Troubling news has recently emerged regarding birth defects linked to the powerful drug Zofran. This anti-nausea drug was developed exclusively for adult cancer patients but the drug manufacturer later marketed the drug for the off-label use to prevent or lessen morning sickness in pregnant women. The lawsuits allege that the manufacturer did little to no testing on the hazards of the drug to a fetus and that, in fact, the drug’s active ingredient has caused a variety of birth defects. One recent lawsuit filed in federal district court in Massachusetts makes the following allegations in the complaint:
Zofran is a powerful drug developed by drug giant GlaxoSmithKline (“GSK”) to treat only those patients who were afflicted with the most severe nausea imaginable – that suffered as a result of chemotherapy or radiation treatments in cancer patients. The U.S. Food and Drug Administration (“FDA”) approved Zofran in 1991 for use in cancer patients who required chemotherapy or radiation therapy. Although the only FDA approval for this drug was for seriously ill patients, GSK marketed Zofran “off label” as a safe and effective treatment for the very common side effect of a normal pregnancy – pregnancy related nausea and vomiting – otherwise known as “morning sickness.” GSK did this despite having knowledge that such representations were utterly false, as GSK had never once undertaken a single study on the effects of this powerful drug on a pregnant mother or her growing child in utero. Unlike another anti-nausea prescription drugs available on the market – which are FDA-approved in the United States for treating morning sickness in pregnant women – GSK never conducted a single clinical trial before marketing Zofran to pregnant women. GSK simply chose not to study Zofran in pregnant women or seek FDA approval to market the drug for treatment during pregnancy. GSK avoided conducting these studies because they would have hampered its marketing of Zofran and decreased profits by linking the drug to serious birth defects. GSK’s conduct was tantamount to using expectant mothers and their unborn children as human guinea pigs.
As a result of GSK’s fraudulent marketing campaign, Zofran was placed into the hands of unsuspecting pregnant women throughout the United States. These women ingested the drug because they innocently believed that Zofran was an appropriate drug for use in their circumstance. When they ingested the drug, these pregnant women had no way of knowing that Zofran had never been studied in pregnant women, much less shown to be a safe and effective treatment for pregnancy–related nausea. By contrast, GSK knew that Zofran was unsafe for ingestion by expectant mothers. In the 1980s, GSK conducted animal studies which revealed evidence of toxicity, intrauterine deaths and malformations in offspring, and further showed that Zofran’s active ingredient transferred through the placental barrier of pregnant mammals to fetuses. A later study conducted in humans confirmed that ingested Zofran readily crossed the human placenta barrier and exposed fetuses to substantial concentrations. GSK did not disclose this information to pregnant women or their physicians. In 1992, GSK began receiving mounting evidence of reports of birth defects associated with Zofran. GSK received at least 32 such reports by 2000, and has received more than 200 such reports to date. GSK never disclosed these reports to pregnant women or their physicians. In addition, scientists have conducted large-scale epidemiological studies that have demonstrated an elevated risk of developing birth defects. GSK has not disclose this to pregnant women or their physicians. Instead, GSK sales representatives specifically market and promoted Zofran as a morning sickness drug.
In 2012, GSK pled guilty to criminal charges lodged by the United States of America, through the Department of Justice, for its “off-label” promotion of its drugs for uses never approved by the FDA. At or around the same time, GSK also entered civil settlements with United States that included more than $1 billion in payments to the federal government for its illegal marketing of various drugs, including Zofran specifically. GSK’s written agreement with the United States reports GSK’s settlement of claims that GSK:
(a) “promoted the sale and use of Zofran for a variety of conditions other than those for which its use was approved as safe and effective by the FDA (including hyperemesis and pregnancy-related nausea)”
(b) made and/or disseminated unsubstantiated and false representations about the safety and efficacy of Zofran concerning the uses described in subsection (a) [hyperemesis and pregnancy-related nausea]”
(c) “offered and paid illegal remuneration to health care professionals to induce them to promote and prescribe Zofran”
GSK’s conduct has caused devastating, irreversible, and life-long consequences and suffering to innocent newborns and their families.
GSK is the successor in interest to Glaxo, Inc. and Glaxo Wellcome Inc. Glaxo, Inc. was the sponsor of the original New Drug Application (“NDA”) for Zofran. Glaxo, Inc., through its division Cerenex Pharmaceuticals, authored the original package insert and labeling for Zofran, including warnings and precautions attendant to its use. Glaxo Wellcome Inc. sponsored additional NDAs for Zofran, monitored and evaluated post-market adverse event reports arising from Zofran, and authored product labeling for Zofran.
Zofran is a prescription drug indicated for the prevention of chemotherapy-induced nausea and vomiting, radiation therapy-induced nausea and vomiting and post operative nausea and/or vomiting:
INDICATIONS AND USAGE
Prevention of nausea and vomiting associated with highly emetogenic cancer chemotherapy, including cisplaitn > 50 mg/m2.
Prevention of nausea and vomiting associated with initial and reapeat courses of moderately emetogenic cancer chemotherapy.
Prevention of nausea and vomiting associated with radiotherapy in patients receiving either total body irradiation, single high-dose fraction of the abdomen, or daily fractions of the abdomen.
Prevention of postoperative nausea and/or vomiting.
The medical term for nausea and vomiting is emesis, and drugs that prevent or treat nausea and vomiting are called anti-emetics. Zofran is part of a class of anti-emetics called selective serotonin 5HT3 receptor antagonists. The active ingredient in Zofran is ondanestron hydrocholoride, which is a potent and selective antagonist at the 5-hydroxytryptamine receptor type 3 (5-HT3). Although 5-hydroxytryptamine (5HT) occurs in most tissues of the human body, Zofran is believed to block the effect of serotonin at the 5HT3 receptors located along vagal afferents in the gastrointestinal tract and at the receptors located in the area postrema of the central nervous system (the structure in the brain that controls vomiting), Put differently, Zofran antagonizes, or inhibits, the body’s serotonin activity, which triggers nausea and vomiting.
Zofran was the first SF-IT3 receptor antagonist approved for marketing in the United States. Other drugs in the class of 5HT3 receptor antagonist include Kytril®. (granisetron) (FDA-approved 1994), Anzemet®, (dolasetron) (FDA-approved 1997) and Aloxi® (patimosetton) (FDA-approved 2003). Zofran is available as an injection (2 mg/mL), a premixed injection 32 mg/50ml and 4mg/50 ml), oral tablets (4 mg, 8 mg and 24 mg); orally disintegrating tablets (4 mg and 8 mg) and an oral solution (4mg/5mL). More specifically, GSK has obtained FDA approval for the following formations of Zofran:
NDA 20-007 – Zofran Injection (FDA approved January 4, 1991)
NDA 20-103 – Zofran Tablets (FDA approved December 31, 1992)
NDA 20-403 – Zofran Premixed Injection (FDA approved January 31, 1995)
NDA 20-605 – Zofran Oral Solution (FDA approved January 24, 1997)
NDA 20-781 – Zofran (a/k/a Zofran-Zydis) Orally Disintegrating Tablets (FDA approved January 27, 1999)
The FDA has never approved Zofran for the treatment of morning sickness or any other condition in pregnant women. For GSK to market Zofran lawfully for the treatment of morning sickness in pregnant women, it must first adequately test the drug (including performing appropriate clinical studies) and formally submit to the FDA evidence demonstrating that the drug is safe and effective for treatment of morning sickness. A team of the FDA’s physicians, statisticians, chemists, pharmacologists, microbiologists and other scientists would then have an opportunity to: (a) review the company’s data and evidence supporting its request for approval to market the drug; and (b) determine whether to approve the company’s request to market the drug in the manner requested. Without first obtaining approval to market a drug for the treatment of pregnant women, a pharmaceutical company my not legally market its drug for that purpose.
GSK has not performed any clinical studies of Zofran use in pregnant women. GSK, however, had the resources and know-how to perform such studies, and such studies were performed to support another prescription drug that, unlike Zofran, is FDA-approved for the treatment of morning sickness. GSK also has not submitted to the FDA any data demonstrating the safety or efficacy of Zofran for treating morning sickness in pregnant women. Instead, GSK has illegally circumvented the FDA-approval process by marketing Zofran for the treatment of morning sickness in pregnant women without applying for the FDA’s approval to market Zofran to treat that condition or any other condition in pregnant women. This practice is known as “off-label” promotion, and in this case constitutes fraudulent marketing.
Since at least the 1980s, when GSK received the results of the preclinical studies that it submitted in support of Zofran’s NDA 20-007, GSK has known of the risk that Zofran ingested during pregnancy in mammals crosses the placental barrier to expose the fetus to the drug. For example, at least as early as the mid-1980s, GSK performed placental-transfer studies of Zofran in rats and rabbits, and reported that the rat and rabbit fetuses were exposed prenatally to Zofran during pregnancy. The placental transfer of Zofran during human pregnancy at concentrations high enough to cause congenital malformations has been independently confirmed and detected in every sample fetal tissue taken in published study involving 41 pregnant patients. The average fetal tissue concentration of Zofran’s active ingredient was 41% of the corresponding concentration in the mother’s plasma. GSK reported four animal studies in support of its application for approval of NDA 20-0007: (1) Study No.R10937 I.V. Segment II teratological study of rats; (2) Study No. R10873 I.V. Segment II teratological study of rabbits; (3) Study No. R10590 Oral Segment II teratological study of rats; (4) Study No. L 10649 Oral Segment II teratolgoical study of rabbits. These preclinical teratogenicity studies in rats and rabbits were stated by the sponsor, GSK, to show no harm to the fetus, but the data also revealed clinical signs of toxicity, premature births, intrauterine fetal deaths, and impairment of ossification (incomplete bone growth. Study No. R10937 was a Segment II teratological study of pregnant rats exposed to Zofran injection solution. Four groups of 40 pregnant rats (160 total) were reportedly administered Zofran through intravenous (I.V.) administration at does of 0, .5, 1.5, and 4 mg/kg/day, respectively. Clinical signs of toxicity that were observed in the pregnant rats included “low posture, ataxia, subdued behavior and rearing, as well as nodding and bulging eyes.” No observations were reported as teratogenic effects. Study No. R10873 was a Segment II teratological study of pregnant rabbits exposed to Zofran injection solution. Four groups of 15 pregnant rabbits (60 total) were reportedly given Zofran doses of 0, 0.5, 1.5, and 4mg/kg/day, respectively. In this study, there was a reported increase in the number of intra-uterine deaths in the 4 mg/kg group versus lower-dose groups. The study also reported maternal weight loss in the exposed groups. Developmental retardation in off-spring and fetuses were noted – namely areas of parietal (body cavity) were not fully ossified, and hyoid (neck) failed to ossify completely. Study No. R10590 Oral Segment II teratolgical study of rats. Four groups of 30 pregnant rats (120 total) were given Zofran orally at doses of 0, 1,4 and 15 mg/kg/day, respectively. Subdued behavior, labored breathing, which is a symptom of congenital heart defects, and dilated pupils were observed in the 15 mg/kg/day group. Body weight, gestational duration and fetal examination were reported as normal, but “slight retardation in skeletal ossification” was noted in the offspring. Study No. L10649 Oral Segment II teratolgoical study of rabbits. Four groups of 14018 pregnant rabbits (56-64 total) were given Zofran orally at doses of 0, 1, 5.5 and 30 mg/kg/day. The study reported lower maternal weight gain in all of the exposed groups, as well as premature delivery and “total litter loss,” referring to fetal deaths during pregnancy in the 5.5 mg/kg/day group. Examination of the fetuses showed “sleight developmental retardation as evident by incomplete ossification or asymmetry of skeleton.”
Even if animal studies do not reveal evidence of harm to a prenatally exposed fetus, that result is not necessarily predictive of human response. For example, a drug formerly prescribed to alleviate morning sickness, thalidomide, is an infamous teratogenic in humans, but animals studies involving the drug failed to demonstrate such an increased risk of birth defects in animals. GSK conducted studies of thalidomide and toxicity before GSK developed Zofran and before it marketed Zofran for the treatment of morning sickness in pregnant women. Moreover, since at least 1993, GSK has stated in its prescribing information for Zofran that “animal reproduction studies are not always predictive of human response.” Therefore, GSK has been aware since at least when it began marketing and selling Zofran that GSK could not responsibly rely on its animal studies on the basis for promoting Zofran use in pregnant women. But that is what GSK did.
At least as early as 1992, GSK began receiving reports of birth defects associated with the use of Zofran by pregnant women. By 2000, GSK had received at least 32 reports of birth defects arising from Zofran treatment in pregnant women. These reports included congenital diaphragmatic anomaly, congenital musculoskeletal anomalies, and orofacial anomalies, among others. In many instances, GSK received multiple reports in the same month, the same week and even the same day. For example, on or about September 13, 2000, GSK received three separate reports involving Zofran use and adverse events. For two of those incidents, the impact on the baby was so severe that the baby died. From 1992 to the present, GSK has received more than 200 reports of birth defects in children who were exposed to Zofran during pregnancy. The most commonly reported birth defects arising from Zofran use during pregnancy and reported to GSK were congentital heart defects, though multiple other defects such as orofacial defects, intrauterine death, still birth, and severe malformations in newborns were frequently reported. The number of events actually reported to GSK was only a small fraction of actual incidents.
Epidemiology is a branch of medicine focused on studying the causes, distribution, and control of diseases in human populations. Three recent epidemiological studies have examined the association between prenatal exposure to Zofran and the risk of congenital heart defects in babies. These studies include: (1) Pasternak, et al., Ondansetron in Pregnancy and Risk of Adverse Fetal Outcomes, New England Journal of Medicine (Feb. 28, 2013) (the “Pasternak Study”); (2) Andersen, et al., Ondansetron Use in Early Pregnancy and Risk of Congenital Malformations – A Register Based Nationwide Control Study, presented as International Society of Pharmaco-epidemiology, Montreal, Canada (2013) (the “Andersen Study”); and (3) Danielsson, et al., Ondansetron During Pregnancy and Congenital Malformations in the Infant (Oct. 31, 2014) (the “Danielsson Study”). Each of these studies includes methodological characteristics tending to bias its results toward under-reporting the true risk of having a child with a birth defect. Notwithstanding these characteristics biasing the results toward the null hypothesis, all three studies show elevated risk ratios of cardiac malformations, including risk ratios greater than 2.0. In other words, the studies report that a mother exposed to Zofran had more than a doubled risk of having a baby with a congenital heart defect as compared to a mother who did not ingest Zofran during pregnancy.
The Pasternak Study included data from the Danish National Birth Registry and examined the use of Zofran during pregnancy and risk of adverse fetal outcomes. Adverse fetal outcomes were defined as: spontaneous abortion, stillbirth, any major birth defect, pre-term delivery, low birth weight, and small size for gestational age. There were 608, 385 pregnancies between January 2004 and March 31, 2011 examined. The unexposed group was defined as women who did not fill a prescription for ondansetron during the exposure time window. The exposure time window was defined as the first 12-week gestational period. Notably, the median fetal age at first exposure to Zofran was ten weeks, meaning that half of the cases were first exposed to Zofran after organogenesis (organ formation). This characteristic of the study led to an under-reporting of the actual risk of prenatal Zofran exposure. The study’s supplemental materials indicated that women taking Zofran during the first trimester, compared to women who did not take Zofran, were 22% more likely to have offspring with a septal defect, 41% more likely to have offspring with a ventricular septal defect and greater than four-times more likely to have offspring with atrioventricular septal defect. The Andersen Study was also based on data collected form the Danish Medical Birth Registry and National Hospital Register, the same data examined in the Pasternak Study. The Andersen study examined the relationship between Zofran use during the first trimester and subgroups of congenital malformations. Data from all women giving birth in Denmark between 1997 and 2010 were included in the study. A total of 903, 207 births were identified in the study period with 1,368 women filling prescriptions of Zofran during the first trimester. The Andersen Study therefore used a larger data set (13 years) compared to the Pasternak Study (seven years). Exposure to the drug was also defined as filling a prescription during the first trimester, and prescription data were obtained from the National Prescription Registry. The Andersen study reported that mothers who ingested Zofran during their first-trimester of pregnancy were more likely than mothers who did not to have a child with a congenital heart defect, and had a two-to four-fold greater risk of having a baby with a septal cardiac defect.
The Danielsson Study investigated risks associated with Zofran use during pregnancy and risk of cardiac congenital malformations from data available through the Swedish Medical Birth Registry. The Swedish Medical Birth Registry was combined with the Swedish Register of Prescribed Drugs to identify 1,349 infants born to women who had taken Zofran in early pregnancy from 1998 – 2012. The total number of births in the study was 1,501,434 infants, and 43,658 had malformations classified as major (2.9%). Among the major malformations, 14,872 had cardiovascular defects (34%) and 10,491 had a cardiac septum defect (24%). The Danielsson study reported a statistically significantly elevated risk for cardiovascular defects for mothers taking Zofran versus those who did not. The results reported that the mothers who took Zofran during early pregnancy had a 62% increased risk of having a baby with a cardiovascular defect. Further, mothers who took Zofran during pregnancy had a greater than two-fold increased risk of having a baby with a septal cardiac defect, compared to mothers who did not take Zofran during pregnancy.
In summary, since at least 1992, GSK has had mounting evidence showing that Zofran presents an unreasonable risk of harm to babies who are exposed to the drug during pregnancy. GSK has been aware that Zofran readily crosses human placental barriers during pregnancy. GSK has also been aware that the animal studies of Zofran cannot reliably support an assertion that Zofran can be used safely or effectively in pregnant women. Since 1992, GSK has received hundreds of reports of major birth defects associated with prenatal Zofran exposure. GSK also has had actual and/or constructive knowledge of the epidemiological studies reporting that prenatal Zofran exposure tan more than double the risk of developing congenital heart defects. As alleged below, GSK not only concealed this knowledge from healthcare providers and consumers in the United States, and failed to warn of the risk of birth defects, but GSK also illegally and fraudulently promoted Zofran to physicians and patients specifically for the treatment of morning sickness in pregnant women.
Under federal law governing GSK’s drug labeling for Zofran, GSK was required to “describe serious adverse reactions and and potential safety hazards, limitations in use imposed by them , and steps that should be taken if they occur.” 21 C.F.R § 201.57(e). GSK was also required to list adverse reactions that occurred with other drugs in the same class of Zofran. Id. § 201.57(g). In the context of prescription drug labeling, “an adverse reaction is an undesirable effect, reasonably associated with use of a drug, that may occur as part of the pharmacological action of the drug or may be unpredictable in its occurrence.” Id. Federal law also required GSK to revise Zofran’s labeling “to include a warning as soon as there is reasonable evidence of an association of a serious hazard with a drug; a causal relationship need not have been proved.” Id. § 201.57(e).
GSK has received hundreds of reports of birth defects associated with non-FDA-approved use of Zofran in pregnant women. GSK has failed, however, to disclose these severe adverse events to healthcare providers or expectant mothers. Under 21 C.F.R. § 314.70(c)(2)(i), pharmaceutical companies were (and are) free to add or strengthen – without prior approval from the FDA- a contraindication, warning, precaution, or adverse reaction. GSK thus had the ability and obligation to add warnings, precautions, and adverse reactions to the product labeling for Zofran without prior approval from the FDA. GSK failed to do so.
Under 21 C.F.R. § 201.128, “if a manufacturer knows, or has knowledge of facts that would give him notice, that a drug introduced into interstate commerce by him is to be used for conditions, purposes, or uses other than the ones for which eh offers it, he is required to provide adequate labeling for such a drug which accords with such other uses to which the article is to be put.” At least as of 1998, GSK knew well from its off-label promotion and payments to doctors, and its conspicuous increase in revenue from Zofran, and its market analyses of prescription data, that physicians were prescribing Zofran off-label to treat morning sickness in pregnant women and that such usage was associated with a clinically significant risk of hazard – birth defects. GSK had the ability and obligation to state prominently in the Indications and Usage section of its drug label that there is a lack of evidence that Zofran is safe for treatment of morning sickness in pregnant women. GSK failed to do so, despite GSK’s knowledge that (a) the safety of Zofran for use in human pregnancy has not been established, and (b) there have been hundreds of reports of birth defects associated with Zofran use during pregnancy, and (c) epidemiology studies report an increased risk of birth defects in babies exposed to Zofran during pregnancy. From 1993 to the present, despite mounting evidence of the birth defect risk, GSK’s prescribing information for Zofran has included the same statement concerning use of Zofran during pregnancy: “Pregnancy: Teratogenic Effects: Pregnancy Category B. Reproduction studies have been preformed in pregnant rats and rabbits at I.V. doses up to 4 mg/kg per day and have revealed no evidence of impaired fertility or harm to the fetus due to ondansetron. There are, however, no adequate and well-controlled studies in pregnant women. Because animal reproduction studies are not always predictive of human response, this drug should be used drug should be used during pregnancy only if clearly needed.”
By contrast, the Product Monograph for Zofran in Canada states “the safety of ondansetron for use in human pregnancy has not been established,” and that “the use of ondansetron in pregnancy is not recommended.” In the United States, GSK has at all relevant times failed to include any warning disclosing any risks of birth defects arising from Zofran use during pregnancy in Zofran’s prescribing information or other product labeling. GSK’s inclusion of the phrase “Pregnancy Category B” in Zofran preserving information refers the FDA’s pregnancy categorization scheme applicable to prescription drugs in the United States. The FDA has established five categories to indicate the potential of a drug to cause birth defects if used during pregnancy. The current system of pregnancy labeling consists of five letter-categories (A, B, C, D and X, in order of increasing risk). GSK had the ability, and indeed was required, to update Zofran’s label to reflect at best a Pregnancy Category D designation or alternatively a Category X designation for Zofran:
Pregnancy Category D. If there is positive evidence of human fetal risk based on adverse reaction data from investigational or marketing experience or studies in humans, but the potential benefits form the use of the drug in pregnant women may be acceptable despite its potential risks (for example, if the drug is needed in a life-threating situation or serious disease for which safer drugs cannot be used or are ineffective), the labeling must state: “Pregnancy Category D. See “Warnings and Precautions” section. Under the “Warnings and Precautions” section, the labeling must state: “[drug] can cause fetal harm when administered to a pregnant woman…. If this drug is used during pregnancy, or if the patient becomes pregnant while taking this drug, the patient should be apprised of potential hazard to a fetus. 21 C.F.R § 201.57(f)(b)(i)(d).
Pregnancy Category X. If studies in animals or humans have demonstrated fetal abnormalities or if there is positive evidence of fetal risk based on adverse reaction reports from investigation or marketing experience, or both, and the risk of the use of the drug in pregnant woman clearly outweighs any possible benefit (for example, safer drugs or other forms of therapy are available), the labeling must state: “Pregnancy Category X. See ‘Contraindications’ section.” Under “Contraindications, “the labeling must state: “(Name of drug) may (can) cause fetal harm when administered to a pregnant woman…. (Name of drug) is contraindicated in women who are or may become pregnant. If this drug is used during pregnancy, or if the patient becomes pregnant while taking this drug, the patient should be apprised of the potential hazard to the fetus. Id. § 201.57(f)(b)(i)(e).
Beginning at least in 1992, GSK had positive evidence of human fetal risk posed by Zofran based more than 200 reports to GSK of birth defects, as well as epidemiology studies, and placental-transfer studies reporting on Zofran’s teratogenic risk. GSK has never updated Zofran’s labeling to disclose that Zofran can cause fetal harm when administered to a pregnant woman, and GSK has failed to warn of the potential hazards to a fetus arising from Zofran use during pregnancy. The FDA recently promulgated a final rule declaring that, as of June 2015, it will require pharmaceutical manufacturers to remove the current A, B, C, D, or X pregnancy categorization designation from all drug product labeling and instead summarize the risks of using a drug during pregnancy, discuss the data supporting the summary, and describe relevant information to help health care providers make prescribing decisions and counsel women about the use of drugs during pregnancy and lactation. 79 Fed. Reg. 72064 (Dec. 4, 2014). In promulgating this rule, the FDA “determined that retaining the pregnancy categories is inconsistent with the need to accurately and consistently communicate differences in degrees of fetal risk.”
In summary, GSK marketed and sold Zofran without adequate warning to healthcare providers and consumers that Zofran was causally associated with an increased risk of birth defects, and that GSK had not adequately tested Zofran to support marketing and promotion for use in pregnant women. This rendered the warnings accompanying Zofran inadequate and defective.
