Boston Personal Injury Lawyer - Head & Brain Injuries - Most Commented

Anesthesia Error - a Deadly Form of Malpractice

Ken Margolin — Mon, 06 Nov 2006 12:30:00 GMT

Anesthesia errors, fortunately, are not everyday occurrences. When they do happen, the results are often catastrophic. Since a serious anesthesia mistake often causes deprivation of oxygen to the patient, death or brain damage can be the end result.

To the great credit of the anesthesia profession, it was anesthesiologists who led the way to modern methods of medication error reduction. Borrowing techniques from the airline industry, anesthesia professionals used "root cause analysis" to analyze each step in an anesthesia catastrophe until the cause was understood. Systemic failures were often the root cause - for example, poor communication between surgeon and anesthesiologist, excessive work loads, or training inadequately oriented to preventing errors.

In the 1980s, the American Society of Anesthesiologists devised standards of care, which evolve with advances in learning and technology, and that ultimately were recognized as standards applicable to the entire profession. Monitoring a patient's oxygenation during anesthesia, has vastly improved over the years. The result of the anesthesia profession's introspection and efforts to improve, has been to radically reduce the number of anesthesia tragedies. The methods used by the anesthesia profession have been adopted by medical professionals generally to reduce medication and other medical errors.

No system is error-free. Anesthesia tragedies have occurred in Massachusetts in recent years due to temporary anesthesia staff unfamiliar with a hospital's procedures, administration of the wrong type of anesthesia, failure to empty a stomach of food prior to administering general anesthesia (which can cause the patient to vomit into the lung with often fatal result), to name a few. Whenever a patient dies or suffers brain damage unexpectedly during surgery, a call to a medical malpractice attorney is wise. Anesthesia records are detailed and provide a minute to minute picture of what did or did not occur. If anesthesia malpractice occurred, it can generally be discovered by an expert review of the medical record. In a case of anesthesia malpractice, the patient's rights to recover for the injuries caused are the same as for any other form of medical malpractice.

Originally posted at InjuryBoard by Ken Margolin

Hospital Falls

Ken Margolin — Mon, 17 Sep 2007 15:45:00 GMT

A great deal of attention has been paid lately - rightfully so - to the subject of infections contracted in hospitals. Less focus has been placed on another source of serious and preventable injuries in hospitals - falls. The result of a fall down injury in a hospital may be severe. Patients are ill and often debilitated or disoriented to begin with. If a patient's condition presents any appreciable risk of falling, the hospital has the obligation to assess and document the risk, and to take appropriate precautions.

Fall precautions may take many forms, for example, accompanying the patient, in a geri-chair, to the bathroom, prompt response to patient calls, raised side rails on the bed if no nurse is in immediate attendance, doctor's orders that the patient be accompanied by a nurse or aide whenever mobile, even restraints where appropriate. Once a fall down risk is appreciated, the patient's risk assessment must be kept up to date throughout the patient's hospital stay. Hospital falls can result in severe injuries such as broken hips, traumatic brain injury, and other harm inconsistent with the hospital's role as a place of healing.

Originally posted at InjuryBoard by Ken Margolin

PET Scan Aids Large Brain Injury Settlement

Ken Margolin — Wed, 29 Aug 2007 13:40:00 GMT

This week's Massachusetts Lawyers Weekly, reported a $3.3 million dollar settlement in a brain injury case. The plaintiff was a contractor in his mid-40s, who was allegedly struck by an improperly secured piece of equipment, while climbing a ladder in a poorly-lit area of the water supply tunnel project on which he was working. After the blow, he complained of headaches, hypersensitivity to sound, forgetfulness, inability to organize, and other classic traumatic brain injury symptoms.

The settlement was noteworthy because both CT Scans and MRIs, long used to diagnose brain injury, showed no injury. Positive Emission Tomography ("PET") and a Quantitative Electroencephalograph ("QEEG") scans, however, showed areas of the brain that were damaged. PET and QEEG scans are not new, but have been constantly improving. In some head injury cases, they may still be subject to challenge on the basis that they are not sufficiently accepted scientifically, for their results to be admitted into evidence.

