INSIGHTS On Massachusetts Personal Injury Law

Welcome to the SUGARMAN blog. We'll be sharing our perspectives on the state of the law and current legal issues in Massachusetts personal injury law. Issues relating to medical malpractice, construction site injuries, premises liability, product liability, motor vehicle accidents, insurance, and more will all be reviewed here by our team of lawyers who have prosecuted some of the most complex cases in Massachusetts personal injury law.

Articles Posted in Medical Malpractice

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Over the past several years, there have been disturbing reports of exposure to blood-borne diseases such as HIV, and Hepatitis B and C after undergoing colonoscopies. The most recent of these cases was reported earlier this month at Baystate Noble Hospital in Westfield, Massachusetts, where 293 patients who underwent colonoscopies between June 2012 and April 2013 may have been exposed to these diseases. This exposure was due to improper sterilization of colonoscopy equipment, which had been purchased in 2012 and required a different sterilization process.

While colonoscopies are usually considered routine medical procedures, ease your mind about potential risks by asking your physician:

1. Does your facility have staff devoted to the reprocessing and disinfection of colonoscopy equipment?

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Unfortunately, injuries in hospitals are all too common. One class of such injuries has been labeled as “never events”, a term used to describe medical errors that should never happen under any circumstances. The Massachusetts Department of Public Health (“DPH”) calls these types of injuries “serious reportable events” (“SRE”) and there are regulations that outline what events constitute a SRE (for example, surgery on the wrong leg) and what a hospital is required to do should SRE occur during the course of a patient’s care. The regulations require hospitals, within seven (7) days, to report SRE causing serious injury (or death) to the patient (or his or her family), the patient’s health insurer (including Medicaid or Medicare) and the DPH’s Bureau of Health Care Safety and Quality. An updated report to all is required within 30 days and must include an analysis of the cause of the event and whether the event was preventable.

In 2013, Massachusetts acute care hospitals reported 753 of these events and non-acute care hospitals reported 206 events. Hospitals are not permitted to charge either the patient or health insurer for SRE or treatment required for the resulting injuries.

DPH has put out a lengthy, detailed list of SRE. They generally fall within several categories:

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Following the December 14, 2013 and January 15, 2013 deaths of two young mothers during childbirth, the South Shore Hospital in Weymouth, MA, announced that it is performing an internal review into these tragic deaths and whether or not the deaths could have been prevented. In addition and in accordance with mandatory reporting requirements relating to unexpected medical results and deaths, the South Shore Hospital has also notified the Massachusetts Department of Public Health of these deaths. According to the Centers for Disease Control and Prevention, approximately 650 women die each year as a result of delivery or complications from delivery. Despite advances in medicine, the pregnancy-related mortality rate more than doubled from 1987-2009. The majority of these deaths are caused by cardiovascular disease and infections.

Unfortunately, it appears that South Shore Hospital, without even completing its investigation, is taking the position that the women’s deaths were unpredictable and unpreventable. Equally unfortunate for the families of these young women is that they may never learn the results of the hospital’s investigation and whether or not the deaths were truly unavoidable. The internal review being conducted by the South Shore Hospital is most likely being conducted in the form of a medical peer review committee. A peer review committee is typically a group of physicians who review the care rendered to a patient to determine whether or not the care was appropriate under the circumstances. In Massachusetts, the findings of and any records relating to peer review committees are deemed confidential and privileged, thus insulating a hospital from having to produce the results of its own investigation to the families of these two young women. Even if a medical malpractice case is filed, the families would still not have access to these findings. This confidentiality is codified in Massachusetts’ Peer Review statute, M.G.L. ch. 111, Section 204.

If you have questions regarding this blog or have been injured due to the negligence of another, please e-mail info@sugarman.com.

