Boston Personal Injury Lawyers Blog

"Recent changes to Massachusetts' medical liability laws could be major game changers for those pursuing medical malpractice cases in the state," according to Eric J. Parker, managing partner of Parker Scheer, LLP, a Boston law firm that represents victims of medical negligence.

The Massachusetts legislature recently enacted St. 2012, Chapter 224, which resulted in the following changes:

Admissible Apologies: Under Massachusetts law, G.L. c. 233, §23D, a statement of sympathy, regret, etc., as it relates to a non-intentional harm or accident, is not admissible. Chapter 224 allows these types of statements to be admitted to impeach a contradictory statement made by a medical provider under oath. However, Chapter 224 provides no definition of what testimony is deemed a "contradictory statement."

Disclosure of Unintended Outcomes: Chapter 224 now mandates that a healthcare provider or facility, or an employee or agent of a healthcare provider or facility, fully disclose to a patient any unanticipated outcome with significant medical complications that results from the fault of the healthcare provider or facility, or an employee or agent of a healthcare provider or facility. Under G.L..c. 223 §79L(a), an "unanticipated outcome" occurs when "the outcome of a medical treatment or procedure, whether or not resulting from an intentional act, that differs from an intended result of such medical treatment or procedure." Chapter 224 does not clarify what constitutes "medical treatment or procedure" or what liability will incur if a full disclosure is not made. However, it is likely that failing to make a full disclosure could support the argument that the statute of limitations "tolled" until the unanticipated outcome was disclosed.

Notice to File Lawsuit: A patient [or his attorney] is now required to notify a healthcare provider of any impending lawsuit. The notice must be in writing and delivered at least 182 days before the lawsuit is filed. A healthcare provider has 150 days to respond, in writing, to the notice. Claims nearing the end of their statute of limitations are exempt from the notice provision.

If you have been injured by a healthcare provider or an employee or agent of a healthcare provider in Massachusetts, and think you may have a medical malpractice case, please contact Parker | Scheer LLP for a free consultation with one of our experienced Personal Injury Law and Business Litigation Lawyers.

The US District Court, District of Massachusetts (Boston), has ruled to allow the meningitis cases against the New England Compounding Pharmacy to proceed. These cases are about the fungal meningitis outbreak that has been linked to the company's injectable steroids. In the ruling, the judge also stated that evidence for the cases must be preserved.

New England Compounding Pharmacy had asked to delay a dozen filed lawsuits filed in the Massachusetts Federal Courts pending a decision in 2013 by the Judicial Panel on Multidistrict Litigation, which would decide the court that would hear the hundred of cases from the entire country.

In addition, the meningitis cases will be consolidated, a measure that is being supported by the plaintiffs as well as New England Compounding Pharmacy. According to the Centers for Disease Control and Prevention, the outbreak caused more than 30 wrongful deaths and 490 injuries across the US.

Sometime during the next few weeks, a magistrate judge will be holding hearing about the procedures that experts can use to gather evidence during their inspections of the New England Compounding's facilities, located in Framingham, Massachusetts.

The reason for concern over the evidence is that the longer experts have to wait, the greater the chance evidence could be compromised. The attorneys representing New England Compounding feel that the MDL panel should decide the cases, and are fine with the decision to coordinate the cases. A decision by the MDL is expected to come after January 2013. Until that time, parties can continue to prepare and service the intial disclosures.

This case is Cole v. New England Compounding Pharmacy, 12- 12066, U.S. District Court, District of Massachusetts (Boston).

"If you or a family member have been injured or suffered wrongful death from the meningitis outbreak, it is important to contact an experienced personal injury lawyer quickly. Please contact Parker | Scheer LLP for a free consultation with one of our experienced Personal Injury Lawyers."

A total of 52 people have now been identified as being infected with fungal meningitis after receiving injectable steroids (methylprednisolone acetate) prepared by New England Compounding Center Inc. in Framingham, Massachusetts. The newest count brings to eight, the number of states reporting infections tied to the tainted medications, which has already claimed five lives.

