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Duty is a term that one may hear frequently in a personal injury lawsuit. In any negligence action, it is one of four elements that must be proven at trial to hold a defendant liable for her, his, or its actions. The duty to act in a certain manner to ensure the safety of others is often created by statute. However, certain duties are strengthened or lessened by case law formed by one or more appellate decisions. This can be seen in a recently issued wrongful death case, Bernier vs. Smitty’s Sports Pub, Inc. (No. 14-P-1967).

In this case, the decedent patron had entered the rear entrance of a pub. He opened a door with an “Employees Only” sign, thinking it was the bathroom. The bathroom’s door and the “Employees Only” door looked similar. However, the “Employees Only” door opened into a concrete staircase with a large drop. This door was typically locked during business hours but was unlocked at this time, causing the man to fall and injure himself. The man died a couple of weeks later as a result of his injuries. His estate filed suit against the pub, alleging negligence, and a jury found the pub to be 80% negligent and the deceased to be 20% negligent.

The pub appealed, arguing that they did not owe a duty to the man because he was a trespasser. Under case law, a landowner owes a duty to those it invites onto its property. The premises must be maintained in a reasonably safe condition, with the owner acting as a reasonable person would act. A court will consider the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. However, if the person is a trespasser, this duty disappears. A landowner is only required to refrain from reckless or wanton conduct that could cause harm to a trespasser. A trespasser cannot file a negligence action against the owner of the property.

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When you work at a physically intensive workplace for a long time, minor to moderate individual injuries that occur over several years can become a sustained injury. A recent Reviewing Board Decision, Breire v. Lowell General Hospital (BOARD NO. 036471-11), highlights considerations made by deciding authorities in Massachusetts’ workers’ compensation system. In this case, the injured employee worked for nearly 40 years as a certified nurse’s assistant (CNA). Throughout this time, she incurred several injuries, some from the workplace and some from her personal life.  Those of note included a workplace injury in which she hurt her back lifting a 350-pound man into a car, as well as car accidents outside work in which she hurt her back and neck. The injured CNA also sustained multiple injuries while working for the employer in this case, hurting her back, hip, and neck on different occasions over 10 years.

The injury that led to this litigated claim occurred when she helped her co-workers lift a 400-pound patient. The CNA suffered hand, neck, and back injuries. On the date of the injuries, she finished her shift, and she returned to work the next day but eventually sought a leave of absence from her job. The injured worker advised her employer that she could no longer perform her duties, due to the combination of injuries suffered. The employee sought temporary total disability benefits, among others. The insurer filed a denial, arguing that the injury suffered was not a workplace injury. After a conference and a hearing, the Administrative Law Judge (ALJ) awarded the injured CNA § 34A (total permanent disability benefits), finding that the last injury was the major cause of her disability.

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The Massachusetts Appeals Court recently assessed a summary judgment in favor of the defendant manufacturer in Niedner vs. Ortho-McNeil Pharmaceutical, Inc. (No. 15-P-1272). The estate filed suit against the makers of a birth control device that was prescribed and taken by a deceased college student. The woman was first prescribed an oral form of birth control in 2008, which she took but eventually discontinued. The young woman then looked for another form of birth control and was prescribed the Ortho Evra patch (patch), which transfers synthetic forms of estrogen and progestin through the skin. Rather than daily ingestion, this method only requires direct application to the skin once a week for three straight weeks, followed by a patch-free week. After taking this second round of hormonal birth control for three months, the young woman collapsed and died in her dorm room from a pulmonary embolism. The estate filed suit, alleging breach of warranty. The central focus of this breach of warranty claim was that the birth control manufacturer failed to adequately warn of the increased risks of suffering a blood clot.

By law, a manufacturer of a product with known dangers has a duty to warn consumers who will foreseeably come in contact with the product and be subjected to those dangers. (See H.P. Hood & Sons v. Ford Motor Co., 370 Mass. 69, 75 (1976). If communication with a consumer is unreasonable, the burden of this duty is alleviated. Specifically, this comes in the form of the “learned intermediary rule,” under which the manufacturer is not as responsible for passing the knowledge of risks to the consumer if those risks are communicated to the physicians and pharmacists handling the drug. However, case law has shifted part of this duty back to the manufacturer as patient participation has increased and the medical supervision over commonly used products, like birth control, has decreased.