GSK has known that the safety of Zofran for use in human pregnancy has not been established. But with more than six million annual pregnancies in the United States since 1991 and an estimated 70-85% incidence of pregnancy-related nausea, the absence of prescription medication that was approved by the FDA for pregnancy-related nausea presented an extremely lucrative business opportunity for GSK to expand its sales of Zofran. GSK seized that opportunity, but the effect of its conduct was tantamount to experimenting with the lives of unsuspecting mothers-to-be and their babies in the United States and in this Commonwealth.
After the FDA approved Zofran in 1991, and despite available evidence showing that Zofran presented an unreasonable risk of harm to babies exposed to Zofran prenatally, GSK launched a marketing scheme to promote Zofran to obstetrics and gynecology (Ob/Gyn) healthcare practitioners, among others, as a safe treatment alternative for morning sickness in pregnant women. On March 9,1999 the FDA’s Division of Drug Marketing, Advertising and Communications (DDMAC) notified GSK that the FDA had become aware of GSK’s promotional materials for Zofran that violated the Federal Food Drug and Cosmetic Act and its implementing regulations. The FDA reviewed the promotional material and determined that “it promotes Zofran in a manner that is false or misleading because it lacks fair balance.” (FDA Ltr. To Michele Hardy, Director, Advertising and Labeling Policy, GSK, Mar. 9, 1999). GSK’s promotional labeling under consideration included promotional statements relating the effectiveness of Zofran, such as “Zofran Can,” “24-hour control,” and other promotional messages. But the promotional labeling failed to present any information regarding the risks associated with use of Zofran. In its March 9, 1999 letter, the FDA directed GSK to “immediately cease distribution of this and other promotional materials for Zofran that contain the same or similar claims without balancing risk information.” GSK blatantly disregarded this mandate by the FDA. For example, in 2002, GSK’s marketing materials to Ob/Gyn practitioners emphasized Zofran’s “Pregnancy Category B” designation on the very first page of the marketing material, creating a false impression that the safety of use in pregnancy has been established. GSK’s materials failed to disclose any of its internal information concerning the risks of birth defects associated with Zofran treatment during pregnancy. GSK’s promotion of Zofran for use in pregnancy eventually led to a federal governmental investigation.
On July 2, 2012 the Department of Justice announced that GSK “agreed to plead guilty and pay $3 billion to resolve its criminal and civil liability arising from company’s unlawful promotion of certain prescription drugs,” which included Zofran among numerous others. See DOJ Press Release, GlaxoSmithKline to Plead Guilty and Pay $3 Billion to Resolve Fraud Allegations and Failure to Report Safety Data (July 2, 2012). Part of GSK’s civil liability to the government included payments arising from the fact that: (a) GSK promoted Zofran and disseminated false representations about the safety and efficacy of Zofran concerning pregnancy-related nausea and hyperemesis gravidarum, a severe form of morning sickness; and (b) GSK paid and offered to pay illegal remuneration to health care professionals to induce them to promote and prescribe Zofran.
Bicycle and Fall Death Statistics
Bicycle and fall accident death rates in the United States are incredibly high compared to other tragedies that receive far more publicity and media attention. The numbers don’t lie and they call out for increased public and private industry safety initiatives.
In the single year 2010, there were 800 bicycle fatalities according to the Centers for Disease Control and Prevention (CDC) and an incredible 515,000 emergency department visits for bicycle injuries. In that same year, there were a staggering 26,009 fall-related deaths involving fall incidents at construction sites, amusement parks, ladders, roofs, quarries, mountains and chairlifts, etc.
Compare this one year 2010 to the fourteen year period 2000 to 2013 in which a total of 418 people were killed in mass shooting events. Obviously mass shooting incidents touch the public consciousness due to the intentional and criminal nature of the act, but at the end of the day we must understand that a human life is a human life and more should be done to protect bicyclists, workers on construction sites and innocent fall victims from deadly accidents.
Rhode Island Medical Malpractice: There Is No “Crisis”
The Rhode Island Medical Society and the medical insurance industry have for years predicted a malpractice “crisis” brought on by a supposed avalanche of frivolous claims. They have tried to scare medical consumers into believing that this fake crisis will lead to an increase in malpractice insurance premiums, higher costs and lower quality of care. Their doomsday misinformation campaign has no basis in fact and has been thoroughly debunked by an independent consumer watchdog study by Public Citizen that analyzed the actual statistics from government agencies and reached two principal findings:
- The only real medical malpractice “crisis” faced by Rhode Islanders is the unreliable quality of medical care being delivered by a relatively small proportion of doctors.
- Increased medical malpractice premiums are not caused by the legal system.
Here are the key findings of the report:
The cost of medical negligence to Rhode Island patients and consumers is considerable, especially when measured against the cost of malpractice insurance to Rhode Island doctors. Extrapolating from Institute of Medicine (IOM) findings, there are 164 to 365 deaths in Rhode Island each year that are due to preventable medical errors. The costs resulting from preventable medical errors to Rhode Island residents, families and communities are estimated at $63 million to $108 million each year. But the cost of medical malpractice insurance to Rhode Island doctors is only $21.6 million a year.
There has been a decrease in the annual malpractice payouts by Rhode Island’s doctors when inflation is considered. According to the National Practitioner Data Bank (NPDB), the total value of malpractice payouts made to patients in Rhode Island in 2001 was $22.8 million, up from $21.1 million in 1992. This increase of $1.7 million represents a change of only 8 percent over nine years, or 0.9 percent a year. During this same period, costs of medical care increased 47 percent nationwide, an average of 5.2 percent a year.
There has been a significant decrease in the number of malpractice payouts made in Rhode Island. NPDB statistics contradict suggestions by Rhode Island doctors and their political allies that malpractice payouts have grown much more frequent. NPDB data show that the number of payouts actually declined 21 percent from 73 in 1997 to 58 in 2001 (the most recent five years for which statistics are complete).
Million-dollar malpractice payouts have remained flat. Proponents of legislation to impede the legal access of injured patients assert that “verdicts and settlements in medical malpractice actions exceeding $1 million have increased steadily over the past 20 years.” In fact, payouts reported to the National Practitioner Data Bank show that Rhode Island has experienced no such recent pattern. From 1992 through 2001, the average number of malpractice payouts of a million dollars or more was less than two per year, and never exceeded three in any of those years. In 2001, the total number of payouts of $1 million or more was three, the same as in 1992. Additionally, the number of malpractice payouts between $500,001 and $1 million showed no steady, upward trend during these years, averaging just over eight per year. In 2001, the total number of payouts in this range was 11, less than the 13 in 1992.
As a group, Rhode Island doctors have seen a decrease in their liability insurance premiums, when inflation is considered. According to data from the National Association of Insurance Commissioners (NAIC), the total amount that Rhode Island doctors paid in malpractice insurance premiums in 2001 was $21.6 million, compared with $19.5 million in 1996. This is an increase of only 11 percent during this period (the most recent five years for which data is complete). When adjusted for medical inflation, which was 19.8 percent during this same period, and the growing number of physicians in the state, this represents a significant decline in actual dollars.
Malpractice insurance premiums are lower in Rhode Island than in neighboring states. A comparison of medical malpractice premiums charged by one insurance group that serves Rhode Island, Connecticut and Massachusetts shows that Rhode Island doctors generally pay less – in some cases, much less – than their counterparts in neighboring states. And one of these two adjacent states, Massachusetts, imposes a $500,000 cap on malpractice awards. According to data from Medical Liability Monitor, rates for general surgeons ranged from 14 percent to 40 percent less in Rhode Island than in Connecticut or Massachusetts; rates for OB/GYNs ranged from 6 percent to 23 percent less in Rhode Island than in the other two states; and rates for internists ranged from 2 percent to 23 percent less in Rhode Island than in the other states.
Malpractice payouts are insignificant when compared with the state’s overall healthcare expenditures. Total spending on health care in Rhode Island was $4.5 billion in 1998. In that year, doctors’ malpractice payouts made to patients in Rhode Island totaled $14.5 million – the equivalent of only 0.32 percent of healthcare expenditures in the state.
There is no sign that doctors are abandoning Rhode Island. Rhode Island’s medical environment has attracted a steady increase in physicians. In 2002, there were 2,915 practicing physicians and osteopaths with Rhode Island addresses, compared with 2,623 in 1999, an increase of 11 percent. According to the American Medical Association, Rhode Island had 277 doctors per 100,000 residents in 1990. By 2001, that ratio had increased to 365 doctors per 100,000 residents. This is the seventh highest ratio in the nation.
Repeat-offender doctors are responsible for half of medical malpractice payouts. According to the NPDB, which covers malpractice judgments and settlements since September 1990, 4.8 percent of Rhode Island’s doctors have made 52.7 percent of all payouts. These repeat-offender doctors are responsible for two or more malpractice payouts to patients and they have paid out $104.7 million in damages. Even more disturbing, just 1.6 percent of Rhode Island’s doctors, each of whom has paid three or more malpractice claims, are responsible for nearly 26 percent of all payouts.
Less than a third of doctors with four or more malpractice payouts have been disciplined. According to the National Practitioner Data Bank and Public Citizen’s analysis of NPDB data, 19 Rhode Island physicians have made four or more malpractice payouts, but only 31.6 percent of those doctors have been disciplined by the Rhode Island State Board of Medical Licensure and Discipline.
The medical board is among the nation’s less stringent when it comes to disciplining doctors. Rhode Island ranks 35th among all states and the District of Columbia when its diligence in taking disciplinary actions against doctors is measured. In 2002, the state Board of Medical Licensure and Discipline levied serious sanctions against only 10 doctors for incompetence, misprescribing drugs, sexual misconduct, criminal convictions, ethical lapses or other offenses, according to an ongoing Public Citizen project that tracks “Questionable Doctors” nationwide. Nationally in 2002, there were 3.6 serious actions taken for every 1,000 physicians. The rate of serious actions by the Rhode Island Board of Medical Licensure and Discipline–2.6 per 1,000 physicians–was roughly one-fifth the rate in Wyoming, which is the top-ranked state with 11.9 serious actions per 1,000 physicians.
Five years after a disclosure law was adopted, consumers still can’t get vital data. Rhode Island has yet to fully implement a 1997 law that called for public disclosure of profiles containing information about individual physicians. Although some profiles are available online, they omit two crucial categories: malpractice information and criminal convictions. The system is scheduled for an update, but the profiles still will not contain data on doctors’ malpractice payouts.
The spike in medical liability premiums is caused by the insurance cycle, not by skyrocketing ”malpractice awards. J.RobertHunter, one of the country’s most knowledgeable insurance actuaries and director of insurance for the Consumer Federation of America, recently analyzed the growth in medical liability premiums. He found that amounts charged for premiums do not track losses paid, but instead rise and fall in concert with the state of the economy. When the economy booms and investment returns are high, companies maintain premiums at modest levels; however,when the economy falters and interest rates fall, companies increase premiums.
Rhode Island doctors have endured insurance cycles for 28 years. Recently the Rhode Island Medical Society’s board of directors acknowledged that the state had witnessed up-and-down cycles in the medical liability insurance industry since the mid-1970s. In an advisory to members, the board recounted major problems that occurred with medical liability insurers in 1975, when coverage became largely unavailable; for a number of years beginning in 1987, when nine different “risk retention groups” began going bankrupt; and again in 1993, when a large, unrated carrier, PremierAlliance, became insolvent. The primary cause for these problems, the board concluded, has been “under-reserving” of funds by the insurance companies.
Insurance companies and their lobbyists admit caps on damages won’t lower malpractice premiums. Caps on “non-economic damages” are not part of Rhode Island’s legislative proposal, but they are included in a federal bill that the state’s U.S.senators and representatives have considered. These caps, which limit compensation for pain and suffering resulting from severe injuries such as brain damage, paralysis, loss of a limb, loss of reproductive capacity, disfigurement, blindness or deafness, significantly reduce awards paid to catastrophically injured patients. But, because such truly severe cases comprise a small percentage of medical malpractice claims and because the portion that pays for defense lawyer fees dwarfs the portion of the insurance premiums that pay for compensation, caps do not lead to lower premiums. Insurance companies and their lobbyists understand this, and have said so on numerous public occasions.
So-called “non-economic” damages are real and not awarded randomly. “Non-economic” damages aren’t as easy to quantify as lost wages or medical bills, but they compensate for the pain and suffering that accompany any loss of normal functions (e.g. blindness, paralysis, sexual dysfunction, lost bowel and bladder control, loss of a limb) and inability to engage in daily activities or to pursue hobbies, such as hunting and fishing. This category also encompasses damages for disfigurement and loss of fertility. According to the PIAA, the average total payout between 1985 and 2001 for a “grave injury,” which encompasses paralysis, was only $454,454.
Malpractice insurance costs amount to only 3.2 percent of the average physician’s revenues. According to experts at the Medicare Payment Advisory Commission (MedPAC), liability insurance premiums make up just a tiny part of a physician’s expenses and have increased by only 4.4 percent over the past year. The increase in this expense is noticeable primarily because of the decreases in reimbursements that doctors are receiving from HMOs and government health programs.
The small number of claims pursued to a defense verdict are not frivolous. Researchers at the American Society of Anesthesiologists arranged for pairs of doctors to review 103 randomly selected medical negligence claims files. The doctors were asked to judge whether the anesthesiologist in question had acted reasonably and prudently. The doctors only agreed on the appropriateness of care in 62 percent of the cases; they disagreed in 38 percent of cases. The researchers concluded, “These observations indicate that neutral experts (the reviews were conducted in a situation that did not involve advocacy or financial compensation) commonly disagree in their assessments when using the accepted standard of reasonable and prudent care.”
No evidence supports the claim that jury verdicts are random “jackpots.” Studies conducted in California, Florida, North Carolina, New York and Ohio have found that jury verdicts bear a reasonable relationship to the severity of the harm suffered. In total the studies examined more than 3,500 medical malpractice jury verdicts and found a consistent relationship between the severity of the injury and the size of the verdict. Uniformly the authors concluded that their findings did not support the contention that jury verdicts are frequently unpredictable and irrational.
MASSACHUSETTS DOG BITE LAW
The United States has a dog population of over 72 million and Massachusetts has more than its proportional share of them. We are generally a dog loving state whose owners consider dogs to be family members.
But we have very little tolerance for dogs that attack people, especially children. It is outrageous and unacceptable when we hear about aggressive breeds of dogs mauling children. The Massachusetts Legislature long ago expressed our intolerance for dog attacks by passage of a strict liability dog bite statute. Strict liability means that there will be legal responsibility for a dog attack irrespective of the defendant’s or the dog’s degree of blameworthiness – i.e., poor breeding, poor training, owner fault.
A. The Dog Bite Statute.
“If any dog shall do any damage to either the body or property of any person, the owner or keeper, or if the owner or keeper be a minor, the parent or guardian of such minor, shall be liable for such damage, unless such damage shall have been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog.”
On the books since 1812, the statute is referred to as the “dog-bite statute” because it is usually invoked to seek legal redress for bite injuries. However, the statute is broader that than. It applies to any injury caused by a dog and could also include injuries caused by a running or jumping dog that knocks someone down. A claim under the statute is an independent legal cause of action separate from common law negligence.
Under the express language of the statute, the plaintiff must prove three things:
1. Injury proximately caused by a dog;
2. Defendant was the owner or keeper of the dog; and
3. Plaintiff did not commit trespass or another tort and was not teasing, tormenting or abusing the dog.
Liability under the statute is no-fault. It is unnecessary for the plaintiff to prove that the dog was dangerous, that the owner knew it to be so, or that the owner was somehow negligent in failing to restrain or secure the dog.
B. Dog-Related Injury.
Most cases brought under the statute concern dog bites. These injuries can include puncture wounds, lacerations, internal damage, broken bones, the transmission of rabies and in the more serious cases permanent scarring and disfigurement, and even death. Many dog-bite victims also develop a psychological fear of dogs after an attack that can affect them for the rest of their lives and manifest whenever they see a dog.
Liability is not limited to bite injuries. Plaintiffs can also recover under the statute for bodily injury after being knocked or pulled down by a dog, as well as for damages to tangible property including other animals. It is not even necessary for the offending dog to come into actual physical contact with the plaintiff or the plaintiff’s property.
The dog’s apparent intent is also totally immaterial. Even if a dog causes an injury while playing or fetching a stick, the owner or keeper is still legally responsible for the injury.
C. Owner or Keeper of the Dog.
The plaintiff must show the defendant was either the owner or keeper of the dog at the time of the injury.
Ownership is fairly straightforward. Most dog owners readily identify themselves to the police or to the injured person at the time of the incident. In addition, dogs must be registered with in their city or town and the registration form will identify the owner by name and address. Ownership can also be proved through veterinary records or American Kennel Club records.
Keepership is a little more nebulous than ownership. Keepership is defined as harboring a dog for the purpose of assuming custody, management and control of the animal. Keepership involves more than mere possession and control. It is more than simply taking some else’s dog for a walk. The mere fact that a dog is kept on someone else’s property with the permission of the property owner does not alone make the property owner a keeper of the dog. Keepership requires some degree of affirmative assumption of care of the dog. This can be provide with evidenced that the defendant boarded, fed, groomed and/or administered routine medication like heartworm tablets, vitamins or flea and tick repellent. A keeper of a dog will be responsible for damage the animal may do while it is in the custody or control of that person. Once the dog is returned to the owner’s exclusive control, the keepership ends.
Veterinary staff will likely to be considered keepers even though their contact with any particular dog may be brief. As such, veterinarians can be liable for dog injuries visited upon other customers on the premises during the time of the keepership. However counter-intuitive it may seem, when veterinary staff are considered the keeper of a dig, they cannot avail themselves of the statute as plaintiffs when they are injured by the dog, usually on the examination table. Of course, veterinary staff could always try to pursue a regular negligence claim against the owner though it would be difficult given their particular expertise and superior knowledge of canine behavior.
In addition, it is important to know that one spouse will not necessarily be deemed a keeper of a dog owned by the other spouse. This holds true even where the dog is kept on premises owned by the first spouse and occupied by both.
D. Plaintiff Did Not Trespass or Commit Another Tort and Was Not Teasing, Tormenting, or Abusing the Dog.
To recover under the statute, the plaintiff must also prove that he “was not committing a trespass or other tort, and was not teasing, tormenting or abusing the dog.”
The only exception is for a minor plaintiff under the age of seven years. The law regards such ages as being legally incapable of forming the necessary intent to commit such wrongful acts.
Whether a plaintiff over the age of seven years was teasing or tormenting the offending dog depends on the factual circumstances of the incident. This determination is generally left to the jury’s common sense and will only be disturbed by the court if the finding is so at odds with the evidence as to defy all reason. In one case, the plaintiff simply offered a bone to the dog and the dig growled and bit her. Affirming the jury verdict for the plaintiff, the court noted that the plaintiff’s conduct – though it may have induced the dog to bite and contributed to causing the injury – did not rise the level of teasing, tormenting or abusing.
When analyzing this issue, the plaintiff’s intent is to be considered. In another case, a plaintiff was bitten after he tried to break up a dog fight by kicking the defendant’s dog which then turned and bit the plaintiff. The jury and trial judge found that the plaintiff’s intent was to force the defendant’s dog to abandon the fight, not to torment or abuse it. The appellate court agreed and stated that striking a dog to prevent it from acting in a harmful manner, rather than to irritate or annoy it, does not constitute the kind of wrongful act on the part of the plaintiff that could prevent recovery under the statute.
E. Proximate Causation.
The plaintiff needs to also prove that the dog’s actions proximately caused an injury or damage. Usually this is done by simply offering the ambulance and medical records and bills, and perhaps a police report, into evidence along with the plaintiff’s testimony as to how the incident occurred and what the damages are.
If possible, the defendant will always try to show that he was not the owner or keeper of the offending dog. More often the defendant will try to argue that the plaintiff teased or tormented the dog.
There may an additional defense if the offending dog is owned or kept by a governmental agency which would enjoy the benefits of sovereign immunity. Government-owned dogs include bomb-sniffing or drug-sniffing dogs at airports and other transportation checkpoints, search-and-rescue dogs and police K-9 unit dogs that are trained to attack and subdue criminal suspects. Theoretically, governmental immunity could shield the agency to the extent that the ownership or keepership of the dog involves the exercise of a so-called discretionary function. Governmental immunity will also limit any recovery to $100,000 based on the liability cap in Massachusetts.
The exclusivity provisions of the Workers’ Compensation Act would also bar a plaintiff from bringing suit under the statute against his employer if he or she was injured by the employer’s dog at work.
The statute of limitations under the dog-bite statute is three-years. A lawsuit filed more than three years after the incident will surely be challenged on that basis.
Most dog injury cases are covered by the owner’s or keeper’s homeowner insurance policy.
MASSACHUSETTS PREMISES LIABILITY LAW
Premises liability, or property negligence, cases are legal claims for monetary damages by plaintiffs injured or killed as a result of some hazardous defect on real property. In Massachusetts, those who own or control real property have a duty to maintain it in a reasonably safe condition for lawful visitors. As in all negligence cases, property negligence cases require proof that the defendant (1) owed a duty of reasonable care, (2) breached that duty, and thereby (3) caused (4) injury.
Most of the general negligence principles apply to premises liability cases, in addition to some of the unique aspects of this area of tort law discussed below.
A. Parties to Premises Liability.
There are two types of plaintiffs in premises liability cases: trespassers and legal entrants. A trespasser is one who enters upon the real property of another without legal right or without permission, either actual or implied. Everyone else is deemed a legal entrant. The difference is important because Massachusetts affords much less legal protection for personal injury to a trespasser than to a non-trespasser.
There are many types of defendants that own or control real property in Massachusetts including title holders, lessors, lessees, tenants, condominium trusts and other forms of realty trusts.
B. Properties Subject to Liability.
There are generally four types of property involved in premises liability claims:
1. Residential property.
This includes apartments, condominiums, co-operatives and single-family homes.
2. Commercial property.
This includes retail stores, shopping malls, hotels, hospitals, nursing homes, private school and university campuses, gas stations, theaters, bars, nightclubs, marinas, restaurants, airports, transportation terminals, parking garages and offices.
3. Industrial property.
This includes factories, warehouses, construction sites, public utility plants and water treatment facilities.
4. Public property.
This includes property owned by the state, cities or towns such as parks, sidewalks, public school and university campuses, beaches, government office buildings, highways, toll roads, streets and boat docks. This can also include property owned by quasi-governmental entities like the Massachusetts Bay Transportation Authority, the Steamship Authority, the Boston Redevelopment Authority or the Massachusetts Turnpike Authority.
C. Property Insurance.
Virtually every square foot of Massachusetts is insurable and, in practice, most of it is. Liability insurance will apply negligently caused injuries that occur on the insured premises. Standard liability insurance policies provide coverage for losses usually between $100,000 and $1 million depending on the nature, use and value of the property. In addition, standard policies provide for an insurance defense attorney to be hired by and paid by the insurance company to represent the owner or occupier of the land. So, premises liability claims are almost always satisfied by insurance proceeds rather than from the assets of the individual defendant.
D. The Landowner’s Legal Duty of Care.
The duty of care owed by a landowner or occupier is different for legal entrants than it is for trespassers. Legal entrants are owed a duty of reasonable care, that is a duty to refrain from negligence. Trespassers are merely owed a lesser duty to refrain from reckless, willful or wanton misconduct (unless it is a child trespasser).
1. Legal entrants.
The vast majority of property negligence claims are brought by legal entrants upon the subject property. As to such entrants, an owner or occupier of land has a legal duty to take reasonable steps to maintain the property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the risk and the burden of avoiding the risk. This “reasonableness” standard is intentionally broad so that it can be applied to the countless sets of circumstances that can arise in our complex modern world.
The existence of a duty of reasonable care does not alone constitute negligence. There must be a duty and a breach of that duty. The landowner is not an absolute insurer of the property. There is no obligation to maintain premises in conditions of absolute safety for unforeseeable uses or those for which it was not reasonably intended. A landowner or occupier is expected to provide for the safety of lawful visitors in light of events that are reasonably foreseeable. To prevail on a premises liability claim, the plaintiff must prove by a preponderance of evidence that the defendant violated its duty of reasonable care duty based on community standards as to what constitutes acceptable behavior.
