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The timing of when a civil action is filed can determine whether or not the lawsuit is heard at all in the civil justice system. Massachusetts General Laws dictate the period in which a Massachusetts medical malpractice action must be filed following an accident or injury. When the injury involves medical malpractice among a series of appointments, doctors, and care over a period of time, it can become very difficult to pinpoint whether the date an injury occurred was within the prescribed three-year period. Prior case law established it is not necessary the plaintiff knows the defendant was actually responsible for the injury, only that the medical care given by the defendant may have caused the injury.

This is seen in a recent Appeals Court decision (17-P-722), in which an injured patient and her husband were prevented from pursuing their negligence and loss of consortium claims against the treating physician and hospital providing medical care following a laparoscopic sigmoid colectomy. This patient suffered from medical abdominal issues prior to this procedure, and she sought treatment in 2012 after she was diagnosed with diverticulitis. Following the colectomy, her recovery was challenged by difficulties with the abdominal fluid drainage and a slow return to gastrointestinal function. She was discharged but returned a week later after experiencing chills, cramps, and emesis. The physician re-examined her and told her he believed she had a small bowel obstruction due to internal organ adhesions.

Eventually, she was transferred to a different hospital for care by a different surgeon. Tests taken at this location showed urine was leaking from her left ureter into her pelvis, which was likely caused by the prior procedure that severed her ureter. A special tube was required to drain urine from her left kidney. In the following month, she was seen again at the second hospital with infections from the tube. She had surgery the following March to repair the severed ureter into the bladder, and this operation confirmed the ureter had been severed during the initial surgery.

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The Appeals Court recently evaluated a Massachusetts wrongful death action precluded by the medical malpractice tribunal from moving forward in state court. The deceased in Appeals Court case number 16-P-1715 was admitted to a hospital for mental health treatment following the death of her premature twins. She asked to be discharged, and she was released three days later after an evaluation by a physician, who presented her with an after-care plan. The woman died the next day in a homeless shelter due to an overdose of multiple drugs. The deceased’s aunt and personal representative of the estate filed a wrongful death lawsuit, alleging the hospital and physician were negligent in their discharge of her niece.

Like all cases involving medical malpractice, this lawsuit went before the Commonwealth’s tribunal for assessment. The estate was required to show the hospital provided health care as defined by G. L. c. 231, § 60B, the hospital failed to provide care that’s expected of the average member of the profession practicing the same type of medicine, and the failure to meet the standard of care was more likely than not what caused the death. The tribunal determined the estate’s offered proof was insufficient to show these things, and the case was dismissed after the estate failed to post the statutory bond.

The estate offered the testimony of an expert witness as evidence the hospital did not follow the standard of care in its discharge of the deceased immediately before her death. Case law requires an expert to have sufficient training, experience, education, and familiarity with the subject matter of the testimony. The tribunal cannot weigh the evidence as a fact-finder, and neither can the reviewing appellate court. Both are required to view the evidence presented by the estate in the light most favorable to them.

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After a workplace accident, a Massachusetts worker may have more to consider beyond the receipt of funds for lost wages and medical expenses. The Supreme Court addresses one of the related concerns in a recently issued Massachusetts workers’ compensation decision, SJC-12331. The injured employee in this case worked for a Massachusetts town’s department of public works for nearly 27 years. On the day he was injured, he began receiving workers’ compensation benefits as well as two hours per week of sick or vacation pay so that he could keep his union membership and life insurance.

The town decided to involuntarily retire the worker for accidental disability, allowed by G.L. c. 32, Sec. 7. The retirement board of the town approved the application, allowing the worker to receive his workers’ compensation benefits and supplemental pay until July 7, 2012. G. L. c. 32, § 7 permits three possible retirement dates:  the date of the injury, the date six months prior to the filing of the written application for retirement, or the date on which he last received regular compensation for his employment in public service. The date must be the latest of the three. The Public Employee Retirement Administration Commission (PERAC) decided the employee’s last date of regular compensation was July 7, 2012, using his supplemental sick and vacation pay as the basis of their decision.

