Woman dies in second recent case of medical error at Tufts

Brothers Michael and Stephen Carcerano filed a lawsuit during the third week of August against Boston, Massachusetts-based Tufts Medical Center in the Suffolk Superior Court for the death of their mother.

Caroline Carcerano came to Tufts in November 2013 for a procedure to relieve pain from a back injury. Doctors injected the wrong dye into her spine, and she woke up from the procedure suffering from pain and seizures.

She died a day after her hospital visit. Her back injuries were an offshoot of a fall in her Watertown apartment during the summer of 2013, causing her to break several vertebrae.

The neurosurgeon who applied the injection, Dr. Steven Hwang, immediately admitted his wrongdoing, saying, “We gave her the wrong dye.”

Tufts Medical Center offered to settle and implemented new safety regulations in light of this and another recent, unrelated medical error at their facility.

All of us at Crowe & Mulvey, LLP would like to extend our thoughts and condolences to the relatives and loved ones of the Carcerano family during this tragic time.

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.

A Good Day for Common Sense

In a decision that makes perfect sense to anyone practicing in the area, the Supreme Judicial Court yesterday refused to use a technicality to bar a wrongful death claim against the state. In Gavin v. Tewksbury State Hospital, the Court held that a presentment otherwise properly made under G.L. c.258 s.4 was not defective because it was made in the name of an estate, rather than the personal representatives of the estate.

The SJC’s decision reversed a contrary result from the Appeals Court, vacated the Superior Court decision granting summary judgment, and sent the case back to the Superior Court, where presumably, the plaintiffs will be able to have their claim heard.

As I wrote at the time, the Appeals Court’s decision in Gavin, holding that G.L. c.258 s.4 required presentment of a wrongful death claim to be made by a properly appointed personal representative, was a real trap even for experienced lawyers.  It has long been the rule that the appointment of an executor or administrator that occurs after the filing of a wrongful death suit relates back to the date of filing.  Thus, even if a complaint is filed before the formal appointment, as long as the appointment is properly made eventually, there is no problem.

Oddly enough, the trap was most dangerous for lawyers who were familiar with the applicability of the relation back principle, as they would be most likely to assume that the same rule would apply to the presentment.  After all, who would think that you could file a complaint without a formal appointment, but not make a presentment?

A well-reasoned dissent, authored by Appeals Court Justice Peter Agnes Jr., made all these points and more.  So long as the Commonwealth has all of the information regarding the claim–including, in the Gavin case, the identity of the beneficiaries of the estate–the statutory purposes of C.L. c.258 were satisfied.  To require a formal appointment would add nothing to the process.

And the Supreme Judicial Court agreed.  Rejecting the Commonwealth’s position that the word “claimant” in Chapter 258 should be interpreted to mean only that person with the legal authority to file suit, the Court determined that a more general definition was appropriate.  Further, the Court noted, should the Commonwealth desire to settle a claim, it could easily demand proof of a formal appointment to insure that it was not paying an unauthorized recipient.

The result brings the law of presentment into line with the law relating to after-appointed personal representatives in wrongful death claims–and now mirrors the law for claims brought under the Federal Tort Claims Act.  It’s probably still good practice to get the personal representative appointed as soon as practicable, but the failure to do so shouldn’t be fatal.

Nursing Home Patients Allowed a Jury Trial

Opponents of efforts by health care providers to restrict patients’ rights to a jury trial breathed a sigh of relief this week, as the Supreme Judicial Court decided a pair of cases involving nursing home arbitration agreements.  In each case, the Court rejected an argument by the nursing home that would have enforced an arbitration agreement signed by someone other than the resident.  The results are encouraging for patients and families, as they seem to indicate that the Court will not lightly find a waiver of the right to a jury trial, even when signed by persons with authority to act for the patient on some matters.

