Archive for December, 2009

Settlement Update: $285,000 For Injured Hospital Worker Attacked by Insane Patient — The Case of the Harried Hospital

THE SETTLEMENT: MALIS|LAW, hired as trial approached, working with Attorney Dean Brunel,  has obtained a $285,000 settlement from a mental hospital on behalf of a cleaning contractor with a significant knee injury.  The cleaning contractor’s knee was significantly injured when he was assaulted by a psychotic patient who was allowed to walk freely in the corridors of a mental hospital while being admitted.

THE HOSPITAL’S NEGLIGENCE: The patient was being transferred from the open unit of the institution to the ‘closed’ unit on an involuntary admission, with a known history of violence, especially towards people of color.  The institution had few formalized guidelines for such transfers, developing them after the patient attempted to strangle my client as he cleaned the hallway.  As a result of the assault, my client suffered a stretched and torn ACL (anterior cruciate ligament) of his left knee, which an orthopedic surgeon addressed by reattaching and treating the fibers with heat.

CREATING A WINNER: Attorney Brunel approached me to try the case about one month before trial.  The client had not treated with a physician for several years, although he had complaints of knee pain.  Given the imminent trial, we mounted a ‘full court press’ to make the case trial ready.  I approached his original surgeon, who ordered a newMRI of his knee and found that the surgical repair, which had been performed with an experimental technique that has since been abandoned, had again failed, requiring additional procedures.  Within that month, I also developed expert psychiatric testimony of the hospital’s failure to follow proper procedures for communication of information about a committed patient between outpatient and inpatient wings of the hospital, which accounted for the lack of proper security and the patient’s being allowed in the vicinity of other persons at the hospital.  Literally on the eve of trial, I was contacted by the institution’s insurer, which agreed to settle.  The settlement was paid by the insurers for the institution; the admitting psychiatrist, who was sued for negligence; and the facility’s security company for negligent security.

What Is a ‘Herniated Disk’ — The Case of the Damaged Disk

A PAIN IN THE BACK: I’m not a doctor — I’m an attorney who represents injury victims.  However, for many, many years, first as an attorney for an insurance company, now for victims of negligence, I’ve dealt with the anatomy of the back, and particularly with an ongoing problem — the bulging or herniated disk (what some people call a ‘pinched nerve’ in their back.)   Here’s a working explanation of what happens:

A CLOSER LOOK: Take a look at this anatomic diagram, which shows the structures of the spine and spinal column from the side, or profile view, as well as from a cut-through view from the top of the spine, looking down.

Here's a view of a spine with a herniated disk shown from the side and in a cutaway view for illustration.

UNDERSTANDING THE ANATOMY: The spine is made up of bony segments, or vertebrae, which house and shield the spinal column, a bundle of nerves which conducts sensation and motor signals to various parts of the body.  This particular section is the lumbar spine, or the low back (the ‘bottom’ portion of the spine).  Everyone (with certain very limited exceptions) has the same number of vertebrae, occurring in the same order.  Each vertebral is numbered so that doctors can keep track.

THE DISK’S ROLE: The disks are jelly-filled spongy shock absorbers between the vertebrae that cushion the spinal column as you move and are jarred.  (In the diagram, they’re the greyish, rounded objects between the vertebrae).  Among other purposes, they prevent the spine from crushing the ‘nerve roots’, which are the branches that come off the spinal column, out through the spine openings, and radiate out to various parts of the body.

HOW A DISK HERNIATES, OR ‘BULGES’: When a person suffers an impact or trauma, they can wrench or compress their back, causing the disk  (think shock absorber) to ‘squish’ outward or inward.  Since the outer surface of the disk is fibrous and tough, the disk can generally handle that and spring back.  However, sometimes the twisting or compression is so forceful that the disk’s outer fibers tear, and the inner ‘jelly’ escapes outward.  The disk will appear out of round and deformed, or ‘herniated’.  Depending on which physician you talk to, the terms ‘protruding disk’ and ‘herniating disk’ may be used alternately.

GETTING THE WHOLE PICTURE: The diagram shows a disc herniation at the space below the L5 vertebra.  You can see, in the right hand drawing, that the disk is protruding, or bulging outward.  In the cutaway view, (the middle picture on the right side) you can see that the disk has broken out of its round shape and is pushing forward.  Since the spine is closely ‘engineered’, there’s not a lot of room for this bulge, so that when the disk pushes out of its normal shape, or ‘herniates’, it can press on the nerve roots.  The results:  a distorted signal is sent back to the brain, resulting in the body experiencing pain, numbness, tingling or weakness in the area that the nerve root ‘feeds’ signals to.  (In the case of the L5 herniation shown here, the person experiencing the herniation would also tend to feel pain radiating down the back of their leg.  The side that experiences the herniation will likely experience the pain (a right sided herniation could produce pain or symptoms in the right leg; a left sided, the left leg).  With a lumbar herniation, this experience is often called ‘sciatica’, since the nerve that radiates out from this area is called the sciatic nerve.

