Massachusetts Lawyer Blog

"Tort reform" sounds quaint, until you look under the hood and see what's really driving the engine.

Lawyers and the battles they fight on behalf of wronged clients are what often serves to keep the system accountable. Detractors say it's just about the money and greedy lawyers, but often the crux of the lawsuit isn't about money, it's about standing up for respect, integrity, and human decency.

Sure, sometimes this fight can only change an individual wrong, but other times fighting the good fight can change a broken system. Broken systems surround us and are out of balance -- medical care for the elderly is just one example that comes readily to mind.

It doesn't matter if you're from Massachusetts or Mississippi, end of life decisions will never be easy, but they should be made with proper medical evidence as this Mississippi case illustrates. 

The Mississippi Supreme Court recently upheld a $4 million award to the family of a woman who was misdiagnosed with pancreatic cancer and then given a lethal dose of painkillers.  An autopsy showed the woman never suffered from cancer.  The daughter best summed it up, 'a simple lab test could have stopped this from happening.' 

This should give you pause the next time you hear someone say, "we could run this lab test or that, but it's probably not going to show ..."  If there's an option, why not run the test?  Who is really being inconvenienced?  Is it wise to place all our faith and offer complete deference to the "professionals" making important medical decisions about care. A healthy dose of "prove it to me" isn't a bad thing, especially when we're talking about life and death. 

Sure it's easy to dismiss junk lawsuits, but cases like this above demonstrate that sometimes the only place to make a difference and force real change is to hit them in their pockets -- and hit them big.  Now maybe a few more life or death tests will get ordered, maybe it will take even more verdicts to send a lasting message. 

Of course, there are powerful interests that would like a limit on their economic liability -- they try to sell this in words like "reform," but it's really about protecting their profits and ignoring the pain caused to individuals who will undoubtedly suffer when greed and bonuses drive decisions over common decency and respect.

It's not uncommon for death and probate cases in Mass to involve people who are suffering a loss and experiencing grief. As their lawyer in a wrongful death case or in a Massachusetts probate estate matter, I'm often directly discussing what caused the death of their loved one or the final wishes of a spouse, parent, child, or friend. Some of our discussions can be difficult and quite emotional

It seems whenever someone begins to cry or need a moment, they almost instinctively need to apologize afterward and then offer a reason for why they shouldn't be getting emotional. I've heard person after person explain how they "should" be experiencing their grief. I've never quite understood this -- many times their loss moves me too.

While I'm no psychologist, I've never found there to be any set rules here. While it's somewhat slanted in its origin (and in a couple of places maybe), I came across this article discussing the Ten Common Myths and Realities About Grief. I'm listing an excerpt of some of the myths below to give you the general idea.

• "It has been a year since your spouse died. Don't you think you should be dating by now?"
• "You look so well!"
• "The best thing we can do (for the griever) is to avoid discussing the loss."
• "It has been six (or nine or 12) months now.
• "Don't you think you should be over it?"
• "You need to be more active and get out more!"
• "You are young, and you can get married again."
• "Your loved one is no longer in pain now. Be thankful for that."
• "She cries a lot. I'm concerned she is going to have a nervous breakdown."
• "Grief support groups are too depressing and not helpful."

Again, I'm no psychologist, but I'm guessing the list (on myths about grieving) could be expanded quite a bit and, like me, many lawyers in Mass and elsewhere have seen it firsthand.

Some bereavement support resources (these may change but a search for "bereavement support group" and then your area may offer some local results) are below. Also check with your local hospice, hospital, funeral home, city/town hall, or attorney for local options if you are interested.

Some links from today...

• Massachusetts Center for Sudden Infant Death Syndrome

• MGH Bereavement Support Group

• The Good Grief Program

• The Good Grief Program Family Resources Page

• Hospice of the South Shore Bereavement Care: 781-794-7803

• Quincy Hospital Bereavement Support Group: 617-376-5502

• Grief and Loss Resources from website of Help Starts Here also see their article on Grief and Loss - Your Options: Bereavement Support Groups -- An Effective Tool for Healing.

Blogs, social networks, and the web extend well beyond Massachusetts borders thus it's often instructive to look around the country and consider how laws are developing elsewhere as they relate to blogging and cyberspace in general. Trial lawyers of both today and of the future will need to be well versed in the law and understand this evolving interactive arena that changes day-by-day. Blogger and California law professor Eric Goldman recently mentions a case involving blog postings being introduced as evidence in a trademark infringement lawsuit. He quotes the court's holding which excluded the blog's comments from evidence.

