Recent Verdicts & Decisions
Recent Verdicts & Decisions
June 2020: Thomas (Toby) Bright, Esq. – Summary Suspension Reversed – Board of Registration of Allied Mental Health and Human Services Professionals
Attorney Toby Bright recently obtained a reversal of a Licensed Mental Health Counselor’s (LMHC) summary suspension of their license to practice. A complaint was filed with the Board of Registration of Allied Mental Health and Human Services Professionals (“Board”) alleging the LMHC had engaged in boundary violations. Following an investigation by the Division of Professional Licensure (DPL), the LMHC’s license was summarily suspended. At an initial hearing shortly after the summary suspension was issued, Attorney Bright appeared before the DPL on behalf of the LMHC, where he cross-examined the Board’s witnesses and argued on the client’s behalf. Following the hearing, the Hearings Officer issued a decision finding that evidence did not establish that the LMHC posed an immediate and serious threat to the public and reversed the summary suspension.
January 2020: Donna M. Marcin, Esq. & Sean P. Carroll, Esq.- Medical Malpractice Jury Verdict for Defense
Attorneys Donna M. Marcin, Esq. and Sean P. Carroll, Esq. recently secured a defense verdict on behalf of a Physician Assistant (PA) in a medical malpractice case. The allegations included counts related to wrongful death, conscious pain and suffering and negligent infliction of emotional distress. Plaintiff’s counsel contended that the defendant Physician Assistant and co-defendant Attending Anesthesiologist were negligent in their care and treatment of a post-operative patient and that the defendants failed to properly recognize and appreciate the signs and symptoms of airway compromise resulting from an expanding, airway occluding, hematoma that developed in the hours following the patient’s elective Anterior Cervical Discectomy Fusion (ACDF) surgical procedure. Attorneys Donna M. Marcin and Sean P. Carroll successfully argued that the care and treatment their client provided to the decedent complied in all respects with the applicable standard of care at the time and under the circumstances, that the patient presented with a normal post-operative course of symptoms and that the decedent’s sudden and catastrophic death was not foreseeable by any medical provider. Following a three week trial, involving the testimony of twelve witnesses, including six experts, the jury returned a verdict in favor of the defendants.
December 2019: Robert R. Hamel, Jr., Esq. – Medical Staff Suspension Upheld After Appeal Hearing
Attorney Bob Hamel was retained to represent a hospital in a medical staff hearing process where a physician challenged his indefinite suspension from the medical staff. The physician was placed on indefinite suspension after an investigation into allegations that he had inappropriately touched two nurses in the workplace. Attorney Hamel successfully represented the Medical Executive Committee against challenges before the Hospital appeals committee that the Medical Executive Committee’s decision was procedurally and substantively deficient.
December 2019: Clare F. Carroll, Esq. and John P. Puleo, Esq. – Medical Malpractice/Wrongful Death – Jury Verdict for Defense
Alleged failure to recognize and appreciate signs of morphine over sedation and to administer sufficient and effective treatment resulting in hypoxic brain injury and death.
In December of 2008, the 46-year-old patient was admitted to the PACU in the early evening following a hysterectomy where she was cared for by the defendant nurse. The patient was receiving Morphine for pain via a patient controlled analgesia pump. The defendant nurse performed frequent checks on the patient, including bringing her food and water and giving her Benadryl for complaints of itching. She noted that the patient appeared drowsy but alert and oriented with one brief episode of confusion. In the late evening, the patient became unresponsive with a depressed respiratory rate. The nurse paged anesthesiology and administered one dose of Narcan per a standing order. The patient’s respiratory rate increased but she remained unresponsive. The anesthesiologist, who was also named in the suit, arrived and administered two additional doses of Narcan. The patient remained unresponsive and was transferred to the ICU where she died several days later. Following a 2-week trial, Attorneys Carroll and Puleo secured a defense verdict on behalf of the nurse demonstrating her care and treatment of the patient was appropriate and nothing she did or could have done would have prevented this unfortunate medical result.