Here is a typical illustration. On his first visit to the local hardware store, a customer inquires about some lumber and is directed down to the basement. The stairs are old, narrow, poorly lit and lined with plumbing stock. As he is descending, the customer trips on part of an elbow joint that is the same color as the gray cement step. He falls head over heels, fractures his cervical spine and remains permanently paralyzed from the chest down. The store owner could be found liable because the company owed the customer a duty to keep the stairs in a reasonably safe condition for passage and a jury would be warranted in finding that the company breached that duty by placing stock on the steps that would not readily discernable to a reasonable person. Of course, a jury could always also find that the customer himself was partially at fault and also assign him some comparative negligence though that would seem unlikely given these facts.
Trespassers are treated differently than legal entrants under the law of negligence. Trespassers are not owed any duty of reasonable care; that is, they need not be treated with reasonable care. Thus, trespassers cannot prevail on a claim for negligence in a premises liability case. Trespassers can only bring claims if they were injured by some more culpable act like recklessness or some willful and wanton misconduct of the defendant.
Recklessness is the taking of a unreasonable risk when one knows that there is a substantial likelihood that injury will result. Willfulness and wantonness involve even more intentionally harmful risk-taking by the property owner. In Massachusetts, even trespassers can be protected from highly dangerous conduct like the setting of a spring action gun trap or other type of harmful device like a bear trap that is intentionally placed to harm criminal trespassers. However, trespassers face a tough road with juries especially when the trespass appears to have been made with criminal intent rather than part of an innocent frolic.
For an example of a viable premises claim by a trespasser, consider the suburban pool hoppers who climb a small stone wall to enter a neighbor’s yard every summer night, raise a racket and then run off into the night. One day the fed up homeowner affixes large pointed glass shards sticking straight up all along the stone wall. He knows but does not care that it will be difficult for the pool hoppers to discern this hazard in a momentary flash in the dark of night. This property owner was probably reckless (and maybe even willful and wanton) and could be held legally responsible if a trespassing pool hopper was unfortunate to catch a wrist on a shard and bleed to death or suffer some severe nerve injury.
The one exception is for the child trespasser whom the Legislature sought to protect by passage of a child trespasser statute. Under the statute, the normal standard of reasonable care for legal entrants applies to foreseeable child trespassers. The foreseeability factor is set forth in G.L. c. 231, § 85Q, which states as follows:
“Any person who maintains an artificial condition upon his own land shall be liable for physical harm to children trespassing thereon if (a) the place where the condition exists is one upon which the land owner knows or has reason to know that children are likely to trespass, (b) the condition is one of which the land owner knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, (d) the utility to the land owner of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the land owner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”
E. Commercial or Business Property Accidents.
The majority of litigated premises liability cases deal with plaintiffs injured in one way or another while lawfully visiting some business operated by the defendant.
The business owner’s duty is to maintain the premises in a reasonably safe condition and to warn legal entrants of any unreasonable dangers of which the owner is aware or should reasonably have been aware. The plaintiff has the burden of establishing that there was a defect on the premises and that the defect existed on the premises for such a period of time that the defendant, in the exercise of reasonable care, should have known of it, had an opportunity to remedy it and failed to do so. This usually happens in one of three ways.
1. The defendant or its employees either created the dangerous condition or had actual knowledge of it;
2. The defendant or its employees were positioned so that they should have seen and remedied the dangerous condition;
3. The plaintiff fell on a foreign substance that by its condition creates an inference it was present for such a period of time that the defendant or its employees should have seen it.
The length of time that passes between the creation of the hazard and the time of injury is always an important factor in weighing the reasonableness of the defendant’s conduct. The first two situations can usually be proved by direct evidence, like a surveillance video or eyewitness testimony about the condition and length of time it existed. The third situation, where there are no direct witnesses or evidence, is more problematic. In that situation, since no one knows who created the hazard and no one saw the hazard prior to the accident, the plaintiff must prove facts sufficient to create a “reasonable inference” that the substance was on the floor for such a time that the defendant should have seen it. This circumstantial type of proof can be difficult to come by.
The length of time allowed for reasonable opportunity to discover a transient property defect is governed by the circumstances of each case and to a large extent depends on the opportunity for discovery available to the defendant’s employees by reason of their number, and, in general, the likelihood that they would become aware of the condition in the normal performance of their duties. The issue is whether there is any evidence from which to infer that a foreign substance had been on the ground long enough so that in the exercise of reasonable care the defendant should have discovered and removed it. The fact that organic food matter on the floor was rotten or dirty at the time of incident is not enough to prove that it was on the floor for an unreasonable amount of time. The mere presence of a foreign substance on the floor is not evidence of negligence.
F. Snow and Ice Accidents.
There used to be a special rule that landowner’s could not be legally responsible for accidents that occur on “natural accumulations” of snow or ice. That rule was wisely abolished by the Supreme Judicial Court.
G. Duty Owed to Skiers.
The liability of ski resorts for injuries to skiers and users is sharply limited by the Massachusetts Ski Safety Act. The statute provides that ski area operators “shall not be liable for damages to persons or property, while skiing, which arise out of the risks inherent in the sport of skiing.”
The statute also establishes the obligations of skiers as follows: “[a] skier shall be presumed to know of the existence of certain unavoidable risks inherent in the sport of skiing, which shall include, but not be limited to, variations in terrain, surface or subsurface snow, ice conditions or bare spots, and shall assume the risk of injury or loss caused by such inherent risks.”
Under the statute, according to one court decision, a ski area operator cannot be liable for one skier’s collision with another skier due to icy conditions while getting off of a chair lift. In another case, the court stated that a ski area operator could not be liable for a skier’s fall on a bare patch on a ski slope.
It would seem, however, that the statute might not apply to injuries caused by the negligent placement of man-made machinery in or adjacent to ski trails, like snow making pipes or machinery.
Of course, the statute does not affect an injured skier’s ability to pursue a claim for negligence against other skiers or snowboarders for their negligent conduct on the mountain.
H. Public Property.
Like a private property owner, the Commonwealth of Massachusetts and its cities and towns can also be held liable for unreasonable property hazards, but with some important limitations.
First, municipal entities are protected by a statute which limits their liability to $100,000.
Second, municipal entities enjoy special notice protections under which a person injured on public property must make timely written notice to the executive officer of the municipal entity before any legal action can be undertaken in a court of law.
Third, municipal entities are granted a lot more discretionary leeway in how they operate their public lands. In fact, one major defense in these types of cases is the discretionary function exception under which the public landowner or occupier is immunized from liability for conditions on real property that were part of the defendant’s operational discretion on the use of public funds and resources. The cases deciding the scope of the discretionary function are some of the most contradictory and confusing that one will ever come across in Massachusetts. These cases are best handled and researched on a case-by-case basis as they arise.
Defendants can also assert various types of affirmative defenses to liability.
1. Comparative negligence.
The most common defense to property defect claims is comparative negligence. The defendant landowner will attempt to prove that the plaintiff is more at fault for causing his or her own injuries. If the jury finds that the plaintiff was more than 50% at fault, the defendant prevails. If the jury finds that the plaintiff was 50% or less at fault, then the award will be diminished in proportion to that percentage. So, if the jury finds the plaintiff 25% at fault and returns a verdict for $100,000, the verdict will be reduced to $75,000.
To prove comparative negligence, the defendant has the burden to prove by a preponderance of the evidence that the plaintiff was not in the exercise of due care at the time of the alleged accident. The defendant is entitled to rely to a certain extent on the expectation that a person will take reasonable care for his own safety. There must be that exercise of reasonable care and caution on the part of the plaintiff that the jury would naturally expect from a reasonably prudent person under the same or similar circumstances.
Massachusetts juries tend to view slip-and-fall type cases with skepticism. The mindset of “better watch where you are going” often prevails over other considerations and jurors can often regard these events as everyday episodes in the living experience and not the proper subject for our judicial system.
2. “Open and obvious” danger.
If a risk is such that it would be obvious to persons of average intelligence, then an owner or person in control of the property owes a lawful visitor no duty to warn of such risks. This defense can be thought of as a way for a landowner to negate its duty of reasonable care. This rule has been held to excuse property owners from liability for failing to warn of appreciably hazardous conditions.
The rule essentially provides that no duty is owed to anyone with respect to dangers that are open and obvious to a person of average intelligence with ordinary perception and judgment who is exercising reasonable care for his or her own safety. The rule requires an objective assessment of the nature of the hazard itself, not the plaintiff’s blameworthiness in encountering the hazard. The court is supposed to then determine whether as a matter of law a legal duty to warn exists. A problem arises when defendants erroneously try to argue comparative negligence in this context. Some courts confuse the concepts and end up ruling in the defendant’s favor on the issue without letting a jury decide it. The result is an inconsistent application of the rule by the courts. For good or bad, here are some examples of open of obvious dangers that our courts have found require no duty to warn:
(a) the danger of getting hit by another car while at a filling station
(b) the danger of an open stairway in an unlit hallway at 1:00 a.m.
(c) the danger of ice forming at a car wash in zero-degree weather
(d) the danger of carrying oversized planks in an elevator car
(e) the danger of attempting a back flip on a hardwood floor
(f) the danger of diving headfirst into the shallow end of a swimming pool
Open and obvious court decisions are also riddled with inconsistencies and defy general categorization. They are best handled and researched on a case-by-case basis.
3. Statute of Limitation.
A plaintiff must file a complaint for negligence, including one for premises liability, within three years from the date that he knew or should have known that he was injured as a result of some wrongful conduct. The plaintiff’s failure to timely file the complaint is a complete defense in a negligence action, meaning the case will be dismissed.
In most property injury cases, the limitations period will begin to accrue on the date of the incident because the causal connection will be obvious to a reasonable person. This would be the case in a staircase accident where the victim should be able to appreciate right away that he was injured due to property defect like an uneven riser, loose carpeting or a raised nail for example. In rare cases, the “discovery rule” can toll the limitations period when the manifestation of injury is somehow delayed or where it is initially unclear what caused the injury.
4. Recreational use statute.
Under G.L. c. 21, § 17C, an owner or lessee in control of land who permits the public to use such land for recreational purposes without charging a fee cannot be held liable to a lawful visitor who suffers injury while recreating on the land absent proof of willful, wanton or reckless conduct. In effect, property owners owe the same duty of care to recreators as they do to trespassers. This statute covers indoor and outdoor parks, playgrounds and ball fields. A request by the property owner for voluntary contributions to access the grounds does not constitute charging a fee.
5. Woodgatherers statute.
Under this quaint old statute, a property owner or lessee in control of land cannot be liable for negligence where he permits the public to use his land to gather firewood without charging a fee. Under the rule, the owner or lessee cannot be held liable to a lawful gatherer unless that defendant acted with some kind of willful, wanton or reckless conduct. This would probably include the setting of traps or other hidden types of dangers without alerting any visitors of the hazard.
6. Defect on leased portion of commercial property.
It is well-settled that a residential landlord can be held liable for a defect of which he or she had notice and a reasonable opportunity to repair, even though the defect is on that portion of the premises leased to a tenant. But a commercial landlord cannot be held liable for a defect on that portion of premises leased to another, even though he or she has notice of the defect and had a reasonable opportunity to repair it.
MASSACHUSETTS PRODUCT LIABILITY LAW
A. What is “product liability” law?
Product liability law governs defective products that cause serious injury or death. Product liability claimants include individual consumers or end-users of the defective product, and also innocent bystanders who come into contact with the defective product. Product liability cases are brought against the manufacturers and sellers of the defective product and, depending on the type of product and the manner in which it is brought to market, perhaps also against the product’s designer, distributor, retailer and/or marketer.
Liability can attach to virtually any type of harmful product, but for practical purposes lawyers tend to categorize them as follows: retail consumer products, industrial products, automotive products, pharmaceutical drugs and medical devices.
1. Retail consumer products. These are the most common product defect cases because they involve mass marketed consumer products that are bought and sold in high volume and have the capacity to affect large numbers of consumers and users. Examples include:
(a) Sporting goods and recreational equipment like trampolines, scuba gear, above-ground swimming pools, in-line skates, bicycles, climbing walls, safety helmets, firearms, life jackets and preservers and various other types of safety equipment.
(b) Infant care products like cribs, changing tables, baby swings, clothing without flame-retardant, cold medicine, baby formula, plastic bottles with bPA and safety gates.
(c) Household appliances like conventional ovens, toaster ovens, gas grills, microwave ovens, pressure cookers, hot water heaters, furnaces, space heaters, fans, power cords and power strips, electrical outlets, junction boxes and circuit breakers, HVAC pipes and plumbing and gas fixtures.
(d) Home safety devices like smoke detectors, carbon monoxide detectors, fire alarms and security systems.
(e) Tainted food products that contain foreign objects, unsafe chemicals or deadly microorganisms.
(f) Outdoor equipment like chainsaws, lawn mowers, power tools, power saws, weed wackers and ladders.
(g) Children toys and equipment like jungle gyms, bicycles, roller blades, roller skates, Wheelies, scooters and BB guns.
(i) Toxic cleaning agents and cleaning products.
2. Industrial products. Product liability claims also include specialized industrial products like machine parts, tools, dyes and chemicals, elevators and escalators, construction equipment like a forklift or a climbing scaffold and toxic construction materials like asbestos. This category can also include environmental contamination claims that cause physical illness as a result of a defendant’s pollution or dumping of toxic chemicals.
3. Automotive products. Product liability claims also include defective motor vehicles like cars, vans, SUVs, trucks, motorcycles, mopeds, scooters, all-terrain vehicles, golf carts, 18 wheel tractor-trailers and farm tractors. Automotive defect claims typically involve a particular component in the product that is defective such as the braking system, passenger restraint system, transmission parts or safety features.
4. Pharmaceuticals and Medical Devices. Various types of pharmaceutical drugs and medical devices have been linked to serious, sometimes deadly medical complications. Product liability claims in the area are extremely complex, not only in terms of the medical and bio-engineering issues involved but also because these products often fall under the federal regulatory umbrella of the United States Food & Drug Administration and can be subject to federal laws like the Medical Device Act. As such these claims have become by and large “federalized” and they need to be analyzed through a very specialized lens.
B. Legal theories of product liability
There are three principal theories of product liability in Massachusetts:
- Breach of implied warranty of merchantability
3. Chapter 93A
C. Breach of Warranty of Merchantability
The most used theory of product liability in Massachusetts is breach of warranty of merchantability. The warranty of merchantability is a consumer protection device that automatically attaches to any good sold. For this reason it is referred to as an “implied” warranty. This warranty guarantees that the product is of merchantable quality—that is, that it will perform up to the expected use for which it was sold. The warranty of merchantability cannot be disclaimed by the manufacturer or seller of the product, though there is sometimes misleading disclaimer information on the packaging that has no legal effect.
To prove a breach of warranty claim the plaintiff must establish that:
- The defendant was a “merchant” as that term is legally defined;
2. The product was sold or leased
3. The plaintiff’s use of the product was foreseeable;
4. The product was defective; and
5. The defect was a proximate cause of the plaintiff’s injury.
These five elements are discussed in order.
1. The “merchant” requirement. An implied warranty of merchantability arises from the sale or lease of goods only if the seller or lessor is a “merchant” with respect to goods of that kind. “Merchant” is defined as a “person who deals in goods of the kind or otherwise by his or her occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his or her employment of an agent or broker or other intermediary who by his or her occupation holds himself or herself out as having such knowledge or skill.”
To be deemed a merchant turns on whether the defendant “regularly deals in goods of the kind involved or otherwise has a professional status with regard to the goods involved such that [he] could be expected to have specialized knowledge or skill peculiar to those goods.”
For example, the Ford Motor Company is a “merchant” with respect to the sale of motor vehicles. However, a college history professor who executes a one-time sale of a used Ford Mustang on-line is not a “merchant.”
2. The sale or lease requirement. The warranty of merchantability applies only where the product was obtained through a particular type of transaction. Specifically, it arises only from (1) a sale of goods, (2) a contract for a future sale of goods or (3) a lease. So, for example, the warranty would not apply if a plaintiff was injured as a result of some mechanical defect while test driving a Ford automobile at the dealership before deciding to purchase it.
Because the warranty arises out of all sales and leases, this theory of liability is not limited to manufacturers but extends to anyone who sells or leases a defective product, including retailers and all those in the chain of distribution. Depending on the product, this could include the product’s designers, distributors, licensors and even marketers.
It is not necessary that the injured person had a direct contractual relationship with a defendant. The plaintiff may sue any “merchant” involved in bringing the product to market anywhere along the chain of distribution. Thus, Massachusetts has done away with the antiquated “privity of contract” requirement for these cases whereby an injured party used to only be able to sue entities with whom he had a direct contractual relationship, like a Ford car dealership but not a wholly owned corporate subsidiary of Ford that may have designed a defective seatbelt for the vehicle.
3. The foreseeable use requirement. The implied warranty of merchantability requires that products be “fit for the ordinary purposes for which such goods are used.” The warranty applies only to uses that are reasonably foreseeable. But it does not extend to unforeseeable misuses of the product. To prove the claim, the plaintiff must therefore show that his use, or even his misuse, of the product was foreseeable to the defendant. Misuse of a product will not bar recovery so long as the misuse was foreseeable to the defendant.
One of the seminal cases addressing the foreseeable use requirement involved a defective sauna heater that caused a fire in the men’s sauna room of a racquet club. The fire started when someone left a towel on the heater. The court ruled that the jury did not need to even consider the issue of misuse as potential defense because it should have been foreseeable to the seller of the sauna that someone would place a towel on the heater in a sauna. As such, the arguable misuse of leaving of a towel on a sauna heater could not be considered unforeseeable to sauna’s manufacturer.
It is technically incorrect to refer to this as a “misuse defense” because misuse is not an affirmative defense for which the defendant has the burden of proof; instead, it is the plaintiff’s burden to prove that his or her use or misuse was foreseeable.
4. Product defect. The warranty of merchantability requires that the product must be fit for the ordinary purposes for which such products are used. The merchant must therefore anticipate the environment in which its product will be used and must design against the reasonably foreseeable risks of its use in that setting. The merchant has a duty to prevent the release of any product in a defective condition unreasonably dangerous to the user or consumer.
The liability focus in a breach of warranty case is on the product itself rather than on the conduct of the manufacturer, designer or seller. Thus, a defendant may be held liable under a breach of warranty theory even if it used all possible care in making the product safe.
Product defects can be divided into three categories:
(a) Design defect: the product was manufactured as intended, but the design was unreasonably dangerous;
(b) Manufacturing defect: the product was not manufactured as intended and the mistake created a dangerous defect; and/or
(c) Failure to warn: the defendant did not provide an adequate warning concerning a danger posed by the product.
These three categories of product defect claims are discussed in order.
(a) Design defect. The key in a design defect cases is the reasonableness of the product’s design. The basis of the claim is that an entire product line or model is defective because of a design flaw. To establish a defective design claim, the plaintiff must prove that the product was defective when it left the manufacturer’s possession.
Several relevant factors will help determine whether a product contains a design defect:
(i) the gravity of the danger posed by the challenged design;
(ii) the likelihood that such danger would occur;
(iii) the mechanical feasibility of a safer alternative design;
(iv) the financial cost of an improved design; and
(v) the adverse consequences to the product and to the consumer that would result from an alternative design.
The appropriateness of a design depends largely, although not exclusively, on consumer expectations. Liability may attach even if the product functioned as intended. A product may be defectively designed if it was designed in a manner that was more dangerous than necessary.
Industry design standards and/or the defendant’s own internal standards can be very helpful in these cases. Those standards can be relied on to establish a minimum level of safety compliance below which a manufacturer may be deemed to have acted unreasonably.
A product may be defectively designed even if it contained an appropriate warnings of the danger posed. A common misperception by the public is that a harmful product can be insulated from legal scrutiny is there enough warning stickers applied to it. This is not true. There is no assumption of the risk defense to design defect claims, or to any warranty claims for that matter. Defendants cannot argue that their product is so inherently dangerous that the user should have known and avoided the product. This is in essence admitting the design defect. In addition, some individuals may not have a real alternative to using a dangerous product, as in the case of a factory worker who has to choose between working with dangerous lathe and losing her job. In addition, the warning relied on by the defendant may not be effective in preventing accidents due to a plaintiff’s instinctual reactions, momentary inadvertence or forgetfulness. Safety devices, not warning stickers, are needed to guard against these foreseeable situations.
(b) Manufacturing defect. The issue in a manufacturing defect case is whether the product was defectively manufactured or assembled. The manufacturing and inspection processes are the central issues. The existence of a manufacturing defect may be shown by comparing the propensities of the product as sold with those that the product’s designer intended it to have, and then determining whether the deviation from the design rendered the product defective. Most manufacturers have quality control departments with in-house standards and procedures. Records are generally kept regarding inspections to ensure the product meets manufacturing guidelines.
It is also important to verify that the defect complained of was actually caused during the manufacturing process and was not the result of abuse or trauma after the product was sold.
A manufacturing defect can be illustrated with a recent running shoe case. A young man was running track in a brand new pair of running shoes when the heel platform literally peeled away from the base of one shoe while he was rounding a turn. The man suffered a torn Achilles and endured six surgeries after which he still has trouble walking and can never run competitively again. Scientific materials analysis revealed that there had not been enough adhesive material applied to the heel platform during the manufacturing process. The claim was not that every similar type of shoe design from this company was defective. The claim was that this one shoe was defectively made because not enough adhesive had been applied to keep the shoe together under foreseeable uses.
(c) Warning Defect. Sellers and manufacturers can be liable not only for selling a defective product but also for failing to warn consumers and users about the hazards created by the product. To prevail, it is necessary that the defendant knew or should have known of the hazard and then taken inadequate steps to warn of it. This duty to warn arises even if the product is properly designed. There are several issues that pertain to warning defect claims.
(i) Adequacy of the warning. The adequacy of the written warning on the product is almost always the central issue in the case. The most straightforward, and the rarer, cases involve dangerous products with no warnings whatsoever, either in the packaging, labeling or in the user manual. The more challenging, and the more frequent, cases involve an inadequately phrased or inadequately placed warning.
A product warning must be comprehensible to the average user and must convey a fair indication of the nature and extent of the danger to a reasonable, prudent person. The warning may be defective if it was unduly delayed, reluctant in tone or lacking in a sense of urgency. Typically, a human-factors expert will be needed to help analyze and explain the deficiency of a warning. The expert will explain to the jury how and why the color of a warning label, its location on the product, the size of its writing, the content of the writing and the proximity of other warning labels are all factors in determining whether users will see and appreciate the warning.
(ii) Obvious or known dangers. There is no duty to warn where the danger complained of was obvious to the plaintiff or if the plaintiff was already aware of it. Thus, if a plaintiff acknowledges that he was aware of the product’s specific hazard, then it is likely that a court will conclude that there was no duty to warn and that particular claim will be dismissed. The rationale for this rule is that no amount of warnings can deter a person from interacting with a product that the user knows to be hazardous.
A clear example would be in the case of a lawnmower designed and sold with no blade guard. If the plaintiff knows there is no guard and still proceeds to put his hand near the blade while it is running and loses a finger, there will be no failure to warn claim where the evidence indicates that the plaintiff knew about the hazard. Thus, any warnings would have been superfluous and not heeded. However, often a plaintiff will testify that she knew of the general hazardous nature of the product but was not thinking about the specific danger at the time of the accident. The plaintiff will claim that if a warning label had been affixed to the product, she would have been reminded of the danger and the accident would have been avoided. If the court is persuaded as to the reasonableness of this claim, the failure to warn claim survives and could go to the jury to decide whether the duty was breached.
(iii) Duty to warn foreseeable users. The general rule (with exceptions discussed below) is that a manufacturer or seller of a product has a duty to warn all foreseeable users of its product of any known hazards. This duty can, and often is, addressed with permanent warning labels affixed directly to the product so whoever is using it (whether it is the purchaser, or his family member, or a friend who borrowed it) will have an opportunity to read and heed the warning.
However, some products – based on their nature, their durability or the manner in which they are sold and distributed – are not amenable to such types of warnings. In those situations, courts have recognized exceptions to the general rule as follows.
(iv) Limited exception for second-hand purchasers. Remote, or second-hand, purchasers are still also owed a duty to warn, but only under limited circumstances. Where a seller knows or reasonably should have known of a product’s dangers discovered post-sale, it has a duty to warn users of substantial risks of harm if a reasonable person in the seller’s position would provide a warning and if those to whom the warning might be given can be identified and the warning effectively communicated to them. In the leading case on this point, the defendant did not have a duty to warn the plaintiff about the dangers posed by a snow thrower, originally sold in 1966, and then re-sold to the plaintiff in 1982 as a second-hand purchase from a friend. The court concluded that it would be unreasonable to require the original manufacturer to warn the plaintiff who purchased the second hand product, sixteen years after it was originally sold, and did not own the product until years after a duty to provide additional warnings arguably arose.
