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.

Independent Medical Examinations in Massachusetts Personal Injury Cases

Rule 35 contemplates that parties can seek independent medical examinations in civil lawsuits to determine the extent of a plaintiff’s purported harm. Rule 35 states that such examinations must be conducted by physicians but does not define the term. Thus, the appellate court looked at the ordinary and usual meaning of the word to determine whether neuropsychologists should be considered physicians.

The appellate court explained that dictionaries define physicians both as doctors and as people adroit at the art of healing others. It further elaborated that neuropsychologists engaged in the practice of diagnosing and treating people with cognitive detriments. As such, the appellate court found that neuropsychologists should be considered physicians for the purposes of Rule 35, despite the fact that they did not have to possess medical degrees to perform their duties. Based on the foregoing, the appellate court affirmed the trial court ruling.

Speak to a Trusted Cape Cod Attorney

People hurt in accidents can often pursue claims against the parties responsible for their harm, but they must establish their damages to recover compensation. If you were injured by another party’s reckless acts, it is advisable to speak to an attorney to determine what evidence you must produce to establish liability. The trusted personal injury lawyers of The Law Offices of John C. Manoog, III, can assess the facts surrounding your injury and help you to pursue any damages recoverable under the law. You can reach us through our online form or by calling us at 888-262-6664 to set up a meeting.

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.

If it is procedural, Massachusetts law applies. In contrast, for substantive matters, the court will take a functional approach that evaluates the interest of the states involved, the parties, and the interstate system as a whole. In the subject case, the court found that the matter in question was a substantive rather than procedural issue.

Additionally, it impacted the case’s outcome as the plaintiff would be precluded from recovering damages under Massachusetts’ comparative negligence law. The court ultimately determined that Rhode Island had a greater interest in the outcome of the matter and that Rhode Island law should apply. Thus, it affirmed the trial court ruling and entered judgment in favor of the plaintiff.

Talk to a Seasoned Cape Cod Attorney

Construction accidents often cause catastrophic injuries, and in many instances, they are the direct result of negligence. If you were harmed in an accident at a construction site, you should talk to an attorney about your potential claims and what damages you may be able to recover. The seasoned personal injury lawyers of The Law Offices of John C. Manoog, III, possess the skills and experience needed to help you seek a just outcome, and if you hire us, we will advocate zealously on your behalf. You can reach us through our online form or by calling us at 888-262-6664 to set up a meeting.

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. Massachusetts Tort Claims Act

The MTCA immunizes towns and public employees from any claims arising out of an action or failure to act to prevent a harmful condition or situation, including the tortious behavior of a third party if the condition is not originally caused by the town or a person acting on its behalf. The courts interpret the phrase “original cause” to mean an affirmative act by a public employer that creates a situation or condition that results in harm.

The court elaborated that the act in question must have contributed in a material way to the creation of the precise condition or situation that caused the harm alleged. In the subject case, the court noted that while the town provided the golf carts to be used for band activities, they did not describe the method in which the carts were to be loaded off of the truck. Instead, the volunteers chose the method employed, which is what ultimately caused the plaintiff’s harm. As such, the condition that directly caused the accident was the use of a plank to unload the golf cart, and therefore, the defendant town was immune under the MTCA. Thus, the court affirmed the ruling as to the defendant town. The court found that the immunity did not extend to the BPO executives, however, and reversed the order to the extent it dismissed the claims against them.

Speak to an Experienced Cape Cod Attorney

People injured in accidents have the right to pursue damages from those responsible for their harm, but in some cases, their ability to recover damages may be hindered by state law. If you were injured because of someone else’s careless acts, it is wise to speak to an attorney about your options. The experienced Cape Cod personal injury lawyers of The Law Offices of John C. Manoog, III have ample experience navigating complex negligence claims, and if you hire us, we will zealously pursue a favorable outcome on your behalf. You can reach us through the form online or at 888-262-6664 to set up a meeting.

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. Proving Causation in Medical Malpractice Cases

The salient issue on appeal was what evidence a plaintiff must present to prove causation in a negligence lawsuit. The court stated that a defendant could not be held accountable for injury unless the defendant actually caused the alleged harm. Causation used to be divided into two categories: cause in fact, or but for causation, and legal or proximate cause. A defendant’s actions or omissions will be a cause in fact of an injury if the injury would not have happened without them. If the injury suffered was a foreseeable possibility of the defendant’s activities, the behavior will be deemed the proximate cause.

The court explained that many courts used the substantial factor test, which allows a finding of negligence in circumstances where the defendant’s actions had a significant part causing the plaintiff’s injury, instead of the but-for test. The court rejected the plaintiff’s claim that the substantial factor test applied in the subject case, however, stating that the approach is inappropriate in circumstances when there are various potential causes of injury rather than numerous sufficient causes of harm. Thus, the court upheld the jury’s verdict, which relied on the but-for test.

