Negligence

Court Discusses Independent Medical Examinations in Massachusetts Cases

April 6, 2022 | by John C. Manoog III

People who are hurt due to the negligence of others can often recover damages in civil lawsuits. While some harm is abundantly clear, other injuries are less obvious. As such, it is not uncommon for a defendant to request that a plaintiff undergo an independent medical examination. While such examinations are permitted under Massachusetts Rule of Civil Procedure 35, only certain parties are authorized to conduct them. In a recent opinion, a Massachusetts court analyzed whether neuropsychologists are among those authorized to conduct such examinations. If you were injured in an accident caused by another party’s carelessness, you have the right to seek compensation, and you should meet with a Cape Cod personal injury attorney as soon as possible.

The Plaintiff’s Harm

Allegedly, the plaintiff worked on a construction site where the defendant acted as the general contractor. He was involved in a catastrophic accident that caused him to suffer significant cognitive and physical injuries. His conservators then filed a lawsuit against the defendant, alleging its negligence caused the plaintiff’s harm.

It is reported that during discovery, the plaintiff produced an opinion from a neuropsychologist outlining his cognitive harm. After reviewing the opinion and the plaintiff’s medical records, the defendant disputed the extent of the plaintiff’s injuries and moved to have him undergo an examination with a neuropsychologist pursuant to Rule 35. The plaintiff objected, arguing that an examination with a neuropsychologist was not permitted under Rule 35, as neuropsychologists are not doctors. The trial court granted the defendant’s motion, and the plaintiff appealed. Continue Reading ›

Massachusetts Court Explains the Factors Weighed in Conducting a Choice of Law Analysis

March 14, 2022 | by John C. Manoog III

Subject to certain parameters, people generally have the right to pursue claims in the forum of their choosing. If a party files a personal injury lawsuit in Massachusetts for harm that occurred in another state, though, it may not immediately be evident which state’s laws apply, and the court will have to make a determination. Recently, a Massachusetts court discussed the factors weighed in conducting a choice of law analysis in a matter arising from an accident that occurred in Rhode Island. If you were hurt due to another party’s carelessness, you could be owed compensation, and you should meet with a Cape Cod personal injury attorney to assess your options.

The Plaintiff’s Harm

It is reported that the plaintiff, a resident of Massachusetts, was working on a construction site in Rhode Island when a piece of machinery crushed his leg. He subsequently filed a lawsuit against the defendant in Massachusetts court, arguing that his harm arose from the negligent supervision. The matter proceeded to trial, and the jury found that the plaintiff was 65% at fault while the defendant was 35% at fault and that Rhode Island’s comparative negligence law applied. The parties all appealed.

Factors Weighed in Conducting a Choice of Law Analysis

On appeal, the court addressed the issue of which state’s law applied. In resolving questions regarding conflict of laws, the courts apply the conflict of laws rules of Massachusetts to determine which state’s laws apply. First, the court must assess whether the choice between the laws of the jurisdictions in question will impact the outcome of the case. Next, the court will determine whether the issue is substantive or procedural. Continue Reading ›

Court Explains Immunity Under the Massachusetts Tort Claims Act

June 26, 2021 | by John C. Manoog III

People often volunteer in their communities. Unfortunately, during the act of performing good deeds, some people suffer injuries due to the negligence of others. While they can pursue claims for their losses, their ability to recover from their towns may be limited by Massachusetts law, as discussed in a recent opinion. If you were hurt because of another party’s negligence, it is smart to speak to a skillful Cape Cod personal injury attorney about your possible claims.

The Plaintiff’s Harm

Reportedly, in 2014, the plaintiff worked as a volunteer for the band parent organization (BPO) for the defendant town’s high school band. He was sitting in the driver’s seat of a golf cart that was located in the back of the truck to assist with the process of unloading the truck. The golf cart fell from the truck, causing the plaintiff to suffer a traumatic brain injury. He subsequently filed a lawsuit against the defendant as well as the co-presidents of the BPO, arguing their negligence caused him to suffer harm.

It is alleged that the defendants moved for dismissal via summary judgment, arguing the plaintiff’s claims were barred by the Massachusetts Tort Claims Act (MTCA). The court ruled in favor of the defendants, and the plaintiff appealed. Continue Reading ›

Massachusetts Court Discusses Causation in Medical Malpractice Cases

June 12, 2021 | by John C. Manoog III

People anticipate that doctors, nurses, and other health care providers will provide competent treatment. Unfortunately, not all medical professionals employ sound reasoninn when caring for patients, and their inattentiveness can lead to substantial injuries. People who have been harmed by medical negligence may be able to obtain damages if they can prove their providers departed from the standard of care and that this deviation resulted in their harm. Recently, a Massachusetts court issued an opinion in which it explained what evidence a plaintiff in a medical malpractice case must produce to prove causation. If you were injured by negligent medical care, it is smart to speak to a knowledgeable Cape Cod medical malpractice attorney about your potential claims.

