Boston Personal Injury Attorney Blog

September 11, 2014

“Hot Coffee” Documentary Details How Tort Reform Movement Gathered Steam

Almost certainly, you have heard of the 1990s case involving the woman who was awarded millions of dollars after spilling takeout coffee in her lap. The case was upheld as an example of how absurd our justice system had become, how out-of-control juries were getting and why civil justice reform couldn’t come soon enough.

However, there are a lot of things you probably don’t know about the case. This includes the fact that news of the outcome was manipulated by corporate interests as part of an ongoing public relations campaign to severely undercut public access to and benefits from civil court. It became the catalyst for a wave of damage caps enacted by state legislators, as well as the start of more companies using mandatory arbitration agreements to force people to settle their disputes out of court. The public was told these steps were in their bests interests, because high damage awards to injured parties resulted in higher costs to them for everything from auto insurance to health care to their next cup of coffee.

Our Boston personal injury lawyers know this is patently false, as is the idea that the plaintiff in the so-called “hot coffee case” was out for a quick payday. All of this is the subject of a new documentary entitled, “Hot Coffee,” available on DVD and Netflix streaming.
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September 5, 2014

Adams v. Laboratory Corp. of America – When Laboratories Fail to Properly Diagnose

by Jeffrey S. Glassman

Medical malpractice comes in many forms, one of the most common of which is failure to diagnose.

Sometimes, this is a failure on the physician’s part. He or she did not follow acceptable standards of care when making or attempting to make a diagnosis. (The fact that he or she was wrong isn’t usually enough to prove the case; a plaintiff needs to prove the doctor breached the industry standard of care for his or her field.)

However, there are some occasions where failure rests on the shoulders of the laboratory that processed and analyzed the bio-samples. Our Boston medical malpractice attorneys recognize that while these technicians may not have gone to medical school, they and their employer can still be sued for medical malpractice because of their role in the health care industry.
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September 1, 2014

Carl v. Muskegon County: On §1983 Claims for Civil Rights Violations

by Jeffrey S. Glassman

Carl v. Muskegon County is an appeal filed in the United States Courts of Appeals for the Sixth Circuit. This case involved a plaintiff who suffered a psychotic break while working as a home healthcare provider. He allegedly urinated on one patient’s head and tried to pour liquid soap on another.

He was arrested and charged with abuse of a vulnerable-adult and held at the county jail as a pretrial detainee. Due to his strange behavior and the nature of the offense, the plaintiff was given a psychiatric evaluation to determine if he was a danger to himself or others at the jail.

According to court records, the county jail used an outside contractor for all mental health services at the facility. The county selected this contractor. While two of the contractor’s employees where performing the evaluation, they indicated plaintiff was “floridly” psychotic. They also noted that the anti-psychotic medication he was currently taking was not very effective. Finally, they recommended that he be transferred to a psychiatric hospital.

Plaintiff was also diagnosed with paranoia, because he saw a glowing light in his cell that was tugging on his brain. But because employees who examined the plaintiff were not medical doctors, but rather limited-licensed psychologists, they did not have the authority to order an involuntary commitment of a patient, regardless of his or her mental state. They chose to ask for help from a doctor who was working as an independent contractor to the jail’s mental health services provider.

This doctor knew the plaintiff was on anti-psychotic medication prescribed by other workers. During evaluation, plaintiff denied all things to which he admitted during the first evaluation. He denied being depressed, denied any suicidal or homicidal ideations, and denied all symptoms that he discussed in the first evaluation. The doctor described the plaintiff as pleasant and cooperative and determined that he was not in need of additional mental health services.

Plaintiff filed suit alleging that the doctor and other employees of the home health care company were negligent in not properly treating his condition. This suit was filed in the United States District Court under 42 U.S.C. §1983. As your Boston personal injury lawyer can explain, this is known as a civil rights violation case.
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August 29, 2014

Henkel v. Norman: Adequate Warnings in Premises Liability Cases

by Jeffrey S. Glassman

In Henkel v. Norman, an appeal from the Supreme Court of Texas, a mail carrier was injured after he fell on ice one January day. According to court records, plaintiff was delivering mail on a day that was colder than normal. The National Weather Service had issued a hard freeze warning through the weekend.

The plaintiff walked on the sidewalk in front of some homes and walk on the lawns of other homes when delivering mail. When his accident occurred, he was walking through defendant’s lawn. Defendant was standing at the door when plaintiff arrived so she took the mail from him. When he turned around to leave, defendant said “don’t slip.” Despite her warning, plaintiff slipped and fell on the ice.

Plaintiff denied having seen any ice on the defendant’s lawn prior to his fall. He sued defendant on claims that homeowners were aware of the ice accumulation on their property and did nothing to remove it or warn people of the danger of the ice.

Defendant filed a motion for summary judgment and trial judge dismissed the plaintiff’s case. The judge ruled that there was no dispute of material fact at issue in this case and that the defendant had explicitly and in no uncertain terms warned the plaintiff to be careful about the ice right before he fell.

As your Boston personal injury lawyer can explain, a motion for summary judgment is a motion to dismiss a claim, or the entire case. The moving party (normally the defendant) asserts that there is no genuine dispute as to material facts. Essentially, they are saying that if you take all of the facts in the best light of the non-moving party, the non-moving party (normally the plaintiff) still cannot win the case. In the Commonwealth of Massachusetts, a motion for summary judgment is contained in Rule 56 of the Rules of Civil Procedure.
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August 26, 2014

Lindner v. Union Pacific Railroad Co.: Diversity Jurisdiction in Federal Personal Injury Lawsuits

by Jeffrey S. Glassman

Lindner v. Union Pacific Railroad Co., a case from the U.S. Court of Appeals for the Seventh Circuit, involved a couple who were driving under a railroad bridge when a train derailed above them. The train derailment caused the bridge to collapse and land on the couple’s vehicle. Both occupants of the car, husband and wife, were killed in the tragic accident.

