William D. Kickham
William D. Kickham
Construction Accident
Car Accident
Nursing Home

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In my previous post on this subject, I discussed why backyard swimming pools are generally a very strong liability risk. This type of liability broadly falls under an area of law known as “premises liability”. Legally, property owners in Massachusetts have an obligation to provide a safe environment for visitors and guests. In the event of a pool accident, an experienced Massachusetts premises liability attorney should be consulted. Under no circumstances should anyone who has been injured in such an accident, speak to an insurance representative or any other person, until they have spoken first to an experienced Massachusetts premises liability attorney. Swimming pool injuries and deaths involve complex medical and legal issues. When young children are injured, these injuries frequently involve neurological and cognitive impairment that is not always immediately apparent. Hence, the legal response to such an injury requires considerable legal experience in this area of practice.

In terms of geographical incidence of swimming pool injuries, studies indicate that (logically,) children in northern and northeastern states are involved in a higher percentage of these accidents than occur in warmer states such as Florida and California, owing to greater inexperience around swimming pools in the winter states. Anyone who buys a home with a swimming pool, or puts one in their backyard and thinks there is nothing more they need to do but ‘clean out the bugs’, is making a serious legal mistake. Proper swimming pool safety requires that several measures be taken:

• The area around the pool should be secured from curious children or intruders (usually by a view-obstructing high fence)

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Summer is usually a time when thoughts turn to cooling off and leisurely days around a swimming pool (especially during heat waves such as we’ve had recently here in Massachusetts.) That makes perfect sense, but in my view as a Boston accident lawyer, not enough people are aware of the dangers of backyard swimming pools – whether in-ground or above-ground. In my career, some of the worst injuries I have seen involve swimming pool injuries. While having a swimming pool at your house can sometimes add to a home’s market value, legally, it can pose serious, and even deadly, hazards.

This was recently made clear in a suit filed in neighboring Connecticut, which resulted in a settlement of $1.1 million to the family of a 3 year-old boy who drowned in a swimming pool. Actually, this case illustrates two important points: 1) The risks that are associated with swimming pools (this falls under “premises liability”); and in this case: 2) The risk that can arise when parents represent to third parties that their son or daughter is capable of caring for another person’s child by babysitting, when in fact they know that their child has no particular skills to do so (this is known as “negligent entrustment.”) This particular case out of Cheshire, Connecticut, involved the death of a 3 year-old boy, Cole Veenhuis, who drowned May 2 2009 in his family’s swimming pool while being baby sat by Krista Repko, a teenager that had been hired by the boy’s parents to baby sit him and his twin sister.

Apparently, after the boy fell into the family pool, the teenage bay sitter “Froze up for a significant period of time and didn’t immediately jump into the pool to rescue the youngster”, according to the attorney for the parents of the deceased boy. As a result, the boy drowned when it appeared that he could have been saved with a quick response. The deceased boy’s mother, Diane Veenhuis, told the New Haven Register in a statement that her son’s death “Was definitely preventable and morally should have been foreseeable by the individuals we entrusted.” Diane and Richard Veenhuis alleged in their suit that the baby sitter’s mother, Michelle Repko, misrepresented her daughter’s abilities as a baby sitter to them, assuring them that her daughter could react responsibly to almost any emergency. “It wasn’t until after the tragedy when information was disclosed, which had we known, we would not have chosen her for a baby sitter,” Diane Veenhuis said.

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Massachusetts just got a lot more sane in the area of dealing with the legalities of liquor liability, particularly with the need for ready compensation to pay for injuries and damages that often follow negligent service of alcohol by a licensed bar or restaurant. These injuries and damages usually result from a Massachusetts motor vehicle accident, but can injuries stemming from a patron being over-served alcohol at a bar or restaurant can also occur without any vehicular accidents being involved. On May 28 2010, Governor Deval Patrick signed into law Chapter 116 of the Acts of 2010, which amends M.G.L. Chapter 138 Section 12, the relevant law in Massachusetts that governs issuance of liquor licenses to bars and restaurants.