August 2019: John P. Puleo, Esq. – Medical License Revocation Vacated by Supreme Judicial Court
Mr. Puleo recently successfully appealed a decision of the Board of Registration in Medicine which had revoked his client’s license to practice medicine. A Single Justice of the Supreme Judicial Court vacated the Board’s revocation decision and remanded the matter back to the Board for a revised sanction, citing as the basis for the decision the two specific arguments raised by Mr. Puleo in the appeal.
May 2019: Megan E. Kures, Esq. – Medical Malpractice – Jury Verdict for Defense
Alleged failure to remove all components of infected medical device resulting in delayed wound closure and pain.
The deceased patient underwent successful placement of a spinal cord stimulator by the defendant surgeon to address complaints of chronic pain. Approximately a year after the device was placed, the patient developed an infection requiring removal of the device. The defendant surgeon removed the device and continued to follow the patient thereafter. The patient had a lumbar wound that remained open several months after the procedure. The patient alleged that the defendant physician left part of the device behind, resulting in delayed wound closure that precluded the patient from receiving a new device to alleviate his pain. The defense presented testimony concerning how the device was removed that suggested it would be highly unlikely that any part could be left behind. The defense also presented evidence concerning the patient’s underlying medical conditions that resulted in the delayed closure, including a pre-existing history of wound closure issues. The jury returned a verdict for the defendant surgeon after a week-long trial.
May 2019: Megan E. Kures, Esq. – Medical Malpractice – Jury Verdict for Defense
Alleged failure to appropriately assess patient’s fall risk and implement adequate precautionary measures.
A patient undergoing treatment for lung cancer was admitted to the floor following surgery and assessed to be a fall risk. Several nurses cared for the patient following her admission. The defendant nurse was assigned to care for the patient on an overnight shift. The defendant nurse assessed the patient and found her to be a moderate risk for falls based upon her overall condition. Based upon the assessment, he put precautions in place to address the patient’s risk of falls. These precautions included several measures such as having the patient utilize a call bell for all assistance. At approximately 3:30 a.m., the patient was found on the floor and determined to have a fractured hip. The plaintiff alleged that the defendant nurse did not perform an adequate assessment of the patient’s fall risk and failed to utilize a bed alarm or a one on one sitter to observe the patient. The defense presented evidence that the patient had been fully alert and oriented and following instructions during her time on the floor. A physical therapy evaluation found her to have a steady gate. The defendant nurse had assisted the patient out of bed on several occasions and did not believe she would attempt to get out of bed unassisted. The defense also presented expert evidence on the importance of tailoring all precautions to the specific patient based upon an individualized assessment and nursing judgment. The jury returned a defense verdict after a week-long trial.
May 2019: Vincent Dunn Esq., Toby Bright, Esq., and Clare Carroll, Esq. – Medical Malpractice – Jury Verdict for all Defendants
Alleged failure to diagnose cardiac condition in pediatric patient resulting in cardiac arrest and anoxic brain injury.
After a three week trial, a Middlesex County Superior Court jury returned defense verdicts on behalf of all Defendants; three physicians, three physicians assistants and a pediatric partnership. The plaintiff 9-year-old boy initially presented to the pediatric practice in 2007 with a history of two syncopal episodes, one requiring CPR. Over the next three years, the plaintiff received treatment from the six defendants for a variety of complaints, including ongoing persistent dizziness. In 2011, the patient suffered cardiac arrest causing profound anoxic brain injury and spastic quadriplegia requiring 24 hour a day medical care for life. Home care costs alone were estimated at $20 million by plaintiff’s economists. Plaintiff alleged the cardiac arrest was a result of Catecholaminergic Polymorphic Ventricular Tachycardia (CPVT), a rare genetic mutation causing potentially fatal V-Tach in the setting of extreme stress or exercise, and that referral to a pediatric cardiologist would diagnosed the mutuation and prevented plaintiff’s injury. Defendants argued that all care was appropriate and that CPVT would not have been diagnosed if a pediatric cardiology referral had been made. After two days of deliberations, the jury returned defense verdicts for all defendants.
