Cape Cod Injury Lawyer Blog

Massachusetts Appellate Court Upholds Defense Verdict in Stillbirth Medical Malpractice Case

December 26, 2016 | by John S. Moffa

In the recent case of Milambo v. Satlin, a Massachusetts appellate court affirmed a ruling in favor of the defense in a medical malpractice case involving the stillbirth of a child. The plaintiff in the lawsuit was the father of a child who was stillborn. The baby was delivered via Caesarian section (C-section) during 2007. The father brought the lawsuit in his capacity as the personal representative of the deceased infant’s estate.

According to the complaint, roughly 45 minutes passed between the moment that the physician overseeing the birth informed the mother that a C-section procedure was needed and the time that the mother provided her consent to proceed with the procedure. After the child was delivered via C-section, it was discovered that the infant had a zero score on the Apgar scale and lacked any detectable pulse.

Massachusetts Appeals Court Upholds Judgment for Pedestrian in Truck Accident Crosswalk Collision Lawsuit

December 19, 2016 | by John S. Moffa

In Weiss v. City of Cambridge, the plaintiff suffered serious injuries when she was struck by a truck as she crossed a major street. The plaintiff was crossing within the crosswalk when the driver of the truck made a left-hand turn, striking the plaintiff. She suffered serious long-term injuries to both knees, incurred substantial medical bills, and was unable to attend several weeks of work. The truck was being driven by an employee of the City of Cambridge.

At trial, the main issue was the amount of fault that should be apportioned between the driver and the plaintiff. Although the plaintiff was within a crosswalk at the time she was struck, evidence at trial indicated that the plaintiff did not obey the pedestrian signal at the time she crossed the street. The jury assigned 35 percent fault to the plaintiff and the remaining percentage of fault to the driver of the truck. Based on Massachusetts law, the plaintiff’s damages award was reduced by 35 percent to reflect her contributory negligence.

The City appealed, alleging that the judge improperly instructed the jury regarding the application of certain statutes that apply to truck drivers and pedestrians. One of the statutes at issue details the responsibilities that drivers have when it comes to pedestrians in marked crosswalks. According to the city, the plain language of this statute required a finding that it should not be applied to the present case.

Massachusetts Court Grants Summary Judgment for Store in Parking Lot Slip and Fall Injury Case

December 12, 2016 | by John S. Moffa

In the recent case of Bowers v. P. Wile’s, Inc., the plaintiff alleged that she was injured at a garden store owned by the defendant in the Cape Cod region. According to her complaint, the plaintiff was at the store traversing a pathway in the parking lot that was roughly six feet wide. Although the pathway was paved, the areas adjacent to the pathway were covered with gravel stones. In the rock and masonry industries, the types of rocks that were used are referred to as river stones. The store also often displayed merchandise along this pathway in close proximity to the stones.

The plaintiff stated that she tripped on one of these stones while walking across the pathway and that it caused her to fall. According to her testimony, she did not see the river stone before she stepped on it. Other testimony offered at trial suggested that the store had maintained this pathway with adjacent gravel areas for over 10 years and that the store operator had not been notified of any other trip and fall accidents involving the stones on the pathway.

Despite this, the store did have some notice that from time to time the river stones would become dislodged from the areas adjacent to the pathway and wind up on its surface. One of the responsibilities for store employees was to inspect the path to ensure that it was free of any stones.

Massachusetts Appellate Court Upholds Denial of Defendants’ Summary Judgment in Personal Injury Claim Against Government

December 7, 2016 | by John S. Moffa

The law of negligence provides compensation for injured parties who suffer harm as the result of another person’s negligence. This doctrine extends not only to average laypersons but also to government employees. Over time, the law of negligence as applied to government actors has developed, leading to a different standard that applies in cases in which public officials or agents act carelessly. One of the primary differences between a negligence lawsuit against an individual versus against the government is that the injured party must provide the government with notice of the intent to file a lawsuit before initiating the action. There are also limits on the amount of damages that an injured layperson can recover from the government for a tortious act.

A Massachusetts appellate court recently considered a tort claim filed against the government. In Landry v. Massachusetts Port Authority, the plaintiff filed a claim seeking damages from a port authority in Massachusetts as well as the city in which the port authority operated. The plaintiff, who worked as a delivery driver for a commercial laundry service, alleged that he was injured at the Worcester Regional Airport when a motorized sliding gate malfunctioned and pinned him to a metal bar. The man was at the airport for the purpose of delivering a clean set of uniforms for the airport employees.

Massachusetts Appellate Court Upholds Multi-Million Dollar Verdict in Civil Sexual Abuse Case

December 3, 2016 | by John S. Moffa

A Massachusetts appellate court recently upheld a trial court’s order granting two daughters millions of dollars in damages as compensation for enduring years of sexual abuse from their father. According to the complaint, the defendants suffered repeated incidents of sexual abuse. During trial on the matter, both plaintiffs provided thorough testimony describing the nature, scope, and extent of the sexual abuse. They also testified regarding the physical and mental harm that they suffered and continued to suffer as a result of the assaults. One of the expert witnesses for the plaintiffs testified regarding the emotional injuries specifically, stating that as a result of the repeated sexual abuse, both daughters experienced anxiety, depression, suicidal thoughts, and issues engaging in sexual relationships.

The defendant father refrained from testifying, instead relying on his counsel’s cross-examination of the witnesses for the plaintiffs and the witnesses themselves. At the close of evidence, the jury deliberated and returned a verdict awarding each of the plaintiffs $1.5 million for the assaults and an additional $3.5 million for their respective claims for intentional infliction of emotional distress (IIED).