It may come as a surprise to many readers, but previous to the enactment of this legislation, bars and restaurants were not required to carry liquor liability insurance in Massachusetts. Not in any amounts, at all. Shocking, isn’t it? Consider: If you own or operate a restaurant in Massachusetts, you are required to produce proof to the local (i.e., city or town) licensing authority of a number of different things before you can be issued a license to operate (known legally as a “victualler’s license.”) The facility needs to pass inspections by the local Board of Health, adhere to state labor laws, produce proof of workers’ compensation insurance, contribute to the state unemployment insurance system, and (almost always) carry a policy of General Liability insurance. But to be issued a liquor license, while you would have to you surmount several additional hurdles before being issued such a license, you would not have had to produce evidence of a policy of liquor liability insurance, at all.

Why is this so important? Because almost all General Commercial Liability insurance policies don’t provide liability coverage for legal damages and injuries that result from the negligent service of alcohol by bartenders and/or wait staff. So while you could swallow a piece of glass in a restaurant and the owner’s general liability policy would almost certainly pay for damages, and while you could suffer a slip and fall accident on site and there would also be coverage to pay for your damages, there wouldn’t be coverage if someone in that restaurant was negligently over-served alcohol, then left the facility and caused injury to you while intoxicated. The stark reality is that up until now, the majority (though not all) bars and restaurants in Massachusetts “went naked” when it came to liquor liability insurance. If someone was unlucky enough to be injured by (usually) a drunk driver who was negligently served alcohol at a bar or restaurant, they had to get simultaneously lucky enough that the OUI driver had been served at a facility that carried liquor liability insurance. If the bar or restaurant who negligently served the alcohol didn’t have a specific policy of liquor liability insurance, there was often no source of money to pay a liability judgment. In that case, collecting on a judgment rendered in a plaintiff’s favor, was often impossible. I’ve blogged about this in the past.

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My regrets over not having posted for awhile here, but let’s get back to things today:

Normally, as this is blog is about Massachusetts personal injury cases and Massachusetts tort law, I write about plaintiffs’ civil justice issues occurring primarily in this state. However, a recent case verdict out of the state of California offers some instructive points on how personal injury plaintiffs can achieve far better legal and financial results with a small firm, than with a large law firm. On this very point, by the way, visit the “About The Firm” tab at my web site Home Page. See the article. “The Urge To Merge: Bad News.” I think you’ll find it interesting.

Two small plaintiffs’ law firms in California teamed up to obtain a $29 Million verdict against a corporation who operates a chain of 33 nursing homes across California and Utah, “Horizons West,” in an all-too-familiar case of nursing home negligence and abuse. The plaintiff was the estate of a 79 year-old woman, an Alzheimer’s Disease patient, who died after not receiving prompt medical treatment for eight days after she fell and fractured her hip. Aside from that untreated injury, the patient also developed a bed sore during those eight days, which was also listed as a cause of death on her death certificate. The plaintiffs’ lawyers, both essentially solo practitioners, alleged that the defendant nursing home intentionally understaffed the facility, or kept it at a bare minimum relative to the number of patients residing there, all to maximize its profits. Any surprise there? I’ve been writing and speaking about how corporations do this to consumers, patients, and all kinds of people, for over 20 years now. (If anyone still doubts that, take a look at my last post about BP and the Gulf oil spill.)

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I’ve written a considerable amount in the past about how big corporations and insurers regularly engage in cost-benefit decisions that show little regard for the safety and welfare of average Americans and consumers. If anyone has any doubts about this truth, (notwithstanding the myriad factual examples of corporate greed and disregard for Americans’ safety that have been previously offered by me and many other informed writers,) then consider this: TransOcean Corp., the owner of the Gulf oil rig that blew up on April 20 this year, spewing millions of gallons of crude oil into the Gulf of Mexico in the process, has wasted no time whatsoever in racing to federal court in Houston, Texas, to deny and/or limit liability for the incalculable environmental, financial, and physical damages that have resulted from this calamity.

