William D. Kickham
William D. Kickham
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Most people who walk past a construction site think that the construction workers on the job there are probably very rarely injured, since that’s their line of work and they “know what they’re doing.” The truth is, Massachusetts construction site injuries are quite common. The work in general is very dangerous, and even though a construction worker can have years of experience in that industry, the physical environments are usually ripe for serious injuries to occur.

A reminder of that was made clear in a recent injury settlement reported by Massachusetts Lawyers Weekly. Specifically, a 42-year-old roofer who belonged to a union tripped and fell on a piece of slate which was not cleared from the staging on a job site. The plaintiff was employed by a general contractor, which was hired by the property owner to strip the old roof surface and replace it with slate. The defendant in the case was hired by the general contractor to be the subcontractor responsible for stripping the old slate. The plaintiff alleged serious injuries in his suit. The defendant’s main defense was that it was unclear exactly who left the left the slate un-removed from the site, it or the general contractor, since both the general contractor and the defendant were handling the slate at the time of the injury. The defendant argued that the plaintiff could not prove that the defendant was the party at fault in the accident. While causation in these cases it sometimes hard to prove, as a Boston, Massachusetts personal injury attorney, I can assure you that with a talented attorney and the right invesitgative approach, the responsible party can almost always be identified.

Massachusetts construction site accidents can cause extremely serious, lifelong injuries. A great many of them involve injuries resulting from falls, or injuries involving dangerous machinery, which can sometimes involve product liability claims. Regardless, if you or someone you know has been involved in a construction site accident, call us Ph.: (781) 320-0062 or Ph.: (617) 285-3600, 24 hours a day, seven days a week. Or email us. We’ll provide you with a free initial consultation and let you know what your best legal options are.

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Crossing a trafficked street is a lot more dangerous than the average person thinks. The risk of serious injury increases with the volume of traffic present, a great deal of Massachusetts pedestrian-motor vehicle accidents happen this way.

This was illustrated in a recent case settlement involving just such an accident, when a 34 year-old man was attempting to cross a street in downtown Boston when he was struck by a vehicle in the process. The victim suffered a fractured eye socket, neck, head and back sprains, and several lacerations to his legs, arms and hands. He also eventually required arthroscopic surgery after extensive physical therapy failed to produce improvement. Measured overall, the victim suffered an 8-percent loss of bodily function on the whole.

Luckily, the victim’s lost wages and medical expenses were paid by workers’ compensation insurance after it was established that he was acting within the scope of his employment when he was injured. In total, he didn’t return to full-time employment until18 months following the accident.

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First, let me say to my readers that I’m sorry that I haven’t posted here in a while. I was extremely busy with cases in the first three weeks of December, then went on an extended Christmas & New Year’s holiday shortly thereafter.

Besides that, however, there was another important matter distracting my time: I’ve spent the last couple of months re-designing and re-formatting my website, www.attorneywdkickham.com.

By later this week, it will be complete, and I invite you to take a look at it. While it will contain the same valuable information on Massachusetts personal injury law that it always did, it will feature new and valuable information on a variety of tort and injury topics.

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Readers of this blog know that I’ve written previously about the problem of hospital alarm fatigue. It’s a new type of medical malpractice claim, and it’s not necessarily an easy problem to solve – at least not overnight.

Very recently, a case of this type that was previously filed against Massachusetts General Hospital, settled prior to trial, for $850,000. Actually, the hospital and the patient’s family had reached an agreement on settlement back in May, but the settlement was not filed in court and made public until very recently. The case was brought by the family of a man who died at MGH when nurses failed to respond to alarms on his cardiac monitor . The incident brought national media attention to the dangers of “hospital alarm fatigue” among nurses and other hospital staff – and raised the question of what, exactly, can be done to combat the problem. This case was noteworthy not only for the subject matter of hospital alarm fatigue, but for the way in which it was settled. Usually, the liability insurance companies that insure doctors and hospitals fight medical malpractice and medical negligence cases to the end. They do that in large measure because they know that their chances before a jury are very good: Statistically, juries are reluctant to find against doctors and hospitals.

As a Boston Massachusetts medical malpractice lawyer, I can assure you that this is due in large measure to the public brainwashing that has been accomplished on the subject of “tort reform” by the liability insurance industry. Anyone reading this post should, without delay, view the HBO award-winning documentary “Hot Coffee“. This stunning expose will show you exactly what “tort reform” means when it comes to medical malpractice and medical negligence cases – and of just how unjust it is.

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The annual Harvard-Yale football game yesterday will be known not for its memorable play or a sudden-death win, but for a sudden death of another kind: A young woman was killed by the driver of a U-Haul truck that was transporting beer kegs and other tailgating supplies to the game, held at Yale University this year. The annual event between the two Ivy League schools is 128 years old, has long been an institution among alumni of the schools, and is known as “The Game” among students and alumni.