In the lead case, Johnson v. Kindred Health Care, Inc., the SJC held that the holder of a patient’s health care proxy did not have the authority to waive the patient’s right to a jury trial.  The nursing home had argued that the authorized conferred by the proxy to make “any and all health care decisions” encompassed the power to agree to arbitrate any dispute arising out of the patient’s stay at the facility.  While the Court justified its decision by a careful analysis of the precise language and purpose of the health care proxy statute, the resulting protection of the patient’s right to legal recourse when something goes wrong is reassuring.

The companion case of Licata v. GGNSC Malden Dexter LLC, decided on general agency principles, demonstrates a similar respect for the right to a jury trial, and an unwillingness to see it lightly or casually relinquished.  The Court noted G.L. c.201D §16, which permits “responsible parties to act on behalf of incompetent or incapacitated patients when there is no health care proxy, applies only to health care decisions, which pursuant to Johnson, do not include the authority to agree to arbitration.  The Court likewise rejected the nursing home’s attempt to rely on a theory that the son who signed the arbitration agreement as a “responsible party” for his mother was her apparent agent, noting that the doctrine of apparent agency requires reliance on the actions of the principal, not those of the agent.

In both cases, the result reached by the Supreme Judicial Court is far more important than its reasoning.  The right to a jury trial is one of the cornerstones of our constitution, and there is a disturbing trend, particularly in other jurisdictions, for health care providers to force patients to give up this important right as a condition of receiving treatment.  As decisions from other states show, too many patients sign that right away with little thought, and sometimes–when the waiver is buried in a stack of admission forms–without any real awareness of what they are doing.   The SJC’s decisions in Johnson and Licata reflect the Court’s respect for this fundamental right, and its unwillingness to enforce a waiver without a knowing consent by the affected individual.

Will the IRS Take My Money?

One of the common concerns our clients have is that they will end up losing a large part of their personal injury settlement to income taxes.  One of the happiest moments is when they first learn that that’s not true.  Most personal injury recoveries are not subject to income taxes.  The Internal Revenue Service considers that money received because of a personal injury is replacement for something that has been lost, and so does not count as income.  If you find that hard to believe, you can read about it here.  Many states, including Massachusetts, follow the same rule.

Compensation for a physical injury, whether it results from a settlement or a jury award, and whether it is paid as a lump sum or as a structured payout, is simply not considered income.  This can make structured settlements advantageous in some cases.   The easiest way to remember this principle is that the money is not taxed when it first comes into the victim’s hands, whether as a lump sum or an annuity payment.  Once the money is received, future investment income from that money is treated the same way as any other investment.

However, there are some exceptions for other types of tort settlements.  If the injury is strictly emotional and not physical, the monies are generally taxable income.  Likewise, the proceeds of an employment discrimination case, where compensation is received for lost wages, is considered income.  If an award includes interest, the amount of interest must be reported as income, because the money it replaces (the amount that might have been earned on the compensatory damages) would have been taxable.  And punitive damages are also taxable, because they are intended to punish a wrongdoer, rather than as direct compensation for a loss to the victim.

The taxation of recoveries for wrongful death cases is more complicated, and depends upon state law and the allocation of the settlement proceeds among different claims.  Some states provide that some or all of the recovery goes directly to beneficiaries or family members, without ever passing through the decedent’s estate, and thus these amounts are not subject to income or estate taxation.  Other portions of the recovery, usually for conscious pain and suffering or for the decedent’s own losses (where permitted by law) become assets of the estate, and may be taxed where the size of the estate is such that it is subject to tax.

Lawyers and clients should take these general rules into account when negotiating settlements.  However, it’s also important that clients consult with their own accountant or tax professionals, to make sure that there is nothing about their individual situations or cases that would create an exception to these general principles.  It’s also important to remember that different rules may apply to family law issues such as alimony or child support issues–so just because the IRS doesn’t consider a settlement taxable income doesn’t meant that its receipt can be completely ignored.