Eleven rig workers are dead, millions of gallons of crude oil are spewing unstopped into one of the world’s most environmentally sensitive fishing grounds, and numerous industries and countless jobs have been impacted long into the future. The economic and financial harm that are likely to result from this spill could easily run into the billions of dollars, and this company has raced into court to deny that it is in any way responsible for this catastrophe, and to in any event limit its liability to a grand total of $26.7 million. Yes, that’s right: $26.7 million. Why the rather peculiar figure of $26.7 million, you might ask? That’s the claimed value of the rig sitting at the bottom of the ocean. That’s all TransOcean says it should be held laible for – if anything at all – as the result of this calamity. To put it to scale, that’s about 1/100th of what the total damages in this horrific event may eventually come to.

Worse, a federal judge in Houston granted TransOcean’s request, suspending all pending cases against it for the time being. On what basis does TransOcean make this claim? Under an ancient maritime law that allows vessel owners to limit their liability to the value of the vessel and its freight. Known as the Limitation of Liability Act, the law was passed in the mid-1800’s to protect U.S. maritime vessel owners, eliminate risk in some crisis situations, and aid in U.S. competition with foreign ships. Yes, that is the law that TransOcean claims applies to it now, in 2010, in the middle of one of the worst ecological catastrophes on record.

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In my previous post, I reported on the fact that Johnson & Johnson has been dragged into court by the United States Attorney in Boston, accused of hatching an elaborate scheme to press nursing home doctors to prescribe J&J’s anti-psychotic drugs, including Risperdal, to Massachusetts nursing home residents who were not suffering from mental illness or psychosis, but only dementia. Critically, it is widely known in the medical and geriatric care communities that the use of anti-psychotic medications in patients suffering from dementia, doubles the risk of death. The “marketing” scheme was a twisted effort by J&J to increase sales of their anti-psychosis drugs even higher than the $100 million in annual sales they were previously enjoying.

Antipsychotics were approved by the U.S. Food and Drug Administration (FDA) to treat people with severe mental illness – such as schizophrenia. While many of these medications have brought relief to severely mentally ill patients, and while they have their valid place in medical practice, in general they produce horrible side-effects. These unavoidable side effects include:

• Dystonia – A neurological movement disorder in which sustained muscle contractions cause twisting and repetitive movements or abnormal postures. Essentially, this condition can reduce someone to an involuntary mass of body spasms, or twist you into distorted postures.
• Parkinsonism – Muscle rigidity and muscle tremors; Essentially, this can reduce the body or parts of it, to being as stiff as a board.
• Akathisia – A syndrome characterized by unpleasant sensations of “inner” restlessness that manifests itself with an inability to sit still or remain motionless. This condition can produce symptoms ranging from anxiety, to a complete inability to still or stand still.
• Tardive dyskinesia, A condition in which the sufferer may show repetitive, involuntary, purposeless movements often of the lips, face, legs, or torso. These involuntary, purposeless movements usually occur in the face and lips, reducing someone’s expression to a mass of jerking tics.
• Pancreatitis – An extremely painful and emiserating condition, leaving one’s midsection enflamed, swollen, and producing severe fevers.
• Seizures – Causing patients to be constantly exposed to horrid and frightening neurological attacks, never knowing when the next one is to come – not to mention the brain damage that can result from seizures.
• Diabetes – Placing patients at risk of losing their limbs due to amputations often necessitated by the disease.
• Neuroleptic malignant syndrome, in which the body’s temperature regulation centers fail, resulting in a medical emergency, as the patient’s temperature suddenly increases to dangerous levels. Essentially, the patient is subjected to sudden, high-grade fevers that are usually witnessed in the worst if influenza infections.

The list of these well-known side effects goes on and on. Now you know why it’s widely estimated that approximately two-thirds of mentally ill patients who are prescribed many anti-psychotics, stop taking them: They’re known as the “Treatment that’s worse than the disease.” And all of the above side-effects, and more, pale in comparison to the most widely-known side-effect of these drugs: That when given to patients suffering from dementia, they double the risk of premature death.