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The Massachusetts Workers’ Compensation Act, under G. L. c. 152, § 31, provides benefits to the spouse of a deceased worker whose fatal injuries were caused by the workplace. The statute allows unmarried widows or widowers to receive 2/3 of the deceased’s average weekly wage. This benefit was designed to help living spouses who were not able to support themselves, and it can be reviewed at any time for cost-of-living increases, reductions, or termination.  In Freedman vs. Suffolk County Sheriff’s Office (Bd No. 012354-97), the wife of a deceased worker appealed the termination of her spousal benefits after an Administrative Law Judge (ALJ) ruled that she was fully self-supporting.

To determine whether or not the wife was self-supporting, the ALJ conducted an in-depth review of her living expenses. The ALJ found that her qualified weekly expenses were $768.50, which were more than covered by her salary of $894.97 a week. The woman had been receiving $751.04 from the § 31 benefit, and she appealed the ALJ’s finding, arguing that she was not fully self-supporting because she was putting her daughter through college.

The Board determined that the judge’s method of calculations was correct to determine what was “necessary and reasonable.” However, while the Board emphasized there is generally a high amount of deference to ALJ findings, it did not agree with the exclusion of college expenses. While there is not a “redline” for determining reasonable and necessary expenses, consideration is given to accustomed standards of living. The Board went on to hold that college tuition must be factored into a determination of whether a widow or widower is fully self-supporting.

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In medical treatment, patients depend upon doctors and nurses to provide the best care available under the current standards of care. Patients also hope and expect the instruments and devices used by medical staff to work, aiding in their recovery. If one of these instruments or devices fails, a patient may experience a greater injury than the condition from which they suffered originally.  When this occurs, civil relief is available through a product liability lawsuit, as seen in Albright v. Boston Scientific Corporation (15-P-633). The injured patient, a lady from Ohio, filed suit against the manufacturers of the pelvic mesh surgically implanted to treat her Pelvic Organ Prolapse (POP). The injured woman had the mesh implanted to assist with weakened tissue in her pelvic area after a previous surgery provided minimal to no relief. Her surgeon implanted one of BSC’s devices, which was advertised as safe for treatment of POP. The FDA had cleared the device for sale, but through the § 510(k) process in which the device is substantially equivalent to another already on the market. Under the § 510(k) process, the device does not have to undergo clinical tests for approval. At trial, the injured patient provided expert testimony that concluded the mesh oxidized and reacted with the patient’s tissue in an unexpected, untested way. The trial court, however, excluded two letters from the FDA sent to the manufacturer, as well as the medical application caution sent by the supplier of polypropylene material, which addressed some of the potential issues with the mesh.

The injured patient appealed the exclusion of this evidence, which was offered for the limited purpose of showing knowledge and notice on the part of the manufacturer that they were aware of potential problems with the mesh’s material. Both sides offered witness testimony and opinion as to what caused the injury to the patient and whether the manufacturer should have known of the risks, based on the type of materials used. The injured patient and the manufacturer also presented evidence regarding whether or not the manufacturer advised her surgeon of the known risks in its use.

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In personal injury lawsuits, claims must be filed within a certain time limit set by law. Most must be brought within three years of when the date of the cause of action accrues or arises. The time begins to run when the injured party knew or should have known that he or she was harmed by the defendant’s conduct. In a recent Supreme Judicial Court opinion, Parr vs. Rosenthal (SJC-12014), the court formally adopted the “continuing treatment doctrine” for medical malpractice claims. Under this doctrine, the statute of limitations does not begin when the allegedly negligent physician continues to treat the patient for the same or a related condition. The idea behind the doctrine is to encourage recovery rather than litigation by promoting the doctor-patient relationship for conditions that require ongoing treatment.

In this case, the injured person was a boy born with a large lump on the back of his right calf. A team of doctors examined the lump and diagnosed it as a desmoid tumor, a benign tumor that can grow in a way that would hamper the normal growth of tissues and bodily functions.  For this patient, the tumor had already caused an abnormality in his gait. The team approached the defendant doctor to perform Radio Frequency Ablation (RFA) to remove the tumor. This process uses a long probe with heating tines that burn the tumor in a spherical area immediately surrounding the tines, but it does not distinguish between healthy and unhealthy tissue. The doctor is known as the “inventor” of this process, and he is considered a leader in the field. However, the defendant doctor had not performed this procedure on this type of mass prior to the date of the surgery.