February 2019: Robert R. Hamel, Jr., Esq. & Megan E. Kures, Esq. - Medical Malpractice & Civil Rights Violation - Jury Verdict for Defense
This action was filed by the plaintiff against the defendant physician and hospital in response to a Report of Child Abuse filed by the hospital against the plaintiff. Nurses and the adult ED attending witnessed and reported numerous instances of concerning behavior between a single patient and the patient’s 14 year old child in the patient’s hospital bed. The attending adult ED physician filed a 51A Report of Child Abuse with the Department of Child and Family Services as a Mandatory Reporter. She then consulted with the Defendant who was the Pediatric ED attending on properly filing the report and notified him she would be sending the child to the ED. The child was evaluated and externally examined by the Defendant in the Pediatric ED for signs of sexual abuse. The parent was not notified in advance. No evidence of abuse was found and the case was dismissed. The parent then filed a complaint in Superior Court claiming negligence, lack of informed consent, and civil rights violations against the defendant. At trial, Attorneys Hamel and Kures were able to prove that the evidence demonstrated the evaluation was performed in accordance with the standard of case for the average Pediatric Emergency Physician, in accordance with the usual practice for conducting such exams, and in accordance with the hospital’s policy relating to victims of abuse/neglect and mandatory reporting.
February 2019: Robert R. Hamel, Jr., Esq. - Medical Malpractice - Jury Verdict for Defense
A jury recently found in favor of a defendant radiologist represented at trial by Attorneys Bob Hamel and Megan Kures. In 2013, the plaintiff underwent a brain MRI ordered in response to complaints of worsening headaches. The radiologist reviewed the MRI and read it as normal. In 2014, the plaintiff suffered a seizure prompting a CT scan that revealed a 5cm brain lesion diagnosed as a glioblastoma, a rare form of brain cancer. Experts for the plaintiff alleged the defendant failed to report a 1cm lesion that was present on the 2013 MRI resulting in a delay in diagnosis and lost chance of a cure. Defense experts contended glioblastomas have a very poor prognosis at any stage and a delay in diagnosis, if any, would not have changed the outcome. Furthermore, they pointed out that the 2013 MRI was performed without contrast making the lesion more difficult to see, that multiple unrelated areas of asymmetry observed were still appropriately read within the range of normal, and the 1cm lesion was identified in 2014 only with retrospective knowledge of the 5cm mass. Defense counsel successfully argued the evidence supported that the standard of care was met in reading the 2013 MRI and even if the glioblastoma had been identified at that time, it would not have changed the plaintiff’s prognosis.
February 2019: Donna M. Marcin, Esq. & Megan E. Kures, Esq. - Medical Malpractice - Jury Verdict for Defense
In 2012, the plaintiff elected to undergo complex surgery for a severe case of spinal deformity. The risks of the surgery were outlined to the plaintiff, including an increased risk due to a prior spinal surgery. Immediately following the lengthy surgery, the plaintiff was found to have paraplegia. Following the discovery, the plaintiff underwent two additional surgeries with no apparent cause of the deficits being identified. Plaintiff’s counsel contended that the defendant surgeons breached the standard of care in their performance of the surgery resulting in spinal insult. Counsel for the defendant physicians held that the plaintiff’s injuries were an unfortunate but known complication in a small percentage of patients for this type of complex spinal surgery. After hearing several days of testimony and arguments, the jury returned a verdict for the defense.
December 2018: John J. Reardon, Esq. & Thomas (Toby) Bright, Esq. - Medical Malpractice - Jury Verdict for Defense
Attorneys John Reardon and Toby Bright recently obtained a defense verdict on behalf of a urologist in a medical malpractice case. In 2012, the defendant urologist performed a robotic prostatectomy on the plaintiff for treatment of prostate cancer. A few days after hospital discharge, the plaintiff was readmitted due to complications caused by a urine leak. Plaintiff’s counsel contended that the defendant should have earlier discovered the urine leak and that, once the urine leak was discovered, it should have been addressed differently. Counsel for the plaintiff further contended that his client suffered substantial injuries as the result of the alleged negligence. John and Toby argued that the care and treatment their client provided to the plaintiff conformed in all respects with the applicable standard of care at the time and under the circumstances, that the plaintiff was treated properly when he was readmitted to the hospital, and that the urine leak was diagnosed in a timely manner and treated appropriately. Following several days of trial, the jury returned a verdict for the defendant.