(v) Exception for bulk suppliers. This rule applies when a manufacturer-supplier of bulk products is able to, under certain circumstances, discharge its duty to warn end users of a product’s hazards by reasonably relying on an intermediary. This rule would apply to a bulk supplier of a hazardous chemical who sells to an intermediary manufacturer that then packages, markets and sells the chemical as part of a consumer cleaning product to the public. Among other defendants and among other claims, a consumer who suffers blindness when the cleaner spray misfires into her eye could allege that the bulk supplier of the toxic chemical should have warned her about the hazardous properties of the chemical on the product’s labeling. The jury will be instructed to consider whether the bulk supplier gave an adequate and sufficient warning to the intermediary company that packaged and re-sold the product in a spray bottle, whether it had no reason to anticipate any negligence or other fault on the part of the intermediary, and whether it had no indication that the intermediary was inadequately trained, or unfamiliar with the product, or incapable of passing on its knowledge about the product to the ultimate users of the product.
(vi) Exception for drug manufacturers: the learned intermediary. Again, a manufacturer’s warning to its immediate purchaser does not discharge the ongoing duty to warn consumers down the line of a product’s hazards. Usually, the manufacturer must provide a warning to all persons who will foreseeably come into contact with and consequently be endangered by the product.
However, under very limited circumstances recognized primarily in pharmaceutical drug defect cases, a drug manufacturer may be absolved from blame because of a reasonable and justified reliance on a learned middleman, such as a physician or a pharmacist. In that situation, the manufacturer may be relieved of liability because the intermediary’s failure to pass the warning along to the next purchaser is viewed as a superseding cause of the plaintiff’s injury or because under the circumstances the manufacturer cannot be reasonably expected to communicate with the ultimate purchaser. With respect to pharmaceutical companies, the primary focus seems to be on whether the patient would be expected to be warned of the danger by his or her physician, rather than the manufacturer.
In one well known drug case against the manufacturer of harmful birth control pills, the court noted that oral contraceptives purchased by the plaintiff were purchased over a long period of time and did not necessarily correspond with appointments with her doctor. Furthermore, the patient initiated the decision to use oral contraceptives and sought a prescription from her physician (as opposed to having the physician suggest them among other therapeutic alternatives). Consequently, the court held that the manufacturer had a duty to warn the patient directly, and it was not sufficient to merely warn the physician.
(vii) State of the art. A failure to warn defendant has a duty to warn only if it knew or should have known that a product was dangerous. Thus, a defendant will not be held liable for failure to warn of risks or hazards that were not reasonably detectable at the time of sale based on the then existing state of the art of testing technology. Under this rule, a manufacturer will be held to the standard of knowledge of an expert in the appropriate field and will remain subject to a continuing duty to warn purchasers of risks discovered following the sale of the product at issue. The defendant can therefore argue that it was not feasible to warn of dangers posed by the product because the defendant neither knew nor could have known of the dangers.
5. Proximate cause.
The plaintiff has the burden of proving that the product defect, be it a design defect or a manufacturing defect or a warnings defect, was a proximate cause of the injuries sustained. Proximate cause means a substantial, contributing cause to the injury. The product need not have been the sole cause of the injury, but merely a substantial, contributing cause. The causal connection between the product and the injuries however cannot be left to conjecture, surmise or speculation.
D. Defenses to Breach of Warranty.
Three general types of defenses can apply in any breach-of-warranty claim:
1. “Correia” defense
2. Notice defense
3. Disclaimer of warranty
1. The “Correia” defense. This is by far the most important defense to a warranty of merchantability claim. Its name is derived from the seminal Massachusetts Supreme Judicial Court decision in Correia v. Firestone Tire & Rubber Co. The court in that case ruled that a plaintiff may not recover if, “after discovering the product’s defect and being made aware of its danger, he nevertheless proceeded unreasonably to make use of the product and was injured by it.” This defense is aimed at the element of proximate causation and focuses on the plaintiff’s conduct as an intervening cause of the injury at the time of the accident. This defense acts as a complete bar to the warranty claim. The defendant has the burden of proving this defense at trial.
There are five elements the defendant must show to establish the “Correia” defense:
(a) the plaintiff knew that the product was defective;
(b) the plaintiff knew that the product was dangerous and understood the magnitude of the danger;
(c) the plaintiff voluntarily encountered the danger;
(d) the plaintiff acted unreasonably; and
(e) the plaintiff’s conduct was a proximate cause of his or her injury.
The defendant must prove all five elements to prevail.
This warranty defense should be distinguished from the defense of comparative negligence. Comparative negligence is only a defense to a negligence claim, not to breach of warranty claims. Though for all practical purposes, this legal nicety will be lost on jurors asked to consider both negligence and breach of warranty at trial. A jury that is willing to find comparative negligence, will likely also find the elements satisfied for a “Correia” defense to a warranty claim.
The “Correia” defense should also not be confused with the concept of product misuse. They are distinct legal concepts. Product misuse refers to a use of the product that was not intended by the manufacturer. The “Correia” defense refers to situations where the plaintiff knows that the product is defective and dangerous but nevertheless voluntarily and unreasonably proceeds to use it. The plaintiff need not have misused the product for the “Correia” defense to apply. So, the “Correia” defense could apply even if the plaintiff was using the product in exactly the manner intended by the manufacturer. Conversely, in a misuse situation, the plaintiff need not appreciate the risks of his or her conduct for misuse to defeat the claim. The plaintiff may simply have been using the product in a manner the defendant could not reasonably have foreseen.
The “Correia” defense has its limits however. It can be used only where the magnitude of the risk understood by the plaintiff encompassed the injury that he or she actually received. In other words, the defense does not apply if the plaintiff receives an injury that is greater than the risk he or she understood. In one well known case, the Appeals Court held that the jury could properly find that the plaintiff did not know that there was a danger that he would lose his entire arm by using a machine product. Thus, the injury he received was “beyond the magnitude of the danger the plaintiff perceived,” and the defense did not apply.
The time at which the plaintiff understands the particular danger posed by the defect is also important. To establish the “Correia” defense the defendant must prove that the plaintiff voluntarily encountered the danger “on the occasion in question.” It is not enough to merely showing that the plaintiff had a general knowledge of the danger but on that on this occasion inadvertently placed himself in a dangerous position vis a vis the product at issue.
In addition, in workplace injuries, the control that a plaintiff’s employer exerts over his or her actions may be of significance to the “Correia” defense. The defense is inapplicable where an injured plaintiff did not voluntarily encounter the danger but was instructed to use a machine in a certain way with no practical alternative.
2. The notice defense. Under the Uniform Commercial Code as adopted by the Massachusetts Legislature, a party seeking to recover for breach of warranty must give notice of the breach to the defendant. The statute is silent as to a specific time frame for the notice, so the notice should be given within a reasonable time so as to allow the defendant properly investigate the product. Failure to give the required notice, however, does not bar a plaintiff’s claim unless the defendant proves that it was prejudiced thereby. Consequently, the notice requirement does not usually create a viable defense to a product liability claim for breach of warranty unless the lack of notice somehow results in a loss of evidence or prevents the defendant from investigating the incident. This would occur if after the accident the product is lost or removed by some third-party and not properly safeguarded. Usually the notice defense is not an issue when the product at issue remains in the plaintiff’s control and he can demonstrate that the product has not been altered or tampered with following the accident.
3. Disclaimer. Sales contracts will sometimes attempt to disclaim the implied warranty of merchantability by stating something like: “Purchaser agrees that there are no implied warranties for this product.” With respect to consumer retail goods, which comprise the vast majority of warranty claims, such disclaimers are invalid and have no legal effect.
As to transactions where disclaimers could be deemed valid such as a commercial sale of an industrial machine, disclaimers are binding only on parties to the sales contract. This severely limits the scope of the defense since an employee injured while using the machine would not be deemed a party to the contract wherein her employer purchased the machine. Thus, any disclaimer could not be applied to the injured employee’s implied warranty claims.
In addition to breach of warranty, a seller or manufacturer of a harmful product can also be held legally responsible for negligence acts or omissions in its involvement in bringing the product to market. For a deeper discussion of the law of negligence in Massachusetts, please refer to the blog below.
In general, a seller of a product has a duty to exercise reasonable care in the sale, design and manufacture of that product. Thus, like all other negligence claims, the plaintiff must establish a duty owed to the plaintiff, a breach of the duty, proximate cause and damages.
The duty owed by the defendant is one of reasonable care, not perfection. The defendant is held to the standard of the ordinary, reasonably prudent designer or manufacturer in like circumstances. The focus on a negligence case is twofold: the conduct of the defendant and the condition of the product. Thus, the plaintiff has one more burden than in a breach of warranty case. The plaintiff must prove not only that the product was unreasonably dangerous. He must also prove that the defendant’s conduct was unreasonable. For this reason, plaintiffs routinely dismiss the negligence count at the time of trial and proceed just on the warranty claim.
Though sometimes more difficult to prove, a negligence claim necessarily focuses on the same core factors as a warranty claim, namely the adequacy and reasonableness of the product’s design and manufacture. Indeed, a jury finding that the defendant was negligent must also find that the defendant breached its warranty of merchantability. In other words, it would be inconsistent to find that a defendant was negligent, but that the product it designed, manufactured or sold was not defective.
The primary defense to a negligence claim in a product liability case is that of comparative negligence. If the jury finds that the plaintiff was more than 50 percent negligent, the plaintiff is totally barred from recovery. If the jury finds the plaintiff less than 51% at fault, then the plaintiff’s monetary award is reduced by that percentage.
So if a jury finds a forklift manufacturer negligent for designing a top heavy machine that tipped over and crushed the operator, and if the jury also finds the operator 20% at fault, then the total award will be reduced by 20% by the judge after the trial. If the same jury found the operator 60% at fault for causing the tip over, then the verdict will be for the defendant manufacturer.
F. Chapter 93A Consumer Protection.
Pursuant to Massachuetts statute codified at General Laws chapter 93A, § 2(c), the Attorney General of the Commonwealth has promulgated a regulation that states: “it shall be an unfair and deceptive act or practice to fail to perform or fulfill any promises or obligations arising under a warranty.” The implied warranty of merchantability is specifically included in the definition of a “warranty.” As a result, plaintiffs can invoke chapter 93A in product liability cases. Technically then, any breach of warranty automatically constitutes a violation of this consumer protection statute.
Applying chapter 93A in a product liability context has significant implications. First, in addition to recovering actual damages, the plaintiff is entitled to recover the value of the attorney fees incurred in prosecuting the warranty claim. The defendant can limit its liability for attorney fees, however, by making a reasonable offer of settlement in response to the plaintiff’s preliminary demand letter. If under all of the circumstances, the offer is deemed reasonable, the defendant is not liable for fees incurred after the plaintiff rejected the offer.
Second, the defendant will be liable for double or treble damages if, in bad faith, it fails to make a reasonable offer of settlement after receiving a demand letter and it knows or has reason to know that its conduct violated chapter 93A.
Chapter 93A cases are usually tried before the judge after the jury verdict for the plaintiff on a warranty claim. Chapter 93A claims are so commonplace that they require exceptional presentation to cause a judge to really take them seriously. Massachusetts judges are not particularly receptive to the punitive aspect of double or treble damages and, consequently, it is hard to persuade them that bad faith has occurred.
Chapter 93A cases are usually defended by arguing that the offer was reasonable, or that there was no bad faith involved. Where the 93A claim is based on breach of warranty, the defendant can raise the same defenses that are applicable to breach of warranty. The defendant may also assert that the plaintiff’s demand letter did not comply with the precise statutory requirements for a demand letter.
MASSACHUSETTS AUTO ACCIDENT LAW
Motor vehicle claims arise when someone is injured or killed as a result of the negligent operation of a motor vehicle. Motor vehicle accident victims typically include other motorists, passengers, pedestrians or bicyclists. Motor vehicle accidents are the single largest category of personal injury related claims in the Commonwealth of Massachusetts due to the high volume and congestion of motor vehicle traffic in the state. Some also feel that Massachusetts, Boston in particular, breeds an aggressive form of driving that contributes to the frequency of roadway accidents.
Massachusetts auto accident law covers two large intertwined bodies of law: liability law and insurance law.
Liability is the substantive law of negligence and damages. This addresses the questions of who was at fault for causing an accident and what are the injured person’s damages. Auto liability tracks the elements of a negligence claim. To recover monetary damages, the injured person must establish that the operator of a motor vehicle breached a duty of care on the roadway and thereby caused injury. As in all negligence claims, the motorist owes a duty of reasonable care, that is, a duty to act reasonably in the manner and method of operation of a motor vehicle on the roadways. In the arena of auto accident liability, the existence and scope of a motorist’s legal duties are often specifically addressed by Massachusetts driving laws and regulations that define moving violations and prohibit certain conduct like crossing a double-yellow median line or speeding. The violation of a motor vehicle law or regulation can constitute evidence, usually strong evidence, of negligence. Victims of such negligence are entitled to monetary compensation for all related damages and losses. These usually include bodily injury, disability, pain and suffering, medical expenses and lost wages or lost earning capacity. These issues are either settled with the defendant and her insurance company or they are presented to a jury at trial to determine liability and damages.
Auto insurance law is a complex area of law that addresses whether and how a particular insurance policy applies to a given accident. Whereas liability will establish fault and total damages, auto insurance law often determines the actual bottom-line outcome of a motor vehicle claim. This area of law deals with the availability of insurance benefits.
II. AUTO ACCIDENT LIABILITY.
The operators of motor vehicles on Massachusetts roadways owe others a duty to act reasonably. An operator of a motor vehicle must exercise reasonable care under the circumstances. Reasonable care is the degree of care “commensurate with the probable harmful consequence that might reasonably be expected to result from the lack of such care.” Reasonable care is that amount of care an ordinary and prudent person would exercise under the circumstances. An operator of a motor vehicle using a public way owes a duty of ordinary care at all times to avoid placing herself or others in danger and to exercise ordinary care at all times to avoid a collision. In addition, the operator owes a duty to keep a proper lookout and make reasonable observations as to traffic and other conditions. Whether negligence exists is almost always a question for the jury to decide.
This wide-ranging duty covers every aspect of a vehicle’s safe maintenance, handling and operation. What is reasonable depends on the circumstances and what a jury’s common sense dictates.
Usually the scope of a motorist’s duty can be defined by rules of the road as set forth in the state’s driving laws, the state highway regulations, the Registry of Motor Vehicles Driver’s Manual and any applicable municipal ordinances.
The most frequent traffic safety infractions that result in auto accident claims include one or more of the following:
Speeding, G.L. c. 90, § 17
Failure to yield the right of way G.L. c. 89, § 8
Failure to maintain safe distances
Failure to yield to pedestrians in a crosswalk, G.L. c. 89, § 11
Crossing centerline, G.L. c. 89, § 1
Changing lanes, G.L. c. 89, § 4
Negligent maintenance of the vehicle
Failure to secure cargo
Operating under the influence, G.L. c. 90, § 24
Failure to obey traffic signals and signs
Operating without a license, G.L. c. 90, § 10
Intersection, G.L. c. 90, § 14
Left turn, G.L. c. 90, §§ 14, 14B
Special hazards, i.e., traffic or weather, G.L. c. 90, § 17
Signals for turning, G.L. c. 90, §§ 14, 14(b)
Right of way and right to turn on red, G.L. c. 89, § 8
Stop and yield signs, G.L. c. 89, § 9
Driving on multilane highways, G.L. c. 89, § 4A
Emergency vehicles, G.L. c. 89, §§ 7A, 7B
Driving on state highways, 720 C.M.R. § 9.00
If a jury finds that the defendant motorist violated some traffic safety statute, ordinance or regulation and that the occurrence of the accident was one of the things that the statute was designed to prevent, then the violation can be considered as some evidence of negligence. It is not, however, conclusive evidence of negligence. It is not necessary for the defendant to have been cited, charged or convicted of a violation to be deemed negligent. Nor does the fact of a citation, charge or conviction alone suffice. If a violation of a traffic statute, regulation or ordinance was proved, the jury may consider that fact, together with all the other circumstances, in determining whether the defendant acted negligently. It is important to reiterate, however, that a jury does not have to find a violation of law in order to hold the defendant liable for negligence in causing a plaintiff’s injuries with a motor vehicle. The violation of any one of these rules of the road can be used as evidence of negligence in a liability case.
Some accidents, though, do not implicate any written rules of the road. These will be governed by reference to the general common law rules of negligence. For example, there is no set rule about how to parallel park a car. But if in the process of doing so you back over a pedestrian, a jury will judge the facts of whether or not your conduct was reasonable considering all of the circumstances including the weather, the lighting, the traffic, the presence or absence of a cross-walk, your destination, your state of mind, the pedestrian’s destination and state of mind, the working condition of your rear-view mirrors, the conspicuity of the pedestrian and/or any sight-line obstructions and causes thereof.
Liability for an auto accident rests primarily with the negligent operator who caused the accident. In addition, there are two situations where the registered owner of a motor vehicle can also be held liable even though he was not driving it at the time of the accident. The first is a legal presumption of control. Massachusetts law presumes that the registered owner of a car exercises legal control over those who drive it, such as friends and family, though often this is not the case. The registered owner can avoid liability with sufficient evidence that he did not control the driver’s operation of the vehicle. But the burden of proof on that issue rests with the registered owner. Letting a friend borrow your car to run some errands is not enough. The control must extend to the where, when and how of the borrower’s use of the vehicle.
Vehicle owners can also be liable for the conduct of others under the legal doctrine of “negligent entrustment.” The duty of reasonable care includes a duty to refrain from lending one’s vehicle to a person whom the owner knows, or reasonably should know, is incompetent as an automobile operator. This question focuses on the borrower’s driving skills and physical condition. Negligent entrustment can be found where the negligent operator has previously caused similar accident or received multiple driving infractions. It can also arise where the operator has a known physical disability that causes the accident, such as bad eyesight, a volatile heart condition or a seizure disorder that cannot be controlled with medication. An automobile owner can also be held liable on evidence that he lent the vehicle to someone who was visibly impaired or intoxicated.
III. DAMAGES: VALUING AN AUTO LIABILITY CLAIM.
Valuing an auto liability claim is much like valuing any other type of personal injury claim, but with a few unique aspects. The process of valuing an auto claim is an art, not a science. It is mix of quantitative (financial damages) and qualitative (pain and suffering, disability) damages that, through the collective experience of the insurance claims industry and the plaintiff’s bar, has produced a general understanding of the ranges of monetary value for any particular claim. Of course, each claim is unique and requires particular attention to its nuances and circumstances.
The process begins with the question of liability. If liability is reasonably clear, like in a rear-end collision or a pedestrian struck in a cross-walk, then valuing a claim can be done based solely on the damages. If however liability is disputed or there is a chance that the plaintiff could be found partially at fault for the accident, that will have to be factored into to the analysis as well.
The overarching question in valuing an auto claim is always: what would a jury consider to be the “fair and reasonable” monetary measure of the claimant’s tangible and intangible losses. The jury will be told that their goal is to try and place the injured person in the same position they would have been in had the injury not occurred. In personal injury litigation generally, the allowance of damages is based on the theory of compensation. Under this theory, the plaintiff is entitled to an award equal to the monetary value of the actual loss proximately caused by the wrongful acts of another. The intent of the automobile reparations system is to compensate accident victims to “make them whole.” Compensatory damages thus seek to place the plaintiff in the position in which he or she was prior to the accident. The plaintiff is entitled to those damages that fairly compensate for all past and future loss and injuries suffered or that will be endured as a result of the accident. To recover for future harm, it is necessary to establish a “reasonable probability” that the medical condition, disability or harm will persist.
Personal injury damages can be divided into two general categories: special damages and general damages.
A. Special Damages.
Special damages are quantifiable financial losses. These can include medical expenses, lost earnings and miscellaneous out-of-pocket expenses.
1. Medical expenses.
A plaintiff may recover reasonable medical and hospital expenses incurred in treating injuries caused by the defendant’s negligence. It is not necessary for the plaintiff to have actually paid the expenses out of pocket. It is sufficient that they were incurred on the plaintiff’s behalf, even if they were ultimately paid by an auto insurer, a health insurer, a worker’s compensation insurer or some publicly funded health care payor like Medicare or MassHealth. The plaintiff is still entitled to recover all incurred medical expenses because some or all of them may need to be repaid from the plaintiff’s recovery. This issue of repaying medical expenses after a monetary award is discussed in the section below on medical subrogation and medical liens.
Medical expenses are proved by submitting the medical bills at trial.
2. Lost earning capacity.
When an employable person is disabled from work or from pursuing work because of a personal injury, that person has sustained a loss of earning capacity. When the loss is significant, usually representing more than a couple of weeks, the plaintiff will be able to seek compensation for that loss.
Loss of earning capacity is not limited to the amount of the plaintiff’s loss of wages or income at the time of his or her injury. It is also the reduction or loss in one’s ability to earn a living. Lost wages are only one aspect of the evidence of such loss. When calculating the value of the plaintiff’s lost reasonably expected net income, the fact finder will consider what type of person the plaintiff is, the talents the plaintiff has, the contributions the plaintiff has made and whether the plaintiff’s income could reasonably have been expected to increase or decrease as time passed.
This evidence is usually presented through the plaintiff’s past tax returns, employment and earnings records and the testimony of an economist who will crunch the numbers and give a total estimate of past and future lost earnings.
3. Miscellaneous out-of-pocket expenses.
These include everything from co-payments for hospital and doctor visits, payments for prescription drugs, medical equipment or even the cost of a funeral and burial service in a wrongful death claim.
These are proved by submitted the receipts for these expenses at trial.
B. General Damages.
General damages are non-economic harms including physical trauma and bodily injury, psychological harm, pain and suffering, disability, scarring and disfigurement, emotional distress, loss of enjoyment of life, loss of consortium and even wrongful death damages.
1. Bodily injury.
Bodily injuries include lacerations, contusions and bone fractures along with more complex injuries to internal organs, traumatic brain injuries, concussions, spine and neck disc injuries, damage to the central nervous system, reflex symptom dystrophy (RSD), fibromyalgia and musculoskeletal pain syndromes.
Bodily injury is usually proved with a plaintiff’s medical records, eyewitness testimony and if needed expert medical testimony from treating and consulting medical professionals. This evidence is used to demonstrate the nature and severity of the injury along with its permanent or long term effects on the person’s ability to function normally.
Under Massachusetts law, a claim for bodily injury arising out of a motor vehicle accident must involve bills for medical treatment in excess of $2,000 in order to make a claim. There are a handful of exceptions to this limit discussed below.
2. Scarring and disfigurement.
A plaintiff is entitled to recover damages for scarring and disfigurement caused by the defendant’s negligence. Scarring and disfigurement is usually presented through photographs of the injury at various points in the healing process along with an actual showing to the jury at trial. There may also be medical testimony as to the permanence of the condition and whether future surgery will be needed or effective.
3. Conscious pain and suffering.
Past and reasonably expected future pain and suffering is also compensable. The evaluation of pain and suffering and of the other aspects of the personal injuries requires a determination of how badly the plaintiff was hurt, the nature, extent, severity, permanency and effect of the injuries. The sum of money must be an amount that fairly and reasonably compensates the injured person. The jury may consider the age, health, habits and condition of the injured party before his injury as compared with his condition as a result of the injury.
Potential sources of evidence regarding pain and suffering include the plaintiff’s own testimony as to the nature and extent of the pain, medical expert evidence to prove any probable future pain and suffering, medical records and any pharmaceutical records of the administration of pain medicine.
Life expectancy or actuarial tables published by the United States Census Bureau can be used to demonstrate the likely length of time for future pain and suffering assuming there is evidence that the injury will be permanent.
4. Psychiatric and psychological injury.
In some traumatic injury cases, the plaintiff will sustain a specific psychological injury that is treated and diagnosed by a mental health professional. These can include neuropsychological deficits such as amnesia, loss of memory, traumatic brain injury, loss of smell and photophobia. Psychiatric damages include post-traumatic stress disorder, depression or anxiety related to the event.
When supported by the proper type of medical documentation, these injuries are also compensable in a personal injury claim.