Immediately before the procedure on November 4, 2005, the doctor did not explain the risks associated with the surgery to the parents, particularly the risks of burns to the skin.During the procedure, the doctor discovered he had burned more than the planned treatment area. The defendant doctor stopped the procedure and told the parents of the burn, but he assured them their child would “recover and be fine.” The boy did not recover, his nerves destroyed by the burn. Eventually, the child’s leg was amputated below the knee on March 20, 2006, due to continued problems with the burn. Even then, a second amputation became necessary on March 12, 2008, due to continued infections and insufficient muscles for a prosthesis. A little over a year later, on March 6, 2009, the parents filed suit. At trial, the injured boy proposed jury instructions that the statute of limitations did not begin until the treatment by the defendant doctor or the team of doctors was terminated. The judge declined to give such instructions, and the jury returned a verdict in favor of the defendant doctor, concluding that the injured person knew or should have known about the injury before March 6, 2006.

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Trusts can provide a way for an owner to enjoy her or his property during life, while ensuring the property held in trust pass to certain parties after her or his death.  In Mond vs. Pitts (15-P-686), the Massachusetts Appeals Court reviewed whether property held in two trusts with the same primary trustee and beneficiaries terminated, allowing the property to pass to the trustee’s heirs, or remained intact, passing to the beneficiaries after the settlor’s death.  At trial, the judge of the Land Court held the trust terminated after one of the trustees resigned and assigned her interest as trustee in both trusts at issue.  The beneficiaries appealed, and the appellate court reversed the prior ruling, agreeing with their argument that the trust remained intact.

As with all trusts, the construction of the document is the first place administrators and courts look at to determine the intent of the trustee. Both trusts in this case were created in the 1980s, for a term of forty hears and thirty years, unless the death of the settlor occurred first.  The 40 years trust named the settlor as the beneficiary, and then the two appellants, or their survivors, as the next beneficiaries if he died.  The trustees named in the document were the settlor and another woman, with a provision that either will become the sole trustee if the other dies or resigns.  The 30 years trust had similar language, with the same trustees and beneficiaries named.  It also had a similar provision assigning the remaining trustee as the sole trustee if one dies or resigns.  The settlor eventually became the sole trustee for both trusts after the other trustee resigned as trustee and assigned her interest.

The heirs of the settlor filed suit after his passing, arguing that the trusts terminated when the settlor became the sole trustee.  The land judge agreed, finding the paragraphs within the trust to be inconsistent with one another – with one paragraph naming the two appellants as beneficiaries and another within the trust document as heirs.  The judge also found that the doctrine of merger applied when the settlor became the sole trustee, becoming the sole lifetime beneficiary and trustee of each trust.  The appellate court disagreed with this analysis, finding that the second paragraph in question dictated the proceeds to be divided among the “beneficiaries if living”.  Both appellants were alive at the time of the settlor’s death.  The appellate court found reading the document as a whole consistently pointed to the appellants as beneficiaries of the trust.  The appellate court also disagreed with the land judge’s view of merger, pointing out that the designation of contingent beneficiaries precluded any merger.  The appellate court reversed the ruling of the land judge and remanded it to the lower court for the trust property to be distributed to the beneficiaries, as intended by the settlor.

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Before participating in a higher-risk activity like skydiving, bungee jumping, or community sports, the company running the program may require a participant to sign a release form, which shows she or he understands the risks involved with the activity and agrees not to hold the owners of the company or the organizers of the event responsible for any injuries that may occur. These help immunize, or protect, a company from liability if an injury-causing accident occurs. However, exceptions do exist, so a release does not provide a full shield from accountability in the civil court system.

In Markovitz vs. Cassette (15-P-1274), the Massachusetts Appeals Court looked at whether or not a trial court erred in granting summary judgment in favor of a horse farm. A student rider fell off a horse during a group riding lesson. She had ridden that particular horse three times before the accident, and she had taken classes on a regular basis at this location for over a year. Prior to the start of her classes, she signed a release that shielded the horse farm, including its owners, instructors, employees, and agents, from any and all responsibility for any injury sustained while on the premises. The release also contained notice of the applicable Massachusetts General Law that shields an equine professional from liability if there is an injury or death caused by an inherent risk of an equine activity.