The decedents’ son filed a wrongful death action against the railroad alleging that the accident was due to negligence. As your Boston personal injury attorney can explain, a wrongful death action is a type of negligence case typically filed by one or more of the surviving heirs of the decedent in the name of the estate.

This case was filed in federal court. A personal injury can be filed in federal court if it implicates a “federal question” or there is diversity of citizenship and the amount in controversy (claim) is more than $75,000. In this context, diversity of citizenship means that the plaintiff(s) and defendant (s) reside/operate in different states. Here, the plaintiffs were from Illinois and the railroad had its headquarters in Delaware. Many companies have their headquarters in Delaware, due to the state’s laws being favorable to corporations.
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August 26, 2014

Vesely v. Armslist LLC: Wrongful Death Actions and Sales of Guns Over the Web

by Jeffrey S. Glassman

Our Boston wrongful death lawyers understand that in some cases, proving a relationship between a plaintiff and third party may require significant litigation.

Vesely v. Armslist LLC, a case heard in the United States Court of Appeals for the Seventh Circuit, involved a woman killed by a man she met on an internet dating website. The man attempted to pursue a romantic relationship with the decedent, but she declined his advances.

After being rejected by the victim, the man purchased a .40 caliber handgun from a man in Seattle via an online classifieds page created to facilitate the purchase and sale of weapons. The website featured several disclaimers that stated owners of the site are in no way involved in any transactions between parties and that they in no way guarantee the legality of any transaction conducted via the website.

According to the website, any person who engages in a transaction is responsible for following all state and federal laws pertaining to the sale of guns and ammunition, and if a party has any questions, they should contact the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) directly.
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August 23, 2014

Gregory v. Cott: On Assumption of Risk in Personal Injury Cases

by Jeffrey S. Glassman

Your Boston personal injury lawyer understands that assumption of risk is a commonly asserted defense to negligence actions.

Gregory v. Cott, an appeal argued before the California Court of Appeals, involved a healthcare worker who was injured by an Alzheimer’s patient in her care.

The husband of an 85-year-old woman who suffered from the advanced stages of Alzheimer’s disease hired an home healthcare agency to provide care for his wife. The plaintiff was assigned to treat the patient in her home. The plaintiff had worked with patients suffering from the disease in the past and had been trained in caring for people with Alzheimer’s disease.

According to the record, the plaintiff was aware that late stage patients are prone to violent physical outbreaks. She knew that patients were prone to biting, kicking, and scratching those around them. Her responsibilities including bathing the patient, transporting her, and she was also to help perform light housekeeping. The plaintiff was washing dishes on this day and was cleaning a large kitchen knife. Her patient hit her from behind and reached into the sink.
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August 20, 2014

Hill v. United States: On FTCA Personal Injury Lawsuits

by Jeffrey S. Glassman

Hill v. United States, a case from the U.S. Court of Appeals for the Seventh Circuit, involved a plaintiff who was serving a five-year sentence in prison when another inmate attacked him. He was hit with a metal object and lost vision in one eye. Eventually, the eye had to be removed by doctors. The plaintiff filed a lawsuit against the United States Bureau of Prisons (BOP). The lawsuit was filed pro se.

As your Boston personal injury lawyers know in rare cases a person will choose to represent himself or herself in court. When this happens, the unrepresented party is known as a pro se litigant.

In Hill, the basis for the lawsuit was that the BOP was negligent by allowing the prison to become overcrowded and by failing to safeguard the prisoners in the overcrowded environment.
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August 18, 2014

Massachusetts Hot Air Balloon Crashes Power Lines, Bursts Into Flames

by Jeffrey S. Glassman

According to a recent article from CBS Boston, a hot air balloon crashed into power lines in Clinton, Massachusetts. Witnesses saw the hot air balloon flying extremely low over their neighborhood when it flew into power lines and caught fire. There were five or six passengers in the balloon who authorities said suffered burns ranging from minor to severe.

Many of the witnesses thought the passengers were all dead when the balloon crashed. Fortunately, the accident was not fatal. The cause of the accident is unknown, as is the reason the balloon was attempting to land in the town. Local authorities and the Federal Aviation Administration (FFA) are investigating the cause of this balloon crash.

The National Weather Service stated winds were fairly mild and there were no substantial weather events at the time of the crash. Around 600 people were left without power after the accident due to the power lines catching on fire. The power company was able to restore service within a few hours.

As your Boston personal injury lawyer understands, injuries resulting from recreational activities can often lead to complex litigation. It is likely the passengers were required to sign some type of waiver before boarding the balloon. However, Massachusetts courts are often willing to void liability waivers, depending on the language of the contract and the facts of the situation.
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August 15, 2014

Shapria, M.D. et al. v. Christiana Care Health Services, Inc., et al.: On Informed Consent in Medical Malpractice Cases

by Jeffrey S. Glassman

Shapria, M.D. et al. v. Christiana Care Health Services, Inc., et al. was a medical malpractice case argued before the Delaware Supreme Court. The plaintiff fell off a ladder and injured multiple ribs and suffered other injuries from the accident.

As your Boston medical malpractice attorney can explain, many cases deal with the issue of informed consent.
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