5. Exacerbation of pre-existing condition.
If an injury aggravates or triggers a pre-existing condition of the plaintiff, then the plaintiff will be entitled to recover for the difference between what the plaintiff’s condition would have been absent the accident and what the plaintiff’s condition is or was or will be because of the accident. The law recognizes that different people’s bodies and minds can have different reactions to the same physical harm or trauma based on their age, physical condition and medical history. If a defendant’s negligence causes an aggravation of a pre-existing medical condition or triggers a dormant medical condition in a particular plaintiff, then the plaintiff is entitled to recover to the extent that their unique condition or disease has been aggravated, increased, augmented or activated.
For instance, if a motorist with pre-existing but asymptomatic spinal disc bulge at C6-7 is rear-ended on the highway and the trauma triggers nerve pain symptoms, the plaintiff will be entitled to recover for the aggravation of this prior condition. And it is not necessary that the prior condition is asymptomatic to recover. Take a person with mild depression who suffers facial scarring and disfigurement from a shattered windshield in a highway accident and is later diagnosed with severe depression caused by the embarrassment from the scarring. Assuming liability, that unfortunate person would be entitled to damages for the exacerbation of her prior depression.
Hence the legal aphorism that “you take your plaintiff as you find them.” This is also referred to as the egg-shell plaintiff rule. A defendant whose negligence causes a greater than normal injury to a particularly brittle or frail plaintiff is likewise liable for all of the harmful results. Thus if an elderly woman with osteoporosis is knocked to the ground in a low impact collision with a taxi cab and her hip shatters, the taxi cab is responsible for all of her resulting damages even though the average person would have probably been unharmed by the impact. The same principle would apply where a cardiac patient suffers a heart attack from the stress of a bus accident. The defendant bus company would be liable for causing the heart attack, so long as the medical evidence can causally relate the two events.
An aggravation of a pre-existing condition can be proved with the plaintiff’s prior medical records, lay testimony from the plaintiff or family and medical expert testimony preferably by a treating or examining physician.
7. Loss of enjoyment of life.
The quality of an individual’s life is often measured in a court of law by her engagement in the community affairs, her personal interests and hobbies and participation in family, recreational, sporting and social activities. The diminution of these quality of life issues are compensable. This type of loss is established by the plaintiff’s own testimony regarding the things that he or she loved to do before the accident – but can now no longer do because of the accident.
8. Loss of consortium.
In Massachusetts, one spouse may recover consortium damages that arise out of injuries suffered upon the other spouse. These are described politely as the loss of marital services, society and conjugal affections. The spouse may be compensated for the loss of companionship and affection and loss of sexual enjoyment he or she may have had and may continue to experience as a result of the injuries to the spouse.
Children and parents can also experience loss of consortium. Dependent children have the right to recover for the loss of services, society, companionship and care of their parent. The injured parent need not be the principal wage earner in order for the child to recover for loss of parental society. It is sufficient if the child is living in the injured parent’s household and is dependent on the parent for management of the child’s needs and for emotional guidance and support. The same holds true for a dependent (elderly) parent who suffers a loss of consortium due to an injury to his (adult) child.
In deciding this issue, the jury may consider as evidence of damage evidence showing disruption and change in the family life, including the injured family member’s reduced ability to participate with the family in church activities and community service work, social and recreational activities and family services and care, such as shopping errands and household projects.
9. Wrongful death and punitive damages.
When someone dies as a result of a motor vehicle accident, his legal representatives are entitled to recover wrongful death damages. These include damages personal to the decedent like conscious pain and suffering prior to the time of death. They also include damages to the estate’s legal beneficiaries and family members like loss of companionship and support.
Generally in Massachusetts, punitive damages are recoverable in more extreme wrongful death cases involving gross negligence. Gross negligence occurs when the defendant acts with reckless disregard. That is, in the face of a known risk the defendant persists in conduct involving a high degree of probability that substantial harm would result to another. In order to support a finding of gross negligence, the conduct of the defendant must be characterized by a high degree of culpability and indifference to a legal duty. Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. Examples of gross negligence in auto cases might include driving at high speeds through stop signs in a residential neighborhood or drunk driving the wrong way down a one way street.
There is no specific limit to punitive damages in wrongful death. They are designed to affirmatively punish the wrongdoer for willfully ignoring a known danger to someone to who a legal duty is owed.
C. Common Damages Issues.
1. Objective vs. subjective injuries.
Bodily injuries are broadly classified as either “objective” or “subjective.” Objective injuries are those that can be perceived by either sight or touch or that can be demonstrated by means of a diagnostic test like an x-ray, MRI, CT scan or EMG. Examples include scars, broken bones, bulging or herniated spinal discs and nerve damage. Objective injuries are easier to prove and harder to argue against because they are independently verifiable with hard medical evidence.
In contrast, subjective injuries can usually be perceived only by the injured party. As a result they are often disputed by defense attorneys and their medical experts. Examples include muscle strains and sprains in the back, neck and shoulders, along with chronic pain syndromes that cannot be measured quantitatively. These so-called soft-tissue injuries make up the bulk of injuries caused by motor vehicle accidents. Proving the existence of that which cannot be seen is difficult, but it can be done with the help of an experienced doctor and credible and reasonable testimony from the injured person.
Great care must be taken in presenting subjective injuries to a jury. Juries have grown skeptical of these damages and it is imperative to be forthright and candid about them. If a jury senses, rightly or wrongly, that a plaintiff is overreaching or exaggerating the nature and extent of their injuries, the result can be harsh.
2. Degenerative disc disease.
A common problem with spinal and bone joint injuries in a motor vehicle tort case is determining whether that injury is related to the trauma suffered in the accident or is actually a preexisting degenerative disorder. Most adults who have led an active life will have some form of degenerative disc disease show up on an MRI even if they feel no symptoms beyond morning stiffness and some soreness after strenuous activity. A degenerative disorder of the spine (e.g., spondylosis, osteoarthritis, osteophyte formation) is one that develops gradually over time as a result of repeated trauma or the wear and tear of life. The key is separating this low-level type of organic disorder from traumatic injuries caused in a car accident.
3. Post-accident injuries.
As with the exacerbation of preexisting injuries, if a plaintiff suffers subsequent injuries because of his disabled condition from a motor vehicle accident, then the defendant can, in principle, be held liable for the subsequent injuries. For example, if a plaintiff suffered a broken leg in a car accident caused by the defendant and later falls while struggling with crutches, the defendant may be liable for the subsequent injury. Though the circumstances vary in each particular case, issues of comparative negligence frequently arise with post-accident injuries. Typically, the defense will try and argue that the injured person was “trying to do too much” or was somehow exceeding doctor’s orders.
4. Medical expense threshold requirement.
Under General Laws c. 231, § 6D, a plaintiff in auto accident case can recover damages for pain and suffering only if the reasonable and necessary expenses incurred in treating such injury exceed $2,000. Given the current cost of health care, especially emergency health care and ambulance service, this threshold requirement is usually not an issue.
There are also several exceptions to the rule in cases of:
b. The loss of a body part;
c. Permanent and serious disfigurement;
d. The loss of sight or hearing; or
e. A bone fracture.
5. Negligent medical treatment.
Consider the following situation. A plaintiff suffers a head injury in a motor vehicle accident that requires emergency surgery to drill burr holes in the skull to relieve pressure on the brain from a hematoma. During the operation, the neurosurgeon negligently drills the burr hole too close to the motor cortex resulting in complete and permanent paralysis. The question arises as to whether the defendant motorist can be held responsible for the paralysis resulting from the negligent medical treatment.
In Massachusetts, the answer is yes if the jury find that the paralysis was a natural, probable and foreseeable result of the original negligence of the defendant motorist. Thus, the damages sustained as the result of the medical malpractice can be attributed to the motor vehicle defendant who made the medical care necessary. The medical negligence does not constitute an intervening or superceding cause so long as the damages are the natural, probable and foreseeable result of the original tortfeasor’s negligence. This determination is highly fact-specific. In the above example, a jury would probably be warranted in attributing the paralysis to the defendant motorist. In contrast, one well known case held that a doctor’s negligence in operating on the wrong limb of the plaintiff was not a proximate result of the first injury and was the result of a superseding independent cause of action for which the original defendant motorist could not be held responsible.
In certain situations, the injured motorist may consider bringing claims against both the defendant motorist and the negligent medical care provider. This decision will depend on the nature of the injuries and the degree of relative fault.
6. Plaintiff’s duty to mitigate damages.
A plaintiff claiming injury has a duty to use reasonable means to mitigate her damages. Where the injured plaintiff fails to use reasonable care to minimize damages, she cannot recover from the wrongdoer for the injurious consequences of such failure. Most often, this occurs in the context of a plaintiff’s failure to follow medical instructions or recommendations, such as to remain non-weight bearing on an ankle fracture or to undergo a particular treatment course including surgery. In such an instance, the plaintiff’s recovery will be limited to those damages caused by the defendant’s negligence. The plaintiff would not recover for any damages arising directly from her failure to follow medical advice or to obtain proper medical care.
For example, where a treating physician recommends surgery as a viable means of treating the plaintiff’s condition and a reasonably prudent person would submit to such an operation for improvement of a condition like that of the plaintiff, a refusal of surgery by the plaintiff would be evidence of an unreasonable failure to mitigate damages. There is no duty on the part of a plaintiff, however, to submit to treatment where the outcome is uncertain.
5. Collateral source evidence.
As a general rule, the defendant is not allowed to present evidence that the plaintiff received compensation for his or her injury from any other source such as an insurance company, workers’ compensation carrier, health insurer, life insurer or disability insurer. Courts exclude this evidence because they are worried that juries will be confused and assume that the plaintiff has already been compensated fully for her injuries and make adverse (and incorrect) inferences. Collateral source evidence is also prohibited because a plaintiff is entitled to compensation for all damages proximately caused by a defendant’s negligence, and the defendant should not benefit from his or her wrongdoing. Moreover, oftentimes some portion of collateral source payments may need to be reimbursed and it would not be fair to have the plaintiff double-charged for such benefits.
An exception to the rule exists where there is evidence of malingering and where the plaintiff volunteers testimony as to her “penurious circumstances” allegedly resulting from her injury.
6. Comparative negligence.
Under G.L. c. 231, § 85, a motor vehicle negligence claim will be barred completely where the plaintiff’s negligence is greater than the total negligence of the person or persons against whom recovery is sought.
If the plaintiff’s negligence as compared with the total negligence of all the defendants is 50 percent or less, the plaintiff’s damages are reduced in proportion to the plaintiff’s negligence.
7. Seat belt use.
In Massachusetts, a plaintiff’s failure to wear a seat belt at the time of a motor vehicle accident cannot be used as evidence of comparative negligence.
However, a plaintiff’s non-use of a seat belt can potentially come into evidence on the issue of causation and damages if the defendant can show that the plaintiff’s failure to wear a seat belt caused some or all of the injuries.
8. PIP reduction.
As discussed below in the section on auto insurance law, most insurance polices afford personal injury protection coverage for no-fault payment of up to $8,000 in medical bills, lost wages or replacement services. Pursuant to G.L. c. 90, § 34M, the amount of any judgment that may be entered in an automobile accident case will be reduced to the extent that damages for expenses and loss otherwise recoverable as a PIP benefit are included in any such judgment. In other words, any judgment entered will be reduced by the amount of PIP benefits already paid. In certain situations, the PIP reduction can be avoided where the case is settled rather than tried.
9. Settlement by joint tortfeasor.
Under G.L. c. 231B, § 4, a settlement by one or more joint tortfeasors reduces the claim against the other tortfeasors to the extent of any amounts paid. This evidence of settlement will be excluded at trial, but after a verdict for the plaintiff the judge will make the appropriate reduction in the amount to be awarded by subtracting the settlement amounts from it as part of a “set-off”. The stated reason for the reduction is to prevent a plaintiff from being overcompensated for his injuries.
10. Additur and remittitur.
Normally, a trial judge does cannot alter a jury award if the judge feels it was too high or too low. This is only permitted in extreme circumstances where an award is unreasonable, unjust and “greatly disproportionate” to the damages proved at trial. An additur is an order for a new trial unless the defendant accepts an addition to the amount of the verdict. A remittitur is an order for a new trial unless the plaintiff accepts a reduction in the jury verdict.
Pursuant to G.L. c. 231, § 6B, pre-judgment interest at the rate of 12 percent per year from the date the action was filed is added to any monetary award for personal injuries.
Pursuant to G.L. c. 235, § 8, post-judgment interest is added at the same rate, 12 percent per year.
IV. Negotiating With Insurance Adjustors.
There is a unique process for attempting to settle auto accident claims, and the nuances vary according to which insurance company one is dealing with. Due to the high volume and frequency of auto-related injuries in Massachusetts and beyond, auto insurers are essentially in the business of evaluating and resolving personal injury claims because most of them involve reasonably clear fault. There are teams of professional insurance adjusters in every major company who handle hundreds of such claim at any given time. Some insurers even use computer programs that factor in various aspects of one’s damages and recent jury awards for similar cases to evaluate a claim. Of course, the business of insurance is risk management, and the predominant approach these days unfortunately is to try to deny fair reimbursement for harm caused by their insureds. This is done through low-ball offers, stall tactics and nickel-and-dime negotiations that have almost made a mockery of the settlement process. When dealing with some of the more notorious insurance companies, many attorneys simply forego this process and put a case directly into suit without giving an insurance adjustor the opportunity to insult the injured victims.
The process of presenting, negotiating, and settling a personal injury case with auto insurers is not dictated by a uniform set of rules. Each insurer has its own procedures for handling and processing claims. Custom and usage in the processing of these claims and familiarity with particular plaintiff’s attorneys goes a long way in this arena. The process generally begins with the plaintiff’s attorney gathering all relevant documents such as police reports, witness statements, scene photographs, vehicle damage appraisals and photographs, injury photographs, ambulance and medical records and reports, diagnostic films and medical bills, and any applicable insurance policies and policy coverage pages. The attorney will then analyze and synthesize these records to develop bases for liability and damages. In cases of reasonably clear liability, the next step is to send copies to the insurer in a demand package that will present the claim for damages in a light most favorable to the claimant. The demand package will typically include an initial monetary demand for settlement that will be a starting point for negotiation.
The insurance adjuster will then analyze the file and perform any due diligence investigation it deems necessary under the circumstances. This can include an interview of its insured driver or any witnesses. The insurance company may also retain a medical expert to review the medical records and/or to conduct a so-called independent medical exam (IME), though there is never anything “independent” about them. IMEs are typically conducted by doctors who, for a few hundred dollars, will write a report saying that an injured motorist is just fine and perfectly capable of carrying on with their normal activities.
Unless liability can be genuinely disputed, though, there will usually be an initial offer of settlement that is a low-ball offer. This is par for the course. The parties then negotiate back and forth within the policy limits until they reach a mutually agreeable figure. If this doesn’t work, then the claimant can file suit and let a jury sort things out. Cases will also go into suit when there is a serious dispute as to liability or if the insurer is acting in bad faith by stalling for too long or by standing pat at an unreasonably low settlement offer.
V. Unfair Claims Settlement Practices.
Throughout the claims process, an insurer doing business in Massachusetts has an obligation to conduct itself in a proper and reasonable manner. Failure to do so can give rise to a separate legal claim directly against the insurer for unfair settlement practices pursuant to G.L. c. 93A and G.L. c. 176D. Chapter 176D specifically describes the type of conduct that would constitute an unfair claim settlement practice. The most common example in auto cases is an insurer’s failure to make a reasonable offer of settlement when liability is clear. Another is where an insurer repeatedly delays or fails to communicate with the claimant or counsel in a prompt and timely manner.
Claims handling practices vary from insurer to insurer. Some are more recalcitrant than others though it seems like the general practice initially is to treat all claimants—whether their own insureds or third-party claimants—as suspect and potentially fraudulent. Low-impact cases are treated as minimal or feigned injury, despite contradictory evidence of serious injury in these cases. Further, once a case has been placed in suit, insurers are content to wait until the day of trial to increase offers, instead of continuing to negotiate during the discovery period. The result of these practices is obvious: fewer cases will settle at reasonable amounts and more cases will have to be put in suit and subjected to substantial delay.
The bad faith claim against an insurer can only proceed if there is a plaintiff’s verdict or award at trial. After that happens, in most cases, the judge will review the insurer’s file and the specific circumstances of the claims handling process in that case. A chapter 176D violation can be found where liability was reasonably clear and the insurer refused to make more than a token offer, far below what would be fair and reasonable. Depending on the egregiousness of the insurer’s conduct, the judge in his discretion can order an award of attorney’s fees along with double or even treble damages. Because chapter 176D claims can cost insurers a lot of money, the statute deters some but definitely not all bad faith settlement practices.
VI. Government Owned Vehicles.
Motor vehicle accident cases from time to time involve vehicles owned and operated by a governmental entity like the state highway department or a local public works or police department. There are also thousands of vehicles owned and operated by quasi-governmental entities like the MBTA.
The negligent operation of a government vehicle is subject to a very specialized set of legal protections and immunities. The rules make it harder to successfully sue the Commonwealth or its municipalities, and if even if one is able to do this there is a cap of $100,000 on any recovery no matter how severe the injuries. Quasi-governmental agencies like the MBTA may or may not share these protections depending on a variety of factors. There are many pitfalls and intricacies in this area of law that require great care in navigating.
VII. Alcohol Related Accidents.
Auto accidents in which someone is injured by an intoxicated motorist gives rise to two different types of potential claims. The first type is a direct negligence claim against the intoxicated operator through that person’s auto insurance policy. It should go without saying that the operation of a motor vehicle while intoxicated is almost always deemed negligent. Evidence of such negligence can be established by the fact of a criminal conviction for violation of the state’s OUI or DWI regulations. Other types of evidence, even in the absence of a conviction, include a motorist’s high blood-alcohol levels, his failure of a field sobriety test, his verbal statements or physical demeanor at the accident scene, recent receipts for the purchase of alcohol and/or open containers of alcohol in the vehicle.
The second type is a claim against the alcohol server for causing the at fault motorist’s intoxication. These claims generally assert that the alcohol server was either negligent or reckless in serving a patron who later operated a motor vehicle and injured someone else or himself. The legal standards for these types of claims are different depending on whether the server is a licensed “dram shop” like a bar or a social host, whether the person served was a minor and whether the person served injured themselves in an auto accident or some third party on the roadway.
VIII. Accident Reconstruction.
Accident reconstruction is the determination of the most probable scenario for how an accident occurred. A reconstruction is a science-based analysis of the physical evidence from a motor vehicle accident such as the location and extent of vehicle impact damage, the length and direction of skid marks and damage to any fixed objects like signs, trees or guardrails. A reconstruction will also account for the prevailing weather, traffic and lighting conditions at the time of the accident. The physical evidence is then correlated with and compared to any witness statements in order to determine the most likely chain of events.
Accident reconstruction is different from the accident investigation done by the responding police officer at the accident scene. The police officer’s primary functions are to act as an emergency responder, to secure the roadway, to gather basic data about the vehicles and operators involved, to identify and question witnesses and to investigate whether a vehicular crime was committed or a driving regulation violation. The majority of police officers are trained to do police work, not accident reconstruction. An accident reconstructionist is a specially trained forensic investigator. Accident reconstruction requires expert education, training and experience in physical science, materials analysis, engineering and impact analysis.
Most state police forces and some large city police departments maintain their own dedicated accident reconstruction team. These are more like scientists than state troopers or police officers. Police-based reconstructionists are usually called in to investigate major highway accidents and fatalities, especially where the cause of the accident is unclear or disputed. The major purpose of their work is to determine criminal responsibility or whether any driving regulations were violated. Once completed, the police reconstruction analysis will be drafted in an official, signed report.
Private accident reconstructionists are also available for hire to conduct an independent investigation on behalf of an interested party. This usually happens in the context of a civil case brought by an accident victim where the cause of the accident is in dispute and either there was no police-based reconstruction or there was but it was flawed. The cost of private reconstruction services can be substantial. The civil litigant must weigh the high cost against the benefits such as the amount likely to be awarded in the case or the amount of the insurance policy or policies in play.
It should be remembered that most motor vehicle accidents do not require reconstruction because the cause of the accident is not materially disputed. This is the case in almost all rear-end collisions, right of way and speeding accidents.
IX. MASSACHUSETTS STANDARD AUTO INSURANCE POLICY.
Automobile insurance is heavily regulated in Massachusetts. Insurance here is compulsory: to register a motor vehicle in this state, one must purchase basic minimum insurance for it. The insurance policy is issued in a standardized written form approved by the state Commissioner of Insurance. The form policy is now in its seventh edition and is called the Seventh Edition Standard Auto Insurance Policy.
When a motor vehicle is insured, the insurance company issues an insurance policy to the insured person as the registered owner of the vehicle. The policy may also cover additional insureds who are specifically listed because they regularly use the vehicle as well such as spouses or children. An insurance policy is a contract between the insurer and the insured. It defines the rights and obligations of the respective parties when there is a motor vehicle accident. It also defines the benefits available to third-parties injured by the vehicle who assert claims against the policy.
Each policy includes a “coverage selection page” that lists the twelve different kinds of insurance, some compulsory and some optional, along with the amounts of coverage afforded for each under the policy. Here is a sample coverage selection page.
Parts 1–4 are compulsory. Everyone who registers a motor vehicle in Massachusetts must have these four minimal kinds of insurance:
Part 1: Bodily Injury (BI)
Part 2: Personal Injury Protection (also called PIP or “no fault”)
Part 3: Uninsured Motor Vehicle (UM)
Part 4: Property Damage (PD)
Parts 5–12 are optional coverages that can be elected at the time the policy is purchased or added at a later time. The election of optional coverage will increase the amount of one’s monthly insurance premium.
Part 5: Optional Bodily Injury (OBI)
Part 6: Medical Payments (Med Pay)
Part 7: Collision
Part 8: Limited Collision
Part 9: Comprehensive (i.e., fire, theft and vandalism)
Part 10: Substitute Transportation (i.e., rental coverage)
Part 11: Towing and Labor
Part 12: Underinsured Motor Vehicle (UIM) coverage.
A. Compulsory Bodily Injury (BI).
Massachusetts has mandatory minimum BI coverage of $20,000 per person and $40,000 per accident. This is fault-based coverage, payable by the insurer of the negligent driver for physical harm, pain and suffering and special damages sustained by the victim or victims as a result of the insured’s negligence. Compulsory BI insurance is also for the benefit of those injured or killed as a result of the negligence of someone else driving the insured’s vehicle with their consent. For BI to apply, it does not matter who is driving the insured’s vehicle as long as they had permission to drive it. If there is no permission, or in the case of a stolen vehicle, then compulsory BI does not apply at all.
B. Personal Injury Protection (PIP).
Personal injury protection (PIP) coverage is for the benefit of the driver and certain other people who are injured in automobile accidents regardless of who causes the accident. PIP is a no-fault benefit. PIP provides for reimbursement payments of up to $8,000 for anyone injured in an auto accident, again regardless fault, for three specific kinds of out-of-pocket losses.
1. Medical expenses.
PIP pays for “reasonable” and “necessary” medical expenses that are incurred within two years of the accident. These include funeral expenses for someone who dies as a result of the accident.
2. Lost wages.
PIP pays 75 percent of lost wages for people who are working at the time of the accident and 75 percent of lost earning power for people who are not working at the time of the accident but would have been employable but for their injuries.
3. Replacement services.
PIP also pays for “replacement services” for the injured person. These are the reasonable expenses incurred in paying non-family members to perform the “ordinary and necessary services” that the injured person would have otherwise performed “for the benefit of himself and/or members of his household.”
4. Payment structure.
PIP coverage pays the first $2,000 in medical expenses of a person with health insurance. The person’s health insurance must pay medical expenses after the first $2,000. The remaining $6,000 in PIP can be used to pay medical expenses that are not covered by health insurance, such as copayments, deductibles, and treatment that is not covered by health insurance, as well as lost wages and replacement services.
5. Whose PIP pays?
Usually, PIP is paid by the insurer of the auto that the injured person was riding in at the time of the accident. If the injured person was a pedestrian, the PIP claim is usually made against the insurer of the auto that struck him.
6. PIP eligible.
Unless a deductible is elected, the following people are eligible for PIP:
(a) Anyone riding in the insured vehicle with the owner’s consent;
(b) Any pedestrian struck by the insured vehicle in Massachusetts;
(c) Anyone living in the insured driver’s household riding in another vehicle that does not have Massachusetts compulsory BI (if it did, PIP would come from the policy on that auto);
(d) Anyone living in the insured driver’s household who is struck by another vehicle that does not have Massachusetts compulsory BI (if it did, PIP would come from the policy on that auto);
(e) Any Massachusetts resident who is struck as a pedestrian by the insured vehicle outside of Massachusetts.