The Alleged Harm

Allegedly, the defendants treated the decedent for perimenopause symptoms. She was given a topical hormone gel, but she was not told about the dangers of using it. The defendant nurse admitted that she did not inform the decedent that the gel increased the danger of blood clots because she did not feel it was a significant risk. Three years after she began using the gel, the decedent began to experience shortness of breath, and she was diagnosed with pulmonary hypertension and pulmonary embolisms. She underwent surgery and took medication to address her embolisms, but neither treatment was successful.

It is reported that four years later, at the age of 43, the decedent died due to blood clots in her lungs. Prior to her death, she filed a medical malpractice claim against the defendants, which the plaintiff, her husband, pursued after her death. The matter ultimately went to trial, and the jury found in favor of the defendants on the grounds that there was inadequate evidence that the defendants’ negligence caused the decedent’s harm. The plaintiff then appealed. Continue Reading ›

Massachusetts Woman’s Claim Against Governmental Entity Fails Due to Lack of Timely Notice

May 14, 2021 | by John C. Manoog III

In some types of Massachusetts negligence cases, there are special requirements in addition to the usual steps for filing suit against the allegedly responsible party. For instance, a Cape Cod premises liability case involving a governmental entity may require notice of the accident to be given well before the time that the statute of limitations would otherwise run. If notice is not given, the plaintiff’s case is likely to fail, even if all other requirements are met.

Because of special situations like this, it is very important to talk to a lawyer as soon as possible after an injury caused by another’s neglect, recklessness, or carelessness. An attorney who focuses his or her practice on these types of cases can help you avoid procedural pitfalls that could end your case before you have your day in court.

Facts of the Case

in a recent (unreported) case, the plaintiff was a woman who filed suit against two defendants, a maritime academy and the Commonwealth of Massachusetts, attempting to assert certain claims sounding in tort and contract. According to the plaintiff, she was injured when she fell during a boat ride on the academy’s premises on September 24, 2016. The plaintiff’s attorney sent a letter of presentation to the defendant academy on or about March 10, 2017, purportedly advising the defendant academy of the plaintiff’s claims. The letter was, in turn, forwarded to the defendant academy’s insurance company. After more information was requested, a second, more-detailed letter and settlement demand was sent to the defendant academy’s counsel by the plaintiff’s attorney on August 23, 2017.

Summary Judgment Reversed in Case of Massachusetts Teen’s Drowning in Swimming Pool

May 8, 2021 | by John C. Manoog III

In a Cape Cod premises liability lawsuit, the duty of care that a landowner owes to an individual who comes upon his or her property can vary from case to case. One of the primary considerations is whether the individual had the landowner’s invitation or implied permission to be on the property or whether he or she was a trespasser.

Usually, trespassers are owed a lower duty of care than those who are on another’s property with permission. However, this is not always so.

Facts of the Case

In a recent (unreported) appellate case, the plaintiffs were the administrators of the estate of a 17-year-old high school student who drowned in a swimming pool that belonged to the defendant city. According to the record on appeal, the student was a trespasser and gained access to the pool through the girls locker room (an area in which had no authority to enter). The depth of the water was not marked on the pool, and the student was not able to swim. In their wrongful death lawsuit, the plaintiffs sought compensation based on a theory of negligence and premises liability. The defendant filed a motion seeking summary judgment as to the plaintiffs’ claims against it. The trial court granted the motion, and the plaintiffs appealed.

Massachusetts Man’s Pharmaceutical Malpractice Case Following Allergic Reaction to Prescription Drug Dismissed on Summary Judgment

April 28, 2021 | by John C. Manoog III

Under Massachusetts law, a pharmacist or druggist who misfills a prescription can be held liable in a pharmaceutical negligence suit. In such cases, the plaintiff has the burden of proof, and several procedural requirements must be met in order for the plaintiff to prevail. If you or someone in your family has been hurt by the mistake of a drug store or pharmacy, you should talk to a lawyer to learn more about your legal rights. Waiting too long to get legal advice about your case can result in forfeiture of what might otherwise have been a valid and valuable claim for pharmaceutical malpractice.