This is an overly simplified explanation; there’s lots more that goes into diagnosing, assessing and treating spinal injury. The body’s natural degeneration over time, or spinal abnormalities which you’re born with but which don’t surface until you’re older, can also cause this phenomenon, for example, and many people walk around their whole lives with protruding disks that, because of their own particular anatomy, don’t trouble them at all.   But it’s a useful one, and I hope that it helps your understanding of what’s involved in a disk herniation, and how it can affect you.

Five Myths About Medical Negligence and Healthcare Reform — The Case of the Lying Lobbyist

I promised you a rant from time to time; here’s one of my favorites, a critique of many of the common justifications for depriving victims of medical malpractice of their lawful right to be compensated as part of the pending national health reform legislation.  This White Paper is published by my good friends at the American Association of Justice, a trial lawyers’ organization that I proudly belong to.

“As enemies of health care reform spread lies and mistruths about medical negligence, a new white paper tackles the issue head-on, debunking the most common myths with sound science and research while refuting the hyperbole and empty rhetoric.

Five Myths About Medical Negligence, one in a series of reports from the American Association for Justice on this issue, examines the errors and faults behind the most commonly used talking points of health care reform opponents.

  • Myth #1: There are too many “frivolous” malpractice lawsuits.

Fact: There’s an epidemic of medical negligence, not lawsuits.  Only one in eight people injured by medical negligence ever file suit.  Civil filings have declined eight percent over the last decade, and are less than one percent of the whole civil docket.  A 2006 Harvard study found that 97 percent of claims were meritorious, stating, “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”

  • Myth #2: Malpractice claims drive up health care costs.

Fact: According to the National Association of Insurance Commissioners, the total spent defending claims and compensating victims of medical negligence was just 0.3% of health care costs, and the Congressional Budget Office and Government Accountability Office have made similar findings.

  • Myth #3: Doctors are fleeing.

Fact: Then where are they going?  According to the American Medical Association’s own data, the number of practicing physicians in the United States has been growing steadily for decades. Not only are there more doctors, but the number of doctors is increasing faster than population growth.  Despite the cries of physicians fleeing multiple states, the number of physicians increased in every state, and only four states saw growth slower than population growth; these four states all have medical malpractice caps.

  • Myth #4: Malpractice claims drive up doctors’ premiums.

Fact: Empirical research has found that there is little correlation between malpractice payouts and malpractice premiums paid by doctors. A study of the leading medical malpractice insurance companies’ financial statements by former Missouri Insurance Commissioner Jay Angoff found that these insurers artificially raised doctors’ premiums and misled the public about the nature of medical negligence claims.  A previous AAJ report on malpractice insurers found they had earnings higher than 99% of Fortune 500 companies.

  • Myth #5: Tort reform will lower insurance rates.

Fact:  Tort reforms are passed under the guise that they will lower physicians’ liability premiums. This does not happen. While insurers do pay out less money when damages awards are capped, they do not pass the savings along to doctors by lowering premiums. Even the most ardent tort reformers have been caught stating that tort reform will have no effect on insurance rates.

“All the facts and evidence show that tort law changes will do practically nothing to lower costs or cover the uninsured,” said AAJ President Anthony Tarricone.  “It’s no wonder the tort reformers, insurance lobby, and other corporate front groups have to gin up lies and phony stats, since no legitimate data or research supports their claims.  Our focus should be on reducing the 98,000 deaths by medical error that occurs every year, not limiting patients’ legal rights.”

As part of its ongoing series on the topic, AAJ earlier released Medical Negligence: A Primer for the Nation’s             Health Care Debate, The Truth About “Defensive Medicine,” and The Insurance Hoax: How Doctors and       Patients Pay for the Huge Earnings of Medical Malpractice Insurers.  These can be located at      www.justice.org/medicalnegligenceFive Myths About Medical Negligence can be found directly at: www.justice.org/clips/Five Myths About Medical Negligence.pdf.

Settlement Update: $900,000 in Benefits For Injured Worker When a Contractor ‘Covers Up” — The Case of the Deleted Defect

Torn Rotator Cuff

MALIS|LAW has obtained a stream of payments of over $700,000, along with waiver of a $210,000 workers’ compensation lien, for an electrician who injured her neck and shoulder after tripping over a floor hazard on a poorly lit construction site, even though the general contractor apparently attempted to ‘get rid of the evidence’ before it was observed by its own safety director.

AN ELECTRICIAN TRIPS AND IS HURT: My client was a 41 year old experienced female electrical worker assisting in the construction of a major addition to a Boston hospital.  While wiring an unfinished floor’s alarm system, she was walking with a spool of wire and tripped over bolt stubs protruding through the floor of a dimly lit corridor.  She fell forward into a pipe rack at the side of the hallway, injuring her left shoulder rotator cuff.  Within minutes of her fall, a crew of workers apparently descended on the accident scene, grinding the bolts level with the floor (leaving shiny patches on the concrete) and stringing new lighting in the hallway.  When the project safety director showed up at the accident scene, he observed a brightly lit corridor with orange paint splotches on the floor where the bolts had been.