Speak to a Trusted Cape Cod Attorney

Medical negligence can cause significant injuries, and in some cases, the harm is fatal. If you lost a loved one because of careless medical treatment, you should speak to an attorney about your options. The trusted Cape Cod medical malpractice attorneys of The Law Offices of John C. Manoog, III, are mindful of the devastation an unnecessary death of a loved one can cause, and we will fight tirelessly on your behalf. You can reach us through the form online or at 888-262-6664 to set up a meeting.

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.

The case did not settle, and the plaintiff filed a formal complaint in court. The defendant academy filed a motion to dismiss the plaintiff’s complaint due to her failure to comply with the presentment requirements of Massachusetts General Laws ch. 258, § 4. The trial court granted the defendant academy’s motion to dismiss, holding that the plaintiff’s first letter did not contain sufficient detail to constitute a proper presentment; her second letter, while more detailed, did not cure the defects in the first letter because it was not sent to the defendant academy’s president; and the plaintiff could not escape the presentment requirement by “recasting her tort claim as a contract claim.”

Decision in the Case

The Commonwealth of Massachusetts Appeals Court affirmed the lower court’s decision. Under the Massachusetts Tort Claims Act, a civil action could not be instituted against a public employer on a claim for damages unless the claimant first presented his or claim in writing to the executive officer of such public employer within two years after the date of the accident for which he or she sought compensation. To comply with the requirements of the Act, the plaintiff’s presentment of his or her claim had to set forth sufficient facts upon which public officials could reasonably discern whether the plaintiff was entitled to recovery. Here, the plaintiff’s first letter was deficient in setting forth the requisite details, and her second letter was addressed to an attorney, not to the public official to whom notice should have been given. As to the plaintiff’s attempt at a breach of contract claim, the appellate court agreed with the trial court that dismissal for defective presentment was the correct course of action.

Speak to Counsel About a Negligence Case in Cape Cod

The Law Offices of John C. Manoog III can help if you have been injured in a Cape Cod slip and fall accident. Call us at 888-262-6664 to speak to someone about setting up a free consultation. There is no legal fee until we settle your case or win a judgment in your favor in a court of law, so please call sooner rather than later. A delay in getting the advice and counsel that you need could result in forfeiture of your right to seek monetary damages for medical expenses, lost wages, pain and suffering, and other losses caused by another’s negligence.

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.

The Decision of the Appeals Court

The Commonwealth of Massachusetts Appeals Court reversed the lower court’s order granting summary judgment and remanded the matter for further proceedings. In the appellate court’s view, the primary question was whether the student both knew of and understood the risks that were posed by entering an area with an unguarded swimming pool. Although the lower court answered the question in the affirmative in granting summary judgment to the defendant, the reviewing court disagreed with this result. Rather, the appeals court held that the question at hand was one of fact, not law, and should have been reserved for the jury’s determination at trial.

In so holding, the court of appeals acknowledged that, under Massachusetts law, a landowner’s duty to a trespasser is not the same as his or her duty would be to someone who was on the subject property with the landowner’s permission or implied consent. Generally speaking, in the case of a trespasser, the landowner only owes a duty to avoid wanton and willful conduct. However, the court went on to point out that, when the trespasser in question is under the age of 18, landowner owes a more heightened duty. Because children and youth may not realize the risks involved in certain dangerous situations, landowners owe a duty of taking reasonable care to avoid harm to them.

Call a Wrongful Death Lawyer in Cape Cod

If you have lost a loved one in a swimming pool accident, the Law Offices of John C. Manoog III can help you explore the possibility of filing a claim for wrongful death against the owner of the property upon which the pool was located. To schedule a free consultation to learn more about your legal rights and the process of seeking compensation in a court of law, call us at 888-262-6664 or contact us through this website. We have offices located in both Hyannis and Plymouth, and we serve all of the Cape Cod area.

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. The Court’s Opinion on Appeal

The United States Court of Appeals for the First Circuit affirmed. With regard to the plaintiff’s motion to remand the matter to state court, the federal appeals tribunal first noted that there was complete diversity of citizenship (the plaintiff resided in Massachusetts and the defendant in Rhode Island). With regard to the amount in controversial requirement for diversity jurisdiction, the court observed that the plaintiff’s initial good faith demand for $650,000 was more than ample to qualify the case for diversity jurisdiction (the threshold was $75,000).

As to the plaintiff’s remaining arguments on appeal, the court ruled that the district court had acted appropriately in denying the plaintiff’s motion to depose a particular expert witness, given the plaintiff’s delay in seeking relief on this issue. The court also agreed with the lower tribunal’s decision to exclude another expert’s testimony because the expert’s opinion failed to meet the standard of admissibility on both the standard of care for a pharmacist and the likely cause of the plaintiff’s injuries. Finally, the court held that summary judgment to the defendant was proper on the plaintiff’s ch. 93A claim, given the failure of the plaintiff’s negligence and product liability claims.