To date, more than 950 people have been identified as receiving the tainted medication from the Framingham pharmacy. Those infected reported symptoms including headache and fever, and traces of meningitis were found in the patient's spinal fluid. Meningitis, which can be either viral or bacterial in nature, is an inflammation of the membranes covering the brain ("meninges") and can be fatal. A list of health care facilities and dispensaries believed to have received tainted lots can be found at http://www.cdc.gov/HAI/outbreaks/meningitis.html

Parker Scheer LLP is closely following the ongoing investigation of the Framingham, Massachusetts pharmacy. If you or someone you know has suffered an infection thought to be caused by tainted medication, call us. There is never a charge to discuss your potential case and all information shared will be maintained in strict confidence. Parker Scheer attorneys are available to speak with you seven (7) days at 866-414-0400.

On July 12, the group, Public Citizen, published a study stating that for the eighth consecutive year, the number and total value of malpractice payments made on behalf of physicians declined in 2011. Information for the study was provided by the National Practitioner Data Bank, (NPDB), a federal clearinghouse for medical malpractice payments. Public Citizen said that the downward trend in payments discredits the argument made by organized medicine and Republican politicians that "medical malpractice litigation is responsible for rising healthcare costs." Also discredited is the push by GOP members of Congress to enact tort reform measures, such as a cap on non-economic damages, which Public Citizen says is an unnecessary restriction on patients' legal rights. As a result, tort reform advocates say the annual Public Citizen data is misleading because malpractice payments on behalf of physicians frequently go unreported.

In 2011, the total value of payments was roughly $3.2 billion dollars. The payments, which made up .12% of total healthcare costs, were an all-time low. According to Public Citizen, the trends do not support the notion that physicians widely practice defensive medicine to avoid malpractice litigation. When the risk of litigation is in decline, "such a conclusion does not stand to reason". Eighty percent of total medical malpractice payments were made for death, a major or significant permanent injury, quadriplegia, brain damage, or other conditions requiring life-long care, "disproving the claim that medical malpractice litigation is frivolous," said Public Citizen.

Arguing against these reports, critics of Public Citizen have long called the National Practitioner Data Base a poor source of information about malpractice litigation because payments made on behalf of hospitals do not have to be reported to the NPDB. Many payments on behalf of physicians never make it into the system due to the fact that when someone sues both a hospital and a physician, often times the physician is dropped as a defendant before a final settlement or jury award, making the hospital the only responsible party.

Continue reading "Medical Malpractice Payments and Values in Decline" »

A New Hampshire bill, aimed at reforming medical malpractice law suits, was vetoed by Governor John Lynch on June 20th. If approved, the bill would have established a voluntary program in which patients injured by medical providers, would agree not to file suit in exchange for compensation of medical expenses and lost wages. Governor Lynch claimed that while the bill had some compelling features, on balance, the interests of the public and the medical profession were not evenly served.

Lynch pointed specifically to the bills' requirement that would have required patients to decide whether or not to litigate their case within five days of meeting with a "case advisor." Lynch also stated that the bill needed more work in order to adequately protect the interests of injured patients. Additionally, patients who accepted an early offer would not receive compensation for lost wages, pain and suffering, or other otherwise compensable damages. Finally, victims who declined early offers would also be required to pay the legal fees of the health care providers they sued if they were not awarded substantially more by a jury than by the health care provider's early offer.

If passed, this legislation would have made New Hampshire the first State to allow health care providers to extend a cash settlement offer to victims in order to avoid litigation and trial. Many hospital lobbyists and executives were strongly in favor of the bill. For more on this topic, see Roadmap to Reform Needs New Direction, written by Eric J. Parker.

Eric Parker was featured in the April 27, 2012 issue of the Boston Business Journal's "Viewpoint" section. In "Roadmap to Reform Needs New Direction," Parker gives his view on the Massachusetts Medical Society's recently announced plan to reform the State's medical liability system. Click here to read more.

The family of an 8 year old boy recently obtained a $4.6 million settlement with the maker of a clamp used during a botched circumcision, according to an article appearing in the Los Angeles Times.

The boy's penis was partially amputated when he was circumcised as an infant. The accident is one of many examples of injuries caused by circumcisions around the country.

Parker | Scheer LLP has handled numerous botched circumcision cases on behalf of children who suffered partial or total amputation of the distal penis following circumcisions, including one resulting in a $1.26 million structured settlement for the child.

In that case, a pediatrician who performed the circumcision inadvertently amputated a portion of the infant's glans penis. The doctor used sutures to repair the damage, leading to the loss of tissue. The pediatrician did not recommend surgical repair by a pediatric surgeon, which if it had been performed, would likely have improved the cosmetic result and reduced the degree of a condition involving the abnormal placement of the urethra opening on the penis.