THE INJURIES: My client suffered a torn rotator cuff immediately after the accident, which was surgically repaired.  The repair disclosed that the torn shoulder had obscured radiating neck pain into her shoulder caused by a disk herniation, which was surgically addressed by neck fusion.  We contended that she could no longer work in the construction trades, which required heavy exertion, which would cost her hundreds of thousands of dollars in future lost earnings from a highly paid and specialized trade.

OUR INVESTIGATION: Through two years of discovery and depositions, we were able to build a strong case that the general contractor and lighting contractor were negligent, including the following evidence:

  • My client presented a co-worker and independent witness who both verified the presence of the bolts before and after the accident.
  • Persistent document subpoenas and court orders produced ample records that the project lighting contractor had been criticized by the general contractor and its own inspectors for failure to replace burnt out project lighting promptly.
  • A safety audit conducted two weeks prior to my client’s fall harshly criticized the cleanliness of the project’s walkways, citing multiple trip hazards and trash.
  • A deposition of another worker disclosed that the bolts and poor lighting had caused another worker to trip days before, and that the worker had complained to the project’s safety director, who had failed either to note his complaint or to take action to remedy the hazard.
  • Although no one came forward to disclose the workers’  grinding of the floor bolts and new lighting, my client’s project supervisor verified the presence  four shiny ground down bolts in the floor within 40 minutes of the accident, in a pattern which suggested that the bolts had been used to secure an elevator hoist (the elevators had been fully installed weeks before).
  • The project safety director admitted that although he had investigated the accident scene, camera in hand, within 30 minutes of the accident, he failed to document conditions on the scene, although it was his and the general contractor’s policy that he do so.
  • The general contractor had written a letter to all subcontractors weeks prior to the accident detailing poor safety conditions and threatening to backcharge contractors for correcting them.
  • My client’s accident report was withheld for two weeks prior to disclosure to the project’s insurer, with no explanation of why the information was not immediately forwarded.

OUR STRATEGY: We used these facts to paint a picture of a poorly supervised and generally unsafe site, with the project owner and supervisors on notice of impending problems, and an embattled safety director new to the site and not up to speed.  These circumstances would lead a jury to infer that the accident was ‘covered up’ to avoid project controversy, supporting our claims of negligence.

PROVING DISABILITY: As to injury, the contractors and their insurers and attorneys contended that the Plaintiff’s injuries were largely healed and her complaints of pain were largely distorted.  An attempt to intimidate my client with a late-disclosed private investigation which purportedly showed that she was able to perform work was frustrated by a court order allowing the investigator’s deposition.  The investigator admitted (less than a week before a court-scheduled mediation) that he had not observed my client engaging in any substantial exertion, and that she had labored in picking up pieces of firewood that a delivery company had dropped in her driveway.

THE SETTLEMENT: At mediation, we were able to persuade my client’s workers’ compensation insurer to drop its right to be repaid $210,000 in compensation payments which my client had received, and to persuade the liability insurer to pay a stream of payments worth in total over $700,000 over a five year period.  These payments ennabled my client to retrain, and she now works for an electrical contractor in a supervisory position, without need for substantial exertion, at or near her prior pay level.

Trial Update: Five Years, Two Trials, An Appeal, A Victory — The Case of the Revised Report

THE JUDGMENT:  MALIS|LAW recently obtained a final judgment of over $80,000 against a major supermarket chain for a shopper injured on a wet floor, prevailing despite five years of questionable tactics and an attempt to ‘rewrite’ a favorable medical report by a defendant expert witness.

THE FACTS OF THE CASE: In this slip and fall case, the shopper slipped and fell on water coming out from under a green mat placed up against the base of a refrigeration case.  Claiming supermarket negligence, we contended that the store’s employees had placed the mat over the leaking area either to conceal or absorb the leak rather than repairing the refrigerator.   The supermarket chain asserted that there was no negligence and disputed the causation of the plaintiff’s fall and the extent of her injuries.

THE HERNIATED DISK: As a result of the fall my client sustained what was initially believed to be a back sprain. However, an MRI conducted by Shields MRI revealed a lumbar disc herniation which compressed the nerve root which carried signals to her leg, causing radiating leg pain. My client complained of ongoing back pain which has not resolved, aggravated by exertion,  and causing interrupted sleep. She was assigned a permanent loss of function of 10-15% of her whole person by her treating physician.

PROVING THE CASE: During discovery the store’s attorney initially refused to produce an incident report prepared by the defendant’s store manager, which he had  used to prepare the manager for deposition.  We immediately filed a  Motion to Compel Production which also sought sanctions, and the attorney, to avoid a court order, voluntarily produced the report.    The report revealed that the store manager had observed water from an unknown source on the floor where the plaintiff fell at the time of her injury.  Despite this disclosure, the defendant insisted that there was no water on the floor; that if there was water the defendant was not responsible; that any water was not present long enough for the defendant to have notice of it; that the water did not cause the plaintiff’s fall; and that the plaintiff had suffered no real injury.