Seek Legal Advice About a Misfilled Prescription Case

Just as doctors, nurses, and hospitals can be held accountable for professional negligence, pharmacies and drugstores can be subject to malpractice actions when they breach the standard of care that applied to a particular situation. If you have questions about a Cape Code pharmaceutical malpractice case, please contact the Law Offices of John C. Manoog III at 888-262-6664 or through this website. We look forward to hearing from you.

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.

The trial court dismissed the plaintiff’s complaint pursuant to Mass. R. Civ. P. 12 (b) (6) after concluding that, as a matter of law, the defendant did not owe a duty to the plaintiff under the circumstances.

Decision of the Appeals Court

The Appeals Court of Massachusetts affirmed the lower court’s entry of judgment for the defendant. The defendant had been hired to perform a lead inspection by the person who owned the property in 1993. At that time, the defendant opined that there were no “dangerous levels of lead” as that term was defined under 105 Code Mass. Regs. § 460.730(A)-(F). In order to prevail in a negligence case, the burden of proof is on the plaintiff to prove that the defendant owed him or her a duty of care and that a breach of this duty was the proximate cause of the damages for which the plaintiff seeks monetary compensation.

Importantly, the question of whether or not a duty existed under the circumstances of a particular case is a question of law. Here, the defendant had a contractual duty to inspect the premises and report an accurate result to the person who owned the property at the time of the inspection back in 1993. Given that the duty was one created by contract, the question then became whether it was reasonably foreseeable that other, nonclient individuals such as the plaintiff would rely on the results of the inspection at some point in the future. Answering the question in the negative, the court concluded that the connection between the plaintiff’s reliance on the inspection and the defendant’s alleged negligence in the performance of his contractual duties to his original client was too remote to establish liability in the instant case.

Learn More About Your Legal Rights

If you or a member of your family has been hurt by someone else’s negligence or carelessness, it is important to understand your legal rights. At the Law Offices of John C. Manoog III, we handle a wide variety of personal injury cases, including professional negligence, motor vehicle accidents, premises liability claims, and product liability suits. Contact us through this website or phone us at 888-262-6664 to learn more about how we can help in your case. Please remember that personal injury and wrongful death claims must be timely filed, so do not put off talking to a lawyer about your case.

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.

The Court’s Decision

The United States District Court for the District of Massachusetts denied the defendant vehicle owner’s motion for summary judgment. Before beginning its analysis, the court reiterated the familiar rule that summary judgment is only appropriate in situations in which there are no genuine disputes as to any material fact. When this happens, the moving party is entitled to judgment as a matter of law. However, if there is evidence to support the nonmoving party’s case, the matter should proceed towards trial, rather than be resolved via summary judgment.

Here, there was evidence that the defendant motorist had been involved in at least two or three prior accidents while driving the same vehicle as in the case currently being litigated, that she had received numerous traffic citations, and that she had informed the defendant vehicle owner that the car she was driving at the time of the accident was too big for her. In a negligent entrustment case pursued under Massachusetts law, the party seeking to recover money damages against the other must be able to prove that he or she entrusted the vehicle to someone who was incompetent or unfit, that the owner gave the driver permission to drive the vehicle, and that the owner had actual knowledge of the driver’s incompetence or unfitness to operate the car in question. Although the defendant vehicle owner argued that the plaintiff could not prove the necessary elements, the district court disagreed, noting that a poor driving record, along with a sufficient pattern of negligence, could be used to infer a driver’s incompetency. In denying summary judgment, the district court agreed with the plaintiff that there was a genuine issue of material fact as to whether the defendant motorist’s driving record sufficiently displayed the pattern of negligence required in a negligent entrustment case.

Call a Knowledgeable Car Accident Attorney in Cape Cod

Seeking a fair monetary recovery following a traffic accident caused by a negligent driver can be a tedious process. Regardless of whether the insurance company that will ultimately be paying out on a claim is a traditional motor vehicle accident liability insurer or an insurance company that issued a policy of uninsured/underinsured motorist coverage, the injured party can expect a fight. To put an effective legal advocate to work advocating for your side of the case, call the experienced Cape Cod car accident litigation team at the Law Offices of John C. Manoog III. You can phone us at 888-262-6664 or reach us through this website. We look forward to learning more about your situation and explaining how we can be of service to you.

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.

The Appellate Court’s Decision

The Commonwealth of Massachusetts Appeals Court affirmed the lower court’s decision entering judgment on the jury’s verdict in the customer’s favor. On appeal, the restaurant insisted that the customer’s case had proceeded only on the legal theory of failure to warn. The appeals court began its opinion by pointing out that this characterization was incorrect; rather, the customer had argued not only that the restaurant had failed to warn her of the dangers of the step but also that it had failed to maintain its premises in a safe condition in light of the fact that there was a “level change” in the middle of the building. This distinction was important because, in a case proceeding purely on a failure-to-warn theory of liability, a defendant can avoid liability by showing that the complained-of danger was “open and obvious.”