The device used for the circumcision in the case we handled - the Mogen clamp - was also used on the boy in the recent case in California. The Mogen clamp was first invented in 1954 by a Brooklyn rabbi who wanted to standardize circumcision equipment. The Mogen clamp loosens the foreskin, then pulls it through the clamp and clips it with a single cut. Some think the Mogen clamp has a design flaw because it doesn't allow users to see what they're cutting.

The other two devices commonly used for circumcisions - the Gomco clamp and Plastibell circumcision instrument - are two-part systems designed to protect the tip of the penis during the procedure.

Approximately 56 percent of boys born in the U.S. are circumcised in hospitals, according to the Centers for Disease Control and Prevention. The CDC does not track the number of circumcisions performed in religious ceremonies, such as the Jewish bris .

Miltex, Inc., the defendant in the California botched circumcision case, stopped distributing the Mogen clamp in 1994. In 2000, the U.S. Food and Drug Administration issued a public health notice concerning the Mogen and Gomco clamps after receiving about 20 injury reports annually since 1996, including lacerations, hemorrhaging, amputations, and urethral damage. The FDA did not recall the clamps, but warned users on the proper use of the devices.

Despite continued reports of injuries involving the Mogen clamp, the device remains popular among physicians who perform circumcisions.

Continue reading "Botched circumcision leads to $ 4.6M settlement" »

According to a new study, one out of every three Americans will suffer injury during a hospital stay. The study, conducted by David Classen from the University of Utah, confirms that healthcare is subject to grossly inaccurate reports of errors and a shocking number of injuries caused by medical treatment.

The study found that older methods used for identifying medical malpractice provided a skewed version of data regarding the prevalence of medical error in hospitals. The study compared three different methods of tracking medical error among a pool of about 800 patients from three top American hospitals. These methods included two older error tracking methods: voluntary reporting in patients' medical records, and voluntary reporting to the Agency for Healthcare Research and Quality's Patient Safety Indicators. The third method is newer. Developed by the Institute for Healthcare Improvement in Cambridge, Massachusetts, the Global Trigger Tool method considers medical errors encompassing a wide variety of issues, ranging from bed sores, to foreign objects left in the body after surgery, to serious and life-threatening complications.

With the use of the Global Trigger Tool, the study identified a striking difference between the number of medical errors actually occurring in hospitals versus those that were ever reported. The two older methods missed over 90% of the injuries caused by medical treatment. Thus, the study found medical errors were ten times more prevalent than reported. This result emphasizes the need for a more accurate and effective reporting system for healthcare professionals to understand and curtail hospital errors that result in preventable injuries to patients.

For more information on this study, please click here to access the Health Affairs article.

Continue reading "Odds That You'll Encounter Medical Error at a Hospital? One in Three." »

We often hear that the American medical industry is among the best, if not the best, in the world. But for all the cures, medical advances, and lives saved, there still exists a darker side to the medical industry which we hear little about in the media. The understated risk of injury to a patient while in the care of a medical professional is something that is too often swept under the rug or minimized by the medical community. When the rug is lifted though, the reports show that in the United States alone, the number of patient deaths caused by medical error per year range from an estimated 98,000 to 250,000. Other statistics do not paint a much brighter picture. For example, studies suggest that one in seven Medicare patients are injured during medical treatment. Even the average patient will be subject to at least one medication error per day.

So why does the medical industry tolerate such dismal statistics? The answer to this question was recently addressed in an article written by Marshall Allen titled "First Do No Harm." Allen addresses how hospitals and doctors attempt to keep medical error rates within the statistical national average, but do little to achieve a rate below that benchmark. This, Allen believes, creates an even larger problem. While a hospital may appear to have a good safety record, the data really only shows that the hospital has an error rate similar to that established as the national average. Allen argues that the medical industry should strive for an error rate of zero rather than a statistical average, thereby enforcing a zero tolerance policy for medical accidents. Any other goal is untenable for preventable injuries.

