department of Transportation announced to the public on November 18 a plan to curtail speeding on Interstate 495, as highway development has contributed to a rise of this reckless driving behavior, The Boston Globe reported.

State Police spokesman David Procopio said there have been frequent crashes resulting in personal injury and even death since speeding violations have increased in the past years along the highway.

In actuality, the program had already launched two weeks before the program’s public announcement. Electric signs measuring the speed of oncoming vehicles were posted in various spots to determine where drivers were speeding the most; this was done beforehand to see how or if speeding changed before and after the announcement.

Our attorneys at Crowe & Mulvey, LLP, in Massachusetts are dedicated to pursuing financial compensation for every client hurt in a personal injury accident. Call our offices today at (617) 426-4488 to set up a meeting with a member of our legal team.


SJC Again Rejects Arbitration “Agreement”

In yet another victory for patients and consumers against nursing homes, the Supreme Judicial Court last week held that the estate of a patient was not bound by a mandatory arbitration agreement signed by the patient’s son as part of her admission process.  In Barrow v. Dartmouth House Nursing Home, Inc., the SJC refused to enforce the arbitration agreement where there was no evidence that the patient was aware that the son had signed it on her behalf.

Relying on its earlier decision in Johnson v. Kindred Health Care, Inc., the Court again noted that the existence of a health care proxy permits the authorized person to make health care decisions on behalf of the patient, including consent to admission or treatment, but does not permit the proxy to sign away legal rights.  Even with the added fact that the patient had requested that her son complete the admission paperwork on her behalf was not enough to make the arbitration agreement enforceable, at least where there was no evidence that the patient was aware of the agreement, intended to authorize her son to sign it, or that it was a condition of admission.

The SJC also rejected the nursing home’s other arguments, that the son was bound individually by what he had signed, and that he was equitably estopped to deny the enforceability of the agreement he had signed.  The Court noted that there was no evidence that the nursing home relied on the agreement, or that it did or did not do anything because the son had signed it.  Indeed, the evidence was to the contrary, that the agreement was not required as a condition of admission to the nursing home, and that the patient’s care did not depend on the execution of the agreement.

It would have been relatively easy for the SJC to justify enforcing the agreement at least against the son, who was a beneficiary of the wrongful death claim.  Even though the agreement was not signed by the son in his individual capacity, a less consumer-oriented court might have found that the agreement was binding at least on the signatory son, if not on any one else.  The Court’s refusal to take this leap is good news for consumers, who are confronted with arbitration agreements with increasing frequency.

Read the Court’s decision in Barrows v. Dartmouth House here.


Back to the Future?

A recent Superior Court decision holding a methadone clinic potentially liable for harm done by a patient who should not have been driving highlights an important distinction in this evolving area of the law.  Denying a motion for summary judgment by the clinic, Superior Court Judge James Lang focused on the clinic’s alleged affirmative acts of negligence, holding that the facts were more closely analogous to the Supreme Judicial Court’s decision in Coombes v. Florio, 450 Mass. 182 (2007) than the subsequent case of Medina v. Hochberg, 465 Mass. 102 (2013).

In Vasquez v. Community Health Care, Inc., several people were injured when their SUV was struck during a multi-car crash initiated by “John Doe,” a patient at a Peabody methadone clinic owned by the defendant.  The plaintiffs brought suit against the clinic, alleging that the health care providers had failed to warn Doe of the side effects of the prescribed medication it administered to him.  The clinic moved for summary judgment, claiming that it owed no duty to non-patient third parties to warn Doe, and that in any event, adequate warnings had been given.

Judge Lang carefully reviewed the emerging law in this area, and denied the defendant’s motion, finding that the clinic’s affirmative act of prescribing and administering medication to Doe created a duty to others who might foreseeably be endangered by Doe’s driving.  The court further found that, due to issues with Doe’s noncompliance during the treatment program–including numerous missed appointments and positive drug tests–there was a question about whether the clinic’s initial warnings about driving should have been repeated and/or strengthened.

In reaching his decision, Judge Lang relied on the apparent distinction created by the SJC in Coombes and Medina between a health care provider’s failure to warn the patient about dangerous side effects of a drug prescribed by the provider and the failure to warn about potentially harmful side effects of the patient’s underlying medical condition.  In essence, the SJC seems to be approaching a return  to a long-discarded distinction between malfeasance, or affirmative acts of negligence, and non-feasance consisting of a failure to act.  The need to provide proper instructions and warnings to the patient when prescribing medication is seen as an essential part of the prescribing process.