The reviewing court went on to note that, even if a property owner is relieved of its usual duty to warn of a hazardous condition due to its open and obvious nature, the owner may still have other duties to those coming upon the business property. This can include, for example, the duty to remedy in some situations. Thus, if a plaintiff proceeds on a theory other than failure to warn, he or she may have a viable claim even if the condition at issue was open and obvious. Turning to the case at bar, the appeals court first held that the restaurant had waived appellate review of the trial court’s jury instructions on failure to remedy because it did not properly preserve the issue for appellate review. The court also then found that review of whether or not a special verdict slip inquiring as to whether the step was open and obvious had been waived, insomuch as the trial judge had revised the slip to comply with the defendant’s objection to an earlier version.

Overall, considering the evidence presented at trial, the appeals court opined that it would have been reasonable for the jury to have found that either the condition at issue was not open and obvious, thus triggering a duty to warn, or that, although it was open and obvious, the restaurant still owed a duty to remedy the step because it was likely to cause harm. Thus, there was no reason to disturb the lower court’s order entering judgment upon the verdict.

To Schedule a Free Case Evaluation with an Injury Attorney in Cape Cod

Those who have been hurt in a slip and fall accident may be owed substantial compensation for their injuries. To speak to an experienced Cape Cod premises liability attorney, call the Law Offices of John C. Manoog III at 888-262-6664 to learn more about how we can help you pursue a liability claim against the responsible party.

It works like this: the plaintiff must be able to prove, by a preponderance of the evidence, not only that he or she was owed a duty of care, that this duty was breached, and that he or she suffered harm but also that his or her damages were caused by the defendant’s actions or in actions. However, “cause” or “causation” is a term of art in the world of negligence law. Something can be the actual cause of harm without necessarily being the legal cause of such damages.

Public policy factors into the development of this area of the law. Would it be wise to hold a defendant liable for a “freak accident,” even if, technically, his or her breach of duty resulted in damages to the plaintiff? Probably not. Somewhere between such occurrences and conduct that is so likely to result in harm as to be considered intentional – and possibly subject to punitive damages – lies the type of conduct that the principles of negligence are designed to govern.

Facts of the Case

In a recent medical malpractice case considered on appeal by the Supreme Judicial Court of Massachusetts, the plaintiff was the personal representative of the estate of a woman who died from complications arising from chronic thromboembolic pulmonary hypertension (CTEPH), which she developed after being prescribed with a progesterone cream to treat symptoms of perimenopause. At the time of her death, the decedent was 43 years old. The plaintiff’s complaint alleged that the defendant medical providers (which included a nurse practitioner and the physician who employed her) were liable for the decedent’s death on several theories, including negligence, failure to obtain informed consent, and loss of consortium.

The case was tried to a jury and resulted in a verdict in favor of the defendants. The plaintiff filed a motion for a new trial. After the trial court denied the plaintiff’s motion, the plaintiff appealed. The Supreme Judicial Court transferred the case from the intermediate Appeals Court of Massachusetts on its own motion.

Decision of the Court

The court affirmed the trial court’s entry of judgment on the jury’s verdict in favor of the defendants. In so doing, the court clarified the law of Massachusetts with regard to the element of causation, concluding that the traditional “but-for” factual causation standard was the appropriate standard to be employed in most cases, including those involving multiple alleged causes. The court noted that this was the approach recommended by the Restatement (Third) of Torts: Liability for Physical and Emotional Harm (2010). In the court’s view, the “substantial factor” test was unnecessarily confusing and should be discontinued, even in multiple sufficient cause cases.

Because the trial court below had instructed the jury using traditional but-for causation principles (which required that the harm complained of be within the scope of the foreseeable risk that might arise from the defendant’s breach of duty), the trial court’s entry of judgment upon the jury’s verdict was proper.

Speak to a Lawyer About a Cape Cod Medical Malpractice Case

Being the victim of a doctor or nurse’s mistake can be very costly, both in economic terms and in terms of one’s health and well-being. If a medical professional’s negligence has caused personal injuries or wrongful death to you or someone in your family, you need reliable legal advice about your potential claim. Call the Law Offices of John C. Manoog III at 888-262-6664 to schedule a free consultation with a helpful Cape Cod medical negligence attorney and learn more about legal rights.

Sometimes, a mistake was obviously made, but the doctor insists that his or her error did not harm the patient in any meaningful way. This argument is especially prevalent in cases involving a missed diagnosis.

In such cases, the plaintiff believes that, had a proper diagnosis been made in a timely fashion, he or she would have had more treatment options and/or a better outcome of the illness that the doctor somehow missed. In turn, the physician is likely to claim that the illness – and the ultimate result thereof – was bound to happen anyway, such that his or her mistake should not result in monetary compensation to the patient or his or her family.

Facts of the Case

In a recent appellate case, the plaintiffs alleged that the defendant physician had committed malpractice by failing to perform a proper examination and/or discuss the possibility of certain further testing on the male plaintiff (who was joined in the litigation by a family member, presumably his spouse) during an appointment in 2010 and that, as a result, the plaintiff’s prostrate cancer was not detected for some two years. The case was tried to a jury and resulted in a special verdict finding, among other things, that the plaintiffs had proven $0 in damages, even though the defendant’s failure to discuss the test had caused harm to the male plaintiff. The plaintiffs appealed from that judgment.