THE ATTEMPTED REVISION: Shortly before trial the defendant presented as an expert  the owner and supervisor of the facility where the MRI which confirmed Plaintiff’s disk herniation was taken .  The owner was the employer of the  radiologist who read the film and produced the report.  The owner was produced to testify that there was no abnormality which had been caused by the fall shown on the plaintiff’s MRI.  At the same time, the store and its attorney produced a report which was supposedly an ‘addendum’ to the plaintiff’s MRI original results.  This report, allegedly issued by the plaintiff’s radiologist, contradicted his prior findings, indicating no focal disc herniation and indicating that the Plaintiff was suffering only from, essentially,  ‘degenerative changes’.  The store did not call the original examining radiologist to contradict his earlier findings.  Nevertheless, we were ready for this tactic at trial, as it had been deployed by this same Defendant in another previous case. Despite the store having requested mediation at the commencement of litigation, the store only offered $3,000 in settlement and refused to negotiate further, and the matter proceeded to trial.

UNPRESERVED EVIDENCE OF THE EVENT: The case was tried over the course of two years on non-consecutive days due to conflicts in the presiding judge’s trial schedule in the Boston Municipal Court. At trial, Plaintiff produced a witness who verified that she saw the Plaintiff immediately following the fall adjacent to a refrigerator case lying in a large puddle of water coming out from under a green mat. The defendant’s store manager testified that the floor was regularly cleaned every hour, and that the water indicated in his report was in a different location than where the plaintiff fell.  However, on cross examination, the manager admitted that he had absolutely no memory of the event; that the described location was within a few feet of where the Plaintiff alleged falling; that the store has a camera provided to document such situations; and that he had decided not to take a photo of the area where the plaintiff fell.  We argued that the reason that the manager didn’t take the photograph was because he didn’t want to prove that his store was negligent, thus deliberately failing to preserve evidence.

MEDICAL EXPERT TESTIMONY: As to the victim’s injury, her treating neurologist testified over two half days of court time concerning the Plaintiff’s disk herniation, opining that it was causally related to the slip and fall accident, insisting, in the face of many hours of cross examination, that the abnormality was not the result of congenital or degenerative factors.  The neurologist also rejected Defendant’s spurious claims that her back pain was caused by an earlier incident in which the Plaintiff complained of leg pain in an isolated incident lifting luggage years before, or from an earlier accident in which she injured her back, treated for a few months, and was discharged.

THE WRONGFUL REVISION: As to the ‘correction’ to the MRI from Shields, the neurologist rejected the ‘newer’ addendum, noting that he himself had observed the herniation in review of the Plaintiff’s actual MRI films. The neurologist also observed that the ordinary practice in providing such ‘addenda’ is to provide them to the treating doctor within 30-60 days of an initial report.  The ‘addendum’ in question was prepared more than two years after the initial report, and was never provided to him by Shields MRI. This supported our argument’s contention that the amended report was a contrivance that was created after the defendant’s hiring of the radiologist’s employer, the owner of the facility, as an expert in the case.

JUSTICE PREVAILS: The trial judge rejected the Defendant’s expert testimony, and  found for the plaintiff in the amount of $35,000, with significant accumulated interest, for a total judgment of $65,000.  The defendant appealed the finding to the District Court Appellate Division, and the appeal was denied.  Defense counsel then sought a de novo trial before a jury in the Superior Court. One month before the re-trial, the supermarket chain’s in-house attorney directly contacted me and agreed to pay my client the amount of  the judgment, with accumulated interest, which by then was $85,000.

Settlement Update: $487,500 for Injured Neck and Shoulder Caused by Falling Window –The Case of the Wayward Window

MALIS|LAW has obtained $487,500 for a hospital worker who injured her neck and shoulder when a hospital window tilted inward and fell on her.  We were able to obtain a settlement from the window manufacturer, designer, and three installation companies who worked on the window based on negligent design, manufacture and installation of the window even though the hospital had discarded the window, therefore throwing out the best proof of how the accident happened.

My client, a 41 year old inventory assistant, was opening a window in an employee break room when the window sash (the part we normally think of as ‘the window frame’) flew up out of her hands, fell inwards and struck her a glancing blow on the head, knocking her to the ground.  She sustained a cervical disc herniation, for which she underwent surgical fusion; a tear of her rotator cuff, with resulting frozen shoulder, again surgically treated; and was permanently totally disabled from work.  This incident was one of several window malfunctions occurring after a state hospital opted to replace permanent windows with swiveling replacement windows.  Unfortunately, the hospital decided to discard the window well in advance of our firm being hired, essentially ‘destroying the evidence’ of what had caused the window to malfunction.

Through careful investigation and extensive pretrial discovery and depositions, we were able to reconstruct the window failure, tracing the problem back to the window pivot at the bottom of the window sash and the locking clip at the top.  We initially sued the installer and manufacturer of the window, alleging negligent and defective design and manufacture, as well as negligent installation.