Judge Lang certainly seems to have identified correctly the line drawn by the SJC in cases involving liability of medical providers to third parties.  Yet the rationale for the distinction is difficult to justify either as a matter of legal doctrine or public policy.  Long a stable of governmental immunity law, the misfeasance/nonfeasance distinction was abandoned 40 years ago as bad law and bad policy.  Yet it seems to be making a comeback.

The SJC’s opinion in Coombes rejected the defendant’s argument that imposing liability to injured third parties would greatly extend the provider’s duty and would interfere with the physician-patient relationship.  Indeed, the Court noted, that the physician would in any event need to warn the patient of medication side effects, so no further action would be required of the physician than under existing law.

Although there is no Massachusetts case directly on point, it would seem logical that a medical provider would be required to warn a patient of the potentially dangerous complications or limitations of an underlying medical condition–such as seizures from a brain tumor.  Given that existing duty, the logic of Coombes would dictate that the liability should extend to third parties.  Yet Medina held otherwise.

I think Judge Lang got it right in Vasquez.  I’m not so sure about the SJC.

Read the Vasquez opinion here.


Lawyer Voir Dire: Coming to a Court Near You?

A new law signed this week has at least the potential to improve jury trials in Massachusetts by permitting lawyers to make more detailed inquiries of potential jurors to help identify those who are unsuitable for a particular case.  Chapter 254 of the Acts of 2014 expands the availability of voir dire, the process  by which jurors are questioned about their background and opinions in an attempt to make sure that the jurors who are seated are not predisposed to find for one side or the other.

Most other states permit lawyers to question jurors directly and extensively in a voir  dire process that often takes several days in a significant case.  In some states, the process even takes place outside the presence of a judge, who remains available to resolve disputes among the lawyers.  Lawyers who practice under that system strongly endorse the voir dire system as a necessary component of a fair and balanced judicial system.

Massachusetts, however, has always stood apart from those states.  Until fairly recently, all questioning of prospective jurors was done by the judge, and the questions were addressed to the entire group, rather to individual jurors.  Indeed, the judge was only required to ask four “statutory” questions–whether the juror could be fair or had any interest in the outcome of the case.  Those questions are so bland and general that an affirmative response was quite rare.

In recent years, most judges have been inclined to ask additional questions tailored to the particular case, often in response to suggestions from the lawyers.  Encouraged by appellate decisions that required individual questioning in certain types of criminal cases, some judges have experimented with individual questioning in major civil cases as well.  And some have even permitted lawyers to ask follow-up questions directly to a juror, instead of using the judge as a conduit.  Still, the process has remained quite limited compared to other states, and tightly controlled by the presiding judge.

The new law requires the court to permit lawyers to conduct voir dire on request, subject to “reasonable limitations” imposed by the trial judge.  Interestingly, the final version of the bill as passed does not contain language present in an earlier version that would have permitted judges to require lawyers to submit the questions in advance.

Reaction to the bill has been mixed.  Lawyers for personal injury victims, feeling that tort reform publicity has tainted many prospective jurors and predisposed them to reject meritorious claims, have applauded the new law, while defense lawyers, content with the status quo where most jurors are defense-oriented, have been more measured in their response.  Perhaps most disturbing, though, was the initial reaction of the judiciary, which opposed the bill on the basis that it would add time and expense to superior court jury trials.  Perhaps so, but if the result is that biased or otherwise unsuitable jurors are identified and excluded from service, and cases are tried to truly impartial jurors, the extra time would be well spent.


More Time for Sexual Abuse Claims

A newly enacted law will give certain Massachusetts victims of sexual abuse moretime to bring claims against their abusers.  The law, known as Chapter 145 of the Acts of 2014, permits children who are victims of sexual abuse to file their claims any time until they reach the age of 53.  The Act, signed into law on June 26, 2014, allows a child who suffers sexual abuse while under the age of 18 to bring a claim against the abuser within 35 years of reaching his or her 18th birthday–or until age 53.  The law amends G.L. c.260 s.4C, which previously required children to bring claims before they turned 21.

In addition, the statute preserves the “discovery rule,” a legal principle that delays the running of the statute of limitations until the victim learns or reasonably should learn that he or she has suffered harm related to the abuse.  Previously three years from the date of discovery, the time limit has now been extended to seven years from discovery.