The Appellate Court’s Opinion

The Commonwealth of Massachusetts Appeals Court affirmed the trial court’s ruling. On appeal, the plaintiffs insisted that they were entitled to an additur because their damages had been “so incontrovertibly proven” that the jury’s verdict could not stand. In rejecting this request that a more reasonable damages award be assessed against the defendant, the reviewing court noted that the plaintiffs were not entitled to pursue a theory of damages during the appellate process that was not fairly presented during the trial of the case to the jury.

In the appellate court’s view, the plaintiffs were attempting to raise a new theory on appeal, namely that the male plaintiff was entitled to damages resulting from the burden of his alleged need to undergo more extensive medical treatment because of the delay in his diagnosis resulting from the defendant’s medical negligence. In affirming the $0 verdict entered in the court below, the court noted that there had been expert testimony at trial to the effect that, because of the inherently aggressive nature of the plaintiff’s particular cancer, the delayed diagnosis did not result in any difference concerning his treatment or prognosis. In other words, in the expert’s opinion, the plaintiff’s outcome depended only on how the cancer responded to treatment – not to when exactly it was discovered.

Schedule an Appointment to Discuss a Possible Medical Malpractice Case

Medical malpractice cases are often hard-fought. Doctors abhor any implication that they made a mistake that harmed a patient or cost a patient his or her life, and the insurance companies that represent those in the medical profession do not like to pay out settlements or verdicts. Having an effective legal advocate in your corner is essential if you feel that you are owed compensation for a healthcare provider’s mistake. If you need to talk to an experienced Cape Cod wrongful death attorney about a possible missed diagnosis or other act of medical negligence, the Law Offices of John C. Manoog III can help. Call us at 888-262-6664 to schedule a complimentary case evaluation today.

Insurance companies want you to believe this legal fiction because they believe that, if a juror is aware that the verdict will be paid by an insurance company instead of a real person, the juror will be more likely to find in the plaintiff’s favor – and more likely to award a more sizable verdict if they don’t think the defendant will be paying the verdict out of his or her own pocket.

Sometimes, an insurance company may actually be the plaintiff in a lawsuit and still want its identity to be kept secret. For example, if an insurance company pays out a claim, it may then file a subrogation claim against the person or persons who caused the loss. Even then, the insurance company doesn’t want you to know of its involvement in the case because of the fear that such knowledge would taint the outcome against it.

Facts of the Case

In a recent Massachusetts Appeals Court case, the “real” plaintiff was an insurance company that paid out on a fire insurance claim filed by its insured after the insured’s house caught fire during a renovation project. The insurance company began its subrogation litigation against the defendant renovation contractors (whose negligence allegedly caused the fire that resulted in the claim), but it later substituted the insured as the plaintiff. The matter was tried to a jury, which returned a verdict in the defendants’ favor. The insurance company appealed.

Decision of the Appellate Tribunal

The reviewing court reversed and remanded, holding that the trial court’s decision to allow evidence before the jury concerning the true identity of the plaintiff – the insurance company, not the insured – was a clear error in judgment. Rather than base the decision on a valid evidentiary need, the judge had expressed a legally irrelevant concern that the jury “would think that the insured was out for the entire loss.” In the appellate court’s view, the judge’s decision to “broadly allow matters of insurance” to be considered as part of the evidence at trial, and to let it be known to the jury that the real plaintiff was the insurance company, fell outside the range of “reasonable alternatives” for handling the situation.

Speak to a Cape Cod Negligence Lawyer

Insurance companies do not like paying claims, and they are not above manipulating the legal system to avoid doing so whenever they can. If you’ve been hurt because of someone else’s careless behavior or neglect, you need an experienced legal advocate on your side. For a free consultation with a knowledgeable personal injury attorney, call the Law Offices of John C. Manoog III at 888-262-6664.

Of course, not every encounter between humans and animals will result in a finding of negligence against the owner of the dog or other animal in a Cape Cod personal injury lawsuit. It all depends upon the particular encounter and whether the pet owner’s negligence contributed to harm to the plaintiff.

In cases in which an animal’s owner is held liable for a person’s injuries from a bite or other harm, the injured individual may be entitled to substantial money damages. This can include medical expenses, lost earnings, and compensation for pain and suffering, among other things.

Facts of the Case

In a recent negligence case considered on appeal by the Massachusetts Appeals Court, the plaintiff was a man who was injured when his dog was allegedly attacked by another dog (probably a pit bull mix). The dog was owned by a tenant of the defendant landlord. At the time of the altercation between the two animals, the plaintiff’s dog was on a leash and was running beside him as he bicycled down the street in front of the defendant’s property. The tenant’s dog was unleashed and ran out towards the plaintiff’s dog. The dogs began to fight, which in turn caused the plaintiff (who was still holding his own dog’s leash) to fall from his bike and be injured.

