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Shop owners and other businesses owe a duty to their customers to keep the store safe from dangers. If they do not maintain the premises as required by statute and case law, they can be held liable for the injuries suffered as a result of their failure. In Bowers v. Wile’s, Inc. (14-P-313), the Appeals Court of Massachusetts reviewed a lower court’s decision based on its interpretation of the “mode of operation” approach in premises liability cases. This approach was developed in a Supreme Judicial Court decision in Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 788 (2007). In this case, the court eased the burden placed on the injured person to show that the owner had actual or constructive notice of the unsafe condition on the premises. For example, if a glass jar containing liquid spilled in a grocery store, the injured party who slipped and fell on the item would have to show the grocery store managers were aware, or should have been aware, of the mess.

After Sheehan, an injured party only needs to show that the dangerous condition was “related to the owner’s self-service mode of operation.” The trial court granted the defendant store’s motion for summary judgment based on the view that the “mode of operation” approach only applies when the dangerous condition results from the breakage or spillage of items offered for sale. In this case, the injured woman was walking to a store on a clear day with no rain or snow and fell over a “river stone” that had been moved from the gravel area maintained by the store to the sidewalk. The injured woman had not seen or noticed any stones prior to her fall, and she suffered a displaced fracture on her hip that required two surgeries to repair.
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When you or your family member is in a Massachusetts car accident, the primary focus is and should be on emotional and physical recovery. Soon afterward, the concern over expenses and the ability to pay them moves into view. Even when insurance policies are in place and cover expenses, policy limits can fall short of covering the total cost of medical care and lost wages. Alternate routes to make up the difference must then be considered, especially when standard options like underinsured or uninsured coverage options are unavailable or also fail to cover all the expenses.

In a recent Appeals Court case, Borden v. Progressive Direct Ins. Co. (14-P-449), an injured woman had to look to the personal policy of the driver after he hit her car in a work truck. In any car accident case, the injured person first looks to see if the at-fault driver has an insurance policy that will provide funds toward the expenses. In Borden, the woman was hit by a tow truck used to transport automobiles to and from dealer lots and sales auctions. The accident-causing driver was hired to assist with work as needed by the owner of the truck, and he had used his own vehicle to arrive at the owner’s garage on the day of the accident. The at-fault driver was on his way in the company truck to pick up a car for delivery when he hit a car, injuring the passenger in the car.
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In Massachusetts, claims for personal injury must be filed within the timeline set out by the Massachusetts General Laws. Medical malpractice, personal injury, product liability, and wrongful death actions must be filed within three years of the accident or the date the injury was discovered. If claims aren’t filed within the statutory timeline, the injured person generally loses the ability to sue for damages. Other timelines guide actions that must occur within certain types of civil suits, including the requirement found in Massachusetts G.L. Ch. 93A, which directs the plaintiff to send a demand letter 30 days before filing an action for an unfair and deceptive practice.

In auto accident cases, courts, insurers, and the injured parties all must look to an insurance contract to see or determine whether or not the policy provides monetary relief for the injured person. If the insurance company determines that the injured person was not covered under the policy in question, the injured person may then choose to file a separate, related suit against the insurance company for failing to provide coverage as contracted.

In a 2008 decision, Kanamaru v. Holyoke Mut. Ins. Co. (72 Mass.App.Ct. 396), an injured bicyclist sought benefits under his roommate’s policy after he was hit by an uninsured vehicle on the road. The roommate had previously insured him under his auto policy, since he intended to share the vehicle with the injured man. After the suit was filed, the insurance company declined to cover the roommate’s injuries, arguing that the policy did not extend to the roommate for UM (uninsured motorist) coverage. In addition to his arguments that he was covered by the policy, the injured man filed suit against the insurance company for unfair and deceptive trade practices. The appellate court in that case ruled that the trial judge correctly entered a summary judgment in favor of the insurer defendant for failing to send a demand letter 30 days prior to filing suit.
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In a recent decision, Boudreault v. Nine (14-P-359), a medical malpractice decision in favor of a radiologist was overturned by the Superior Court of Massachusetts. In this case, it was alleged that the doctor failed to properly interpret the patient’s mammogram results and recommend the necessary treatments. The injured woman was seen for her annual mammogram and had abnormal results. There was a a well-defined nodule in one of her breasts, and the treating physician at the time recommended an ultrasound, spot compression mammograms of both breasts, and magnification mammograms of the affected breast. The patient followed up with the recommendation and returned for a diagnostic mammogram ultrasound. In that appointment, new micro calcifications were found that were noted but determined not to be worrisome.