The Court declines to consider these postings in reaching its decision. The Court is concerned, on this record, that the blog entries lack sufficient indicia of reliability.FN4

Nothing is known about the persons who made the entries, about whether they are related in any way to either party or whether they are describing true events and impressions. Moreover, the authors' meaning and the import of the blog entries are far from clear.

FN4. This should not be construed as a ruling by the Court that entries on Internet blogs could not, on a different record, be reliable and admissible.

(The case was as consumer confusion case on whether "Mooo Tracks" ice cream infringes upon "Moose Track" ice cream. Blue Bell Creameries, L.P. v. Denali Co., LLC, 2008 WL 2965655 (S.D. Tex. July 31, 2008)).

You can look at this from two perspectives, the blog comments were kept out. On the other hand, there were some criteria listed for their exclusion. If these were met, would the comments be allowed into evidence here? It would seem so, why shouldn't they be? Look to the next round of cases to have greater foundations laid down concerning the inclusion of blog comments as evidence.

Like many attorneys I talk with, I'm already seeing more of my clients who are relying on blogs or websites for much of their news. The constantly dwindling size of my newspaper backs this up too. Some do believe, "If I read it, then it's true," but as we know, that's often not the case.

Reliability, validity, authenticity are continuing concerns of justice and in the short term, it seems the web won't make things easier in these areas. Here the law still has much to work out regarding how it's going to keep pace with the web, social media, web 2.0 or whatever name or thing is next. Smart trial lawyers will need to keep pace with these evidentiary possibilities as more and more communications and events are recorded somewhere someplace electronically. Appellate courts and lawyers should see interesting and intellectually stimulaing times ahead in this area of law. While some of the tools of proof may be new, the principles remain the same -- it may just take a little time to connect the two.

An interesting article on law.com recently discussed the issue of lawyers asking jurors about their medication use. With so much of the population on medication, is drug use something that should be questioned of potential jurors? If so, how far should questioning go? Do we ask a general question? Whether the use of medication will interfere with a juror's duties, or do we delve deeper into more specific questions about the person, their conditions, and their treatments? The article, by Julie Kay, offers pros and cons while raising issues likely to continue making headlines(juror falling asleep in murder trial, someone goes off their medications during trial...).

As an attorney-advocate there may be times when seeking this information makes sense for my client. As the lawyer for my client I have the duty the pursue what's in my clients best interests. Personally, however, I think when we start asking jurors to divulge what medication they're taking, we're crossing a finer line. We have to wonder if the jurors' themselves aren't thinking, "Who is actually on trial, here?" Of course there are going to be exceptions to every rule, but speaking from a policy perspective, I'd rather have privacy rights' invasions remain the limited exceptions and not become the standard rule.

"Mediation’s Seven Deadly Sins - Avoiding the Seven Sure-Fire Ways to Torpedo Your Mediation, Upset Your Client and Enrich the Other Side" was the name of a discussion sponsored by the Section of Dispute Resolution held during the 2008 Annual American Bar Association Meeting in New York.

While mediation provides an opportunity to examine settlement, it also provides an opportunity to examine the other side, their case, and how a party may respond in court. One of the panelists, Joel Davidson, said

He sees the mediation process as a chance to get his point across in a specific way. He said he likes to show the person on the other side that I know the issue well.

... mediation provides the opportunity to examine how clients handle themselves. If a client does not come across rationally during mediation, I know that in advance of a trial...

Mediation, however, can also provide a receptive forum for an apology. Often parties want to apologize but are told not to apologize by their attorneys. The attorneys often fear an apology could be used as an admission of liability against them in court and/or reduce their bargaining position in settlement discussions. Handled properly, however, a sincere apology during mediation can sometimes go a long way towards resolving a a brooding conflict. Davidson notes mediation may,

... provide an opportunity for clients to either apologize for a wrong or acknowledge a misunderstanding. This simple communication may be enough to move a case toward settlement.

More and more, I'm finding people want to resolve their Massachusetts divorce, personal injury, or business case in mediation. There are a number of factors that contribute to this (control over the outcome, avoid formality of court, ease of scheduling, ...), but I'm sensing the Mass. economy is playing a role in this increase too.

People seem inclined to seek resolving their MA disputes fairly and quickly while avoiding the high costs and endless delays contentious litigation can sometimes bring. While not all cases can be resolved in mediation, many can. There's really nothing to lose in mediation. In the end, the parties have to agree on the ultimate solution in mediation (they can have an attorney review their agreement first or participate in the mediation with them).