The appellate court cited case law that regularly supported defendants’ use of release agreements and courts’ use of summary judgment to resolve cases with signed releases. The injured student claimed in her appeal that her injury was one of the exceptions to the statutory exemption. This exception removes immunity from suit when there was a failure to make a reasonable and prudent effort to determine the ability of the participant to safely manage the particular horse, based on the representations of the rider. The Court of Appeals disagreed with the injured person’s argument that the exception created a new duty of the horse farm in addition to those provided by common law. The court did not feel that the injured person’s circumstances rose above the bar to liability established by statute. Based on this, the lower court’s ruling was affirmed.
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As an injured Massachusetts worker, you want to ensure that all your benefits get paid by the entity or entities responsible for paying them. The Reviewing Board decision published this month, John Pastore v. Polaroid Corp., Inc. (Bd. Nos. 004718-89, 029283-13, 012201-13), dissects an agreement between a self-insured employer and an excess insurance carrier regarding the § 34A benefits and § 34B cost of living adjustments (COLA) of an injured employee. The worker in this case was injured in an industrial accident in 1983. His employer was a licensed self-insurer, obligated to follow the statutory requirements that come with being its own workers’ compensation insurance carrier. These included purchasing extra insurance as back up to help meet their workers’ compensation obligations through a “reinsurer.”

After the injury, the employer agreed to accept the claim and pay the weekly benefit, eventually agreeing to pay for the permanent and total incapacity (§ 34A) benefits at around $297.85 a week. The reinsurance company had a $250,000 policy, which the employer tried to utilize. The reinsurer initially denied the claim, since the employer voluntarily placed the employee on the § 34A benefits. Eventually, the employer and the re-insurer agreed to a settlement of $155,000 to reimburse the employer’s obligation to the injured worker. Neither the employee nor the Dept. of Industrial Accidents was made aware that this settlement occurred in 1998. Both became aware of this agreement after the employer’s bankruptcy action and exhaustion of bond set aside for benefits payment. The employee then filed suit for payment to resume.

At the hearing, the Administrative Law Judge (ALJ) held that the employee was now “uninsured” and that the Workers’ Compensation Trust Fund (WCTF) was obligated to pay the benefits. The WCTF, on appeal, disagreed with the assessment, arguing that the reinsurer was the entity obligated to pay the benefits to the injured employee. The Reviewing Board agreed, reversing the prior decision and directing the re-insurer to pay the benefits. In its analysis, the Board first pointed out that the WCTF was not created until after the worker was injured, and the injured worker would not be considered to be “uninsured” because the employer was a self-insurer. The Board then pointed out the difference between standard insurance agreements for settlement and the obligations of workers’ compensation insurers under Massachusetts law. Self-insurers are regulated by the Department of Industrial Accidents, rather than the Commissioner of Insurance. Workers’ compensation insurers are all beholden to the intent of the Workers’ Compensation Act, which was designed to protect injured workers. The Board found that the agreement reached between the now-bankrupt employer and the re-insurer was valid and that the re-insurer was responsible for both the § 34A and the COLA benefits.
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In any civil lawsuit, the plaintiff must ensure the at-fault party or parties receive notice of the claim so that they can appropriately respond. In Massachusetts medical malpractice actions, the General Laws specifically require that an injured patient or estate give written notice to a provider of health care 182 days before the case begins. (See G. L. c. 231, § 60L.) The claim must include the factual basis for the claim, the standard of care alleged by the claimant, the breach of the standard of care, the course of action that should have been taken, how the breach injured the patient, and the names of all the health care providers that the injured person intends to sue.

In the recent decision of Arsenault vs. Battacharya (15-P-197), the Massachusetts Appeals Court looked at whether or not dismissal without prejudice was too harsh a remedy when an injured party failed to provide notice in accordance with G. L. c. 231, § 60L. In this case, the injured patient went to her general practitioner, the defendant in this case, for carpal tunnel in her wrists. The primary care physician injected her wrists with cortisone, with two separate injections on each wrist over three visits. Later, after surgeries on both wrists, she discovered that the tendon ruptures were caused by cortisone injections.

The filed complaint alleged that the doctor should have known that multiple cortisone shots would increase the risk of rupture to her wrists. The knowledge this was a possibility can be seen in a letter written by the doctor for the injured person’s workers’ compensation claim. The injured patient alleged that she became totally and permanently injured as a result of the negligently administered cortisone shots. The claim was filed nearly six years after the first injection to one of her wrists but within three years of the start of the statute of limitations, which began when she was told by an Independent Medical Examiner that her ruptures were caused by the shots. The defendant doctor moved for dismissal, alleging non-compliance with G. L. c. 231, § 60L, and the motion was granted by the trial court.
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