The new statute also adds a new section, G.L. c.260 s.4C1/2,that governs claims brought against entities or individuals who negligently supervised the abuser.  The same extended time limits apply to those claims.  The ability to sue these supervisors is often an essential part of financial recovery for victims, as many abusers are unable to pay a significant money judgment.

The law has already been invoked by one well-known plaintiff.  Child tennis prodigy Heather Crowe Conner has recently filed suit against her former tennis coach, Bob Hewitt–just days before her 53rd birthday would bar the claim–alleging that he abused her during her teenage years.

The new law also affects claims against the Commonwealth and other Massachusetts governmental agencies, applying the same statute of limitations as for claims against private individuals.  The law also dispenses with the usual presentment requirement for these claims, eliminating the need to give notice to the prospective defendant before filing a lawsuit.


Who Gets the Money in a Wrongful Death Case?

A recent decision from the United States District Court reaches the initially startling conclusion that the estate of a man injured by the negligence of another driver who also died in the crash could not attach monies received by the defendant’s daughter as compensation for his death.  It sounds incredibly confusing and completely illogical, but because of the way the Massachusetts wrongful death statute works, it’s exactly the right result.  Here’s why:

Amnon Bogomolsky was killed when the minivan he was driving was hit by a truck driven by Michael Furlong, who also died as a result of the collision.  The deadly crash took place near the approach to the Sagamore Bridge in Bourne.  A state police investigation of the crash concluded that several factors contributed to the collision, including Furlong’s excessive speed, the presence of cocaine and benzodiazepines in his system, and poor brakes on his truck.  The police also faulted an unknown vehicle that had merged onto Route 3 eastbound, possibly encroaching into Furlong’s lane, that caused Furlong to veer into Bogomolsky’s lane.

Bogomolsky’s estate sued Furlong’s estate, and sought an attachment of $100,000 in uninsured motorist proceeds that Commerce Insurance Company had agreed to pay to Furlong’s estate in settlement of the uninsured motorist claim–resulting from the negligence of the driver of the unidentified third car.  The court in Bogomolsky v. Furlong denied the attachment, properly ruling that, under Massachusetts law, the proceeds of the wrongful death claim belonged not to Furlong’s estate, but to Furlong’s daughter, who was the beneficiary under the wrongful death statute.  It sounds strange, but the court got it exactly right.

One of the interesting features of the Massachusetts wrongful death statute, G.L. c.229, ss. 1 and 2,  is that the personal representative of the estate has the authority to bring a wrongful death case, but that any recovery is distributed to the so-called statutory beneficiaries–the heirs at law.  The damage recovery never becomes an asset of the decedent’s estate, but instead is held by the personal representative in trust, with the obligation to distributed it directly to the beneficiaries.

What that means in the Bogomolsky case is that the $100,000 uninsurance proceeds, which were being paid on account of a claim by Furlong’s estate against the unidentified driver, never became a part of the estate, but instead, would go directly to Furlong’s daughter, the statutory beneficiary.  Since the proceeds were not an asset of Furlong or his estate, they were not subject to attachment by Bogomolsky’s estate.  In contrast, if Furlong had a bank account or a house in his name at the time of his death, those would be assets that the plaintiff could attach as security for a personal injury judgment.

This principle has important consequences that I’ll discuss in the next post.

Read the opinion in Bogomolsky v. Furlong here.


New Hampshire Court Supports Voir Dire

While affirming a verdict for the defendant in a slip-and-fall case, the New Hampshire Supreme Court reinforced the principle that parties in that state’s courts are entitled to a reasonable opportunity to select a fair and impartial jury.  The Court’s decision in Dukette v. Brazas held that, while the plaintiff had not properly preserved her claims of error, the jury selection procedures followed by the Superior Court were less than optimal, and in some ways, apparently not compliant with state law.

In 2010, New Hampshire joined the vast majority of states in permitting so-called “lawyer-conducted voir dire“–an opportunity for lawyers to speak directly to the panel of prospective jurors and to ask questions to elicit any bias or pre-conceived notions that might make a juror unsuitable to sit on the particular case.  Widely recognized by lawyers and commentators as crucial to the selection of a truly impartial jury, this type of voir dire has long been the standard in virtually every state–Massachusetts remaining a notable exception.  The New Hampshire statute implementing voir dire, RSA 500-A:12-a, permits counsel to address the prospective jurors to describe the claims, defenses and other issues in the case, as well to question individual jurors about their possible prejudices.