At that time, no additional recommendations were made other than to return in six months. The injured woman complied, but she saw a different radiologist during this report. This doctor, the defendant in this appeal, reported that there wasn’t any evidence of a dominant mass, and that the calcifications noted before had not significantly changed and were “likely benign.” The doctor did not recommend any further biopsies or MRIs. He did recommend continued surveillance and another follow-up in six months to assure “interval stability.” The doctor felt that the woman remained in category 3. The injured woman missed her appointment, even though staff tried to reach her and remind her of the appointment. One year after her third visit with the defendant doctor, the injured woman returned for her follow-up mammogram. At this appointment, the doctor found that her breasts were highly suspicious for malignancy. She underwent other tests, and a biopsy revealed she had invasive ductal carcinoma. The injured woman had to undergo a radical mastectomy and chemotherapy soon after the diagnosis.
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Businesses are expected to keep their premises safe for patrons. This duty under Massachusetts law requires owners and managers of property to address known harms in frequently traversed spaces like stairwells and sidewalks. Hospitals are frequently featured in personal injury discussions, either as the ultimate destination to treat injuries caused by negligence, or the site of medical malpractice. In a Massachusetts appellate case, Connaghan v. Northeast Hosp. Corp. (13-P-1419), a hospital is the location where a litigated slip and fall occurred.

The slip and fall occurred in December on a stairwell and walkway of a hospital. The injured party had walked through the walkway and later testified it was clear. He was taking his child to a pediatrician appointment and was unable to hold the lone rail on the side as he was holding his daughter with both hands. Testimony at trial showed he was not looking down or around at the ground as he stepped off the stairs. The injured man said that the walkway wasn’t clear when he came out from an appointment 30 minutes later. The injured party filed suit and took the matter to trial, but the jury found for the defendants because there was no evidence that a hospital employee or landscape worker found and reported ice prior to the injured man’s fall.
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In Massachusetts, the manufacturer of a product can be held strictly liable if the product was dangerous or defective enough to cause personal injury or death. With most personal injury cases, the injured party must show they were hurt by the negligent acts of another party. In strict liability cases, no fault or tortious intent needs to be shown. Strict liability exists if the product design was defective, the manufacturing process was defective, or the product had inadequate warnings or instructions advising of its correct use.

The Massachusetts Supreme Judicial Court recently dealt with inadequate warnings on a Children’s Motrin bottle in Reckis v. Johnson & Johnson (SJC-11677). In this case, a seven-year-old girl developed a life-threatening skin disorder, toxic epidermal necrolysis (TEN), after she consumed several doses of Children’s Motrin, an over-the-counter medication with the main ingredient of ibuprofen. The parents of the child filed a claim and won at the jury trial, where they were awarded general damages over $50 million to the child and loss of consortium damages of $6.5 million for each parent. The parent company and manufacturers that produce Children’s Motrin immediately filed an appeal, alleging they should have received a judgment as a matter of law due to pre-emption by the federal Food and Drug Administration (FDA) laws, an unqualified expert witness for the injured child, and grossly excessive awards that were unsupported by the record. After hearing all arguments, the Supreme Judicial Court affirmed the lower appellate and trial court jury award to the injured child and her parents.
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Massachusetts General Laws G.L. C. 176D and G.L. C. 93A are designed to help protect the citizens of the Commonwealth from unfair methods of competition and unfair or deceptive acts or practices in the business of insurance. An injured party has a right to file a claim against the insurer of the at-fault party if they “fail to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear.” The Court of Appeals recently allowed a group of injured plaintiffs in a medical malpractice suit (Conry vs. Reilly, 14-P-506) to add claims against the insurer of one of the defendant doctors. They alleged that the insurer failed to make the reasonable settlement offer after liability had become reasonably clear during the course of litigation.

The insurer moved to dismiss, but the trial judge allowed the plaintiffs’ motion to proceed. The insurer appealed, but the Court of Appeals upheld the lower court’s decision to allow the injured parties’ motion to add the insurer The Court of Appeals looked to Chiulli v. Liberty Mut. Ins., Inc., 87 Mass. App. Ct. 229, 232 (2015). In this case, a man was severely injured in a fight outside of a restaurant, suffering a skull fracture and remaining in a coma for almost three months. The staff testified that they sensed a fight would happen between two groups at the bar, but they had not been trained on safety rules and did nothing to prevent the fight from happening.