According to the seminal case of Agis v. Howard, to recover damages on a claim for IIED, the plaintiff must show four factors:

Massachusetts Appellate Court Upholds Verdict for Plaintiff in Wrongful Death Medical Malpractice Case

November 30, 2016 | by John S. Moffa

In any case involving the alleged wrongful death of the victim, the surviving heirs bringing the action must show that the defendant acted negligently at the time of the accident. This involves proving four separate elements: duty, breach, causation, and damages. In a medical malpractice case, the plaintiff typically must offer testimony from a medical expert regarding the issues of duty and breach. The trial court is vested with the authority to decide whether the expert whom the plaintiff has selected has sufficient experience and knowledge to provide an expert opinion about the issue.

In Ellis v. Clarke, the plaintiff brought an action on behalf of the estate of a woman who passed away due to lung cancer. The plaintiff named the treating physician for the decedent as the defendant in the action. After trial, the jury returned a verdict in the plaintiff’s favor, finding that the doctor had acted negligently and that the lack of adequate medical care he tendered was a substantial cause in the decedent’s passing.

Supreme Judicial Court of Massachusetts Upholds Settlement Award Allotting Damages to Injured Worker’s Pain and Suffering

November 27, 2016 | by John S. Moffa

In the recent case of DiCarlo v. Suffolk Construction Co., the Supreme Judicial Court of Massachusetts was asked to consider two companion cases involving job-related injuries that involved similar issues.

The first case involved an electrician who injured his back on a job site. The employer’s workers’ compensation carrier provided benefits to compensate the man for his medical bills and missed paychecks, which amounted to roughly $282,000. The injured worker also brought a negligence action against the owner of the construction site and the job manager. Both of these defendants filed third-party indemnification actions against a subcontractor involved with the job. The parties reached a tentative settlement, but the lower court denied approval of the settlement. According to the lower court, the settlement’s allotment of 35 percent of the amount to the worker’s pain and suffering was incorrect and would prevent the insurance carrier’s lien from attaching to the portion of fees allotted as pain and suffering damages. The parties appealed, and the appellate court reversed the lower court’s holding.

Drunk Driving Accidents on the Rise During Summer Months

November 23, 2016 | by John S. Moffa

For many people, summertime is associated with recreational activities, spending time with friends, and relaxing. This often involves the consumption of alcoholic beverages. With the increase in consumption of alcohol comes an increase in the number of drinking-related accidents that occur in Massachusetts. Although motor vehicle accidents are a common result of drunk driving, many intoxicated motorists also crash into buildings or other property structures, posing a serious risk to pedestrians and persons within the zone of the collision.

A common device that is used to prevent buildings and pedestrians from being struck by motorists is a bollard. These pylons or other solid structures are placed strategically in front of a building or in an area where it is likely that a motorist may crash into the building in order to prevent the vehicle from crashing into the structure. In most cases, the vehicle will collide with the bollard and lose momentum. To protect pedestrians, bollards are often placed between a busy street and a sidewalk.

According to a recent report from CBS Boston, however, Massachusetts does not require bollards to be placed in certain areas. What prompted the report was a recent crash in which a car missed a row of bollards and careened onto the sidewalk, placing pedestrians at risk. Had a few more bollards been in place, the car would have been prevented from traveling onto the busy sidewalk.

Massachusetts Court Adopts Continuing Treatment Theory in Medical Malpractice Cases

November 20, 2016 | by John S. Moffa

In Parr v. Rosenthal, the plaintiff filed suit against his physician after a radio frequency ablation (RFA) procedure on the plaintiff’s minor son’s leg. According to the plaintiff’s complaint, the procedure resulted in severe burning of the child’s leg, ultimately requiring amputation of the limb.

After a trial on the matter, the jury concluded that the plaintiff failed to file his action on behalf of his son within Massachusetts’ three-year statute of limitations for medical malpractice claims. As a result, the jury did not discuss whether or not the defendant doctor had treated the son negligently. The plaintiff appealed. According to the plaintiff, the trial court failed to instruct the jury regarding the “continuing treatment doctrine.”

According to the plaintiff, the trial court failed to instruct the jury regarding the “continuing treatment doctrine.” In reviewing this contention, the Massachusetts Supreme Judicial Court first noted that this doctrine had not before been recognized in Massachusetts. The appellate court took the occasion to expressly recognize the doctrine and applied it to the plaintiff’s claim. This doctrine states that in a medical malpractice case, the statute of limitations does not start to run while the plaintiff and his or her doctor continue their relationship, and the doctor continues to render medical treatment to the plaintiff for the same condition or a related condition.

Massachusetts Appeals Court Overturns Summary Judgment for Shopkeeper in Trip & Fall Case

November 16, 2016 | by John S. Moffa

In the recent case of Belanger v. Boys in Berries, LLC, the plaintiff was patronizing a farm store owned by one of the defendants and insured by the other defendant when he tripped over a pallet on the store’s floor and fell. The plaintiff alleged in his complaint that he suffered injuries to his shoulder and hip, including painful fractures

All property owners, including shopkeepers, have a duty to keep their premises in safe, good working condition, to repair any dangerous or unsafe conditions, and to provide warnings to consumers about any known dangerous conditions that the shopkeeper has not fixed or is not able to fix. When it comes to stores that sell food, spilled food and slippery surfaces are a common issue. While there are a variety of general requirements that apply to food store owners, the level of maintenance, upkeep, and warnings that the shopkeeper must maintain is determined according to a reasonableness standard.

The defendants moved for summary judgment, which is a motion that asks a court to make a conclusive ruling on a case. In a motion for summary judgment, the moving party contends that there are no issues of material fact requiring a jury’s determination and that the court can decide the parties’ dispute as a matter of law. The trial court granted the defendant’s motion for summary judgment, and the plaintiff appealed.