The employee appealed, and the division of administrative law appeals (DALA) reversed the decision, finding the supplemental pay was not “regular compensation” as defined by the statute. Instead, DALA found the retirement date to be six months prior to the filing of the application because the “regular compensation” ended on the day of the injury, making this one the latest of the three options. PERAC appealed this finding to the next level of administrative review (CRAB), which upheld DALA’s decision. Judicial review was then sought in the civil court system. The superior court also affirmed DALA’s decision, which then was appealed once more by PERAC and moved to the Supreme Court on their own motion.

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In Massachusetts, any medical malpractice action must be approved by a tribunal before it can be filed in civil court. The Massachusetts Appeals Court recently reversed a tribunal decision in 17-P-780, which prevented an estate from pursuing a Massachusetts medical malpractice lawsuit against the deceased’s primary care physician. For a 17-month period, the deceased sought care from his doctor several times for various symptoms. Some he experienced, like shortness of breath and chest tightness, are linked to heart disease. His physician offered diagnosis and treatment for other maladies but did not address or treat him for a heart-related condition. He also failed to refer him to a cardiologist.

The deceased patient was taken to an emergency room at the end of this period, experiencing a heart attack due to 100 percent blockage of his left anterior artery. He died soon afterward at the age of 46. His mother and personal representative filed a lawsuit against his treating physician for the patient’s death because of his failure to identify and address the heart disease in violation of the applicable standard of care.

The matter went before the medical tribunal, per G.L. c. 231, sec. 60B. The tribunal determined the proof was insufficient to raise a legitimate question of liability appropriate for judicial inquiry, even if it was substantiated. The estate was required to show the hospital was a provider of health care as defined by the General Laws, the hospital did not follow good medical practice, and the extent of damages suffered as a result of these actions. To see whether or not the physician at issue followed the standard of care, the tribunal looks at whether or not the care was what an average qualified physician in his or her area of specialty would provide. An injured party usually offers the opinion of a qualified medical physician to establish the standard of care.

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If you are injured while at a construction site, the remedies and damages available to you may be multiple and varied. You may be able to receive workers’ compensation from your employer if you worked on site, as well as pursue damages from any independent contractor if multiple parties were responsible for the conditions that led to the injury. Many companies provide the monetary damages to the injured person by tapping their insurance benefits obtained for this exact scenario. Companies also look to the insurer to indemnify them, or step into their shoes for the purpose of defending litigation. If an insurer refuses to provide funds, the injured person must hope the company has assets, or the ability to obtain them, to satisfy any judgment in her or his favor.

The Commonwealth’s Appeals Court recently affirmed a summary judgment granted to a corporate insurer who refused to indemnify its insured for a personal injury verdict against the company and its independent contractor in a Massachusetts construction accident case. The independent contractor appealed, arguing the insurer failed to preserve the right to exclude independent contractors during the original tort action and cannot raise it now. The contractor also argued the exclusion within the policy is ambiguous and must be construed against the insurance company. It also alleged the exclusion did not apply in this circumstance because the accident was actually caused by the policyholder.

A woman injured herself at a construction site while walking on a sidewalk, tripping and falling on a cold joint built by the independent contractor. The contractor was hired to construct the sidewalk in a residential housing project. The contractor ceased paving just short of a driveway and built a “cold joint,” or space between two batches of concrete set at different times. The injured woman sued both the independent and general contractors of the project for the negligent construction of the cold joint and failure to warn of the defect. At trial, the jury found for the injured woman, finding the independent contractor to be 55% at fault and the general contractor to be 30% at fault. Since the insurer refused to indemnify the general contractor for the judgment, the independent contractor (using its insurance policy) satisfied the full amount.