However, the trial judge in Dukette, apparently not a fan of the new law, issued an order requiring counsel to submit proposed voir dire questions in advance, and directing that the questions be posed to the jurors individually at the side bar, out of the hearing of other jurors.  Plaintiff’s counsel appealed to the Supreme Court even before the trial started, successfully obtaining an opinion that the questions need not be submitted before trial.  The Supreme Court declined to address any other issues at that time.

After a defense verdict, the plaintiff again appealed, claiming it was error for the trial court to refuse him an opportunity to address the entire panel to summarize the case and the issues, and again asserting his right to question the entire panel as a group.  Holding that the plaintiff had not properly preserved the issues for appeal, the Supreme Court nevertheless decided to “take this opportunity to remind trial judges to comply with the requirements established by the legislature when conducting jury voir dire.”  In essence, the Court agreed with the plaintiff’s lawyer that he should have been permitted to speak to the entire panel as a group.

In a separate concurring opinion, Justice Carol Conboy agreed with the plaintiff that her lawyer should have been permitted to question the jurors as a large group, arguing that that process, which the majority conceded was permitted by the statute–would be both more effective and more efficient than the process employed by the trial judge.

Read the New Hampshire Supreme Court’s decision in Dukette v. Brazas here.


No Means No

A lawyer who once rejected a medical malpractice insurer’s offer of settlement could not later accept the offer, the Massachusetts Appeals Court has ruled in an unpublished opinion.  The court in Muise v. Verhave held that the lawyer’s rejection of an offer to settle the case for $1,000,000, particularly in light of subsequent negotiations for different amounts, precluded a later attempt to “accept” the rejected offer.

Muise involved a medical malpractice trial that occurred in April 2012.  During the trial, the plaintiff’s lawyer and the defendant’s insurer had multiple settlement discussions, involving both a possible “high-low” agreement–an agreement which capped the maximum recovery, while providing a minimum payment even if there was a defense verdict–and an outright settlement of all claims for an immediate cash payment.  These discussions culminated in the execution of a written high-low agreement while the jury was deliberating, providing that the plaintiff would receive a maximum payment of $4.5 million, and a minimum of $500,000.

The following day, with the jury still out, the plaintiff’s lawyer approached the insurance adjuster and told her that he was now going to “accept” the offer of $1,000,000 to settle the case which had been made before the high-low agreement was signed.  The adjuster responded that the offer had already been rejected, and was no longer available.  After the jury returned a verdict for the doctor, the insurer paid $500,000 in accordance with the high-low agreement, and the plaintiff sued to “enforce” the settlement agreement, seeking an additional $500,000 payment.

The Appeals Court held that the plaintiff was bound by the signed high-low agreement, and that her recovery was therefore limited to the $500,000 already paid.  Reviewing the “elementary” law of offer and acceptance, the court noted that a counteroffer–here the plaintiff’s counsel’s statement that it would take “more than a million” to settle the case–was equivalent to a rejection, and that after such a rejection, the plaintiff no longer had any power to accept the original offer.

As a matter of basic contract law, the Appeals Court clearly got it right.  But the case stands as an important reminder to lawyers that the act of asking for more than an offer in essence rejects the offer.  In many cases, if the new demand is rejected by the insurer, the plaintiff may still be able to settle for the original offer amount–but that depends on the insurer’s continued willingness to settle at that figure, and not to any legal right.  The situation in this case was aggravated by the fact that the plaintiff’s counsel had entered into the written high-low agreement after “rejecting” the outright settlement, and thus the insurer had little incentive to revive the rejected offer.


Why Wouldn’t a Doctor Choose Arbitration?

Several recent Massachusetts court decisions have involved efforts by health care providers, primarily nursing homes, to force patients and their families to arbitrate claims involving personal injuries and death at the facilities.  Presumably, these facilities, who often attempt to have patients sign an agreement to arbitrate–and, at least implicitly–a waiver of their right to a jury trial at the time of admission, believe that arbitration will favor them in the event of a claim.  In other states, these efforts have gone even further, to the point where gigantic health plans such as Kaiser Health force arbitration on their patients as a matter of course.