I've been thinking about this more and more as I've begun to formalize our mediation practice offerings at Wilson & Whitaker, LLC. I've created a temporary website focusing solely on mediation as our Weymouth law firm continues to expand our mediation services. Let me know your thoughts and what questions you may have about mediation practices or disputes Massachusetts lawyers deal with.

USA Today's article, Hospital death rates unveiled for first-time comparison, has tools that allow users to compare mortality rates for hospitals near you:

• for heart attacks, heart failure, and pneuomnia on a map,
• compare hospitals in or near certain zip codes,
• or look at standouts (those with the highest and lowest death rates).

While data alone never tells the whole story, the use of statistics and measurement is growing across all fields and professions. The cultural change emerging with technology and collaboration will only continue to fuel this further. Law, politics, and other fields will not be far behind. Just look at sports as an example of how professionals and institutions are measured continuously. But is a focus on numbers alone good for us in the long run? How will this run into privacy concerns? Will Big Brother not only be always watching, but always measuring too? Time will tell how the law raises to these challenges and others.

When asked, "What are my chances at winning at trial?", most lawyers in Massachusetts or elsewhere would reply, "It depends." A recent article in the New York Times is offering some percentages and cost estimates that will likely raise a few eyebrows.

The article entitled, Study Finds Settling Is Better Than Going to Trial, discusses a study finding settlement is statistically generally the best option. The article indicates plaintiffs were wrong to go to trial in 61% of the cases and defendants were wrong to proceed to trial in 24% of cases. Both were wrong because they could have settled the case for an amount better than what was achieved at trial.

The article reports:

...in just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

It's worth noting, however, that the estimated cost for making the wrong choice was a lot greater for defendants ($1.1 million) than it was for plaintiffs ($43,000).

While numbers are one factor to consider in proceeding to trial, the issues of civil justice, correcting a wrong, or having your day in court are worth something of societal value too. These are issues that can't be measured in dollars or percentages, but at the same time lawyers need to advise their client's to pursue their best interests. In the end, the right question may not only be: "What are my chances of winning at trial?" but also ,"Why do I want to go to trial?" The decision is always the clients and it's a decision that should be based on what is right for them, even when it's against all odds.

A new area of medical malpractice law has arrived in MA and it concerns what is known as the "Loss of Chance Doctrine." The Boston Globe's, Denise Lavoie, writes:

The state's highest court ruled yesterday that doctors can be held liable for negligence that reduces a patient's chance of survival, even if the patient's prospect for recovery was already less than 50 percent.

The Massachusetts Supreme Judicial Court (SJC), in a decision written by Chief Justice Margaret Marshall, held:

Where a physician's negligence reduces or eliminates the patient's prospects for achieving a more favorable medical outcome, the physician has harmed the patient and is liable for damages...

The Court's opinion provides a 5 step method for awarding damages:

Deriving the damages for which the physician is liable will require the fact finder to undertake the following calculations:

• 1. The fact finder must first calculate the total amount of damages allowable for the death under the wrongful death statute, G. L. c. 229, § 2, or, in the case of medical malpractice not resulting in death, the full amount of damages allowable for the injury. This is the amount to which the decedent would be entitled if the case were not a loss of chance case: the full amount of compensation for the decedent's death or injury.

• 2. The fact finder must next calculate the patient's chance of survival or cure immediately preceding ("but for") the medical malpractice.

• 3. The fact finder must then calculate the chance of survival or cure that the patient had as a result of the medical malpractice.

• 4. The fact finder must then subtract the amount derived in step 3 from the amount derived in step 2.

• 5. The fact finder must then multiply the amount determined in step 1 by the percentage calculated in step 4 to derive the proportional damages award for loss of chance.

EXAMPLE:

• Step 1. Suppose in a wrongful death case that a jury found, based on expert testimony and the facts of the case, that full wrongful death damages would be $600,000;

• Step 2. The patient had a 45% chance of survival prior to the medical malpractice;

• Step 3. The physician's tortious acts reduced the chances of survival to 15%'

• Step 4. The patient's chances of survival were reduced 30% (i.e., 45% minus 15%) due to the physician's malpractice; and

• Step 5. The patient's loss of chance damages would be $600,000 multiplied by 30%, for a total of $180,000.

See the full case, Robin K. Matsuyama, Executrix of the Estate of Kimiyoshi Matsuyama vs. Neil S. Birnbaum & Dedham Medical Associates, Inc.