Allen also addresses the lack of an accurate reporting system of medical errors within the medical care industry. As the medical industry operates today, it lacks a reliable mechanism to show how safely doctors and hospitals are performing. Often, data concerning reported medical errors is inaccessible to the public. More importantly, the majority of medical mistakes go unreported. Systematically recording errors, Allen argues, would spur improvements in safety in the medical industry, and would drive the accepted standard for error from merely meeting the national average down to zero. The medical industry could police itself through a reporting mechanism, and patients could rely on that system to accurately select the medical professionals with the best reputation for safe practice.

Patients expect to receive safe medical treatment while in the care of medical professionals and do not expect to suffer further injury. No patient should pay escalating costs for injuries that are directly attributable to the hospital or doctor treating him or her. According to Allen, until hospitals strive for zero tolerance, Americans are subject to the possibility of suffering personal injury, or even death, as a result of preventable errors by medical professionals.

For more discussion of these issues, please see Marshall Allen's article, available here.

Continue reading "When Average Is Not Good Enough " »

Boston Hospital, Beth Israel Deaconess Medical Center reported medical malpractice during surgeries on three different patients who underwent spinal surgery, two of which were performed by the same surgeon.

According to reports between 2006 and 2008, 11 spine surgery errors occurred in Boston, resulting in additional back surgery for most of the patients affected.

Site-operating errors are surprisingly common during back surgery, and often go unnoticed until a patient complains of lingering pain or a routine X-ray identifies that the incorrect vertebrae was operated on.

Beth Israel senior vice president of health care quality, Dr. Kenneth Sands said the mistakes were not connected and that the hospital has since improved its procedures, adopting a procedural checklist, and hired an expert to review spine surgeries. Even so said Sands, "it's still possible to make a human error.''

The full article is featured in the Boston Globe: Beth Israel erred in 3 spinal operations

Continue reading "Boston Patients Undergo Wrong-Site Spinal Surgery" »

As The New York Times title declares, Study Finds No Progress in Safety at Hospitals. Since 1999 when the Institute of Medicine conducted a report that discovered 98,000 deaths were the result of medical mistakes in U.S. hospitals, efforts and overhauls were made to improve patient safety. The New England Journal of Medicine (NEJM) evaluated 10 hospitals in North Carolina between 2002 and 2007, which represented a variable cross-section of hospitals throughout the country. The studies found that "harm to patients was common and that the number of incidents did not decrease over time." The number of procedural complications, drugs incorrectly prescribed, hospital-acquired infections, and wrongful deaths did not decrease with the hospitals attempts to do so.

Other studies, however, show that progress in hospital safety would most likely result from the implementation of computerized systems to order drugs for patients, and to report medical errors. 162 of the 2,341 cases recorded during the NEJM study were caused because patients were prescribed the wrong medication. These medical errors were reported voluntarily by patients. Leapfrog Group, a patient safety organization, whose mission it is to "trigger giant leaps forward in the safety, quality and affordability of health care," believes a mandatory monitoring system would great improve the frequency of reports, and hopefully the frequency of errors.

According to The Times Article, Leah Binder, the chief executive officer of the Leapfrog Group, said it was essential that hospitals be more open about reporting problems.

"Right now you ought to be able to know the infection rate of every hospital in your community."

For hospitals with poor scores, there should be consequences, Ms. Binder said: "And the consequences need to be the feet of the American public."

Continue reading "Hospital Safety Progress Not Improving" »

Civil litigation in Massachusetts moves slowly. So slowly in fact that clients routinely voice frustration to their personal injury attorneys over how long their cases take to resolve. This is particularly true in the area of medical malpractice litigation, where the life of an average case, from intake through trial, can easily take upwards of three or more years to complete. These days, medical malpractice cases seem to be taking even longer to resolve.

One reason for the snail's pace of medical malpractice litigation may have something to do with a "bone" the Massachusetts legislature threw to the medical malpractice insurers a few years back. I'll call it "the free ride" bone.

In almost any other category of claim for personal injury, for example,. auto-related injury or product liability, commenced in Massachusetts State court, the plaintiff is legally entitled to receive - on top of the amount ultimately awarded by the jury or judge - "pre-judgment interest" at the rate of 12% per year, calculated from the date of the filing of the civil complaint with the court (not the date of injury) through the date the court enters final judgment. So, by way of example, if a person is injured as a result of a car accident and files a law suit against the negligent driver on January 2, 2010, and the jury returns a verdict in favor of the plaintiff on January 2, 2013 in the amount of one million dollars, the plaintiff would be entitled to receive a total award of $1,360,000.00 (one million dollars plus $360,000 in pre-judgment interest).