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Reverse mortgages are becoming a popular source of income for aging Massachusetts residents who have accrued equity in their home. These homeowners borrow against their home equity in exchange for liquid assets to help pay for daily living expenses. A home equity conversion mortgage is one of these loans available to homeowners over the age of 61 under which payments are made to the owner as a line of credit. These are either provided in a lump sum or in monthly payouts. The loan does not become due until the borrower dies or no longer lives in the home, with interest and fees typically paid by the sale of the home. With a reverse mortgage, the borrower is usually not personally liable for the repayment of the debt.  The lender looks solely at the mortgaged property for repayment. This means upon the owner’s death or choice to live elsewhere, the entire loan and fees come due, and it is up to the heirs to repay the loan by selling the home. Failing to do so may mean the lender can foreclose on the mortgage and sell the home.

The Massachusetts Supreme Court recently issued an opinion (SJC-12325) dealing with three Massachusetts foreclosure actions initiated by a lender, which chose to pursue actions in Land Court against each borrower or the executors of their estate, seeking a declaratory judgment to foreclose on the respective homes through the statutory power of sale. The language of the reverse mortgage in this case stated the lender may invoke the power of sale and other remedies allowed by applicable law in the event of a default. The court felt the central question was whether or not Massachusetts G. L.c. 183, § 21 allowed the lender to foreclose in such a manner.

The reverse mortgage form in this lawsuit gave the lender the power to require immediate payment in full if the borrower dies or the property is no longer the borrower’s principal residence. Under this agreement, the borrower held no personal liability for repayment of the debt, and the lender could not pursue a deficiency judgment against them in the event of a foreclosure. The only means of enforcement was through the sale of the property.

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You do not often see a criminal case intersecting with a Massachusetts personal injury action, but a recent medical malpractice decision issued by the Appeals Court shows how the former affects the latter. The original action was filed by the husband of the decedent, claiming the treating physicians and health care facility caused the death of his wife through their negligent care of her during her knee replacement surgery. Early on, the estate took the deposition of one of the anesthesiologists involved in the injured wife’s care. Soon afterward, this physician had his medical licenses revoked and was indicted for Medicare fraud. He then filed to bifurcate the civil trial and invoked his Fifth Amendment privilege against self-incrimination.

The other defendant anesthesiologist filed a notice of his intention to use parts of the other doctor’s deposition, since he would be unavailable. The anesthesiologist invoking his Constitutional privilege and the health care provider both settled with the estate, leaving the remaining anesthesiologist as the lone defendant. The judge denied the defendant doctor’s motion to use the deposition. At trial, the doctor invoking the privilege did not appear, and the judge allowed parts of the deposed testimony to be read during trial. The court allowed the defendant to read the part of the deposition in which the other doctor admitted his medical license was suspended in three states. The jury returned a verdict in favor of the remaining defendant anesthesiologist.

The Appeals Court noted the trial court relied on the exception to the evidentiary rule that allows hearsay evidence through prior recorded testimony when the witness is unavailable. To determine whether this exception can be applied, the court must determine the declarant is unavailable and evaluate whether the prior recorded statement was given in a proceeding that substantially addressed the same issues in the present proceeding, with similar opportunities for cross-examination. The appellate court agreed with the trial court’s assessment that the other anesthesiologist was unavailable. The Appeals Court determined the doctor unequivocally indicated his intent to assert his constitutional privilege against self-incrimination.

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Massachusetts workers’ compensation requires insurers to pay for appropriate and necessary treatment under §§ 13 and 30 of the Workers’ Compensation Act for employees who suffer a workplace injury. Since an employee’s medical history can affect whether or not money is paid for a disability, multiple injuries and health conditions can limit or prevent payments for reasonable and necessary treatment. In one of the last Reviewing Board decisions of 2017, the Board assessed whether or not an administrative judge’s order for the insurer to pay expenses under §§ 13 and 30 of the workers’ compensation act was made in error after he refused to allow additional medical evidence during the proceeding.