The woman who was killed in the accident was identified by New Haven police as Nancy Barry, who lived in Salem, Massachusetts. According to a spokesperson from Yale University, Ms. Barry was not an alumna of either Harvard or Yale. Witnesses told police that Ms. Barry was run over by the truck as it accelerated when turning a corner. She was taken to Yale-New Haven Hospital, and pronounced dead shortly after 10 a.m. The two other victims suffering injuries were identified as Sarah Short, a 30-year-old Yale student from New Haven, and Elizabeth Dernbach, who was reported to be a staff member at Harvard’s Division of Continuing Education. Ms. Short suffered life-threatening injuries and was listed in critical but stable condition at Yale-New Haven Hospital, and Ms. Dernbach sustained minor injuries and was treated briefly at the Hospital of Saint Raphael in New Haven.

This fatality and these injuries are far too common. As a Boston, Massachusetts car accident lawyer, I can assure my readers that while most motor vehicle accidents involve vehicle-to-vehicle collisions, a great many also involve pedestrian injuries. This is especially so at events where large numbers of cars, trucks, and pedestrians are concentrated together at public events – like football games and concerts. Tailgating at these events – drinking and eating – is almost as popular as the events themselves. The lethal combination of too many vehicles, too many people and alcohol, is a deadly combination. In fact, it is the perfect storm for what happened yesterday. While “legacy” events such as the Harvard-Yale football game, and lesser-known college football games, have for years allowed the open use of alcohol at these events (in practice unregulated to any effective degree,) for a long time now I’ve thought that practice unwise. I should point out that while the driver of the truck that caused this death and these injuries has not yet, to my knowledge, been charged with operating under the influence of alcohol, he was transporting kegs of beer in the rented U-Haul truck he was driving, though he was taken into custody and questioned.

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It is said that life is ironic. Occasionally an event comes along to prove that point, and today’s post is a tragic reminder of that.

The case is ironic because it involves catastrophic consequences of medical negligence, with the victim being a doctor and surgeon. The plaintiff doctor, 61 years old, underwent elective surgery for a condition known as cervical stenosis, which is a narrowing of the spinal canal. The operation required the placement of surgical screws into the spine, and the neurosurgeon performing the surgery drilled a hole into the plaintiff’s spinal cord. In the process, the surgeon punctured what is known as the dura of the spinal column, which is the membrane covering the spinal cord. The plaintiff awoke from the surgery a quadriplegic.

Following the surgery, the plaintiff underwent extensive inpatient physical rehabilitation for two months. Following months of physical therapy and medical management, he slowly – and surprisingly – improved. Before his rehabilitation began, he had to be lifted out of bed by an electric lift in order to be placed into a wheelchair. He had to be essentially “retrained” in every aspect of daily living, including not only basic ambulating, but in controlling bladder and bowel movements, and basic motor skills. Upon inpatient discharge, the plaintiff then had to undergo more extensive physical therapy for several additional months. He progressed from a wheelchair, to walking with forearm crutches, to using a walker, and he now walks with a cane. All in all, a miraculous recovery, most likely due to the fact that even though the doctor performing the surgery perforated the membrane covering the spinal cord, the spinal cord itself wasn’t punctured.

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Consumers and product safety advocates won a victory recently, with a decision from the U.S. Court of Appeals for the 1st Circuit. This court is the federal appellate court for Massachusetts and surrounding states; it hears appeals from the U.S. District Court in Boston, and other federal District Courts in this immediate area. Because this is a federal decision, it will hold significant precedential weight in similar cases filed throughout the United States in the future.

The case began when a construction worker suffered a severe injury to his hand when using a bench-top table saw. The saw’s blade cut into his hand, causing permanent injuries. The saw was a Ryobi Model BTS 15 bench-top table saw, purchased at a Home Depot. Following the injury, the plaintiff sued the manufacturer, Ryobi Technologies, Inc., in U.S. District Court in Boston, seeking damages for his injuries. His suit claimed negligence and breach of the “implied warranty of merchantability,” which is a Massachusetts law that regardless of what a manufacturer’s written warranty may expressly state, the product carries an “implied” warranty, that it is “merchantable,” (safely usable,) and that it is fit for a particular purpose.

“Negligence?”, I’m sure you ask. “Why should a saw manufacturer be held liable if someone using the saw suffers an injury from the blade?” Why? Because, as a Boston, Massachusetts product liability lawyer I can assure you, there’s always a story behind the story – and there’s a story behind this one. Which is: It seems as though Ryobi Technologies was aware of a certain technology that had become known as a flesh-detection system called “SawStop.” This device basically stops the saw blade immediately whenever it senses some kind of flesh pressing against the spinning blade. At trial before the U.S. District Court in Boston, the plaintiff argued that as manufactured and sold, the saw was defectively designed, unsafe, and that the “SawStop” technology represented a reasonable and viable alternative design. Supporting this argument, the plaintiff presented testimony of his expert witness, the man who invented “SawStop” in 1999. That inventor testified that he had presented SawStop to several major saw manufacturers, including Ryobi, in 2000. All had refused to adopt the new safety technology, despite the fact that it worked. And why? The plaintiff argued that it was due to a “silent agreement” among several manufacturers that if even one of them adopted the safety system, the others would be forced to do the same, or face heightened liability exposure to liability if they didn’t. That’s called a “conspiracy of silence.” Typical corporate America.