By comparison with window specifications produced by the window’s original factory designer to the actual window, we were able to prove that the factory which manufactured the replacement window purchased its locking clips from a different manufacturer from that specified, but didn’t change the tooling that drilled the holes.  The spring driven lock was therefore installed too far away from the edge of the window, and the locking mechanism would therefore not fully extend into the window channel, making the window unstable at the top.  Similarly, the manufacturer substitued a different ‘pivot bar’ at the bottom of the window with an inadequately threaded and secured locking screw, which would tend to strip and loosen, causing the window to lose contact with its spring counterweight on one side; fly upwards on the other; and leave its channel, resulting in the Plaintiff’s accident.  We were also able to show by deposition that the window’s manufacturer had no idea of the implications which their substitution of components had caused, and had done little to determine whether changing components would have changed tooling or manufacturing requirements prior to putting the changed window out on the market.

Through careful investigation and multiple depositions, we also discovered that there were additional servicing companies which were assigned to repair the subject window prior to the Plaintiff’s accident when it was binding and sticking, likely because of these defects, and that these companies should have detected the design and installation defect.   We added these companies, as well as the company which had initially designed the window 20 years before, as defendants.

The Defendants strongly disputed the extent of the Plaintiff’s injuries, claiming that her complaints of neck pain were vastly exaggerated, and that her shoulder injury was largely healed.  We were able to counter these arguments with strong medical testimony, as well as a comprehensive vocational report that proved that her limitations prevented her from re-entering the work force, supporting a claim of hundreds of thousands of dollars of present and future wage loss.

The case was settled prior to trial for $487,500, with the bulk of the funds coming from the window’s manufacturer for their variance from the window’s original specificaitons.

Settlement Update: $1 million+ For Victim of Botched Circumcision — The Case of the Suspended Surgeon

Our office has obtained a settlement of over $1 million in present and future payouts  for scarring caused by a negligent surgeon who botched a child’s circumcision and then attempted to conceal his error.

The case involved a relatively inexperienced family practitioner who, during an otherwise routine circumcision of an infant, removed almost all of the skin covering the shaft of the child’s member.  The physician had apparently become confused and disoriented during the procedure and improperly re-adjusted a clamp which would have prevented this drastic mistake.  He stopped bleeding by extensively using a chemical agent to cauterize the bleeding and traumatized skin, and covered the wound with an over-large bandage.  He also reassured the child’s parents, who were concerned about their child’s appearance, that the seeping wound was ‘normal’ and would be ‘fine’ in a later visit.  The ‘overly aggressive’ circumcision was discovered by a supervising physician from the physician’s practice on the day after the circumcision, and the child was rushed to a consultation with a pediatric urologist, who eventually repaired the damage with a skin graft. The doctor later apologized to the child’s parents.

The defendant physician’s counsel insisted that the error in practice was not malpractice, but an ‘unfortunate result’, despite the physician’s subsequent termination from the family practice which hired him based upon the incident, as well as critical comments made by the head of the physician’s practice and the doctor who discovered his malpractice.  The insurer maintained this position virtually up to the time of trial, despite evidence which showed that the physician’s description of the manner in which the clamp was used was hopelessly confused and incorrect at deposition, and his attempt to distance himself from his apology to the child’s parents by claiming that it was not motivated by guilt but by a desire to avoid a malpractice suit.  Further evidence that the physician had appeared to become distracted while making comments to nursing students observing the procedure provided more proof of the physician’s failure to use due care.

The physician’s attorney also (correctly) argued that the scarring caused by the malpractice had been corrected within six months of the procedure and that the child had no observable medical problems and preserved function.  The physician’s insurer claimed that damages were therefore minimal.  We countered this argument with extensive medical research and psychiatric expert opinion concerning the likely psychological effects on child and mother caused by such a  disfigurement.  The case went to mediation one week before trial, and was successfullly settled for a structured payout worth $350,000 present value, with a stream of payments worth in excess of $1 million over the life of the child.

Settlement Update: $4.1 Million Settlement For Construction Worker’s Spinal Injury After Staircase Falls — The Case of the Slumping Staircase

 

The "$4 Million Dollar Stairs"

Attorney Daniel Malis of MALIS|LAW, with the assistance of  Attorney Frederick Fairburn of Fairburn & Dyke in Lawrence, announced the culmination last week of five years of litigation involving the collapse of a stairway on a construction project in Hampton, NH which injured a Massachusetts plumber, though a settlement from various defendants totalling $4.1 million.

SERIOUS INJURY ON CONSTRUCTION SITE: The wood framed, 17 stair staircase collapsed after framing contractors, under the instruction of the general contractor, disconnected the stairs from side supports to insert fireproof drywall, but left the stairs in that disconnected fashion for a period of time between 1 day and more than two weeks depending upon which witness was believed.  My client, a plumber, was climbing the staircase when it collapsed.  When the staircase struck the landing below, the small of his back struck the edge of the stairs, crushing one of his vertebrae.  Following the collapse, the general contractor immediately re-erected the stairway; secured all stairways at the sides with extra nailers; and did not disclose the accident to local inspectors or the project engineer during a site visit the following day.