The reasons these providers want arbitration have nothing to do with what’s good for patients.  They believe that an arbitrator will be less sympathetic to a seriously injured patient, and that they are more likely to be able to defend claims in that forum.  Further, they believe that, even if they lose the case, an arbitration award will be less than a jury verdict.  And finally, in many cases, patients have less access to information in an arbitration proceeding, making it more difficult to prove a claim.  (That some of these propositions are very debatable has not deterred providers from pursuing mandatory arbitration quite aggressively).

And so, a Massachusetts Appeals Court decision last week, Walker v. Collyer, was notable for the fact that it was a health care provider–a doctor who was working at a nursing home–who was trying to resist the plaintiff’s efforts to compel him to submit to arbitration.  Dr. Charles Walker argued that, because he was not a party to an arbitration agreement between a nursing home facility and the plaintiff’s decedent, he was entitled to a jury trial.  The Appeals Court agreed, finding that Dr. Walker, who had not signed the agreement, and perhaps was not even aware of its existence, was not bound to arbitrate the claims against him, even though they arose out of treatment he gave as a member of the facility’s staff.

At first blush, this seems like a strange reversal of the usual positions of patient and health care defendant, but it doesn’t take much work to figure out what’s really going on: yet another attempt to make it as difficult as possible for patients to receive compensation for their injuries.  The Appeals Court’s holding means that the plaintiff cannot join her claims against the doctor and the facility, but will have to bring and litigate them separately–the claim against the facility in an arbitration proceeding, and the claim against the doctor in Superior Court.

That is a terrible result for the plaintiff.  The economic consequences are clear: two proceedings in two venues,  two sets of expenses for two separate cases.  It’s going to cost a lot more than even the normally expensive malpractice process.  But the real detriment to the plaintiff is strategic.  In each case, the health care defendant can blame the “empty chair”–the provider who is absent from the proceeding.  So in the arbitration proceeding, the nursing home can direct attention to the absent doctor, while in the Superior Court trial, the doctor can lay off responsibility onto the facility and the “system.”  If both were defendants in a single case, that couldn’t happen, because one or the other would have to be at fault.  But because no factfinder will be able to consider the interaction of the two defendants in a single proceeding, both may escape liability by blaming the other.

Viewed strictly as a matter of contract law, it’s understandable that the Appeals Court held that the doctor wasn’t bound by an agreement he didn’t sign.  But that view ignores the realities of the situation: that the doctor is an integral part of the facility’s care, and that the plaintiff’s difficult job has been made yet harder and more costly.


Electronic Footprints May Lead to Liability

The recent crash of an MBTA bus that injured several people is a valuable reminder about the electronic “footprints” that are increasingly important in proving or defending civil lawsuits.  According to news reports, the bus driver was captured on security video using her cell phone–while the phone itself apparently showed no calls or texts at the time of the accident.

From to MBTA to Aaron Hernandez to the ordinary slip and fall in a department store or supermarket. litigants are finding that videotapes can make or break their cases.  Any lawyer handling a case involving an incident in a public space would be remiss if he didn’t go looking to see if the event was captured on film.  In the case of the MBTA bus, eight cameras on board showed various angles that permitted investigators to confront the driver with visual evidence of cell phone use.

And cell phones themselves are treasure troves of information.  The device itself contains information about incoming and outgoing texts, emails and phone calls–again, a source of information that can’t be ignored in an automobile case.  Even in other types of cases, the phone may provide important evidence of distraction: was that pedestrian texting while walking or crossing the street? On a more sophisticated level, many phones have GPS tracking information that can pinpoint their location at specific points in time.  And many people reflexively snap a photo when something interesting or unusual happens.  Sometimes these random shots even end up on YouTube,

The surprising thing isn’t that so much electronic information is available, but that so many people conduct themselves with apparent disregard for its availability.  Did the bus driver not realize that her every action was captured on film?  Do drivers who text not understand that most middle school students could uncover the time of incoming and outgoing messages?  Probably not–it’s much more likely that these people simply don’t think that anything will go wrong, and they’ll never get caught.

And so the careful lawyer will aggressively seek out this evidence, both from his own client and from opposing parties.  Electronic evidence may be more ephemeral than its documentary counterpart, and so it’s important for lawyers to consider early on what sources might be available and be sure they are preserved before they are destroyed–either purposefully or as a matter of routine.  And it’s likewise important to remind clients about the pitfalls of either creating or destroying electronic evidence.

Electronic evidence, once important only in business cases, is playing an increasingly significant role in many types of cases involving individuals.  Lawyers and clients should never forget that.