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A fatal Massachusetts premises injury resulted earlier this week when a backyard deck that a homeowner was working on suddenly collapsed, crushing him underneath it. George Carroll, 78, of Melrose was working on the deck when it suddenly became detached from the house. Firefighters responding to the scene could not lift the heavy deck off the victim, and had to use inflatable airbags to gain access to him. Carroll was transported by ambulance to Melrose-Wakefield Hospital, but unfortunately, it was too late and Mr. Carroll was pronounced dead.

The reason why this incident is posted here is because it offers a powerful cautionary note in the area of law known as Massachusetts premises liability. In this incident, the homeowner himself was the one who suffered the fatal injuries, and therefore his estate cannot sue another person or a third party to recover for his death or pain and suffering. If the victim had been visiting another person’s home, and suffered the injuries at that person’s property, that person or his estate could sue the homeowner where the injury occurred, for negligence. Typically, the negligence alleged would be a failure to maintain the premises in a reasonably safe condition for persons such as the victim. In the event of such a claim, the homeowners’ insurance policy of the person who owned the property would, assuming liability were acknowledged, provide coverage for the claimed damages according to the policy limits. If the owner of the property did not have a homeowner’s insurance policy or other liability insurance, through which coverage would be available, things become more difficult. Without liability coverage, any settlement or jury verdict that a plaintiff might secure, would have to be collected directly from the homeowner’s personal assets. That process involves attaching real estate and other assets, and becomes much more complicated and time-consuming.

As a Westwood, Massachusetts premises liability attorney, I can tell you that the primary lesson from this very unfortunate incident is this: Whether you own property or rent, always carry a policy of liability insurance on the property, to protect you if others are injured on your premises. While the victim in this tragic incident in Melrose this week was the homeowner himself, it often happens the other way around. And lesson number two: When making repairs to house and building structures such as stairways and decks, always employ a licensed construction professional. Structures like these are notorious for causing injuries. Ask for a copy of the contractor’s trade license, and secure several customer references. Work like this must be done in accordance with local building codes. If you “do-it-yourself” and the finished work does not meet building codes, it could give your insurer an excuse to deny coverage.

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As a Dedham and Boston, Massachusetts medical malpractice lawyer, I frequently see Massachusetts personal-injury cases that could have been possibly avoided. In the latest example of this, a 65-year-old man was belatedly diagnosed with cancer of the sigmoid colon, which proved fatal.

This case settled prior to trial for $1.5 million, for the delayed diagnosis of colon cancer resulting in death.

The plaintiff claimed that the defendant doctor was negligent in that he failed to offer or perform an annual colon cancer screening. The defendant physician, who acknowledged that the medical standard of care required a colon cancer screening, claimed that he would only have been required to conduct those tests if he had been the patient’s primary care doctor. But he claimed that the man was only a private-pay patient who was only seeing him for blood-pressure checks and he did not want the full services of a primary-care physician.

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Medical negligence and medical malpractice usually involve mistakes in judgment on the part of a physician, nurse, or other health care provider. But an interesting source of medical negligence is on the rise in many American hospitals: It’s called “alarm fatigue”, and it most commonly affects nurses rather than doctors.

Think back to the last time you were on a patient ward in a hospital. Chances are, a great many of the patients were hooked up to some type of electronic patient monitoring system – whether for the purpose of monitoring heart rate, breathing, blood pressure or other vital signs. These machines are highly sensitive, and are designed to sound an alarm to the nursing station in the event of the slightest change in a patient’s medical status. That sounds good – until you consider the practical reality that if a patient so much as leans too much on a tube, or unintentionally pulls a wire out of its input, an alarm will sound. Sometimes, if a patient sneezes and breathing is momentarily interrupted, an alarm will sound. Now combine this with the reality that on any given hospital patient ward, there are perhaps 50 or more patients at any given time. The result? Patient monitor alarms going off left and right. The practical reality is that a cacophony of alarm noises can result at nursing stations, and eventually, the alarms no longer produce the result they were designed to: An immediate human response to investigate any medical emergency. The Boston Globe reported on this new development recently (click on link for story.)

All of this poses an interesting legal question: Should nurses and hospitals be held legally liable for medical malpractice if medical harm or death results from a patient not being responded to appropriately, due to ‘alarm fatigue’? As a Dedham, Massachusetts personal injury lawyer, my professional opinion is thus: It depends. Nurses are human beings. They are responsible for the care of several different patients at any one time. If a hospital floor or patient ward is regularly experiencing a cacophony of alarms, many of which are non-emergent or not life threatening, this can produce a desensitizing effect among the nursing staff. To my knowledge as a Boston, Massachusetts medical malpractice lawyer, there are no accurate statistics yet available as to what percentage of patient monitor alarms are in fact false alarms, but if the actual number were high, it would be understandable, from a human behavior perspective, why some nurses would not respond as quickly as if the false alarms were very low. The unfortunate result is that, eventually, a patient in genuine medical distress is not going to be responded to appropriately – and a medical negligence suit is likely to follow. One Massachusetts medical negligence lawsuit based on ‘alarm fatigue’ has already been brought.

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