September 2018: Alexandra Power, Esq. – Real Estate Litigation – Defense Verdict
Attorney Alexandra Power obtained a defense verdict after trial on allegations of fraud against a real estate company. This case involved allegations that the plaintiff’s real estate agent knowingly and intentionally failed to disclose building code violations at the subject property that was ultimately purchased by the plaintiff. On cross examination, the plaintiff admitted that he had no direct evidence of any wrongdoing on behalf of the real estate agent and that he had previously threatened to sue the real estate company for other reasons during the transaction.
April 2018: Robert R. Hamel, Jr., Esq. – Residency Termination for Unauthorized Moonlighting Upheld by Hearing Committee
Attorney Bob Hamel was asked to represent a hospital residency program in a hospital hearing process to review an adverse action taken against a physician. The physician was terminated from a surgical residency program for violating the program’s policy prohibiting moonlighting and engaging in a pattern of dishonest and potentially dangerous behavior. He had been previously reprimanded for engaging in unauthorized moonlighting. He continued the practice despite several warnings about the consequences of another transgression and was ultimately terminated. Attorney Hamel successfully represented the residency program before the hospital hearing committee, which issued a finding in support of the program’s decision.
April 2018: Robert R. Hamel, Jr., Esq. – Medical Malpractice – Jury Verdict for Defense
In this case, the 25-year old plaintiff underwent elective spine surgery performed by the defendant in 2009. The plaintiff first presented to the defendant with a history of chronic back pain with pain and numbness radiating down to her lower extremities. After a series of conservative treatments, the plaintiff was referred to the defendant for a spine surgery consultation. Taking into account her young age, history, and prior treatment, she was advised to continue conservative treatments. When these failed, the defendant performed a minimally invasive transsacral fusion without complications. A month following surgery, the plaintiff reported her original low back pain had resolved, but complained of new pain in her SI joint and leg spasms which did not resolve. She sought a second opinion a few months later and was conservatively treated at the second facility for a year before, due to continued and worsening symptoms, a second more complex two-level spinal fusion was performed obtaining relief. Plaintiff’s allegations were that the defendant was negligent in his performance of the first spinal fusion and that a screw placed during the procedure impinged on neural elements, causing the new pain. The defense maintained that the defendant’s performance of the minimally invasive surgery was within the standard of care for a young woman with a very difficult, chronic back condition that was likely to require additional treatment, and that the imagining studies demonstrated conclusively that no neural elements were impacted. After two weeks of trial, the jury returned a verdict for the defendant.
March 2018: Donna M. Marcin, Esq. & Megan E. Kures, Esq. – Medical Malpractice – Jury Verdict for Defense
In this case, the plaintiff underwent elective spine surgery performed by the defendants in 2006. Approximately six days after the surgery, the plaintiff began to exhibit symptoms of numbness in the groin area along with bowel and bladder dysfunction. An MRI and consultations were ordered and came back negative. Weeks later, the plaintiff was diagnosed with a leak in the dural membrane surrounding the spinal cord. Plaintiff’s counsel alleged that the defendants were negligent in their post-operative care attributing the plaintiff’s symptoms to a delayed dural leak. The defendants argued that bowel and bladder dysfunction were known risks of spine surgery which the plaintiff was informed of and consented to prior to surgery. They maintained that they were not negligent in their performance of the surgery and subsequent treatment. When cross-examined during trial, the plaintiff’s expert opined the standard of care was breached in the post-operative treatment of this complication. However, the expert did not attribute the leak to any injury caused during the surgery and opined the tear occurred post-operatively. The defense presented expert testimony establishing that the surgery was performed within the standard of care and that the defendants were actively and appropriately involved in the plaintiff’s post-operative care, including ordering numerous imaging studies and consultations. Expert testimony based on the evidence further established the symptoms experienced were not causally related to the dural leak and were more likely due to an unpreventable and unfortunate complication. After two weeks of trial, the jury returned a verdict for the defendants in approximately two hours.