Shades of Hot Coffee in Tailgating Case

The recent widely publicized settlement in a wrongful death case brought against the Kraft Group by the family of Debra Davis has generated almost uniformly scathing criticism on public comment sites. Indeed, at this rate, the case could become the new darling of tort reformers, similar to the infamous “McDonalds hot coffee” case.  Most people were highly critical of the idea owners of Gillette Stadium should be responsible for the death of a young woman who was killed in a single-car accident while riding with her intoxicated friend after the girls had spent the day partying in one of the facility’s parking lots.

Debra Davis and two friends, all underage, were tailgating in the parking lot of Gillette on the day of the New England Country Music Festival in July 2008.  None of the girls had tickets to the event–they were simply there to join the party–which apparently, they did.  Several hours later, with Davis’s friend, 19-year-old Alexa Latteo at the wheel, their car crashed on Route 1, killing Davis and injuring the third girl, Nina Houlihan.

If the only legal question were whether Davis and her friend made bad–and even illegal–choices, the case would be over before it began.  Obviously, they did, from entering the parking lot to party, to bringing alcohol they were too young to drink legally, to consuming apparently large quantities of that alcohol, and then attempting to drive home.  But legally, the fact that the girls were in the wrong doesn’t relieve the Gillette ownership of all responsibility.

According to court documents and published reports, the Gillette management had been ordered by the Town of Foxboro to be more careful about underage drinking on its property after a near-riot at the same event the previous year, involving large numbers of underage drinkers.  Gillette had instituted a “no ticket, no entry” policy to discourage non-concert goers from showing up just to party.  Yet, the policy was allegedly poorly enforced, with inadequate efforts being made to patrol the parking lots and curb underage drinking.

The key to the management’s responsibility is that the Kraft Group is running a business at Gillette–a big business, as anyone who’s paid stadium parking fees can attest.  This isn’t a situation where, unknown to a homeowner, the girls parked in the woods behind someone’s house with a six-pack of beer.  Gillette charges handsomely for the right to enter its parking lots, and with that charge comes responsibility–specifically the responsibility to monitor the activity going on there.  There was nothing unexpected or unforeseeable about what happened to Debra Davis–the only surprise is that something similar hadn’t happened before.  Like the McDonald’s case, where many facts were lost in the barrage of tort reform publicity, many significant facts contained in court papers were omitted from news reports.

Another aspect is that the case involved minors, who are entitled to special protection under the laws related to alcohol.  We all know that “kids do dumb things” and make poor choices, especially where alcohol is involved.  As a society, our laws reflect our concern with excessive alcohol use, and the need to protect young people from themselves, as well as protect the public from the young people who may make poor choices.

The case is obviously less sympathetic because of the conduct of the victim and her friends.  Perhaps public opinion would be very different if the allegedly intoxicated driver had killed a young family out for a weekend drive.  But the identity of the victim should not remove the focus from the principles that require business owners to take steps to see that dangerous conduct is not taking place on their property.

Massachusetts Court Upholds Punitive Award

Punitive damages, the target of tort reformers in many areas of the country, are relatively uncommon in Massachusetts and most of the New England states.  Unlike many other states, Massachusetts does not allow punitive damages–those awarded not to compensate the injured plaintiff, but to punish the wrongdoer–in most personal injury cases, no matter how egregious the defendant’s conduct.  A notable exception is a claim for wrongful death.

As a result, there is a paucity of case law in the Commonwealth defining the appropriate amount and standard for the award of punitive damages.  A recent case, Aleo v. SLB Toys USA, Inc., is the Supreme Judicial Court’s most recent opinion on punitive damages, and contains the Court’s first significant discussion of the appropriate amount that may be awarded as punishment.  In Aleo, the Court showed a willingness to uphold a reasonably significant punitive award, particularly where the underlying compensatory award was relatively modest.

Aleo involved a claim for the wrongful death of a 29-year-old wife and mother, who was rendered instantly quadriplegic as she slid down an inflatable slide into a swimming pool.  The slide collapsed, and she struck her head and neck on the concrete deck of the pool, fracturing two vertebrae.  She died the following day.  The plaintiff claimed that the inflatable slide was dangerous and defective because it failed to comply with federal standards requiring such slides to support up to 350 pounds of weight.  In an interesting twist, the warning label on the slide itself proved non-compliance, stating that it could support just 200 pounds!

