Posts Tagged ‘Cover Up’

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.

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.

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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.