Demonstrative Evidence Showing the Damage to Client's Spine

MY CLIENT’S SPINAL INJURY: My client, a married 35 year old Massachusetts apprentice plumber, suffered a crush injury to his L1 vertebra when a 17 stair wood frame staircase gave way.  He was med-evacuated from a NH hospital to Beth Israel Hospital where he underwent the first of three surgeries over 5 years to stabilize his back, including, by the time of the final surgery, a four level lumbar fusion, with fixating steel rods extending over 7 vertebrae, and with additional surgery likely in the future.   While his motor functions were preserved, the employee remained in chronic, debilitating pain, with narcotic pain relief as his only medical recourse, and, according to Plaintiff’s vocational expert, was permanently totally disabled.  Plaintiff’s vocational expert and economist calculated the present value of his earnings loss over his career at $1.7 million which, with his $400,000 in medical expenses to date and continuing, presented special damages in excess of $2.1 million.

FINDING THE BEST FORUM FOR MY CLIENT: Rather than bringing suit in New Hampshire, we brought suit under diversity jurisdiction in federal court in Massachusetts against the engineer, architect and general contractor.  The New Hampshire-based design professionals claimed that Massachusetts had no jurisdiction over the case, and that the lawsuit belonged in New Hampshire, with a local judge to decide my client’s fate.  Despite the presentation of carefully worded affidavits from the architect and engineer which distanced the ‘design team’ from Massachusetts, our own investigation showed that both professionals were licensed in Massachusetts and had substantial contacts with this state, and the court denied their motion.

BUILDING A STRONG CASE: Vigorous discovery disclosed the identity of a Massachusetts –based framing supplier who had contracted to perform the framing, along with two NH-based framing subcontractors hired by that company to do the actual work.  These companies were joined as third party defendants.  The general contractor blamed the framers for the collapse; the framers claimed that they destabilized the staircase at the general contractor’s instruction.

THE CONTRACTORS’ NEGLIGENCE: Depositions of witnesses and other site contractors revealed that the staircases were not built according to plan or specification.  Testimony and post-accident photographs taken by a separate plumbing contractor who was first on the scene revealed that the subcontracting framers had sloppily  ‘toenailed’ the bottom of the stringers at an angle into plywood on the platform, instead of using a cleat or nailer which would have allowed the stringers to be nailed straight through the plywood platform securely into the carrying  beam. This substandard bottom connection of the staircase,  allowed the stair bottom to slip and kick out over time once the general contractor ordered the staircase to be disconnected for drywall installation, and was a major contributing cause of the staircase collapse..  The framing contractors’ departure from site plans and use of substandard attachment methods were not detected by the general contractor; the framing supplier, who contractually agreed to supervise the framing work; or the architect and engineer, who had contracted to inspect the site.

During a day-long deposition, the framing contractor who disconnected the stairs at their sides for drywall installation finally admitted that he knew that he had rendered the staircases unstable.  He admitted that while he would normally block off stairs left in this precarious shape, he could not explain why he did not do so on the stairs at this site.  These admissions established clear liability on the framing subcontractors, as well as confirmed the general contractor’s negligence for ordering the disconnection and failing to observe the improper staircase installation.     .

THE DEFENDANTS TRY TO EVADE LIABILITY: While the Plaintiff had established uncontroverted evidence of a drastic injury, the extent of his disability was disputed by the Defendants with a vocational assessment which, despite the Plaintiff’s dependence on narcotic painkillers, alleged that he still had the ability to consistently perform light duty work.  This was rebutted not only by the Plaintiff’s sympathetic appearance and supporting opinions from two orthopedic surgeons, as well as a vocational expert, but also by the graphic evidence shown above demonstrating that his seven level spinal fusion was unstable, with the securing screws shifting in his vertebral bodies and eroding the bone in which they were secured.

Following discovery, the parties attended a day long mediation, which was initially sought by the Defendants to settle the claim.  However, negotiations were reduced to a full day of finger pointing among the Defendants, with no real offers made.   We took advantage of this apparent disaster by sending demand letters under c.93A to the insurers for the general contractor and the framing supplier, based upon their complete failure to promptly evaluate the Plaintiffs’ claim and accurately address their exposures.

Eventually, on the date that responses to Plaintiff’s demand letters were due, the dispute (which at end turned out to be an argument over legal fees between the Defendants) was tabled between the insurers, and the general contractor and framing supplier tendered their full policy limits of $2 million to resolve both parties’ liability.  This opened a window to settle with the erring framing joint venture for $1.6 million, leaving the so-called ‘design professionals’, the architect and engineer, who had yet to tender an offer.