The plaintiff filed a negligence lawsuit against the defendant. The defendant filed a motion for summary judgment, arguing before the trial court that he had no legal duty to protect the plaintiff from harm from a dog that he (the defendant) did not own. The trial court granted the motion, and the plaintiff appealed.

The Court’s Decision

The appellate court affirmed the lower court’s entry of summary judgment for the defendant. Phrasing the issue was “whether a landowner has a legal duty to protect passers-by from a dog kept on the landowner’s property, but owned by the landowner’s tenant,” the appellate tribunal agreed with the lower court that the defendant was entitled to summary judgment. Viewing the granting of summary judgment de novo as is appropriate under Massachusetts law, the reviewing court observed that the defendant was only entitled to judgment as a matter of law if the plaintiff had no reasonable expectation of proving an essential element of his claim if the matter proceeded to a trial.

Here, the court found that the risk of harm to a passer-by such as the plaintiff was not reasonably foreseeable to the defendant, thus negating one of the essential elements for a negligence claim. Rather, in the court’s opinion, the obligation was on the dog’s owner – rather than the defendant landlord – to handle the animal responsibly.

Schedule an Appointment with a Negligence Attorney in Cape Cod

If you, your spouse, or your child has been injured by an animal that belonged to someone else and you need to talk to an experienced dog bite attorney, call the Law Offices of John C. Manoog III at 888-262-6664. We represent clients throughout the Cape Cod area, including Hyannis, Plymouth, and the surrounding area. Please be mindful that there is a limited amount of time for filing a negligence claim against a dog owner or landowner, so it is important to take prompt legal action. There is no charge for the initial consultation with us, and many cases are accepted on a contingency fee basis: we collect our fee when your case is settled (rather than expecting payment upfront).

For instance, claims against the government proceed differently in many situations, as compared to cases involving only private citizens or businesses. Sometimes, the claims period is shorter, or notice must be given by a certain date. This can effectively mean that an injured person must act much more quickly when suing a governmental entity.

Also, the government may be immune from certain types of lawsuits. Even where a suit is allowed, there can be limitations on the amount of money damages that can be awarded to a claimant in some cases involving the government.

Facts of the Case

In a recent appellate case, the plaintiff was the personal representative of a woman who went into cardiac arrest and died after an intruder entered her home and stabbed her; the plaintiff, too, was stabbed during the attack. Both women received medical treatment after the stabbing, but the treatment was allegedly delayed because the fire truck that responded to the call went to the wrong address. The plaintiff filed suit against the defendant city (and others), asserting that her decedent’s wrongful death and her own emotional distress were due to the defendants’ negligence, particularly the delay of the defendant city’s employees in responding to the 911 call that was made alerting authorities that an intruder had come into their home and stabbed them.

The defendant city filed a motion seeking dismissal of the plaintiff’s claims under the Massachusetts Tort Claims Act. The trial court denied the motion, and the defendant city appealed.

The Court’s Ruling

The court reversed the lower tribunal’s order denying the defendant city’s motion to dismiss the tort claims against it. On appeal, the defendant city argued that the plaintiff’s tort claims were barred by Massachusetts General Laws ch. 258, § 10(j), which describes a public employer’s liability for negligence. After reviewing the pertinent statute, the appellate court agreed with the defendant city that the tort claims against it should have been dismissed by the trial court. Applying the plain language of the statute, the court noted that the harm to the plaintiff had been caused by the “violent and tortious conduct” of a third person (namely, the perpetrator of the stabbings); in the court’s view, this was “exactly the type of claim” that should be excluded under the statute.

While it may have been theoretically possible for the plaintiff to have prevailed on a negligent medical treatment theory of liability, she did not make any such allegation against the defendant city and, thus, dismissal of her case was the appropriate remedy on appeal.

Legal Advice Available in Cape Cod

There’s never an easy time to lose a loved one, but a loss can be especially painful when it was caused by someone else’s mistake or error in judgment. If you have lost a loved one and believe that another’s negligence or carelessness was the cause of your loss, the Law Offices of John C. Manoog III may be able to help. For a free Cape Cod wrongful death case consultation, call us now at 888-262-6664. Don’t put off the call, or else you may forfeit your right to pursue compensation if a claim is not timely filed.

However, it is important to note that medical malpractice cases can be difficult to pursue. The insurance companies that represent healthcare facilities and medical professionals have plenty of financial resources to fight a finding of liability, if possible.

It is important to consult a knowledgeable malpractice attorney if you believe that you have a medical negligence claim. An attorney experienced in this area of the law can help you review your medical records, consult an appropriate expert witness to render an opinion regarding whether an act of malpractice occurred, and, if the case proceeds to trial, explain the complex medical issues to the jury in a way that they can understand.