7. Deductibles and exclusions.
To reduce their monthly premiums, some people elect a deductible that limits the level of PIP coverage or even eliminates it entirely. This limited level of PIP coverage applies only to the insured and his household members. PIP cannot be limited or eliminated for a passenger who is not a household member or for a pedestrian. If a deductible is elected, the coverage selections page will show a figure in the “deductible” column. It could be $2,000 (in which case, PIP does not pay for the first $2,000 of medical bills), or it could be $8,000 (in which case, there is no PIP at all). If no such election is made, the word “none” appears under “deductible”
Absent this deductible, every person injured in an auto accident may receive up to a maximum of $8,000 under PIP. Subject to some specific rules about paying medical bills, this sum is not specifically allocated among the three different kinds of expenses: medical expenses, lost wages, and replacement services. Thus, theoretically, the whole $8,000 can be used for any one of these kinds of out-of-pocket losses, to the total exclusion of the other two kinds. The selection is customarily left to the injured person.
8. Coordination of benefits.
If the injured person does not have any policy of health insurance available, PIP is obligated to pay for all of the injured person’s medical expenses, up to the $8,000 limit (or whatever is left over after PIP has paid for wages or replacement services).
However, if the injured person does have health insurance, there is a “coordination of benefits” provision for paying medical expenses under PIP. Under this provision, the PIP insurer pays only the first $2,000 of medical expenses and the health insurer pays for all such expenses above the $2,000 level (in accordance with its insurance contract). If there are still unpaid medical expenses after the health insurer pays what it is supposed to, these unpaid medical expenses—including charges to the claimant for copayments and deductibles—may be submitted back to the PIP insurer for payment out of the remaining available PIP money.
Medicare and Medicaid/MassHealth are not considered health insurance plans that are subject to these coordination rules. The same goes for fully self-funded employee benefit plans under the Employee Retirement Income Security Act (ERISA). Therefore, a claimant whose health insurance is in one of these categories is treated for purposes of the coordination of benefits provision as if he or she does not have any health insurance, and PIP is obligated for all medical bills and expenses up to the $8,000 limit.
9. Lost wages.
If the claimant is employed at the time of the accident, PIP pays 75 percent of his or her average weekly wage over the fifty-two-week period preceding the date of the accident. This is so even if at the time of the accident, the claimant is working at a job paying much less than the one he or she had been working at earlier that year.
The PIP insurer must also pay for “diminution in earning power” if the claimant was not working when the accident happened. For example, if the claimant had been employed until just before the accident and was seeking employment when it happened, the insurer must pay 75 percent of his or her average weekly wage for the fifty-two-week period before the accident. If the employee has a wage continuation program such as a disability policy or an accrual of sick or vacation time, PIP will pay only the difference between 75 percent of the average weekly wage and what the employee receives from such a policy or program.
10. G.L. c. 90, § 34M.
Under G.L. c. 90, § 34M, a PIP insurer must pay medical bills within ten days of submission or give notice as to why it will not do so. If any bills remain unpaid for thirty days, any “unpaid party” may sue the PIP insurer directly (and recover costs and attorney fees if successful). The term “unpaid party” refers to an unpaid medical provider, not the actual PIP claimant.
The statute says that a tortfeasor is exempt from tort liability to the extent that the injured person is entitled to PIP. In practice, this means that to the extent PIP is paid, those damages which are recovered(able) under PIP are—after a jury or arbitration award—deducted from the amount of the award. This is so that the tortfeasor does not pay them twice because the PIP insurer is reimbursed by the tortfeasor’s insurer for its payments. However, if the plaintiff is not entitled to any PIP benefits, there is no exemption.
11. Insurer Investigations, Examinations, and EUOs.
An insurer is entitled to “reasonable proof” concerning the medical bills and may seek an independent medical examination (IME) before paying them or conduct some investigation into their reasonableness. An insurer also has a right—stated in the policy at page 32—to an examination under oath (EUO) of “any person seeking payment under any part” of the insurance policy. This right extends only to people who are making a claim against the policy itself, not against the policy’s insured, which means that the insurer does not have a right to an EUO of someone making a claim for BI benefits (a so-called third party claim), only to people seeking PIP, Med Pay, UM, or UIM benefits (so-called first party claims). The same is true with respect to an insurer’s right to an IME.
There are some finer point with respect to EUOs worth mentioning. First, a claimant’s willful and unexcused failure to appear for the EUO is a material breach of the insurance contract, for which the insurer may disclaim coverage without having to show that it was actually prejudiced by the claimant’s failure to appear. Second, where there are two or more claimants seeking benefits in the same accident, the insurer has the right to conduct its EUOs separately, i.e., to isolate the claimants and examine them one by one. Third, the right to an examination under oath has been held to include an obligation on the part of the person examined to produce documents that are pertinent to the claimed loss. Fourth, the insurer’s right to an EUO is not unlimited in time—it must be exercised “within a reasonable time” after the insurer is notified of the accident (that is the policy language), or the right to the EUO is forfeited, and what is a reasonable time depends on the facts of each case. It has been held that a thirteen-month delay, without any excuse for it, is too long.
12. Insurer’s denial of PIP benefits.
In practice, PIP insurers regularly deny paying medical bills under PIP for a variety of reasons based on an IME report that medical treatment is not (or no longer) necessary, based on an EUO, based on an internal investigation by the special investigative unit (SIU) for fraud, based on noncooperation of the claimant, the late filing of a PIP claim or the unexplained failure of the claimant to attend an IME or EUO.
Where the denial is based on an IME, the examination need not be performed by a medical practitioner licensed in the same specialty as the one who has been treating the claimant. Therefore, an orthopedic surgeon who does an IME can opine that continued chiropractic care is no longer necessary, and based on that, the PIP insurer can rightfully stop paying the chiropractor’s bills.
For a PIP insurer to deny a PIP claim because it was allegedly filed late, the insurer must show it was prejudiced by the late filing. However, any PIP claim that is filed more than two years after the accident is automatically late, and no prejudice need be proved.
13. PIP not available.
PIP is expressly forbidden for the following classes of people:
(a) anyone driving or riding as a passenger on a motorcycle, motorized bike, or moped;
(b) anyone who is entitled to workers’ compensation benefits for the same injuries;
(c) anyone who is under the influence of alcohol or drugs;
(d) anyone who is committing a felony;
(e) anyone who is evading arrest; or
(f) anyone intentionally causing injuries.
In addition, the Massachusetts Bay Transportation Authority is excluded from having to provide PIP benefits to its passengers who are injured in motor vehicle accidents involving MBTA motor vehicle and trolleys.
14. PIP set-off.
Regardless of how the medical bills are paid through PIP, if there is a liability recovery for bodily injury there will be a set-off for any PIP monies paid.
C. Uninsured Motor Vehicle (UM) Coverage.
Uninsured motor vehicle (UM) coverage is for the benefit of people who are injured or killed as a result of the negligence of the operator of an uninsured auto. This is an important protection because many people are injured in accidents with uninsured motorists despite Massachusetts laws requiring compulsory coverage.
1. UM scenarios.
There are several UM scenarios:
(a) The accident-causing auto is stolen;
(b) The accident-causing auto is a hit-and-run vehicle (see discussion below) or is otherwise unidentifiable; or
(c) The accident-causing auto lacks insurance. This can occur where the vehicle was simply never registered and insured or where the insurance lapsed and was canceled because of non-payment. This can also occur if the vehicle is from a noncompulsory state such as New Hampshire or Vermont.
2. ”Hit and run” vehicles.
It is not necessary that a “hit-and-run” vehicle makes physical contact with another vehicle. It is enough if it just causes the accident such as where an unidentified vehicle crossed over center of road and forces the claimant’s vehicle into a guardrail, without any contact between the vehicles. In addition, a “hit and run” vehicle does not have to “run” in the sense of fleeing the scene of an accident. It may be that the drivers of the two vehicles failed to exchange information at the scene or that the police misidentified the accident-causing vehicle or they were provided with false information.
3. UM coverage.
The claimant seeking UM coverage must either be the insured or someone using the insured’s vehicle with his consent.
Compulsory minimum limits of UM are identical to the BI minimum limits— $20,000/$40,000. This is an attempt to assure that there will be at least some uniform amount of minimal coverage for almost anyone injured in a motor vehicle accident in Massachusetts. Policyholders can elect to have higher UM limits just as they can pay more of a premium and opt for higher BI limits.
UM claims are brought against the insurer in arbitration only. Lawsuits are not permitted except to file a complaint under G.L. c. 251 to compel arbitration but this only happens when the parties cannot agree on an arbitrator. The arbitrator is an attorney or retired judge with expertise in the area. The arbitrator decides both liability and damages and the decision is generally not subject to appeal except for extreme situations.
4. No “stacking”.
Stacking of insurance policy benefits is prohibited by G.L. c. 175, § 113L(5). Stacking is where a claimant adds all available policies together to create a greater pool in order to satisfy his actual damages. Accordingly, people may recover UM benefits from one source only.
5. Who pays UM?
Determining which policy or auto pays UM is a very fact-specific question and there are many rules in play. The answer depends on whether the injured person is injured while occupying any auto or as a pedestrian, whether and which policy the injured person is a named insured on, whether the injured person is a “household member” of a named insured on any policy and which policy has higher limits.
6. Amounts recoverable.
After the arbitrator decides the value of the claim, that value is reduced by whatever the claimant has received (if anything) under PIP, under a worker’s compensation claim or in any third-party claim against a tortfeasor who caused the accident.
7. Prompt notice required.
There must be “prompt” notice of any potential claim for UM benefits, as well as notice to the police and insurance company within twenty-four hours of a hit-and-run accident. Unless such “prompt notice” is given, the claim for uninsured benefits may be denied if the insurer can prove that it was somehow prejudiced by a lack of prompt notice.
8. Statute of limitations.
The statute of limitations for filing a claim for UM benefits is six years because the claim is one of contract, not tort. The statute of limitations begins to run when the insurer violates the insurance contract by refusing to arbitrate the claim.
9. Worker’s compensation exclusivity provision.
An employee who is injured by the negligence of an uninsured motorist while on the job and riding in his employer’s work vehicle is not permitted to recover any UM benefits from that vehicle’s insurance policy because that would violate the exclusivity provision of the Worker’s Compensation Law, G.L. c. 152. In practice, however, responsible employers purchase specific insurance that provides special UM coverage to its employees.
D. Property Damage Coverage.
Property damage (PD) insurance covers the physical damage to someone else’s property (auto or otherwise) that was caused by the negligent operation of a motor vehicle. Coverage is provided when the auto is being driven the named insured or by someone with the insured’s consent.
The measure of damages is the fair market value of the damaged property. For damaged vehicles, coverage also includes the loss of use of the damaged vehicle along with towing, storage and rental of a substitute vehicle.
The mandatory minimum PD coverage required is $5,000, but most people carry higher limits as a matter of course because the minimum amount does not cover much of the cost of repair.
The foregoing coverages are all mandatory. You cannot purchase auto insurance without these. In constrast, the coverage areas discussed below are all optional. They can be purchased separately for an additional premium.
E. Optional Bodily Injury Coverage.
Many policyholders wisely opt to purchase more than the bare minimum BI coverage of $20,000/$40,000 to protect themselves from personal exposure to claims for more substantial injuries caused by their vehicles. Optional bodily injury (OBI) insurance covers people who are injured or killed in motor vehicle accidents by the insured vehicle, whether it is driven by the insured(s), their household members or someone driving with the insured’s consent. OBI coverage can vary but it is usually $50,000/$100,000 or $100,000/$250,000.
OBI does not operate as extra or added insurance to that which is available under compulsory BI. OBI replaces BI. Thus, if a policy has $20,000/ $40,000 of compulsory BI and $50,000/$100,000 of optional BI, the total coverage available under BI to pay for the injuries is $50,000/$100,000, not $70,000/$140,000 (the sum of the two amounts).
There are very complicated, fact-dependent rules that determine whether and how OBI pays out in a particular claim.
F. Medical Payments.
Medical payment insurance (Med Pay) covers the reasonable and necessary medical expenses incurred by anyone riding in the insured auto with consent at the time of the accident. Med Pay also covers the insured or his household members struck by an auto as a pedestrian or while riding in someone else’s auto with their consent at the time of the accident. Med Pay is an optional coverage that usually involves $5,000 of coverage. Some people opt for higher coverage and are willing to pay a slightly higher premium.
In certain circumstances, an injured person can stack Med Pay benefits from different policies. This is subject to the “regular use” exclusion.
Med Pay does not cover medical expenses incurred later than two years after the accident or those that were paid by PIP.
Med Pay is not available until PIP benefits are first exhausted. So, in a situation where there is private health insurance, PIP will cover the first $2,000 in medical bills, then the health insurance coverage pays, then PIP pays again until it is fully exhausted, and only then does Med Pay kick in. Where there is no health insurance, PIP will cover the first $8,000 in medical bills and Med Pay will then cover the rest up to its limit.
G. Collision Coverage.
Collision insurance pays for the physical damage to autos involved in collision with other autos. This coverage pays for damage to the insured auto regardless of who is operating it or who is at fault, so long as there was consent to operate it. This coverage also follows the insured person and his household members who are operating other vehicles with their owner’s consent, again regardless of who is at fault.
With respect to the latter scenario – operating other people’s autos – the other owner’s collision coverage pays up to its limits first, and then the driver’s insurer will pay for any remaining part of the loss that is not covered by the owner’s collision coverage.
There are two general exceptions to this.
If the damaged vehicle is a rental or replacement vehicle and the insured opted out of collision insurance coverage for it (by accepting the “CDW”—the collision damage waiver—at the time it was rented), there is no collision coverage available by the rental vehicle’s insurer at all. The driver’s own insurer (which would normally be second in line) becomes first in line and pays the entire claim.
There is also a “regular use” exclusion that excludes collision coverage when the other vehicle being operated is owned or regularly used by the insured or his household member.
H. Limited Collision Coverage.
Limited collision insurance is identical to regular collision insurance except the issue of fault is taken into account. Limited collision coverage applies only if (1) the insurer determines that the operator of the insured auto (or the auto being operated by the insured person or household member) was not more than 50 percent at fault; and (2) the owner of the at-fault auto can be identified.
The determination of fault as a percentage does not affect the pay-out as it does in comparative negligence situation in a BI claim that goes to court. Eve if the insurer decides that the operator of the vehicle was 50 percent at fault, the cash payment is not reduced by 50 percent; it is still 100 percent of the damage, or the actual cash value if the vehicle is a total loss.
There are four types of accidents where the operator of the insured vehicle is automatically presumed to be less than 50 percent at fault (and therefore entitled to limited collision coverage):
(1) the auto was legally parked when struck by another auto;
(2) the auto was struck in the rear by a moving auto traveling in the same direction;
(3) the operator of the other auto was convicted of moving violations (except if the operator of the insured auto was also convicted of a moving violation); or
(4) the driver of the insured auto wins a court case against the operator of the other auto.
I. Comprehensive Damage Coverage.
Comprehensive insurance covers the physical damage or loss of a motor vehicle in situations not involving a collision with another vehicle. Examples of such incidents are listed as “vandalism, fire and theft, missiles, falling objects, larceny, explosion, earthquake, windstorm, hail, water, flood, malicious mischief, riot or contact with a bird or animal.”
Coverage applies where the damage or loss is to the insured auto or to an auto being used by the insured person or his household member with the consent of the owner.
If the damaged vehicle is a rental or replacement vehicle and the insured opted out of collision insurance coverage for it (by accepting the “CDW”—the collision damage waiver—at the time it was rented), there is no comprehensive coverage available under the rental vehicle’s insurer at all. The driver’s own insurer (which would normally be second in line) becomes first in line and pays the entire claim.
There is also a “regular use” exclusion that excludes comprehensive coverage when the other vehicle being operated is owned or regularly used by the insured or his household member.
J. Substitute Transportation.
Substitute transportation insurance provides reimbursement for renting a substitute vehicle if the insured auto is involved in a collision or if there was damage or a loss that is covered by comprehensive insurance and the auto is being repaired or replaced. Rental reimbursement will only cover a reasonable period of time for repairs or replacement of the damaged vehicle to be accomplished.
K. Towing and Labor Coverage.
Towing and labor coverage pays up to the amount shown in the coverage selections page for towing and labor costs each time an insured auto is disabled. This does not cover repair costs.
L. Underinsured Motor Vehicle Insurance.
Underinsured motor vehicle (UIM) coverage provides compensation for personal injuries and death where the accident was caused by someone other than the claimant and where that someone’s BI insurance is insufficient to satisfy the value of the claim. Much of the information regarding UM coverage discussed above applies equally to UIM coverage.
UIM coverage is available to the insured person, a household member and anyone riding in the insured person’s auto. If there are more than one policy or more than one auto on a policy that may apply to a situation, the rules for determining which policy or auto pays are the same as they are for UM.
UIM coverage only becomes available when the maximum limits of all available BI coverage is paid out. This is referred to as to the “trigger” for UIM claims. The trigger is the total amount of BI insurance that is available in a particular claim. That amount will be automatically deducted from the amount of UIM that may be available. The balance that is left after this deduction is the actual amount of UIM available for that claim. The limits of a tortfeasor’s personal excess/umbrella insurance policy, if any, are included in the trigger calculation to determine if UIM benefits are available to an injured claimant.
This trigger deduction often produces misleading results that leaves people wondering why they purchased UIM coverage. Here is an example. Claimant’s auto is struck head on by another auto which crossed the center line and is clearly at fault. The claimant and the owner of the other auto each have BI insurance of $20,000/$40,000, and the plaintiff has an optional UIM policy of $50,000/$100,000. Under this scenario, the claimant would have just $10,000 of UIM because the $40,000 in BI coverage is deducted from the $50,000 in UIM coverage. Thus, people who opt for $20,000 of UIM (as most unfortunately do) rarely receive any UIM benefit whatsoever.
In addition to the trigger deduction for BI insurance, the recovery of UIM benefits are also subject to deductions (1) for the amount, if anything, recovered from any legally responsible person, provided the injured person is fully compensated; (2) the amount, if anything, paid under worker’s compensation; and (3) anything paid under PIP.
Since there is no stacking of UIM benefits, there are case-specific rules for determining which insurance policy applies in much the same manner as for UM benefits. There are also very detailed rules governing when and how UIM benefits are available for multiple claimants in an accident.
Technically the UIM insurer must consent to the settlement of any underlying BI claim(s) as a prerequisite to bringing a UIM claim. However, the court cases on this have ruled that an insurer cannot unreasonably withhold it consent, and the insurer must prove prejudice if it intends to deny a UIM claim based on an alleged lack of consent to settle underlying BI case. In addition, the UIM insurer cannot withhold its consent to settle on the grounds that (1) the tortfeasor has personal assets that could satisfy the claimant above the BI policy limits, or (2) the claimant is willing to settle for less than the tortfeasor’s BI policy limits.
Even though a UIM insurer might consent to a settlement of the underlying BI claim, the UIM insurer can still contest the issue of liability at arbitration of the UIM claim.
X. Liens and Subrogation in Auto Claims.
A. Medical Liens.
Most auto accident claims are subject to a lien or subrogation right for reimbursement of medical expenses paid by someone other than the injured person. These reimbursement rights can arise when a hospital or doctor renders medical care that remains unpaid. They can also arise when a public or private health insurer pays for some or all of the injured person’s medical care.
Liens and subrogation both authorize a health insurer or a provider of health-care benefits to seek reimbursement from the proceeds of a settlement or judgment in personal injury litigation. A “lien” is a legal claim on monetary property that acts as security for payment of a debt. “Subrogation” is a contractual right between the health insurer and the insured for repayment of medical expenses from a personal injury lawsuit.
1. Hospital liens.
Massachusetts G.L. c. 111, §§ 70A-70D permits a medical institution or hospital to assert a lien against the legal recovery for any injury for which the institution has provided medical care and for which it was not reimbursed. To be valid and enforceable, the potential lien holder must send notice of the lien via certified mail to the injured person and others as set forth in the statute. The notice must contain detailed information as specified in the statute including the name and address of the insured person, the date of the accident, the name and address of the provider of medical services, and the name and address of the HMO, hospital, medical or dental service corporation asserting the lien.
A hospital’s statutory lien is valid only if the notice is received prior to a settlement, compromise, or judgment in the tort action. If funds are disbursed before any notice is sent, the lien is not valid or enforceable. The statute, however, is silent about the validity of a lien if the notice is sent after the case is settled, but before the funds are received or disbursed. The courts have not had an opportunity yet to address this issue, though plaintiffs would argue that a case is “settled” at the moment the terms are agreed to – not when funds are processed and disbursed.
A hospital lien must strictly comply with these notice requirements or else risk being deemed invalid by the courts.
The lien is placed on the net amount payable to the client from the total amount received from the tortfeasor. The net amount refers to the bottom line amount payable to the plaintiff after the deduction of attorney’s fee and expenses. A lien can never exceed the net sum received by the claimant after all deductions.
Valid liens that comply with the notice requirements have to be satisfied. Ignoring them never pays. It is always better to engage the lien holder early on in a case and get them to compromise as part of the settlement process. The attorney will contact the lien holder and explain the facts of the case and the risks of trial in attempt to get the lien reduced by agreement. Hospitals, HMOs and medical groups are usually more interested in recouping something rather than risk the possibility of getting nothing on their lien. This kind of willingness to compromise can greatly facilitate a settlement.
If a plaintiff ignores a hospital lien or refuses to pay it or wants to dispute it, the lien holder may sue to enforce it, but there is a one-year statute of limitations that begins to run from the time the settlement proceeds are paid to the plaintiff. Thus, a hospital lien dissolves one year after a payment to the plaintiff. In addition, section 70D provides that, if an individual sends a written request by certified mail to the hospital requesting an itemized statement of all charges and the hospital fails to provide such a statement within ten days, then the hospital’s lien automatically is dissolved. This applies to hospitals only.
2. Medicaid liens.
The Commonwealth of Massachusetts administers Medicaid assistance and benefits through the Executive Office for Health and Human Services (EOHHS). When payments are made to cover medical care for a beneficiary for injuries resulting from another party’s negligence, the agency automatically has a lien against any money recovered in any claim that is asserted as a result of that accident. This has been accomplished by statute in G.L. c. 18 §5G and G.L. c. 118E §22. Medicaid liens are “automatic” because there are virtually no notice requirements that need to be met in order for the lien to be valid.
When a Medicaid beneficiary applies for benefits, he or she is compelled by statute to complete an “Assignment” form that assigns whatever is recovered in a personal injury case to the Commonwealth of Massachusetts, all the way up to the amount owed. The form specifically states that if the medical assistance is needed due to an accident, such as a motor vehicle accident, the beneficiary must repay EOHHS for any benefits received. In practice, this “Assignment” functions as the notice for a potential lien to the beneficiary. Medicaid beneficiaries are also supposed to notify the EOHHS within ten days of the commencement of a civil action to establish liability of a third party. This rarely happens though because the requirement is contained in the fine print legalese of the Assignment form which may be filled out and presumably read years before a civil action for motor vehicle negligence is brought.
It is unclear whether the Commonwealth’s lien must be reduced to pay any part of the claimant’s attorney fees or out of pocket expenses. The statute is silent on the point and it has not been pressed in the court because in practice the EEOHHS is willing to reduce its lien. There are no set formulae for determining Medicaid lien reductions. They are determined on a case-by-case basis. This is done in recognition of the attorney’s work in recovering a monetary award (part of which will inure to the benefit of the Commonwealth). The EEOHS will also to try and reach an equitable result for the injured person.
3. Medicare liens.
Medicare is the federal health insurance program administered by the Centers for Medicaid and Medicare Services (CMS) for Social Security beneficiaries— either retirees or disabled workers. Medicare’s right to reimbursement is contained in 42 U.S.C. § 1395y(b)(2)(A), (B) (2000), and the regulations interpreting the statute are found at 42 C.F.R. §§ 411.20—411.54 (2000).
Medicare liens are automatic in much the same way as Medicaid liens. There are some differences though. With Medicare liens, the CMS formally agrees to share attorney fees and other costs, and also to reduce, on a pro rata basis, the amount it seeks to be reimbursed. The reduction percentage is the same percentage as the “procurement costs” in the case, meaning the percentage of the recovery going to the lawyer for his or her fees and costs.