The employee suffered a repetitive motion workplace injury to her left elbow in 1997. The woman underwent two unsuccessful operations in 1997 and 1998, which caused nerve damage and enduring pain in her left arm. In 1999, she received a lump sum for the injury, entering into an agreement with the insurer, which agreed to pay for reasonable, necessary related medical expenses. A year after this agreement, she began taking Fentanyl and Vicodin to help manage pain.

Between the agreement and the proceeding, the injured employee earned an advance degree and returned to work for a different employer. In 2009, she broke two toes and sprained her ankle in an accident unrelated to work, developing Reflex Sympathy Dystrophy (RSD) in her right leg. For this, she was prescribed Fentanyl, Vicodin, and Lyrica for pain. Between 2010 and 2015, her health insurer paid for these medications.

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If an employee seeks benefits for a work-related injury but has previously suffered medical ailments outside work, an insurer will likely point to the pre-existing condition to show the permanent condition was not caused by the Massachusetts workplace injury. A Massachusetts Reviewing Board decision (Bd. No. 019236-10) analyzed this scenario recently. The employee was severely injured after an attack by a patient. The worker was punched in the head, knocked down, and repeatedly kicked in his abdomen and chest until he passed out. He received medical treatment following the accident, but he still requires care for a fractured right lower leg, deep vein thrombosis (DVT) in his right leg, chronic lower leg pain and instability, and chronic lumbosacral pain.  The employee has not been able to return to work since his injury.

At the first hearing, the worker was awarded permanent and total incapacity benefits (§ 34) from the date of the injury onward. The administrative judge found the injured employee’s neck pain, right knee injury, fractured fibula, DVT, and ankle pain were all caused by the workplace incident. The judge specifically found the employee’s long-term, pre-existing seizure and degenerative arthritis disorders did not worsen because of the injury and did not cause or add to any of the incapacity.

The employee’s injuries were so aggravated by the time of the second hearing that he could only stand for five to 10 minutes at a time, sit for 10 to 15 minutes at a time, and walk for 10 to 15 minutes at a time. Despite the use of a cane, his knee and leg would give out, causing him to frequently fall. The intensity of the pain also meant he suffered from interrupted sleep. In his findings on the second hearing, the judge relied upon the opinion provided by the impartial medical examiner (IME), reiterating his findings from the first hearing. The insurer appealed, raising three issues. It felt the judge improperly relied upon the IME’s opinion to find a permanent and total disability because the IME referred to the employee’s back and seizure conditions in reaching his opinion. Since the judge specifically found the § 34 benefits were NOT related to the industrial accident, the insurer argued this was inconsistent and should be thrown out.

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The doctrine of spoliation is a legal concept developed through case law that allows trial court judges to sanction a litigant who intentionally or negligently loses or destroys evidence that they knew or should have reasonably known may be relevant to a possible Massachusetts personal injury case. This doctrine may be applied even when the spoliation occurs prior to the filing of a civil action. An appellate court in Massachusetts looked at spoliation in a negligence action stemming from a choking incident at a public school.

The case was filed after a young school child choked on meatballs served at the cafeteria in a public school.  He began choking at the end of his lunch period, and several attempts using the Heimlich maneuver and back blows proved to be unsuccessful. The food was eventually dislodged by professional emergency staff, but the child had been without oxygen for too long and sustained catastrophic brain injuries. The parents filed suit against the school and the company that manufactured the meatball.

The company that made and sold meatballs to the public school system utilized a protein solution to meet the required level of protein. The injured child’s parents asserted the use of this solution caused the meatball to have an unreasonably dangerous texture, creating a choking hazard. An expert hired by the plaintiffs recreated the meatball using the formula provided by the defendant company through interrogatory answers. At trial, the expert opined the meatball was harder to break apart and chew than others without this protein solution. The plaintiffs’ expert stated the size and texture of this meatball presented a choking risk to children.

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