THE ARCHITECT AND ENGINEER’S NEGLIGENCE: The so-called ‘design team’ initially declined to settle, and presented a vigorous defense, despite admissions from the architect that the project engineer should have detected the improper staircase installation.  Counsel for the designers sought summary judgment, alleging that the entire cause of collapse was the building contractors’ negligence, and that the architect and engineer played no role in the staircase’s collapse.  Plaintiff presented countering affidavits from a construction expert and design experts initially presented by the settling Defendants and then retained by Plaintiff.  Summary Judgment was denied, and the case scheduled for trial in early 2010.

Plaintiffs further sought an order from the Court pending trial seeking to prevent offset of the settlement against any jury award, based upon New Hampshire’s ‘hybrid’ contribution statute, which awards damages based upon a contributing defendant’s percentage of negligent contribution to an accident (so-called ‘pure contribution’) but does not credit the settlement contributions of other settling parties.   While this motion was pending, the parties attended a half day mediation session with the previous mediator, Attorney Mulvey, and, over the strenuous objections of the architect and engineer, their insurers settled the remaining claims for $500,000, bringing the my client and his wife’s total recovery to just over $4.1 million.

The Case of the Marketplace Myth — Why Product Manufacturers Have to Be Regulated

While I’m debunking myths, here’s a morality tale, as they say on TV, ‘ripped from today’s headlines’ . . .

“Boston Scientific to pay $22M in payment inquiry
By MARLEY SEAMAN
The Associated Press
Wednesday, December 23, 2009; 4:53 PM
NEW YORK — U.S. attorneys in Boston said Wednesday heart device maker Boston Scientific will pay $22 million to resolve allegations its Guidant division paid kickbacks to doctors to get them to use its heart devices.
The U.S. Department of Justice said Guidant paid physicians $1,000 to $1,500 each in 2003 and 2004 to participate in four studies, called RaCE, RaCE II, RaCE III, and MERITS. It said the studies were designed to increase sales of pacemakers and defibrillators.
Federal officials said the company targeted doctors who favored products made by other companies, hoping the payments would induce them to use Guidant devices more often. They said Guidant submitted claims for payment on the devices to Medicare.
Boston Scientific did not admit wrongdoing as part of the civil settlement. Under the agreement, its cardiac rhythm management division will have to publicly disclose payments to physicians on a Web site. Boston Scientific also entered into a corporate integrity agreement.
The studies were conducted after the Food and Drug Administration had cleared the products for sale. Post-approval studies are often used to further evaluate medical devices or compare their performance.
Boston Scientific bought Guidant in 2006. The company is based in Natick, Mass.
Its shares rose 2 cents to close at $8.82 Wednesday. “

The Case of the Prior Pain — The Fact and Fiction of Earlier Injuries

Many insurers (and, sometimes, even lawyers who represent injury victims) would have you believe that if you’ve had a prior injury or case, it will severely harm your present case, or limit or eliminate your damages. In my experience, in the hands of a good trial attorney, that ‘weakness’ can often be turned into a ‘strength’.

If you take the right steps, reveal your history to your lawyer, and retain a properly skilled and diligent trial attorney, you can reverse the myth and maximize your recovery.

Here’s two great examples of how we can deal with medical history and complications here at MALIS|LAW, from past cases:

1. The Classic ‘Bad Back Made Worse” — I had a client who was injured on a construction site, who’d had a bad back that was so troublesome that he was seeing a chiropractor and orthopedic surgeon on a monthly basis before he had the fall that led him to hire me.

At trial, we demonstrated graphically with before-and-after Xrays and MRIs that his fall had tremendously accelerated the rate of deterioration of his spine. His treating doctor testified that his pre-existing degenerative condition made his spine far more vulnerable to trauma like that caused by his fall. His wife testified that while he had given up many of his favorite sports activities, his one source of pride as a man was his ability to work and earn, and that this accident was, literally, the ‘straw that broke the camel’s back’.

A jury awarded him well over a million dollars for his claim.

2. Drug Addiction — Insurers love to put an injured person’s illegal drug use in front of a jury to ‘tar’ a claimant. In one case in my office, however, we were able to turn that potential weakness into a strength:

A client came to my office with an awful injury. During his recovery from surgery, his need to take opiate pain killers to deaden his pain brought back an old ‘street’ addiction to illegal narcotics. Eventually, his family had to have him hospitalized to rehabilitate. Massachusetts law, however, prevents admitting evidence of addiction or illegal narcotic use as damages.

We were still able to use my client’s dramatic story, however, to underscore the extent of his damages. I was able to demonstrate, through family and physician testimony, the depths of his pain; the complications from his addiction; and the completeness of his rehabiltation, and the help he received from his wife ad his family. Even though we couldn’t introduce evidence of accident related addiction, we still retained an expert in the field of addiction who would be prepared to testify that his accident related opiate use ‘triggered his addiction’. This presented the insurers with a dilemma; if THEY introduced the evidence of my client’s drug addiction to lessen my client’s reputation with the jury, they faced potential admissibility of his addiction as a damage.

Despite this potentially ‘lethal’ complication in my client’s treatment, the case settled for many millions of dollars (and, I’m pleased to say, the client has successfully warded off his addiction).