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Last week, a New Hampshire hospital technician was sentenced to 39 years in prison following his guilty plea to federal charges that he had tampered with consumer products – prescription painkillers – and had obtained controlled substances by fraud. David Kwiatkowski, a cardiac technician who admitted to suffering from an addiction to drugs and alcohol, had worked at 18 hospitals or medical centers in different states over a number of years, including those in Pennsylvania, New York, Maryland, Arizona, Kansas, New Hampshire, and Georgia. His last employment was at Exeter Hospital in New Hampshire. At these hospitals and medical centers, Mr. Kwiatkowski stole syringes filled with prescription painkillers, including the powerful opioid Fentanyl, for his own personal abuse. After using the stolen drugs, Kwiatkowski re-filled the empty and contaminated syringes with saline and the syringes were then used on unknowing patients. To make matters worse, in addition to depriving patients of their pain medication, Mr. Kwiatkowski was aware that he was infected with hepatitis C, which is transmitted intravenously and can cause liver damage and other life-threatening complications. His actions infected at least 46 patients in several states with hepatitis C, and it is possible that at least one patient died due to a hepatitis infection. Officials have asked over 7,000 patients to get tested due to possible exposure to hepatitis from Mr. Kwiatkowski.

It appears that none of the hospitals where Mr. Kwiatkowski was employed knew of his actions, i.e., that he was using contaminated syringes on patients while knowing he was infected with hepatitis C, but he had been fired from four hospital jobs based on allegations of theft or drug use. At least two dozen civil lawsuits have been filed by patients against Exeter Hospital for the hospital’s negligence in hiring Kwiatkowski or for otherwise allowing these crimes to occur through inadequate hospital safety protocols. In turn, Exeter Hospital has filed lawsuits against Mr. Kwiatkowski and the several staffing agencies that played a role in his hiring, which the hospital alleges bear some responsibility for failing to disclose Kwiatkowski’s past improper conduct.
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It is an understatement to say that being hospitalized is usually an unpleasant experience. For both patients and family members, the stress of hospitalization, along with the fear of the unknown and the uncomfortable environment, can be very emotional, often leading to frustration which boils over.

However, there are a number of strategies that patients and their family members can employ during a hospitalization in order to reduce these stressors and to ensure better continuity of care after discharge. First and foremost, if the patient can advocate for himself/herself, the patient needs to be honest about what is going on with his/her body during the hospitalization – and then report it to the attending nurses and doctors. Although some symptoms, such as urinary incontinence, may be somewhat embarrassing to endorse, any change from the patient’s baseline condition should be reported in a timely manner so that the clinicians can determine the medical significance (if any) of the symptoms.

Some patients are loathe to report symptoms for fear of seeming like a “complainer,” or may not be able to understand what is happening or speak on their own behalf. Family members of this type of patient often need to be the voice for the patient by carefully monitoring his/her symptoms and reporting them to the treating clinicians. Attending physicians usually “round” on patients very early (and sometimes only) in the morning, so family members who have questions should make arrangements to be present for these early morning visits.
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According to a Johns Hopkins study recently reported in the April 2013 issue of the journal Surgery, so-called surgical “never events” occur with shocking regularity. “Never events” include such events as operating on the wrong side of the body, leaving a foreign body inside a patient’s body after surgery, and falls off of operating tables. These are totally preventable events.

The Johns Hopkins researchers estimate that 80,000 “never events” occurred in American hospitals between 1990 and 2010, with 4,044 such events occurring each year. The researchers further noted that these estimates are likely on the low side. The researchers estimate that “a surgeon in the United States leaves a foreign object such as a sponge or towel inside a patient’s body after an operation 39 times a week, performs the wrong procedure on a patient 20 times a week, and operates on the wrong body site 20 times a week.”
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A recent report of Public Citizen, a national nonprofit consumer advocacy organization, concludes that medical malpractice payments hit a record low in 2011, discrediting the claim that these payments are to blame for the skyrocketing cost of healthcare.  In the report, “Malpractice Payments Sunk to Record Low in 2011,” Public Citizen analyzed data from the federal government’s National Practitioner Data Bank, which tracks medical malpractice payments.