The reasoning behind pre-judgment interest is to disincentive defendants (insurance companies for the most part) from dragging their feet and denying funds to which the plaintiff is legally entitled. The system works quite well. Insurance companies hate paying pre-judgment interest, and, in fact, have worked quite hard to convince Massachusetts law makers that the rate of 12% is excessive - particularly in today's low-interest rate environment.

Fortunately for plaintiffs, the Massachusetts legislature understands that pre-judgment interest has something more than an economic benefit in mind; it was designed to prevent insurance companies from sitting on their hands and doing nothing (something insurers would otherwise love to do in every case).

Enter the Massachusetts Medical Malpractice Insurance Lobby. In what should be regarded as nothing short of a coup, the insurance companies that insure doctors in Massachusetts successfully convinced the Massachusetts legislature to lower the pre-judgment interest rate in medical malpractice cases only, from the standard 12% annual rate, to a rate that is tied to United States Treasury rates - in short - just about 0% these days. The net effect of this coup was to provide the medical malpractice insurance companies with every reason in the world to work slooooowly. So slowly in fact that medical malpractice cases currently take longer than just about any category of injury-related litigation.

In a perfect world, members of the Massachusetts legislature would actually take notice of the monster they've created by virtually eliminating pre-judgment interest and the intended goal of the pre-judgment statute. But Massachusetts remains a long, long way from the perfect world, so don't count a change in the law any time soon.

Continue reading "Another Reason Massachusetts Medical Malpractice Cases Can Take a Long Time to Resolve" »

An individual infected with a "superbug," an antibiotic-resistant bacteria, was treated in a Massachusetts hospital earlier this year, the Boston Globe reported on September 14, 2010. That patient, as well as the only other two United States patients with "superbug"-related infections, had been in India, and two out of those three underwent medical procedures while in India. In fact, the threat of infection from this organism is highest in hospitals. For example, a person is at risk while undergoing a surgery with many open wounds, according to that article.

While the "Superbug" article summarized above discusses the enormously rare cases of only three U.S. patients, it is illustrative of a far more common reality. Each year hundreds of thousands of adults and children are blindsided when even simple medical procedures cause complicated and serious injuries. When those injuries are caused by a doctor's negligence, the patients deserve recovery.

Parker Scheer lawyers have successfully represented scores adults and children injured or killed as a result of medical errors.

'Superbug' patient treated at MGH - The Boston Globe

Continue reading "Patient infected with "Super Bug" Treated at Massachusetts Hospital" »

LAS VEGAS. A southern Nevada medical clinic, operating as the Endoscopy Center of Southern Nevada, had reportedly been re-using syringes on multiple patients for several years, possibly as far back as March of 2004. Patients who received injections using second hand syringes may have been exposed to dangerous and highly contagious viruses including Hepatitis B and C as well as HIV, the virus which causes AIDS.

According State health officials, as many as 40,000 people may have been patients of the clinic during the subject time period and should be tested for all three viruses as soon as possible in order to best safeguard their own health and the health of those to whom they may have inadvertently transmitted these viruses.According to Parker Scheer Attorney, Andre Lagomarsino, a leading Las Vegas trial lawyer with significant experience in medical malpractice litigation, "the practice of using the same syringe on multiple patients, while rare, constitutes an extreme example of medical negligence, and may give rise to significant malpractice claims by those who contracted viral infection or other harm as a result of the clinic's negligence".

Persons who were patients of the clinic between March 1, 2004 and the present, who feel they may have suffered infection as a result of the negligence of the Endoscopy Center of Southern Nevada, are encouraged to contact the firm's Las Vegas office, toll free, seven days a week, at 866-414-0400 or complete a confidential on-line request for assistance. All inquiries will be maintained in strict confidence.

To find out if you have a case, contact our lawyers for a free confidential case review and receive a response within hours, or call toll free 866-414-0400. If you need a lawyer outside of Nevada, contact us for a referral.

Parker Scheer LLP recently secured a $1 million dollar settlement for a client in a Boston Medical Malpractice Case. This medical malpractice case involved the failure to diagnose Wilson's Disease. In January 2002, the plaintiff, a 20-year-old female college student, developed a rash on her back, prompting a consultation with a dermatologist who prescribed the prescription drug Minocycline.

Read full case report.