So how were J&J, and their criminal co-conspirator OmniCare, able to do this? Because as with many drugs approved by the FDA to treat specific illnesses and conditions, it is nonetheless legal for doctors to prescribe drugs, including anti-psychotics, “off-label” for other purposes. While that practice may be strictly legal when engaged in by individual doctors with individual patients, J&J engaged in a widespread, full-blown campaign to aggressively market their drugs to nursing homes as being appropriate, even desirable, for use with patients not suffering from mental illness, but merely dementia. Under J&J’s and OmniCare’s scheme, J&J quietly (and illegally) paid OmniCare millions in kickbacks to push these drugs to nursing home doctors. Once OmniCare sold these antipsychotics to nursing homes, it actually then filed for reimbursement from Medicaid for purchasing these drugs from J&J. Medicaid is the joint federal-state health care program for the poor – which pays for nursing home care for many poor seniors.

I trust you see the added hook here for OmniCare – not only did this scheme allow them to grossly increase their sales of these anti-psychotic drugs to nursing homes, but the fact that they were selling to nursing homes that cared for many poor elderly patients, allowed OmniCare to then bill Medicaid for the cost of buying these drugs from J&J in the first place, (who also paid OmniCare kickbacks for purchasing the drugs from them.) End result: J&J, the drug manufacturer, massively increased sales of their anti-psychotic drugs to their distributor, OmniCare (from $100 million to $280 million.) OmniCare received millions of dollars in kickbacks from J&J on the front end, for buying higher amounts of these drugs from J&J, and then OmniCare illegally billed Medicaid on the back end for reimbursement of the cost of purchasing the drugs from J&J, since the drugs were administered to low-income or indigent nursing home residents.

And the thousands of powerless Massachusetts nursing home residents who were needlessly pumped full of these mind-altering anti-psychotic drugs? There were less than nothing; an afterthought in this twisted scheme. As to just how many Massachusetts nursing home residents were victimized in the process of bloating both J&J and OmniCare’s profits, consider this: The Massachusetts Attorney General reported that a whopping 28 per cent of Massachusetts nursing home residents were given these anti-psychotic drugs, last year alone. Of that figure, 22 per cent were not mentally ill or did not have a medical condition that warranted such extreme treatment. This rate was the 12th highest in the nation.

Pretty sick, isn’t it? Yet nothing new for huge corporations like this.

This sad and sick story illustrates two key points: 1) Massachusetts nursing home abuse and neglect is rampant – far more common than most people can imagine – and it’s not always committed by a cruel or thoughtless health aide, acting alone. In this case, the abuse was actually aided and abetted by nursing home doctors who didn’t question either J&J’s or their distributor’s (OmniCare’s) claims about the use of these anti-psychotic drugs with patients who were not suffering from mental illness or psychosis. 2) This twisted story illustrates how Massachusetts and the rest of this country must remain vigilantly opposed to big business and corporate efforts to enact “tort reform”. As I’ve said before, “tort reform” is nothing more or less than an effort to re-write liability laws, to allow big business and others to commit wrongdoing, and be shielded from the lawsuits that would hold them accountable. Thankfully, we haven’t reached that stage yet in Massachusetts, which is one reason why nursing homes and their doctors will think twice about engaging in such irresponsible and unethical conduct in the future: Because they’ll pay in court if they don’t.
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This case is filed under “Nursing Home Abuse and Neglect” on this blog for a good reason: That’s exactly what it is – except that the abuse wasn’t committed by a lone employee of a single nursing home, who ended up abusing patients. It was committed by a conspiracy among a multi-billion dollar pharmaceutical firm, dozens of separate nursing homes, and doctors and nurses also. If true (and to date, I see little evidentiary reason not to believe the allegations) it is a sickening story of corporate and individual greed, compounded by some of the worst examples of human cruelty to the most frail and forgotten members of society – nursing home residents.