Facts of the Case

The plaintiff in a recent (unreported) case considered on appeal was a man who injured his hand in a fall in 2012. He went to the defendant hospital’s emergency department, where he was seen by the defendant nurse and the defendant student physician’s assistant, who was working under the supervision of the defendant doctor. Two days later, the plaintiff sought treatment at a different medical facility; there, it was determined that the injury was infected and required surgery. The plaintiff later filed suit against the defendants, alleging that they had committed medical malpractice and that, as a result, he had suffered pain, suffering, and loss of function.

The trial court granted summary judgment to the defendants.

The Appellate Court’s Decision

Upon review, the Massachusetts Appeals Court affirmed. The court began by acknowledging that the lower court had entered summary judgment to the hospital in a separate order than the order dismissing the plaintiff’s case against the individual defendants; because the plaintiff had failed to timely appeal that judgment, the court of appeals lacked jurisdiction to consider the propriety of the order of summary judgment as to the hospital. With regard to the individual defendants, the court was able to reach the merits of the parties’ arguments and agreed with the trial court that the plaintiff’s case was properly dismissed.

In so holding, the court reiterated the rule that to prevail in a medical malpractice lawsuit, the plaintiff had the burden of proving both that the defendant(s) breached the applicable standard of care and that this breach was the proximate cause of the injuries for which the plaintiff seeks compensation. As to the doctor, although the plaintiff had apparently consulted an expert witness, the plaintiff had failed to pay the expert within a reasonable amount of time, such that the expert would not have testified at trial had the case proceeded that far. With regard to the nurse, the plaintiff’s expert opined that the defendant nurse had breached the standard of care by not being more proactive in her treatment of the plaintiff, but the expert had not stated that any such breach was the proximate cause of harm to the plaintiff. Finally, as to the student, the plaintiff’s expert’s opinion did not address the standard of care that was applicable to a student physician’s assistant, nor did it address whether any deviation from care was a contributing cause of harm to the plaintiff.

To Schedule a Free Consultation with a Cape Cod Attorney

If you have been hurt by the negligence of a doctor, nurse, or another medical professional, you may have a claim for medical malpractice. To talk to an experienced medical malpractice attorney about your case, call us at the Law Offices of John C. Manoog III at 888-262-6664 and ask for a free consultation.

However, the inquiry does not end there. The expert must be prepared to give a formal opinion as to any deviations of care on the part of the patient’s treating physicians and how those deviations affected the patient. Ultimately, the expert may be called upon to defend those opinions in a court of law.

Because medical malpractice cases have several special requirements, it is important that the plaintiff be represented by experienced, highly qualified legal counsel. It is a given that the doctor, nurse, or hospital will have a team of legal professionals on his or her side of the case, and the plaintiff’s attorney must be prepared to wage a vigorous fight at trial, if necessary.

Facts of the Case

In a recent unreported appellate court case, the plaintiff was the personal representative of the estate of a woman who died while in the care of the defendant medical provider. The plaintiff filed suit against the defendant, asserting a claim for alleged medical malpractice. After a medical malpractice tribunal was convened, however, the tribunal decided that the plaintiff’s offer of proof was insufficient to present a triable claim. Thereafter, the plaintiff filed a surety bond in “purported compliance” with Massachusetts General Laws ch. 231, § 60B.

While the plaintiff’s case was pending, the Massachusetts Supreme Judicial Court decided a separate case, in which it was held that a surety bond “in the face amount of the statutory requirement” did not satisfy § 60B. The defendant filed a motion to strike the plaintiff’s filing of the surety bond and to dismiss her case. The trial court granted the defendant’s motion. The plaintiff sought relief from that judgment, as well as additional time in which to file a cash bond. The trial court denied both of the plaintiff’s requests.

Decision of the Court

The Commonwealth of Massachusetts Appeals Court affirmed the trial court’s decision in favor of the defendant. Although the plaintiff averred that the defendant put the decedent on an antidepressant medication without her informed consent and that the decedent suffered multiple falls while taking the medication, the reviewing court found that the plaintiff’s expert had not connected the defendant’s alleged deviations from the expected standard of care to the harm suffered by the decedent. While the courts generally review a plaintiff’s offer of proof favorably and can draw reasonable inferences in favor of a plaintiff, here, the court found that there was not a sufficient offering on the issue of causation to advance the plaintiff’s claim beyond speculation or conjecture. Hence, no legitimate question of liability appropriate for judicial inquiry had been raised, in the court’s view.

The appellate court also agreed with the lower court’s rulings on the issue of the bond and on the denial of the plaintiff’s motion for post-judgment relief.

Contact a Medical Malpractice Lawyer in Massachusetts

As much as they would like for us to believe otherwise, doctors and other healthcare professionals make mistakes. When they do, serious personal injury or even wrongful death can occur. If you or a family member has been hurt by a medical worker’s negligence and need to talk to an experienced Cape Cod medical malpractice attorney about your legal rights, call the Law Offices of John C. Manoog III at 888-262-6664. We accept most medical negligence cases on a contingency fee contract, which means there are no upfront legal fees required to get your case started.