4. Private health insurer liens.
Private health-care insurers receive subrogation rights to reimbursement from settlement proceeds as per the terms of the health insurance contract, which virtually no one ever reads. To assert a valid lien, there must be compliance with the statutory notice provisions which are the same as for a hospital lien. The insurer must send written notice by certified mail. The notice must contain certain information and be sent prior to any judgment, settlement or compromise. In addition, the insurer must provide a certified, itemized statement of all charges within ten days of receiving a written request or the lien will be dissolved.
And if a settlement is made without satisfying a valid lien, the injured party or his or heirs can be held liable. Such an action to enforce a lien must be commenced within one year after the date of such payment. Even if a lien is not asserted or is asserted but is lost, the claimant still may be liable for reimbursement under contractual subrogation requirements found in most health insurance contracts.
B. Worker’s Compensation Liens.
The issue of worker’s compensation arises when a person is injured in an auto accident while in the course of his or her employment, and liability for the injury rests with a third party motorist rather than with the employer. The employee would be entitled to worker’s compensation benefits under G.L. c. 152. And, the employee would have the right to file a third-party action against the negligent motorist that caused the accident.
However, if worker’s compensation benefits are paid, some or all of them will have to be reimbursed from a settlement or judgment in a third-party claim. The worker’s compensation insurer gets a statutory lien that automatically attaches to any third-party recovery. Under the statute, G.L. c. 152, § 15, any third-party settlement must receive court approval by submitting a petition for settlement to either the court where the third-party case is pending or to the Department of Industrial Accidents. Approval by the court may be sought when the case is already in suit or if settlement is reached at time of trial. The DIA may approve the petition whether the case is actually in suit or a suit has not yet commenced.
The worker’s compensation insurer is obligated to pay its proportionate share of the employee’s attorney fees and costs incurred in the third-party action.
A worker’s compensation insurer is generally willing to reduce its lien in order to facilitate settlement and thereby guarantee that it will recoup some of its expenditures on benefits for the employee. This frequently occurs where liability against the third party is questionable or where damages far exceed the available insurance coverage.
Another important consideration in resolving a worker’s compensation lien is the effect of such settlement on the employee’s future worker’s compensation benefits where there has been no lump-sum settlement to date. A worker’s compensation insurer is entitled to treat the statutory excess (the amount by which the third-party recovery for the injury, exclusive of interest and costs, exceeds the compensation paid under G.L. c. 152) as an offset against its obligation to pay future compensation benefits (minus the worker’s compensation insurer’s share of attorney fees and costs attributable to the third-party recovery) by paying a proportionate fraction of the employee’s claims subsequent to the third-party recovery as those claims arise until the total amount of claims equals the statutory excess. This is called a “Hunter offset” in honor of its origin in the 1987 case of Hunter v. Midwest Coast Transport, Inc. The practical effect of a Hunter offset is to reduces to one-third the weekly benefits received from the worker’s compensation carrier until the excess recovery is offset. The reduction also applies to medical expenses.
XI. What To Do After An Accident.
There are several “do’s” and “don’ts” if you are injured in a motor vehicle accident caused by someone else’s negligence.
• Do call the police and any necessary emergency medical service providers
• Do seek appropriate medical treatment in a timely manner and follow all reasonable instructions and recommendations from medical providers.
• Do photograph the automobiles involved in the accident, the scene of the accident, and/or any visual bodily injury.
• Do assemble all auto insurance policies, medical bills, police reports, and any other records concerning the accident.
• Do not talk to any insurance investigators or adjusters.
• Do not sign any documents that are mailed or delivered to you, except those from your attorney.
• Do not communicate with the at-fault driver as to how or why the accident happened and as to the nature or extent of your injuries (but you should cooperate with the necessary exchange of personal and insurance information).
MASSACHUSETTS LIQUOR LIABILITY LAW
The term “liquor liability” covers any situation where a server of alcoholic beverages is held legally responsible for monetary damages for causing injury or death to either the person served or to some third party injured by the person served.
Liquor liability cases can be very difficult for defendants. There is justifiable outrage at a bar that over-serves someone who is obviously drunk and then he or she causes a highway accident or assaults an innocent bystander. And there is even less sympathy for a bar or liquor store that sells alcohol to minors who, while intoxicated, place themselves into dangerous situations. These cases can also pose challenges to plaintiffs, especially where an adult plaintiff either injures herself while intoxicated or gets injured in a scuffle inside the bar after having words with another patron.
Often there is a criminal investigation into alcohol related incidents for the crimes of furnishing alcohol to a minor, operating a motor vehicle under the influence of alcohol or assault and battery. The outcome of a criminal investigation can have a significant impact on the strengths and weaknesses of a claim for damages in a civil claim for liquor liability damages.
Liquor liability in Massachusetts is a generally a common law cause of action, meaning that the legal standards for liability have been created by court case precedent rather than by statute. (In contrast, the State of Rhode Island has enacted legislation that provides the exclusive remedy and requirements for liquor liability). There are though several statutes to be aware of that affect the procedures for filing a liquor liability claim in Massachusetts. And of course there are criminal statutes that inform the common law principles, such as the legal drinking age of 21 years and the OUI statute.
Massachusetts courts apply different legal standards to liquor liability cases depending on several factors such as: (a) who served the alcohol – a licensed establishment or a “social host”; (b) who was injured – the drinker or a third person; and (3) the age of the drinker – over or under 18 or 21 years. Massachusetts judicial decisions have addressed most permutations of these factors, though there are still a few unsettled areas.
A. Liability of a Licensed Server.
Since 1968, Massachusetts law has recognized a cause of action against a licensed liquor server for providing alcohol to an intoxicated patron who then causes injury to a third person. In that year, the Supreme Judicial Court announced a public policy rule that “[h]enceforth in this Commonwealth waste of human life due to drunken driving on the highways will not be left outside the scope of the foreseeable risk created by the sale of liquor to an already intoxicated individual.”
Licensed liquor servers generally consist of bars, liquor stores and other alcohol serving establishments and businesses that operate pursuant to a liquor license issued by the state or town in which they operate. They can also include temporary licenses that are issued for specific events where alcohol is served.
1. Liability for harm to third-parties. Where a patron causes injury to an innocent third party, for example while driving intoxicated after being over-served at a bar, the injured plaintiff must prove that:
a. The patron was served alcohol by the licensed server;
b. While intoxicated and under circumstances such that the server knew or reasonably should have known that the patron was intoxicated;
c. The patron then operated a motor vehicle while intoxicated;
d. The operation was reasonably foreseeable by the licensed server;
e. A person of ordinary prudence would not have served the patron; and,
f. The patron’s driving caused an injury that was within the scope of the foreseeable risk.
2. Liability for harm to patrons. There can also be liability against the bar where the customer is the one who injured, either by injuring himself while intoxicated in or away from the bar or by being injured by another intoxicated patron inside or outside the bar. These types of claims resemble ordinary negligence claims. The rule is that a licensed establishment has a duty of reasonable care to prevent foreseeable harm or injury to its patrons, either on the premises or away from the premises, as a result of the acts of other patrons. That duty can be breached by serving an intoxicated person more alcohol and putting them in a position to cause harm to themselves or to other patrons of the bar.
B. Liability of a Social Host.
A “social host” is a server of alcohol that is not a licensed seller of alcohol. Social hosts typically include those who provide alcohol to others at social events, fraternal organizations, wedding venues and private parties where alcohol is provided to guests.
A social host is liable to a person injured by an intoxicated guest’s negligent operation of a motor vehicle where a social host who knew or should have known that his guest was drunk, nevertheless gave him or permitted him to take an alcoholic drink and thereafter, because of his intoxication, the guest negligently operated a motor vehicle causing the third person injury. In order for the social host to be liable, he or she must furnish, pay for or have control over the alcohol served. Thus a social host cannot be liable for the acts of an intoxicated guest at a strictly BYOB event.
A social host can be liable to a plaintiff who is the victim of an assault and battery by a visibly intoxicated guest who was supplied alcohol by the host.
Social host liability can also attach to a person who buys drinks or alcohol for an obviously intoxicated person in a bar or a liquor store.
An employer-host is held to the same standard of care as a social host in the context of a company picnic. As in other social host situation, the key to liability will be whether the employer furnished or controlled the alcohol. If an employee brings his own beer to work, consumes it at work, becomes intoxicated and harms a third-person, the employer will not be deemed a social host for the purposes of liquor liability.
C. Service by a Licensed Establishment to a Minor.
The sale of alcohol to a minor by a licensed establishment is considered a violation of a Massachusetts statute, G.L. c. 138, § 34. The sale of alcohol to a minor alone constitutes very strong evidence of negligence in an action for damages brought by a person injured as a result of the minor’s actions while intoxicated, such as the operation of a motor vehicle.
In minor service cases, it is not necessary to prove that the defendant establishment knew or should have known that the minor was intoxicated at the time of service. Nor is it necessary that the alcohol be served directly “hand to hand” to the minor in order for the licensee to be liable. A bar or liquor store is liable if it knew or reasonably should have known that it was furnishing alcohol to minors.
A common defense is that the licensed establishment reasonably relied on a fake driver’s license or identification card presented by the minor. This defense is weak where the minor is either very young looking, where the fake ID is of poor quality, where the minor does not resemble the person in the fake ID or where the fake ID is from out-of-state or a foreign country and was not verified by the bouncer, bartender or server.
D. Service by a Social Host to a Minor.
As mentioned above, a social host can be liable for serving alcohol to an intoxicated adult who then causes injury to a third-person. But there is no social host liability where the intoxicated adult causes injury to himself. This rule applies even to adults below the legal drinking age, that is to persons between the ages of 18 and 21, who injure themselves while driving while intoxicated, for instance. Though it has not been specifically addressed by the courts yet, it appears that a social host would be liable under these circumstances if the drinking driver subsequently injured a third party.
Similarly, it has not yet been decided whether a social host is liable for serving alcohol to a minor, that is someone under the age of 18, who subsequently injures himself driving while intoxicated. But the trend in the case law suggests that there would be social host liability in that situation as well.
E. Liability for Injuries to the Intoxicated Person: Social Host.
A social host is not liable to an adult guest who becomes intoxicated and subsequently injures himself or herself.
F. Liability for Injuries to the Intoxicated Person: Licensed Establishment.
G.L. c. 231, § 85T provides as follows:
“In any action for personal injuries, property damage or consequential damages caused by or arising out of the negligent serving of alcohol to an intoxicated person by a licensee properly licensed under chapter one hundred and thirty-eight or by a person or entity serving alcohol as an incident of its business but for which no license is required, no such intoxicated person who causes injury to himself or herself, may maintain an action against the said licensee or person or entity in the absence of willful, wanton or reckless conduct on the part of the licensee or such person or entity.”
Thus, to recover for self-inflicted injuries while intoxicated, an adult patron must prove that the bar acted more than negligently. The plaintiff must prove at the very least that the bar recklessly disregarded the patron’s safety by furnishing additional alcohol. These are often difficult cases to prove to a jury.
The “willful, wanton, or reckless” standard under section 85T applies only to actions for personal injury, not to wrongful death actions. Therefore, in an action for wrongful death arising out of the serving of alcohol by a licensed establishment to an intoxicated patron who dies, only ordinary negligence need be proven in order to recover.
The statute does not preclude claims brought against a licensed establishment by minors (under 18 years) who drink and injure themselves. It is an open question whether adults under the legal drinking age (between 18 and 21 years) can recover against licensed establishments if they drink and injure themselves.
G. Proof of Intoxication at Time of Service of Alcohol.
In both dram shop and social host situations, proof is usually required that the defendant served alcohol at a time when the defendant knew or should have known that the drinker was intoxicated. Proof of intoxication at the time a drink was served by the defendant may be made by direct observation, inferences or by the use of expert witnesses.
1. By direct observation. A description of the drinker as exhibiting “loud and vulgar” behavior constitutes sufficient evidence of intoxication. So does a description of the drinker as “looking like he had a few” and “feeling pretty good.” The best evidence of intoxication is direct observation at the time the alcohol is served. The standard for direct observation does not require the drinker to be “falling down drunk.”
2. By inference from consumption. Evidence of intoxication can be gleaned by inference as to the number, type, size and strength of alcoholic drinks consumed. Evidence that a patron consumed six or more mixed vodka cocktails permits an inference of intoxication. As does evidence that a patron consumed a dozen beers and some shots of hard alcohol. The more difficult inferences arise in the “two or three” beer situations where a drinker may not be intoxicated.
The typical defense to the intoxication by inference proof is that it fails to account for the drinker’s size, weight, diet, health, metabolism, tolerance for alcohol and what he or she has consumed in the last 24 hours. These factors tend to complicate the analysis.
3. By inference from later behavior and appearance. It can be difficult to use evidence of someone’s behavior and appearance at some later time – after they left the bar – to show what their level of intoxication would have been at the bar when they were served their last drink. This evidence can be speculative especially where a lot of time has elapsed and the drinker consumed more alcohol after leaving the bar or social event.
4. Expert extrapolation from breathalyzer or blood alcohol test. Evidence of obvious intoxication at the time of last alcohol service can be derived from subsequently administered breathalyzer or blood alcohol tests under limited circumstances.
Expert toxicological analysis is almost always needed. The expert will perform a retrograde extrapolation analysis from a known blood alcohol level at an approximate time after the serving of the last drink. The expert will factor in the drinker’s weight, food consumption and general tolerance for alcohol and determine to within a reasonable degree of scientific certainty that at the time of the last drink, the drinker would have shown manifest outward signs of intoxication. In rendering such a conclusion, it is imperative for the toxicologist to rely on specific information concerning this particular drinker’s reaction to alcohol consumption, such as how many beers it usually takes to render him visibly intoxicated.
This type of evidence is best used at trial in supplement to more direct evidence of manifest intoxication. Alone, it can prove to be too slender of a reed upon which to rest the entire liability case.
H. What To Do.
Whenever a family member has been injured or killed as a result of excessive alcohol service, there are a few things that must be done immediately to protect their legal rights. Evidence must be preserved, witnesses identified, photographs taken and the right kind of legal counsel must be consulted. Whether a liquor liability claim is ever asserted is a question for down the road. For now, preliminary steps must first be taken in order to make an informed decision about the legal options.
1. Consult the right kind of legal counsel.
Liquor liability cases can be very serious and very complex matters. There are many pitfalls and traps for the unwary plaintiff’s attorney who is unskilled in this specific area of practice. Liquor liability cases should only be entrusted to skilled trial attorneys who exclusively represent plaintiffs and who have a successful track record with such claims. These are not cases for novices learning the ropes. And this is not the arena for even an experienced jack-of-all-trades lawyer like a general practitioner. You should only confer with an attorney who regularly handles high stakes liquor liability injury cases.
2. Preserve the evidence.
In any case, important evidence must be identified and preserved. If important evidence is lost, tampered with or altered in any way after an accident, there will likely be some negative consequence when it comes time to prove the case at trial. The preservation of evidence can be accomplished by placing the physical items in a safe, secure location until legal counsel can arrange for its storage. Numerous photographs should be taken and also passed along to counsel.
3. Identify witnesses.
It is also important to document the names and contact information for any witnesses. The witness list is not limited to those who actually saw or heard the injury occur. It also includes anyone who observed liquor service prior to the incident and anyone who learned about the details after-the-fact like such as family members, co-workers, emergency medical technicians, nurses or doctors.
MASSACHUSETTS CONSTRUCTION ACCIDENT LAW
Construction site accidents happen every day on all types of residential, commercial and industrial projects. Construction sites are inherently dangerous places with many moving parts and hidden hazards. Given the nature of construction work and site operations, an accident can result in serious, catastrophic and even fatal injury to a worker. For these reasons construction sites are highly regulated environments, subject to various government safety codes.
The United States Department of Labor, Occupational, Health & Safety Administration (“OSHA”), enacted a detailed set of “Safety and Health Regulations for Construction” devoted exclusively to construction site safety. OSHA investigates construction site accidents for the purpose of enforcing its safety regulations and for punishing those violate them. The Commonwealth of Massachusetts, like many states, has also enacted construction site safety codes in the State Building Code and the State Sanitary Code along with other miscellaneous sections of the Code of Massachusetts Regulations.
Some construction accidents are unavoidable and, fortunately, there is worker’s compensation insurance that will pay for some of the medical bills and some of the lost wages. For all of the good it does though, worker’s compensation is a flawed system that never fully compensates victims of avoidable negligence on construction sites. When the injury is caused by some third-party negligence – that is, by someone other than the employer – claims can be brought against those entities whether they are the general contractor, other sub-contractors, the project manager, the project owner, safety consultants, project engineers, site planners, architects, even suppliers of defective equipment, machinery or toxic or hazardous construction materials.
Construction site accidents frequently involve scaffolding and staging collapses, wall and roof collapses, falls through unprotected floor openings, falls off of unguarded elevations, exposure to hazardous waste or toxic chemicals, failure of fall protection equipment, the negligent use of motor vehicles, power tools, cranes, aerial lifts, bobcats, forklifts, front-end loaders or excavators, construction vehicle overturns from improper loading or unsafe terrain or from dropped loads, electrocution, elevator malfunction and a failure to adhere to worker safety regulations.
Massachusetts construction accident law is a unique and complex subset of general negligence and personal injury law. Many of those general negligence that I have discussed in prior blogs are applicable. There are a few major areas though where construction accident cases are different from others. First, the standards of acceptable conduct on a job site are almost always governed by safety statutes, regulations and contractual provisions, rather than the common law. Second, construction cases almost always involve multiple defendants including the general contractor and any responsible subcontractors. This complicates things and inevitably increases the amount of finger-pointing. Third, aside from rare injuries to innocent bystanders, all construction cases involve an injury to a job site worker who must file a worker’s compensation claim through his or her employer’s insurance company. Last, discovery is always harder in construction cases than in other negligence cases. Construction workers justifiably worry about adverse impact on their job status if they cooperate or if their company is found at fault for an injury. As a result, construction accident witnesses are generally less cooperative with the legal process. In short, construction claims involve more difficult issues of fact and more complicated issues of law than your average personal injury claim.
Superimposed on these issues for the plaintiff’s attorney is the fact that construction site accidents usually involve life-altering personal injuries, unfortunately some catastrophic and others fatal. Accordingly, the stakes are exceedingly high for an injured worker and his or her family.
A. The Duty of Care on a Construction Site.
Establishing liability for a construction site accident is a complex endeavor. Every case is unique and poses its own issues. One of the fundamental challenges is to identify the parties responsible for an accident and then establish the factual basis for a legal of duty on their part.
1. Safety statutes and regulations.
Safety on a construction site starts at the top with the general contractor for the project. The general contractor has a “non-delegable” duty to provide a safe job-site and to adhere to both the federal and state construction safety regulations. By non-delegable, we mean that a defendant general contractor cannot contract away its safety duties on a job site to some other entity like a sub-contractor or a safety consultant. For this reason, general contractors are almost always named as defendants in construction cases. The only exception would be where the plaintiff was employed by the general contractor. In that case, the worker would be barred from suing his employer pursuant to the exclusivity provision of the Workers Compensation Act, also known as the worker’s compensation bar.
Potential co-defendants include sub-contractors, the project manager, the project owner, safety consultants, project engineers, site planners, architects, even suppliers of defective equipment, machinery or toxic or hazardous construction materials – in essence, anyone whose failure to comply with applicable safety regulations contributed to cause the accident and injury.
Federal and state construction safety regulations were designed to create safer job sites. These safety regulations provide a basis for establishing legal responsibility against anyone who fails to comply with them.
For a sense of how comprehensive the OSHA construction regulations are, below are listed the general categories that they cover. Bear in mind that each category has dozens of subparts that define the minimum standards for compliance. A complete set of these regulations can be found at www.osha.gov. OSHA construction standards impose detailed rules for the following:
- Job-site safety training and education
- Documenting and reporting injuries
- First aid training
- Fire protection and prevention
- Debris removal and housekeeping
- Personal protective equipment (foot, head, hearing, eye and face, respiratory, safety belts, lifelines, lanyards and safety nets)
- Radiation protection
- Gases, vapors, fumes, dusts
- Toxic and hazardous chemical handling (including asbestos, coal tar pitch, carcinogens, naphthylamine, methyl chloromethyl ether, dichlorobenzidine, 4-Aminodiphenyl, ethyleneimine, beta-Propiolactone, benzidine, acetylaminoflourene, dimethylaminoazobenzene, nitrosodimethylamine, vinyl chloride, arsenic, chromium, cadmium, benzene, coke oven emissions, acrylonitrile, ethylene oxide, formaldehyde, methylene chloride, lead and methylenedianiline)
- Toxic and hazardous waste handling
- Signage, signals and barricades
- Tools (including hand tools, power tools, woodworking tools, jacks, levers, ratchet, screw and hydraulic tools, mechanical power transmission tools)
- Welding and cutting
- Electrical (including wiring design, methods, components, equipment, installation and lock-out/tag-out of circuits)
- Scaffolds and climbing platforms
- Fall protection and guard-rails
- Cranes and derricks
- Material hoists, personnel hoists and elevators
- Base mounted drum hoists
- Overhead hoists
- Aerial lifts
- Motor vehicles
- Mechanized equipment and pile driving
- Marine operations
- Concrete and masonry construction
- Steel erection
- Underground construction, caissons and cofferdams
- Blasting and use of explosives
- Power transmission
- Rollover protection and overhead protection for tractors, scrapers, loaders, dozers and graders
Massachusetts also has enacted a comprehensive set of similar regulations in the State Building Code and State Sanitary Code. The violations of these state codes can also provide a basis for establishing liability.
Invariably if an accident and serious injury occurs on a construction site, there will probably be some safety regulation that is implicated. The goal is to ascertain what regulation was violated and which parties were responsible.
In order to properly utilize construction safety codes in a legal claim, it is important to determine which relevant edition applies. The various federal and state codes are continually revised and updated to fill in any gaps, clarify any topics and generally to make them more rigorous. As a general rule, the applicable code is the code in effect when the building or structure was constructed. If the work complied with the code at the time of construction, it is “grandfathered” with respect to subsequently enacted codes. There are of course exceptions like where the performance of certain subsequent work removes or limits the grandfather protection. In addition, certain elements of buildings and structures may be deemed so crucial to safety that they must be kept current with the latest codes.
Construction safety codes establish only minimal standards of conduct. The parties are free to contractually agree to heighten (but not lower) the standard of care, and they often do.
2. Contract documents.
Almost every construction project is undertaken pursuant to at least one written contract. Large projects will typically involve multiple contracts between the owner and the general contractor, the general and the sub-contractors, and even between sub-contractors and sub-sub-contractors. These construction contracts frequently impose standards of care that exceed the standards set forth in the applicable safety regulations. This happens because, from the top down, each contractor wants to impose stricter safety requirements on sub-contractors since they are closest to the actual work. Thus, it is quite possible for a contractor to breach a contractual safety provision without violating the federal or state regulations. A violation of a contractual safety provision can be used to prove that the violator was negligent since it agreed to live up to a certain standard but failed.
The process of determining what contract governs a particular hazard or accident requires sifting through a complicated maze of documents. It is customary in Massachusetts for contracts between parties to incorporate by reference other sets of contract documents that then become binding on the parties to the first contract.
3. Job-site documents.
Job-site documents include various types of written project materials such as building and site design plans and specifications, safety booklets, weekly tool-box or job-site meeting minutes, daily logs and attendance sheets and progress photographs.
The plans and specifications are usually referenced in or attached to the contract documents. If so, they can inform a contractor’s legal duties the violation of which might provide a basis for establishing liability. The plans and specifications often contain safety obligations as well as construction details.
Safety booklets can also establish a standard of care that in many instances exceeds that established by statute or regulation. Safety booklets routinely contain statements proclaiming the contractor’s commitment to safety with specific examples. The company’s actual practices in the field might differ drastically. This difference may enable the plaintiff to argue that the company is not following its own self-established safety standards. Such evidence can be very persuasive at trial. If the company felt a safety point was important enough to crow about in its safety booklet, the company should have ensured that the safety point was followed on the job site.
Weekly tool-box or job-site meeting minutes also can help in establishing liability. Such minutes may reveal, for example, an ongoing problem with a hazardous condition on the site that was not timely addressed and that led to the plaintiff’s injury. These records will also show what safety topics were discussed at various stages of the project and may identify potential witnesses.
Daily logs and attendance sheets identify each trade as well as the number of workers from each trade on the job each day. These documents are very helpful in refuting arguments that workers from particular trades could not have created the hazard resulting in the incident. Daily logs also provide a snapshot of the conditions on the job site at regular intervals. They can shed light on issues such as whether a particular contract had assigned enough laborers to clean up a debris riddled area in a timely manner.