By all credible accounts, the story seems to have unfolded as follows: Pharmaceutical giant Johnson & Johnson apparently paid tens of millions of dollars to a firm called OmniCare, which although most people have never heard of, happens to be the nation’s largest provider of pharmaceutical drugs to nursing homes. The illicit payments were designed specifically to entice and assure that the company (OmniCare) aggressively and intensively pushed several of its drugs, particularly the powerful antipsychotic drug Risperdal, to nursing home doctors, using aggressive rebate programs and other financial incentives. The scheme is alleged to have lasted from 1999 to 2004. What’s the problem with that, one might ask – don’t some nursing homes need antipsychotic medications? Yes, but the twisted cruelty and malignancy here, is that Johnson & Johnson and OmniCare aggressively waged a campaign with nursing homes and their doctors to prescribe antipsychotics such as Risperdal, to patients suffering from dementia – not psychosis. J&J marketed their antipsychotics as a legitimate, valid medication to “sedate and control” patients suffering from dementia, when it was originally designed and approved to treat severe mental illness.

That twisted marketing campaign resulted in J&J nearly tripling sales of its antipsychotic drugs to OmniCare, from approximately $100 million just before the scheme began, to in excess of $280 million when the operation was discovered by government investigators in 2004. Imagine – – $100 million in sales (of these drugs alone) was not enough for J&J: They concocted this twisted scheme to fatten their profits even more, all the while risking the health and lives of tens of thousands of helpless nursing home patients. It is well- known in the medical profession that prescribing antipsychotics to patients suffering from dementia more than doubles their risk of death due to these medications. But that didn’t phase J&J, nor OmniCare, in their insatiable quest for more profits.

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Whether it’s Big Finance, Big Insurance, Big Tobacco or Big Pharma, overall, Big Business never seems to “get it” when it comes to acting ethically and obeying the laws they’re required to operate under in this country. This time the focus is on Big Pharma, though that’s nothing new.

Pfizer, Inc., that giant of the pharmaceutical industry, was found by a jury in U.S. District Court in Boston last week, with violating the federal Racketeer Influenced and Corrupt Organization Act (RICO,) a law designed to thwart and punish a variety of illegal activities dealing with financial transactions. Oddly enough, (or not so oddly,) RICO was first passed by the U.S. Congress in response to organized crime’s (read: The mob’s) activities in transferring and hiding financial transactions across state lines. Now, Pfizer’s been found to have violated the Act.

What was Pfizer up to? It seems that for the past ten years, Pfizer embarked on a targeted campaign to promote their epilepsy drug, Neurontin, for officially unapproved uses. Kaiser Foundation Health Plans, Inc., and Kaiser Foundation Hospitals, alleged that over the course of ten years, Pfizer consistently promoted Neurontin to it for unapproved uses, representing to its doctors that Neurontin could effectively treat a number of different medical conditions, including migraines and bipolar disorder. Neurontin was approved by the FDA in 1993 to treat epilepsy, and nothing more. According to Tom Sobol, a lawyer for Kaiser ,”The jury found that Pfizer engaged in a racketeering conspiracy over a ten-year period. That bodes well for future (similar) cases.” The jury deliberated for two days before finding Pfizer guilty of violating RICO. They determined the damages owed Kaiser to be $47 million, but under RICO, the damages are tripled. Hence, the total cost to Pfizer is $142 million. The federal trial was based in Boston, as U.S. District Court Judge Patti Saris is charged with overseeing a number of federal lawsuits from across the United States, targeting Pfizer with personal injury claims and allegations of fraudulent marketing of this drug. These injury claims would take the form of Product Liability suits, rather than Medical Malpractice.

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Following my previous posts on this subject, comprising Part One and Part Two, let’s now get to the legal decision rendered by a Massachusetts Superior Court judge in the suit filed by Nicholas Parsons and his parents against the Town of Tewksbury, Parsons, et. al, vs. Town of Tewksbury, et. al.., Middlesex Superior Court Civil Action No. 09-1595.

The plaintiffs here brought three claims before the court: 1) A negligence claim, in tort, against school officials and the Town, alleging that school officials knew or should have known that the harm that young Parsons suffered was likely to occur; 2) A claim, also in tort, known as “Intentional Infliction of Emotional Distress.” This claim alleges intentional conduct by a defendant which causes extreme emotional distress to a victim. In law school classes this particular tort is known as “The Tort of Outrage”, in that it seeks to hold someone civilly liable for emotional harm resulting from intentional acts that a reasonable person would find to be “outrageous”, or conduct that “shocks the conscience” of a reasonable person. 3) A constitutional claim, alleging that the inaction of school officials to protect the Parsons boy from obvious harm amounted to a violation of his due process rights (specifically, to safety and protection) under the Declarations of Rights contained within the Massachusetts Constitution.