Here’s a few general rules of how to deal with your medical history in YOUR case . . .

1. BE HONEST WITH YOUR LAWYER.

Disclose your prior medical history in detail to your lawyer when you hire them. Don’t hold back information because you think it will discourage the attorney, or prevent them from working hard for you. The lawyer’s worst enemy in a personal injury case is an undisclosed prior injury. However, if you disclose your past history, the lawyer may well find ways to maximize your recovery, as you’ll see below.

2. UNDERSTAND THE LEGAL STANDARD.

The law in virtually every state will compensate an injury victim for the extent that an injury worsens a prior condition, even if the nature of the trauma wouldn’t have ordinarily injured a hale and healthy ‘victim’. The law ‘takes victims as they find them’. For example, if a prior trauma worsened a kneecap so much that another trauma, even if light, fractured it, the victim’s entitled to recover for damages for the fractured knee. However, in awarding or assessing damages the jury (or insurer) can take into account the fact that the knee was already not 100% to begin with.

3. TELL YOUR DOCTORS YOUR ENTIRE HISTORY.

Just as with your attorneys, don’t hold back details from your medical doctors. Most physicians will tell you that ‘patient history’ during interviews is a critical diagnostic and treatment tool. Just as with your attorneys, your doctors need to know about your past to give accurate appraisals of your present and future condition. If something troubled you before the accident, even if it was previously resolved, let your doctor know (even if they don’t come out and asked). If you had an ongoing problem, make sure the doctor knows about it, and also knows whether it’s different or worsened now. A full and accurate medical history will help you get the maximum recovery from medical treatment (which should always be your goal, as no personal injury settlement will make up for your loss of health).

4. DON’T DECIDE WHAT’S IMPORTANT OR WHAT’S NOT — DISCLOSE EVERYTHING.

Obviously, the first question about a prior injury or claim is: are they not at all related? A prior knee injury will likely have nothing to do with hurting your shoulder. A chronic problem with your finger has little effect on a brain trauma. While these are obvious exaggerations, they still can be used by a skilfull defense lawyer to hurt your credibility if they aren’t disclosed up front. This might seem counter-logical — why create a record that could hurt your case? However, understand that insurers conduct thorough investigations of claimants, through attorneys and, during litigation, using the formal tools of discovery. Assume that the insurer will not find out, and trust me, they will, and will use your non-disclosure as an excuse for not paying you fairly for your injury. Assume that they will, and you take this weapon away from them, and allow your lawyer to tell the story that benefits you best from the real facts at hand.

5. DON’T EXAGGERATE OR MINIMIZE A PRIOR INJURY.

Often, orthopedic injuries heal in a relatively short time. Sometimes, they don’t, presenting nagging injuries that last for years. In either case, the insurer’s best strategy is to get an injured person to distort or lie about their past, ‘trying the lie’. Since a jury tends to distrust injured persons seeking compensation anyhow, the insurers and their attorneys try to make the injured person less credible, suggesting that a misstatement about something years ago amounts to a lie being told today. The best way to frustrate that strategy is to look back, honestly, at your injury ‘past’, and make sure your attorney knows about it. Review the records with them when he or she obtains them, and refresh your memory about the prior history, especially prior to answering interrogatories (questions under oath) or to giving a deposition (a sworn statement under oath).

6. LOOK FOR CONNECTIONS

So you’ve injured the same part of your body twice. Any orthopedic doctor would tell you that a prior trauma to an area creates a greater likelihood that a second trauma will cause more or worsened damage. It makes sense — if you’ve damaged ligaments or tendons, these injuries can weaken the support structure so that another trauma rips far more. Think about how differently a healthy tree and a damage tree weather a storm. So reflect a little bit about your medical condition before describing your history to your attorney. Were you truly fully recovered, or did you have a residual twinge that’s now out of control? Let him or her know.

7. KNOW YOUR PAST — DON’T MEMORIZE IT.

In this process, you aren’t required to remember every detail of your past; no one’s that smart, or lives their life as a notetaker. Disclose everything as best you can, but don’t get so tied up in dates or times that you come off as ‘scripted’. Give your best, honest recount of your medical history, and rely on your lawyer to help you over any factual bumps.

8. TRUST YOUR LAWYER TO TELL YOUR STORY.

Since few of us escape life without getting nicked up, almost all of us would have to deal with a prior injury as part of our medical history, and as part of presenting the claim. The area of ‘prior claims history’ or injury history is probably the greatest reason that your lawyer will add value to your claim. They’ll scour your record and, if reasonably skilled, will try to either minimize the effect of a prior injury by distinguishing it; demonstrating that it had already been well resolved; or, even better, using it to explain how the trauma of your current accident created so much damage to you or your life.

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FAQs, Interesting News and Law-Related Rants

Daniel Malis uses this blog to publish answers to frequently asked questions, convey interesting news and make the occasional law-related rant. If you have any questions or want to contact Daniel Malis, please see the Contact page of the MALIS|LAW Website.