Prior to the suit, the injured man sent a demand letter to the insurer of the restaurant with a copy of the receipts for medical expenses. The injured person argued that at least the medical expenses were provable through the receipts, but the amount of earning capacity was disputed, within estimates ranging from $413,532 to $1,589,949. That meant there was an undisputed amount of damages in the amount of $1,075,460. However, the insurer only offered to settle for $150,000. The injured person won a jury award of nearly $4.5 million dollars against the restaurant, and the case settled amongst post-trial motions.
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Medical malpractice actions follow the same outline as other personal injury suits. If someone fails to uphold a duty under law and an injury occurs as a result, the at-fault party is liable to the injured party for the damages he or she sustained. In medical malpractice actions, this duty is called the “standard of care,” which is the typical practices and procedures performed by professionals in the same area of medicine in the same geographic area. In malpractice actions, the standard of care must be testified to by a qualified expert who practices in the same area of medicine.

In an unpublished decision, Distasio vs. Comeau (13-P-1572), the Appeals Court reviewed the dismissal of the injured party’s complaint following the trial judge’s ruling to exclude one of her expert witnesses. The injured party was a child who suffered from dislocated hips that likely dated back to her birth. The girl’s parents had asked the pediatrician about their daughter’s crawl and walk, but the pediatrician assured them that her crawl was normal, even though it was different from her older brother’s gait. No X-rays were ordered by the pediatrician, nor was a diagnosis provided.

The parents then sought another opinion, conferring with two doctors. One prescribed physical therapy, which began soon after the initial consultation. The child began to see a physical therapist, who was also a chiropractor, three times a week. The child was not X-rayed until her third visit with one of the initial consulting doctors, which was when she was diagnosed with hip dysplasia. The parents filed suit on her behalf against the pediatrician and the pediatric practice for failing to diagnose their daughter’s condition. They later amended the complaint to include the doctors from the initial second-opinion consultation, the physical therapist, and the practice that provided the physical therapy.
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In Massachusetts personal injury cases, the injured party has the burden of proof in showing that he or she was injured as a result of someone else’s negligent or reckless actions. The jury must believe by a preponderance of the evidence, or that it was more likely than not, that the defendant had a duty toward the injured person, that the defendant failed in his or her duty to the injured person, that the injuries alleged were the result of the failure, and that quantifiable damages were incurred. Proof includes the testimony of witnesses, the testimony and reports of medical experts, and documents that help support the claim like maintenance records, phone logs, or receipts for services.

Litigating a case involves several steps. There are many avenues of legal recourse, and one may provide greater options for recovery than another. After filing suit, exchanging evidence, and taking depositions, the injured party may entertain offers of settlement, negotiated on his or her behalf by experienced counsel. If no settlement is offered or it is unsatisfactory, the injured person’s counsel prepares for trial to meet the burden of proof placed by law. During the trial, counsel for the injured person must keep in mind what must be shown to satisfy the legal standards for that particular injury while presenting proof to the jury. The attorney must also stay alert during trial to ensure that the injured person is receiving a fair trial. If the trial results in an unfavorable verdict or award as a result of an unfair ruling made during trial, the injured person has the ability to correct the ruling through the Commonwealth’s appellate court system.
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In Escobar vs. Universal Health Services, a Massachusetts couple’s daughter was treated at a counseling service that participated in the Medicaid program, MassHealth. The parents took their daughter, who was a MassHealth benefits recipient, to this service after she experienced behavioral problems at school. The daughter was treated by staff who had no professional license to provide mental health therapy. The parents became concerned when they began to recognize that the clinical director was not meeting with their daughter. The daughter was transferred to a different staff member, but this staff person was also unlicensed and proved to be unsatisfactory to the parents.

The third staff person held herself out to be a psychologist with a Ph.D., but was someone who trained at an unaccredited online school and was rejected for a professional license. This woman diagnosed the parents’ daughter with bipolar disorder. The daughter’s problems at school continued, and the school insisted that she see a psychiatrist in order to remain at the school. The parents relayed this to the “psychologist,” who referred her to a nurse, while calling her a doctor.

This fourth staff member then prescribed a medication called Trileptal for the purported bipolar disorder. The daughter quickly began having an adverse reaction to the drug. The daughter attempted to call the nurse for guidance, but her messages were unreturned. The daughter had a seizure a week after she took the medicine. The daughter was hospitalized, and the parents expressed their frustration at the counseling service for the lack of supervision and failure to return calls. The daughter had a second seizure a month later and died as a result.
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