The report found that the number of payments made on behalf of doctors were at their lowest since 1991 and had fallen for eight consecutive years, and that the inflation-adjusted value of payments in dollar amount payments was the lowest on record.  At the same time, Public Citizen reported that medical malpractice payments’ share of the nation’s overall healthcare costs was the lowest on record, just 0.12 percent of all national healthcare costs.  The report stated that there is no evidence that the decline in medical malpractice payments is due to safer medical care, citing to three major studies performed in 2010 and 2011, including an April 2011 study published in Health Affairs which concluded that adverse medical events occur in nearly one-in-three hospital admissions.
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It has recently been reported that Johnson & Johnson (J & J) continued to market and sell its Gynecare ProLift transvaginal mesh product for months after the FDA ordered it to stop marketing the device.  In a letter dated August 24, 2007, the FDA told J & J, the world’s biggest seller of health care products, to halt sales of the product until the agency decided whether the device was “substantially equivalent” to other products on the market.  J & J continued to market the product for nine months until the product was finally cleared by the FDA. The FDA has not imposed any sanction upon J & J for disregarding its order.  J & J currently faces more than 600 lawsuits by women who have reported that J & J’s vaginal mesh products caused them serious injuries.

In 1996, the FDA cleared the first mesh product for use transvaginally to treat stress urinary incontinence, and in 2001 the agency cleared the first surgical mesh device for treatment of pelvic prolapse.  Pelvic organ prolapse and stress urinary incontinence frequently occur in women after childbirth (resulting in organs that prolapse and push against the vagina toward the outside).  These devices were generally cleared by the FDA’s 510(k) process, which allows approval without substantive studies if a product is “substantially equivalent” to others already on the market.

In 2008, the FDA issued a public health notification on serious complications associated with surgical mesh placed transvaginally to treat pelvic organ prolapse and stress urinary incontinence.  In July 2011, after nearly 4,000 adverse events associated with the transvaginal mesh were reported, the FDA warned of a rise in “serious complications” associated with surgical mesh for transvaginal repair.  The FDA also stated that “it is not clear” that transvaginal mesh repair for pelvic organ prolapse is more effective than traditional non-mesh repair, and may expose patients to greater risk. In January, 2012, the FDA ordered J & J and other manufacturers of vaginal mesh  products to study organ damage and other injuries claimed to be caused by the products.
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Previously, Sugarman provided a general overview of Federal and State Whistleblower Claims and the Massachusetts False Claims Act. In Part 3 of the blog series, Sugarman Partner David McCormack explores the Massachusetts Whistleblower Statute protecting health care whistleblowers from retaliatory action.

In the context of health care and in furtherance of the aims of the Massachusetts False Claims Act, the Massachusetts legislature has enacted M.G.L. Chapter 149, Sec. 187. This statute makes it unlawful for a health care facility to refuse to hire, terminate or take any retaliatory action against a health care provider who “discloses or threatens to disclose” a practice of the health care facility that the provider “reasonably believes is in violation of a law or rule or regulation . . . or [is in] violation of professional standards of practice which the health care provider reasonably believes poses a risk to public health.” Essentially, the statute provides protection to any Massachusetts health care whistleblower from retaliatory action by a health care facility. This statute would conceivably provide protection for any health care whistleblower who, through his attorneys, files a qui tam action pursuant to the Massachusetts False Claims Act.
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Whenever you need a lawyer, an important part of the choice is how and how much the lawyer is to be paid. Much legal work is done by lawyers based on an hourly charge or based on a set fee for a specific project. Divorce, wills and estate planning, and criminal defense are examples of lawyer work that is paid for this way. However, when the need for a lawyer is brought about by a personal injury or wrongful death, most of this legal work is done on a contingent fee agreement. A contingent fee agreement simply means that the lawyer and law firm are paid only if and when there is a successful recovery of money damages. The amount paid is almost always a percentage of the settlement amount collected. Massachusetts requires that all contingent fee agreements are put in writing and signed by both the client and the lawyer.

In personal injury and wrongful death cases, the most frequent fee percentages charged are 25%, 33 1/3% and 40% depending on the type of case and difficulty involved. Some specific types of personal injury cases, such as medical malpractice cases and cases against the United States, have limits on the percentage that can be charged. In medical malpractice cases, a law limits the percentage to be charged based on a sliding scale of the amount collected. As the recovery increases, the maximum fee percentage that can be charged decreases. In cases for personal injury or wrongful death against the United States, the maximum fee that can be charged is 25%.
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