Facts of the Case

In a recent case initially filed in Massachusetts state court but removed to the United States District Court for the District of Massachusetts, the plaintiff was a man who was prescribed the drug Levaquin for treatment of a head cold. Levaquin is a quinolone antibiotic also known as levofloxacin. When the plaintiff attempted to get his prescription filled at the defendant pharmacy, the pharmacist who was on duty received a “hard stop” warning on his computer indicating that the plaintiff was allergic to quinolones. The pharmacist looked into the matter further and saw that there was conflicting information that included a prior statement by the plaintiff to the effect that he “in fact had no quinolone allergy” and had been prescribed quinolones on multiple occasions in the past. As per the defendant’s policy in such situations, the pharmacist exercised his “individual judgment,” ultimately deciding to go ahead and dispense the Levaquin.

After suffering an allergic reaction to the medication, the plaintiff filed suit in state court, seeking $650,000 in compensation for his injuries. After the defendant removed the case to federal court, it moved for summary judgment. The district court found that the case had been properly removed to federal court based on diversity jurisdiction, despite the defendant’s meager settlement offer of $5,000. The court also agreed with the defendant that it was entitled to summary judgment on the plaintiff’s claims for negligence, breach of warranty, and unfair or deceptive practices in violation of Massachusetts General. The plaintiff sought appellate review.
Continue Reading ›

Massachusetts Court Addresses Issue of Whether Lead Inspector Owed Duty of Care to Child Who Lived in Property 20 Years After Inspection

April 22, 2021 | by John C. Manoog III

Timeliness can be an important issue in a Cape Cod negligence case. Typically, cases not filed within the applicable statute of limitations and/or statute of repose will be dismissed unless the circumstances fall within some very narrow exception to the general rule.

Sometimes, time can also factor into other issues in a given case, including the determination of whether a duty to a particular plaintiff existed. If the passage of time was such that the defendant did not owe a duty of care to the plaintiff, then the case will be subject to dismissal.

Facts of the Case

In a recent negligence case considered on appeal, the plaintiff was a minor child, suing through his mother as next friend. The plaintiff’s suit attempted to assert claims for both negligence and violation of Massachusetts Gen. Law ch. 93A against the defendant lead inspector, but the defendant filed a motion to dismiss the plaintiff case, arguing that the claims were not viable. Although the defendant admitted that he had, in fact, performed a lead inspection on the property at issue, he pointed out that the plaintiff had not become a tenant at the property until some 20 years after the inspection.

Federal District Court Applies Massachusetts Law to Deny Summary Judgment in Negligent Entrustment Case

March 28, 2021 | by John C. Manoog III

Having an insurance policy that covers accidents caused by uninsured or underinsured motorists is important. Without such coverage, it is extremely difficult – often impossible – to receive fair compensation for personal injuries or a wrongful death caused by a driver who either doesn’t have insurance at all or who has only minimum coverage.

Unfortunately, simply having “UM/UIM” (as it is called in the insurance industry) does not mean that there will not be protracted litigation before the case is finally settled. Consequently, it is important to consult an attorney if you have been involved in a Cape Cod car accident, even if you have uninsured/underinsured motorist coverage in place.

Facts of the Case

In a case recently considered by a federal district court sitting in Massachusetts, the plaintiff was an insurance company, acting as the subrogee of its insured (who was covered by an uninsured/underinsured motorist insurance policy), who was involved in a car accident in 2016. According to the plaintiff’s complaint, the accident was caused by the negligence of the defendant motorist, who was allegedly issued a citation for failure to yield the right-of-way to the plaintiff’s insured. At the time of the crash, the motorist was driving an automobile owned by her father-in-law, the defendant vehicle owner. The plaintiff alleged that the vehicle owner had negligently entrusted the automobile to the defendant motorist and that this negligence had contributed to the cause of the accident. The defendant vehicle owner filed a motion for summary judgment.

Massachusetts Appeals Court Affirms Jury Verdict in Favor of Injured Restaurant Patron, Despite Argument that Condition Was Open and Obvious

March 23, 2021 | by John C. Manoog III

One of the more common defenses in a Cape Cod premises liability lawsuit is an assertion by the defendant that the condition was so open and obvious that any reasonable person would have noticed it and avoided it. Of course, each case must stand on its own facts when it comes to such matters.

Even if a particular case involves a condition that was arguably open and obvious, the case will not necessarily be futile. Liability may still be had in a case against a premises owner under some circumstances.

Facts of the Case

In a recent case was the personal representative of the estate of a customer who sustained serious personal injuries when she fell down an unmarked step in the defendant restaurant’s dining room. The customer filed a personal injury lawsuit against the restaurant, alleging that its negligence had been the proximate cause of her fall. The case was tried to a jury and resulted in a verdict in favor of the customer. (Some time after the trial, the customer apparently died, and the personal representative of her estate was substituted as plaintiff.) The restaurant filed an appeal, seeking review of case and asserting numerous errors.