In many instances, it is the insured motorist who brings suit against his or her own insurance company. For example, a person whose insurance company had an opportunity to settle a lawsuit against him or her for policy limits but refused to do so might seek money damages after a jury awards a substantially higher verdict at trial.

There are also some situations in which someone else might bring suit against the insurance company. One way that this can happen is through an assignment of rights from the insured person to a third party, perhaps a person injured in the accident.

Facts of the Case

In an unreported case recently considered on appeal, the plaintiff was a man who was injured in an automobile accident in November 2015. His attorney sent a letter to the allegedly at-fault driver’s insurance company soon thereafter, demanding that the insurance company pay the at-fault driver’s liability insurance policy limits of $20,000 to settle the plaintiff’s personal injury claim for damages resulting from the accident. The letter contained a provision that, if the settlement offer was not accepted within 30 days, it would be withdrawn, and the plaintiff would file suit against the at-fault driver. The case was not settled, the suit was indeed filed, and the case eventually went to trial before a jury, who awarded the plaintiff $50,000.

The at-fault driver assigned his rights to the plaintiff, and the plaintiff filed suit against the insurance company, asserting claims under Massachusetts General Laws chs. 93A and 176D and demanding that the insurance company pay the total amount of the judgment. After the parties waived a jury trial, the trial court dismissed the plaintiff’s complaint. He appealed, seeking review.

The Decision of the Appellate Court

On appeal to the Massachusetts Appeals Court, the court affirmed the lower tribunal’s dismissal of the plaintiff’s complaint. Although the plaintiff maintained that the insurance company had acted in bad faith by failing to settle the case for policy limits within the 30-day period set forth in the plaintiff’s attorney’s demand letter, the appellate court found that the insurance company had responded to the demand letter within a reasonable amount of time. Even though the response did not come within the 30-day period demanded by the plaintiff’s counsel, the court found that the insurance company had nevertheless effectuated a “prompt, fair, and equitable” settlement and was thus not liable under the relevant bad faith statutes.

In so holding, the court of appeals pointed out that the insurance company’s 10-day delay had been due to an “internal transmittal glitch.” Although the plaintiff contended that the insurance company should have been more expeditious, the court found that, under the circumstances, the 10-day delay did not amount to a violation of Massachusetts insurance law.

To Speak to Massachusetts Counsel About a Personal Injury Case

A Cape Cod car accident case can seriously impact a litigant’s physical, emotional, and financial health for many years to come. At the Law Offices of John C. Manoog III, we work hard to get a fair settlement or judgment on behalf of each and every client that we represent. To talk to a member of our team about how we can be of service in your case, call us now at 888-262-6664.

Sometimes, however, a defendant may be accused of conduct that surpassed that of simple negligence in terms of its culpability. This is called gross negligence or recklessness by the courts.

An example of simple negligence might be a defendant slightly exceeding the speed limit and causing a collision. Gross negligence, by contrast, might occur if a defendant was driving while intoxicated and exceeding the speed limit not just by a few miles per hour but perhaps 30 or 40 miles per hour.

Facts of the Case

The plaintiff in a negligence case in which the Massachusetts Appeals Court recently issued an appeal was a member of a college softball team. The plaintiff filed suit against the college and one of her teammates, seeking to recover compensation for injuries that she allegedly sustained during a softball practice session. The defendants filed a motion for summary judgment. The trial court granted the motion, and the plaintiff appealed.

The Appellate Court’s Decision

The appellate court affirmed the lower court’s order entering summary judgment in the defendants’ favor. According to the appellate court, ball players like the plaintiff and the defendant teammate did owe one another a duty of care, namely the duty to refrain from reckless conduct; this was true regardless of whether the allegedly tortious conduct took place during an athletic contest or game or during a practice (as was the case here). Such players were not, however, subject to a lawsuit for simple negligence.

The court went on to note that, as a condition of her participation on the college’s softball team, the plaintiff had signed a “participant waiver and release of liability” form. Under the terms of the waiver, the college, its agents, and its employees were released from liability as to “any claims” that might arise due to the plaintiff’s participation in the college’s athletic program. Because of this waiver, the defendants could only be held liable upon a finding of gross negligence or recklessness. In reviewing the factual details raised by the parties in the summary judgment proceedings, the appellate court agreed with the lower tribunal that there were no genuine issues of material fact indicating that the teammate or the college engaged in reckless conduct or gross negligence. Accordingly, the trial court’s entry of summary judgment for the defendants was proper.

Talk to a Cape Cod Attorney

If you have been hurt due to the negligent or reckless contact of another individual, a business, or a governmental entity, you should talk to an attorney about your legal right to pursue money damages for what you have been through. To schedule a free consultation with an experienced personal injury attorney, call the Law Offices of John C. Manoog III at 888-262-6664. Please remember that there is a time limit for filing negligence claims in the state of Massachusetts, so it is important to talk to counsel as soon as possible. We are currently reviewing personal injury and wrongful death claims throughout the Cape Cod area, including Hyannis and Plymouth.