4. Strict liability.
Under certain circumstances, Massachusetts law imposes strict liability for injuries arising from the failure to comply with the Massachusetts State Building Code. However, the circumstances under which such liability can be established can be unclear.
The statute in question, G.L. c. 143, § 51 provides as follows:
“The owner, lessee, mortgagee in possession or occupant, being the party in control, of a place of assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment or building shall comply with the provisions of… the state building code relative thereto, and such person shall be liable to any person injured for all damages caused by a violation of any of said provisions.”
While on its face the statute appears to impose broad liability, this is not the case in practice. The statute’s application has been significantly restricted by the courts due to a very narrow definition they have assigned to the word “building” as that word is used in the statute. The courts have ruled in different cases that the statute does not apply to single-family homes, to an owner-occupied, two-family home in which the owner rents one unit to a tenant, or to three-family homes whether owner-occupied or not and certain condominiums.
Perhaps the most significant restriction on the statute, however, is the set of facts that must exist to trigger its application. The courts appear to be in some disagreement regarding this point. Suffice it say that there is still a lot of confusion on this point and the area remains unsettled.
Everyone involved in the day-to-day operations of a construction sites is aware of the inherent dangers of such work. Construction workers receive formal training and informal on-the-job training on best safety practices and how to avoid accidents. For that reason, construction accident cases almost always involve the defenses of comparative negligence and the “open and obvious” danger rule.
1. Comparative negligence.
Comparative negligence is when the injured worker was also negligent to some degree in causing the accident. The comparative negligence statute bars recovery in any negligence claim where the plaintiff was more than 50% at fault. The statute will also reduce any recovery by the percentage of the plaintiff’s fault that is 50% or less. Thus, the comparative negligence defense can present a serious impediment to an injured worker’s legal claim.
Any comparative negligence analysis will probe into the plaintiff’s construction background. It will focus on what the plaintiff knew about a particular potential hazard and when he knew it. Relevant topics include any formal pre-incident training such as vocational training, employer-run training sessions, union classes and even government-sponsored training like OSHA safety courses. Indeed, smart contractors will not even let subcontractors onto a jobsite until they undergo specialized safety training. For example, if a demolition sub-contractor is likely to encounter asbestos, the contractor will require the demolition teams to be specially certified for such work.
A plaintiff’s informal on-the-job training will also inform what he knew about the hazard and, perhaps, whether he acted reasonably at the time of the accident. A plaintiff’s attendance at weekly tool-box or job-site meetings can also evidence his pre-accident understanding and appreciation of a particular work hazard. A plaintiff’s personal work experience and history in the various construction trades is also relevant. This is especially true for the more experienced workers who may have at one time or another served as a safety steward or foreman. Such position reflects the worker’s experience and competence but also his superior ability and track records of avoiding the hazard associated with the accident.
2. “Open and obvious” danger rule.
A project owner or general contractor owes all site workers a duty to maintain the project site in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. This includes a duty to warn of any unreasonable dangers of which the defendant is aware or reasonably should be aware.
In general negligence cases, the courts have carved out a common law exception to this duty of care called the “open and obvious” danger rule. According to the rule, no duty is owed to anyone as to dangers that are open and obvious to a person of average intelligence with ordinary perception and judgment who is exercising reasonable care for his or her own safety. The rule requires an objective assessment by the court of the circumstances and whether a warning would be necessary to apprise a person of average intelligence of a particular risk. Here is the rub, though. The application of the open and obvious rule is determined by the court as a matter of law sometime before trial. If the trial judge thinks that the rule applies, then the case will be dismissed and never even make it to trial before a jury.
Though defense counsel will argue for it, the rule’s application to construction accident cases is in doubt. If permitted, this rule would have the effect of narrowing if not abrogating the legal duties established by the federal and state safety regulations in OSHA regulations and in the State Building Code and State Sanitary Code. If the rule were applied, a general contractor would have no obligation – despite the existence of specific safety regulations – to install perimeter cables or safety nets, barricade floor openings or erect handrails so long as the dangers created by their absence were open and obvious to the reasonable construction worker. And unlike the usual “open and obvious” danger that we see in other property negligence cases, in construction cases many times the injury worker does not have a real choice not to interact with a known hazard. It may simply be an unavoidable part of the job to confront open and obvious dangers. This illogical type of outcome has raised serious questions about whether the open and obvious rule applies in construction cases.
C. Worker’s Compensation Insurance.
Worker’s compensation law is world unto itself. Most trial lawyers who handle the so-called “third-party” construction site liability claims do not venture into that world. Nevertheless worker’s compensation affects the third-party claim in three substantial ways.
The Worker’s Compensation Act is a statute enacted by the Legislature to provide a no-fault system wherein injured workers are covered by the employer’s insurance for most of the medical expenses and lost wages while they are recuperating. To qualify, the injured worker must have been an “employee” injured “in the course of his employment”.
In exchange for receiving this benefit, the injured worker is barred from seeking any other legal redress from the employer beyond the context of a worker’s compensation claim. In other words, an employee cannot sue the employer for damages in a civil action. This is the exclusivity rule contained in the Worker’s Compensation Act. Worker’s compensation is not a perfect system, but it helps those in need and it is better than nothing.
Because the exclusivity provision bars lawsuits against employers, injured workers often pursue additional avenues for recovery against responsible third-parties since their worker’s compensation benefits usually fall far short of full reimbursement for the impact of an injury. In construction cases, this usually involves the general contractor and other sub-contractors or business entities responsible for the particular hazard or for causing the accident.
2. The Department of Industrial Accidents.
Many worker’s compensation claims are disputed by the insurance company. Either they argue that the worker was not injured in the manner he says he was or they argue that the injury is not as severe as the worker says it is. The result is that the dispute is litigated in the Department of Industrial Accidents between the injured worker’s lawyer and the lawyer for the insurance company, and an administrative judge will review all of the evidence and make a decision.
What happens in the DIA can impact a third-party case against other entities. Statements made by the injured worker, witnesses called to testify and medical examinations conducted can all affect the viability of a third-party case.
For these reasons, it is important at the outset of any worker’s compensation claim to consider third-party claims and to consult with a trial attorney so he or she can coordinate strategy with the worker’s compensation lawyer.
3. Worker’s compensation liens.
When an employee suffers a work-place personal injury he will often file a worker’s compensation claim for benefits that pay the medical bills and reimburse the employee for a percentage of lost wages from time missed from work. If the injury was caused by some third-party (not the employer), like another contractor on a job site or from a defective product used on the site, the employee can bring a personal injury claim against that third-party for damages. If the third-party claim results in a recovery, the worker’s compensation paying insurer will be entitled to reimbursement of a proportionate share of the monies it paid out. The remaining excess amount collected by the employee is treated as an offset against future compensation payments for ongoing medical treatment or disability arising from the same accident.
The settlement of a worker’s compensation lien in a third-party action requires court approval to make sure that the allocation is fair to all interested parties. Since loss of consortium claims are not subject to a worker’s compensation lien, disputes can arise when the plaintiff-employee tries to allocate a significant portion of the third-party settlement to his spouse.
D. Videotape Surveillance.
Injured construction workers that file worker’s compensation claims or third-party tort claims against non-employer defendants can safely assume they will be followed by a videotape surveillance crew looking for some “gotcha” footage. The film crew will try to capture the injured worker performing some physical act which they said they could not perform during the period of recuperation or convalescence.
Insurers and defense counsel often have surveillance film taken just before the plaintiff is deposed. A plaintiff who has been observed performing an activity inconsistent with the injury claim will be asked during the deposition what activities he or she can and cannot perform. It is always a mistake to lie about or exaggerate the nature and extent of one’s injuries. This usually spells doom for a case since judges and juries have little patience or sympathy for such conduct.
Indemnification provisions in construction contracts allow one party to transfer its liabilities to another party. General contractors, with their inherent power in the construction hierarchy, have in the past tried to shift all liability to their subcontractors even when the subcontractors did not cause the incident. This practice was not only unfair to non-culpable subcontractors, but it also allowed those in the best position to establish site-wide safety to delegate their safety obligations in violation of federal and state regulations. Thus, in its wisdom, the Legislature passed G.L. c. 149, § 29C to address this situation. The statute permits the use of indemnification provisions but only if they cannot be read to require one party to obtain indemnification from another party who is not a “cause” of the incident.
F. What To Do.
Whenever someone has been seriously injured or killed as a result of some negligent act or omission on a construction site, there are a few things that must be done immediately to protect the person’s legal rights. Evidence must be preserved, witnesses identified, photographs taken and the right kind of legal counsel must be consulted. Whether a legal claim is ever asserted or a lawsuit filed is a question for down the road. For now, preliminary steps must first be taken in order to make an informed decision about one’s legal options.
1. Consult with an expert plaintiff’s trial lawyer.
Seemingly simple negligence claims can turn out to be quite complex and riddled with pitfalls. Large insurance companies have deeply vested economic interests in defending their insureds from liability. They hire only the most experienced defense firms that fight tooth and nail to avoid responsibility. Construction injury cases should only be entrusted to skilled trial attorneys who exclusively represent plaintiffs and who have a successful track record with those kinds of claims. These are not cases for novices learning the ropes. And this is not the arena for a jack-of-all-trades lawyer like a general practitioner. You should only confer with an attorney who regularly handles high stakes negligence cases.
For workers unfortunate enough to suffer a life-altering injury, their misfortune can be compounded by selecting the wrong attorney. The major mistake people make is to contact the first personal injury law office they come across, whether it’s on television or on a billboard or the one with the big sign on the main street in town. Those types of law firms generally handle a high volume of small cases that get “processed” by non-legal staff with little attention by the attorney. Though these attorneys may advertise themselves as expert trial lawyers, chances are they are not. In reality, they will simply refer your case to other attorneys in exchange for a referral fee. Avoid this mistake and cut out the middle man by doing some research and finding the right king of legal counsel the first time around. This will make all the difference for your case.
2. Preserve any evidence.
In construction injury cases, any evidence of the incident, its cause and/or the injurious results must be identified and preserved.
3. Identify witnesses.
It is also important to document the names and contact information for any witnesses to a construction site injury or to the conditions that caused it. The witness list is not limited to those who actually saw or heard the accident occur. It also includes anyone learned about the accident’s details after-the-fact like such as family members, co-workers, emergency medical technicians, nurses or doctors.
MASSACHUSETTS MEDICAL MALPRACTICE LAW
Medical malpractice is the leading cause of accidental death in the United States. A staggering 98,000 patients die from preventable medical errors each year. And according to the federal Centers for Disease Control and Prevention, another 99,000 patients succumb to hospital-acquired infections every year. Almost all of those 200,000 deaths are considered preventable. And when we consider the underreporting of medical errors, this number is really just the tip of the iceberg.
The aim of medical malpractice law is justice for victims of preventable medical error. At its core, medical malpractice is just like any other negligence claim. When a patient engages a physician to provide medical care, that physician owes a legal duty to take reasonable steps to conform to a certain medical standard of care. The duty owed is that which the medical community in that specialty considers to be the minimum baseline standard for a reasonable physician. If the physician deviates from or breaches that standard and causes injury to patient, the physician can be held legally responsible for monetary damages caused by the breach.
By and large, Massachusetts law favors physician-defendants in medical-legal cases. They are given unique legal rights, at the expense of plaintiff-patients, that are unheard of anywhere else in Massachusetts personal injury law.
A. Medical Mapractice: The Real Problem.
Preventable medical error is a national health problem. Ironically, the major obstacle to solving the problem is the medical malpractice insurance industry and medical group lobbyists. Loath to acknowledge the wide scope of this problem, the medical community lobbies against a national mandatory reporting system for preventable hospital deaths and medical errors. Such a system would allow for a unified national strategy to address recurring preventable health issues, like surgical infection, undetected cancer, bowel perforation, or missed spine fractures. Physician’s groups jealously guard their professional discretion and often refuse to admit an error even when staring the problem in the face. Thus the depth of the medical malpractice problem in the United States remains shrouded in secrecy.
This attitude displays itself all too often when a loved one is lost or permanently injured during a medical procedure and the family starts to ask questions. Rather than honesty and candidness, the physician and hospital tend to circle the wagons. Their default mode is risk management, not accountability. When this “cover your rear” mentality creeps into the medical records – which are supposed to be objective statements of the patient’s course of medical treatment – then we can appreciate the extremes that a medical provider and the insurers will go to avoid responsibility for a medical error.
Every licensed physician, medical practice group and hospital carries medical liability insurance that covers the costs of hiring defense counsel and paying any judgment or settlement for a medical error. These privately owned insurance companies are interested in one thing: turning a profit. They do not care about the quality of medical care. They do not care about patients or their families. The insurers care only about money, making it by charging premiums and by denying claims involving clear medical neglect.
The supposed medical malpractice “crisis” is a public relations myth of epic proportion created by the insurance industry to improve its bottom line. The only “crisis” is that the insurance industry has been permitted to game the justice system for so long. Every American citizen and potential juror should be outraged at the way victims of medical negligence are treated. Everyone should know that the primary interests being defended in medical malpractice cases are those of a hidden insurance company. The fact of the matter is that legal fees, insurance costs, and payouts, i.e., the cost of medical malpractice lawsuits, accounts for less than one-half of 1 percent of health-care spending.
B. The Legal Duty of Massachusetts Physicians.
In theory, the provision of medical services in Massachusetts is like any other business transaction. Each side is free to select the doctor and patient of their choosing, so physicians do not have a duty to provide medical treatment to any patient that requests it. In reality, physicians rarely decline an opportunity to treat a specific patient, though the patient may have to wait for an appointment. More often, when a physician’s practice gets too busy, he or she will simply stop accepting new patients
There are some legal limits to a physician’s ability to reject a patient. For example, physicians participating in Medicaid or MassHealth programs are limited in who they can reject. As are physicians affiliated or employed with any free care entity or a charitable not-for-profit organization. Emergency physicians who are on call and competent and available to examine emergency room patients must do so under the federal Emergency Medical Treatment and Active Labor Act.
Most hospitals and medical care facilities also have their own internal policies that define a staff physician’s duty to provide medical treatment.
Once medical care has begun, however, physicians are generally under a duty to continue providing care until the provider-patient relationship is discontinued in accordance with the law.
Once a physician has undertaken the care of a patient, the physician must exercise care to be available for patients at all times or to make arrangements to have another professional available for his or her patient’s needs. Patient abandonment is the unilateral severance by a physician of the professional relationship between himself and the patient without reasonable notice at a time when there is still the necessity of continuing attention. The tort of patient abandonment is recognized under Massachusetts common law and can be brought against Massachusetts health care professionals.
The Massachusetts Board of Registration in Medicine has disciplined physicians for not adequately providing for a covering physician.
A physician may terminate a relationship with a patient only by giving notice to the patient sufficient to permit the patient to secure alternative medical care.
C. Informed Consent.
The doctrine of informed consent is rooted in the right of every person to be free from undesired physical contact. Informed consent has two components. First, a person’s right to bodily integrity includes the right not to receive medical care unless consent is given. Second, true consent cannot be given unless the patient is given all relevant information and has an opportunity to evaluate the risks involved before making a decision as to whether to receive treatment or not.
Every physician in Massachusetts has a duty to disclose to each patient all significant medical information that the physician possesses or reasonably should possess that is material to allow the patient to make an informed and intelligent decision whether to undergo a proposed procedure.
The duty to obtain informed consent before treating a patient is subject to an “emergency” exception when consent could not be obtained without seriously jeopardizing the patient’s life, or to prevent suicide or to protect innocent third parties from danger posed by the patient. Emergency situations include when the patient is unresponsive, incoherent, incompetent or unable to communicate and requires immediate medical care. Others would be where the patient is acutely suicidal or homicidal or poses an immediate threat to hospital staff, and requires sedation, restraint or other medical treatment. The emergency exception can be invoked though only if it is impractical to obtain the consent of the patient’s surrogate decision maker, assuming there is one and they are identifiable.
Treatment without informed consent constitutes a battery, which is defined as an intentional, unpermitted contact with another person. That the physician’s motive may have been in the best interest of the patient is irrelevant, as is the fact that the treatment may have been appropriate and even helpful to the patient.
Medical negligence is what we commonly refer to as medical malpractice. Physicians are subject to liability for medical negligence in much the same way as any other tortfeasor, though the proof is much more complex than in a regular negligence case. A plaintiff-patient must establish the following:
The “duty” element will be deemed established where a patient-physician relationship exists between the plaintiff and defendant at the time of the alleged negligence. This element is rarely challenged in claims brought by patients against their physicians. Challenges to the “duty” element arise when the plaintiff is a third-party injured as a result of a physician’s negligent care of a patient.
The physician’s legal duty is defined as that standard of care and skill of the average qualified practitioner in that field of practice, taking into account the advances in the profession. The nature and scope of a particular standard of care and whether it was breached are usually the major factual issues in a medical malpractice case. In other words, the parties disagree as to what the physician was supposed to do and whether his acts or omissions deviated from that standard of care
Here is simple example of a medical malpractice dispute. Assume that a patient presents via ambulance to an emergency room in a cervical collar following a motor vehicle collision. The patient complains of neck pain and tingling in his fingers. The attending ER physician orders an x-ray which shows no evidence of fracture. The patient is later discharged home with pain medication and instructed to see an orthopedic specialist for follow up care. That night, while rolling over in his sleep, the patient feels an electrical shock run through his neck and spine and is rendered paralyzed from the chest down for the rest of his life. The plaintiff, through medical experts, will argue that the defendant physician failed to diagnose a neck fracture. The plaintiff will argue that the standard of care in emergency medicine required the attending ER physician to order a spine CT instead of a poorly visualized x-ray given the plaintiff’s presenting condition. The plaintiff will argue that the spine CT would have disclosed the presence of a fracture. The plaintiff will argue that standard of care was breached by the physician’s failure to order a CT scan and subsequent discharge without any spine precautions. The defendant, through medical experts, will argue that the standard of care did not require him to perform a CT scan and may even argue that the spine fracture was not caused by any failure to diagnose. In an effort to prove who is right, both sides will rely on the education, training and experience of their respective experts along with any relevant authoritative medical textbooks or articles in the specialty.
Every medical malpractice action is reviewed by a tribunal consisting of a judge, a physician and a lawyer to determine whether “the evidence presented if properly substantiated is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff’s case is merely an unfortunate medical result.” If the panel finds in favor of the patient-plaintiff, the case may proceed without a bond. If the panel finds against the patient-plaintiff, he or she must post a $6,000 bond to cover the payment of the defendant’s costs if the patient is unsuccessful at trial.
F. Medical Expert Witnesses.
It is almost always necessary to present the court with expert opinion testimony as to what the applicable standard of care was and whether it was breached. Expert testimony is usually needed on the issue of causation as well.
Ideally, the expert will be board certified in the same field or specialty as the defendant so that his or her opinion will be competent and well founded.
One of the dirty secrets in medical malpractice is that plaintiffs must go outside of Massachusetts to find medical experts. Massachusetts physicians are strongly discouraged from testifying for plaintiffs by the powerful medical malpractice insurance companies.
G. Indirect Liability.
In modern medical practice, a variety of services are performed indirectly by skilled physicians who never encounter the patient directly. Prime examples would be a radiologist that interprets an MRI or a pathologist that analyzes a tissue biopsy. Such non-“treating” physicians still owe a duty to conform to the appropriate standard of medical care in performing their medical service.
H. Vicarious Liability.
In the landmark decision in Dias v. Brigham Medical Associates, the Massachusetts Supreme Judicial Court concluded that the traditional negligence principle of vicarious liability applies to the employer of a negligent physician. To establish such liability, it is not necessary that the employer have the right or ability to control the specific treatment decisions of a physician-employee. To prevail against an employer, a plaintiff need only establish that at the time of the alleged negligence, the physician was an employee and the alleged negligent treatment of the plaintiff occurred within the scope of the physician’s employment. Once employment is established, the only remaining issue is whether the physician was working for the employer at the time of the alleged negligent treatment, i.e., whether his or her treatment of the plaintiff was within the scope of his or her employment.
I. Spoliation of Evidence.
Physicians and hospitals have professional and legal duties to document medical care and treatment and to preserve those medical records, films, slides and other items. If a hospital or physician loses or, worse, destroys a portion of the medical record critical to the proof of the plaintiff’s case, the court can impose sanctions and remedies for the destruction of evidence in civil litigation. Those sanctions can include instructing the jury that it can consider the loss or destruction as evidence of negligence or of consciousness of fault. The court can also preclude a defendant from calling an expert witness on the issue or even enter default against the defendant though that is rare. A party who has negligently or intentionally lost or destroyed evidence known to be relevant for an upcoming legal proceeding should be held accountable for any unfair prejudice that results.
J. Statute of Limitations.
In Massachusetts, any medical malpractice action for injury or death must be brought within three years after the cause of action accrues. Under the so-called discovery rule, however, the three-year limitations period does not begin to accrue until the patient knows, or reasonably should have known, that he or she was injured and that the injury was due to the conduct of a physician or other health care provider.
The statute of limitations is also tolled during a claimant’s period of disability.
There is a statute of repose that is not subject to any tolling or discovery rule. It bars any medical malpractice action if brought more than seven years after the act or omission that gave rise to the cause of action (except in a “foreign object left in the body” case).
Medical malpractice claims by minors are subject to both a statute of limitations (three years from the date the cause of action accrues, or until age nine for minors who are less than six years of age at the time the cause of action accrues) and a statute of repose (seven years from the date of the act or omission that caused the injury).
K. Comparative Negligence.
Comparative negligence by a plaintiff in a medical malpractice case pertains to patient negligence during the treatment period. In Massachusetts, patients can be found comparatively negligent only for their negligent conduct that occurs after the patient-physician relationship began. Examples include not following medical instructions, refusal to take medication, self-discharge against doctor’s advice, and the like.
Any pre-treatment conditions or injuries that gave rise to the need for medical treatment cannot be a basis for comparative fault in a medical negligence claim arising out of the circumstances of the medical care. In other words, a patient’s comparative negligence can arise only after a patient-physician relationship has been established.
Under this doctrine, a patient’s claim will be barred if his or her negligence exceeds the combined negligence of all defendants. Otherwise, the patient’s recovery will be diminished in proportion to his or her degree of negligence.
In a Massachusetts medical malpractice case, the jury is instructed that if it finds the defendant liable, it is not to award the plaintiff more than $500,000 for pain and suffering, loss of companionship, embarrassment, and other items of general damages, unless it determines that there is a substantial or permanent loss or impairment of a bodily function or substantial disfigurement, or other special circumstances in the case that warrant a finding that the imposition of such a limitation would deprive the plaintiff of just compensation for the injuries sustained. Because this standard can often be met, the cap has not been terribly effective in diminishing pain and suffering jury awards against Massachusetts physicians.
N. “Good Samaritan” Statutes.
In Massachusetts, there are “good Samaritan” laws that provide immunity from civil liability to licensed professionals, including physicians, who voluntarily come to the rescue of a person in an emergency.
General Laws c. 112, § 12B shields a physician from liability as a result of his or her acts or omissions when that physician, in good faith, as a volunteer and without fee, renders emergency care or treatment, other than in the ordinary course of his or her practice.
General Laws c. 112, § 12C shields a physician from liability in a civil suit for damages as a result of any act or omission on his or her part in carrying out his or her duties of administering immunization or other protective programs under public health programs.
General Laws c. 112, §§ 12C and 12F shield a physician from liability in a civil suit for damages as a result of any failure to obtain the consent of a parent, legal guardian, or other person having custody or control of a minor child, or of the spouse of a patient, to emergency examination and treatment of the minor, including blood transfusions, when delay in treatment will endanger the life, limb, or mental well-being of the patient, or if at the time such care was rendered, the physician relied in good faith on the representations of such minor that he or she was legally able to consent to such treatment, or relied in good faith on the representations of such minor that he or she was over eighteen years of age.
General Laws c. 112, § 12V shields from liability in a civil suit for damages a physician or other person properly trained in cardiopulmonary resuscitation, the use of semiautomatic or automatic external defibrillators, or in basic cardiac life support, who in good faith and without compensation renders emergency cardiopulmonary resuscitation or defibrillation in accordance with his or her training, other than in the course of his or her regular professional or business activity, to any person who apparently requires cardiopulmonary resuscitation or defibrillation, except for gross negligence or willful or wanton misconduct resulting from the rendering of such emergency cardiopulmonary resuscitation or defibrillation.