As I said in my previous two posts on this case, an attorney’s view of this decision will depend almost entirely on whether that attorney practices as a plaintiffs’ or defense counsel. Everyone who knows me, knows that when it comes to the civil side of my practice, I am a plaintiffs’ lawyer. I represent people who have been injured and harmed as the result of someone else’s negligence. That being the case, I find this judge’s decision to be seriously lacking in legal reasoning on at least two of the three claims presented in this case. While the decision offers a small, and nascent, basis for optimism that school officials will in the future face greater liability for the safety of students in their charge, on the whole it is shocking in its ignorance of the outrageous acts of not one, but several school officials who failed to act to protect this boy from violent assailants – regardless of their ages.

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In my previous post on this subject (apologies that I haven’t followed it up earlier,) I discussed the ongoing tragedy of bullying in schools, and of how the most recent victim was a young girl in South Hadley by the name of Phoebe Prince, who committed suicide after repeated abuse by a group of girls at South Hadley High School. I also discussed how, up until perhaps now, there has been almost no statutory vehicle in Massachusetts to attach civil liability to school administrators or personnel – public or private – for injuries and harm done to children bullied at school. A recent Massachusetts Superior Court decision may – just may – have opened the door to legal changes much needed in this area of civil justice.

The case, Parsons, et. al., vs. Town of Tewksbury, et. al., involved a Tewksbury Middle School student and his parents who sued the Town of Tewksbury and school personnel for negligence, and other counts, in not intervening to protect this student from repeated bullying by other classmates at the school. The case reveals a shocking level of violence inflicted against the young student, and even more shocking negligence in the form of inaction by school personnel to intervene and protect this young boy from savage abuse at the hands of other students. The facts are truly horrific. I trust that my readers are familiar with the term “Dumbing Down”, to describe how people are in general nowhere near as well educated in this country as they were in decades past (and if anyone has any doubts about that, just watch one of Jay Leno’s famous “Jay Walking” pieces, where he asks average Americans questions about the most basic subjects, and 99% don’t have a clue as to the answers.) While stories like this case from Tewksbury must be told, I believe that in the process they can create a “Numbing Down” in people: The effect is that, horrific as a story like this is, it fails to provoke outrage or shock in people. The reason: Violence and indifference is so increasingly widespread in our culture. Too many people read of horrific stories like this, and just turn the page. I hope that won’t happen here. I wish to also say that, while some lawyers see hope in this decision, as a Boston injury attorney, I find this decision disappointingly weak. It’s my legal opinion that this judge should have found liability against the town and the school in this case (which he did not,) and that he should have issued much stronger language.

The case begins in April 2006 with young Nicholas Parsons, a student at Tewksbury’s Wynn Middle School, who was being repeatedly assaulted and battered by a group of other students at this school. Young Parsons reportedly had fallen out of friendship with a group of male students who made it a practice of harassing and threatening weaker students. Parsons told the school guidance counselor, Adam Colantuoni (who was also named as one of the defendants in the suit,) that these bullies had been harassing him repeatedly. The plaintiffs’ suit alleges that Colantuoni took little to no action to halt the assaults. Not long after Parsons had reported the problem to Colantuoni (the school’s “guidance counselor”,) the leader of the bullying group, a student by the name of Tyler Willette, ordered another student to slam Parsons’ head with a book. Not only did this other student carry out this order, he did it in the presence of a teacher, who sent the attacking student to the school’s “behavior management facilitator,” a man by the name of Robert Ware (who was also a named defendant in this suit.) By all credible accounts, Ware neglected to discipline the assaulting student, instead merely ordering the boys to apologize to each other. In the event you’re wondering where this gets worse, read on.

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