February 2018: Alexandra Power, Esq. – Construction Litigation – Defense Arbitration Award
This matter involved allegations that the defendant plumbing and mechanical contractor breached its standard of care in the removal and installation of mechanical equipment in the mechanical penthouse at a large luxury apartment building. The plaintiff alleged that the defendant’s improper workmanship led to a piping failure causing over $500,000 in property losses as a result of water damage. Following a two day arbitration, Alex and Chris were able to secure an arbitration award in favor of the defendant.
January 2018: Thomas (Toby) Bright, Esq. – Psychiatric Malpractice – Jury Verdict for Defense
Attorney Toby Bright recently obtained a defense verdict in a psychiatric malpractice case. The matter involved allegations that a patient committed suicide following discharge from a psychiatric hospital. The plaintiff alleged that a staff psychiatrist was negligent in his care and treatment of the patient. The plaintiff also alleged that a covering psychiatrist, represented by separate counsel, was negligent in discharging the patient prematurely. The plaintiff alleged that the hospital was vicariously liable for the actions of the staff psychiatrist and covering psychiatrist and also sought to pursue a theory of direct liability against the hospital. Prior to trial, HMDR&S obtained summary judgment in favor of the staff psychiatrist and also successfully obtained dismissal of the direct liability claim against the hospital at trial. The Defense presented expert testimony establishing that the covering psychiatrist discharged the patient properly with an appropriate aftercare plan. The jury returned a defense verdict after several days of evidence.
November 2017: Donna M. Marcin, Esq. & Brian E. Sopp, Esq. – Medical Malpractice – Jury Verdict for Defense
This matter involved allegations that on the third day following an appendectomy, the patient began experiencing respiratory distress caused by a bowel ileus and suffered an aspiration event leading to cardiac arrest and death. The plaintiff alleged that the defendant resident physician failed to timely respond to pages from the bedside nurse and that this delay contributed to the decedent’s aspiration event. The plaintiff further alleged that either the defendant resident or defendant attending, represented by separate counsel, should have intubated the patient earlier in the day to protect the patient’s airway in the event of aspiration. The defense presented expert testimony establishing that the defendant resident properly and timely responded to pages, that the decedent had a sudden deterioration of his condition, and that even if a different course of treatment had been initiated earlier in the day, it would not have changed the patient’s outcome. The jury returned a defense verdict in approximately 4 hours after several days of evidence.
November 2017: Megan E. Kures, Esq. – Dental Malpractice – Jury Verdict for Defense
This matter involved allegations that the defendant dentist failed to timely diagnosis and treat the plaintiff for periodontal disease. The plaintiff was a long-time patient of the defendant dentist. The defendant dentist diagnosed bone loss in the plaintiff’s upper jaw and referred her for consultation with a periodontist. The periodontist performed osseous surgery to address bone loss in six teeth and recommended gingival grafts for recession affecting several other teeth. The plaintiff alleged that the delay in diagnosis resulted in the need for more aggressive treatment of her disease and also alleged that it resulted in her requiring an extensive amount of cosmetic dentistry and chronic pain in her neck. The defense presented expert testimony establishing that the alleged delay was not causally related to the plaintiff’s claimed injuries. The jury returned a defense verdict in under three hours following a week-long trial.