The jury’s award of $2.6 million in compensatory damages for the loss to the woman’s husband and daughter, including loss of companionship, loss of household services, and lost earnings.  Considering the woman’s age, most observers would consider the verdict rather low.  Yet it was balanced by an award of $18 million in punitive damages.

The Court had little difficulty finding that the defendant’s conduct in selling a slide which did not comply with federal standards was grossly negligent, thus warranting a punitive damage award.  A large portion of the Court’s opinion focused on various federal decisions attempting to  define the proper considerations in evaluating a punitive damage award, as well as on the appropriate relationship between a compensatory and a punitive award.

The Court noted that the evidence product had caused death, and that the defendant had demonstrated indifference to the safety of others, and had endangered a large number of people, since approximately 4000 slides were sold throughout the country.  All of these factors would support a significant award.

Finally, the Court considered various Supreme Court decisions addressing the proper ratio between compensatory and punitive damages, finding no excessive punishment in a punitive award that was less than ten times the compensatory award.  Here, the Court noted the relatively modest verdict in light of the age and circumstances of the decedent as another factor that supported a large punitive award.

A jury’s ability to award punitive damages in appropriate cases is an effective public safety measure, as it allows citizens to make a statement about the reprehensibility of conduct, with the goal of punishing the most egregious cases of negligence and deterring similar conduct in the future.  The Supreme Judicial Court’s affirmance of the verdict recognizes the importance of allowing jury’s statement to stand as an expression of the community’s standards and views.

Read the Supreme Judicial Court’s decision in Aleo 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.

Honoring the Value of Human Life

burning cigaretteMost of the newspaper headings describing the Supreme Judicial Court’s recent decision in Evans v. Lorillard Tobacco Co., a much-watched cigarette liability case, focused on the negative: that the Court vacated part of the judgment.   “Court Throws Out $81 Million in Damages Against Lorillard in Smoking Death Suit,” brags one business website.  “SJC Overturns Part of Award in Tobacco Case,” writes The Boston Globe.

Yet the much bigger news for personal injury victims and their families is that the SJC affirmed an award of compensatory damages totaling $35 million. As affirmed by the SJC, the award consisted of $25 million to Marie Evans’ estate for her conscious pain and suffering, and $10 million to her adult son, Willie, under the wrongful death statute.  Both amounts had been the subject of a remittitur by the trial judge from the jury’s award of $50 million to Mrs. Evans and $21 million to her son.

Even as reduced, the award is the largest compensatory award in a wrongful death case in Massachusetts, and validates the opinion of many plaintiffs’ lawyers that juries value suffering and death much more highly than insurance companies think.  And the fact that the SJC approved the judge’s decision shows that the Court, too, places a high value on human life.  So while the facts in Evans were extraordinary and even inflammatory–a cigarette company’s plan to entice African-American children to develop a smoking habit by giving them attractively packaged free samples–the Court is clearly willing to respect large awards as appropriate compensation for wrongful death and pain and suffering.  Nothing in the Court’s opinion or the applicable law suggests that such large recoveries are limited to extraordinary situations.

The rest of the SJC’s opinion is likewise encouraging to plaintiffs.  The Court rejected Lorillard’s various arguments that it should not be responsible for the addictive properties of its cigarettes and the consequent health effects.  The Court also gave short shrift to the defendant’s argument that Evans should have known that smoking caused lung cancer as far back as the 1960s, noting that the company’s CEO had, under oath in a congressional hearing, denied any connection as recently as 1994.

Even the Court’s reversal of the punitive damages award, which led most of the news stories, is hardly fatal to the plaintiffs: the court held that the issue of punitive damages must be retried because of confusion about whether impermissible legal theories may have contributed to the jury’s award.  Certainly the plaintiff would have preferred to hold his verdict, but a new trial on punitive damages, with liability and a $35 million compensatory award already established, is not the end of the world.