August 2017: Robert R. Hamel, Jr., Esq. & Megan E. Kures, Esq. – Employment Discrimination – Jury Verdict for Defense
In this case, the plaintiff alleged that the defendant hospital discriminated against him and violated the terms of his residency agreement when it terminated him from the first year of its residency program. The evidence showed that shortly after entering the residency program, the plaintiff exhibited difficulties in certain aspects of his performance. The plaintiff was made aware of the concerns expressed by his supervisors and expectations were set for improvement. In large part, the plaintiff disagreed with the assessment of his performance. The program thereafter continued to receive concerning feedback about the plaintiff's performance. Approximately six months into the program, the plaintiff was notified that he would not be promoted to the second year of the program due to performance related concerns. The plaintiff asked for a review of this decision. Following review, the decision was upheld and a decision was also reached to terminate the plaintiff. The plaintiff argued that he performed well throughout the program and that the concerns with his performance were illegitimate and based upon his race. He argued that other individuals in the program who had difficulties were treated differently. He also alleged that the hospital failed to follow its policies and procedures in reviewing the non-promotion decision and terminating his employment. Following a two week trial, the jury returned a verdict in favor of the defendant hospital on both counts.
August 2017: Vincent P. Dunn, Esq. & Brian E. Sopp, Esq. – Products Liability in Healthcare – Dismissal
HMDR&S recently prevailed on a matter of first impression in Suffolk County Superior Court when it obtained the dismissal of a hospital sued in a claim alleging a product defect of a medical implant used during hip surgery. HMDR&S argued, and the judge agreed, that under Massachusetts law, claims for breach of warranty can only be brought against a “seller” of goods. Further, where a transaction involves both goods and services, the court looks to whether the “predominant factor, thrust, or purpose of the contract” is the rendition of services or the sale of goods. While Massachusetts courts had not specifically addressed whether a hospital may be liable for breach of warranty for supplying a medical device to a patient as part of treatment, the judge agreed that under the predominant factor test a hospital is not a seller of goods and dismissed the hospital.
February 2017: Megan E. Kures, Esq. & Donna M. Marcin, Esq. – Medical Malpractice – Jury Verdict for Defense
The defendant diagnosed the decedent with ulcerative colitis confined to his sigmoid colon in 2001 at the age of 22. The defendant followed the decedent for his ulcerative colitis for the next 8 years, during which time he made numerous recommendations for treatment, including multiple medications intended to achieve and maintain remission of the decedent’s disease. The decedent resisted the defendant’s treatment recommendations and opted for alternative therapies or no therapy at all. In 2006, 2007 and 2008, the defendant recommended follow-up colonoscopies. The decedent did not schedule a follow-up colonoscopy.
In January, 2009, the decedent agreed to undergo a sigmoidoscopy after experiencing a flare of his symptoms. Biopsies taken during the procedure revealed poorly differentiated adenocarcinoma of the colon. The decedent was ultimately diagnosed with Stage IV colorectal cancer and died ten months later.
The defendant argued that the decedent’s aggressive cancer was unexpected even in the setting of a patient who declined recognized treatments for ulcerative colitis. The plaintiff argued that the defendant should have suspected cancer in light of multiple symptoms the decedent exhibited. The defendant argued that the symptoms were all expected in the context of a patient with untreated or under-treated ulcerative colitis.
After seven days of trial, the jury returned a verdict for the defendant in approximately two hours.
February 2017: Richard Shea, Esq. & Matthew Sweet, Esq. – Recreational Liability – Jury Verdict for Defense
Rick Shea and Matt Sweet recently secured a defense verdict on behalf of a client of the firm after a week-long jury trial in the United States District Court for the District of Massachusetts – Western Division. The claim involved a myriad of negligence based claims, including failure to warn, negligent training, supervision and selection of employees, as well as claims of gross negligence and recklessness, battery, and breach of contract. The Plaintiff’s spouse also brought a loss of consortium claim. The Plaintiff alleged a significant shoulder injury as a result of a fall during the training portion of a guided Segway Mountain Tour that Rick and Matt’s client offered as part of its summer Mountain Adventure Park. The Plaintiff alleged that the injuries from this accident were permanent and negatively impacted all aspects of his life. As a result of these injuries, the Plaintiffs sought a multi-million dollar award from the jury.
Rick and Matt were able to navigate a number of significant legal and procedural hurdles both in the lead up to the trial and during the trial itself, and ultimately secured a unanimous jury verdict after less than three hours of jury deliberations.
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