The defense in the reported case did not mount such a challenge. Plaintiff may have been aided by evidence that one of the defendant's managers lied during his deposition. He testified that the area where the plaintiff was hurt was "lit up like Fenway Park." The construction team, however, had filed a report describing the area as dark. Moreover, a former employee was prepared to testify that the same manager warned him to keep his mouth shut about the area being dark.

For more information on this subject matter, please refer to the section on head and brain injury.

Originally posted at InjuryBoard by Ken Margolin

Home Depot's Falling Merchandise

Ken Margolin — Wed, 01 Aug 2007 15:30:00 GMT

Obtaining data on the number of people injured at big box stores such as Home Depot, is difficult. The information is guarded like state secrets. Data generated in litigation, however, has revealed that the big box giant, Home Depot, has had an ongoing problem with falling merchandise killing and maiming customers. One lawsuit revealed that in the late 1990s and early 2000s, more than 2,200 people per year were being injured at Home Depot stores. In 2004, an Idaho jury awarded $570,000 to the family of a 3-year old girl killed by falling countertops. A North Carolina jury awarded $500,000 in 2005 to the family of a 12 year old boy who suffered head injuries from a falling steel door at a Home Depot. Another falling door in a Home Depot, killed a 6 year old boy named Ivan SanMiguel. These and many other catastrophes will continue until Home Depot spends enough of its profits on customer safety. The steps needed to prevent merchandise from falling in big box stores, are simple and well known. The knowledge is useless without the will and funds to implement necessary safety measures.

Originally posted at InjuryBoard by Ken Margolin

The Video Settlement Brochure

Ken Margolin — Fri, 22 Jun 2007 12:20:00 GMT

In a previous blog, I wrote about day-in-the-life videos. These are videos that film a severely injured plaintiff and capture vignettes of a typical day, in a 20 - 30 minute movie. If done properly, they can be shown to a jury at trial. Another tool that any lawyer representing a client with catastrophic injuries may consider, is a video settlement brochure. In the video settlement brochure, the company producing the video interviews the client, and key people in the client's life, to gain an understanding of the client's life before and after his injuries.

The video settlement brochure may interweave pictures of the client before his injuries, with interviews of loved ones, and day-in-the-life type vignettes of the client's struggles to perform simple, daily tasks, as a result of the injury. Some attorneys may worry that the video settlement brochure gives the defense too realistic a view of what the plaintiff's case at trial would be like if the video brochure does not result in a settlement. That shouldn't be a major concern if the witnesses to be interviewed have already been deposed. The video settlement brochure may convince the insurance company adjustor assigned to the case, that allowing the case to go before a jury is too risky, and that a reasonable settlement is the company's, as well as the plaintiff's, interest.

Originally posted at InjuryBoard by Ken Margolin

Preventing Drowning Deaths

Ken Margolin — Mon, 04 Jun 2007 07:00:00 GMT

You may have read the sad story last week, of the two toddlers who left their house, wandered down to a nearby pool, and drowned while their babysitter slept. The purpose of this blog is not to speculate on blame in that tragedy. It reminds us that summer season is here and with it, comes too many drowning deaths that could have been prevented. As was illustrated by the death of the two little girls, children can't be left unwatched for even a moment if there is a body of water nearby. Pools, lakes and ponds are attractive to children, who often have no sense of the danger they present. Drownings, especially of small children, can happen in an instant.

Pools must be maintained to be as safe as possible. Water should be kept clear so that no one can slip beneath the surface unnoticed. Pools need to be clear of any device or condition that can trap someone under water. They should not be open and accessible to a child wandering into the yard. Pools are often designed with a sharp dropoff from shallow to deep, a hazard for any pool user who can't swim. Diving board injuries can occur if the diver becomes unconscious or unable to swim, after hitting the water. Life preserving equipment, such as long poles and buoys, should be at every poolside. Commercial enterprises, such as hotels and motels, have an especially high obligation to heed basic safety precautions. Pools provide great fun for millions of Americans. There will inevitably be some drownings. Basic safety precautions can minimize their number.

Originally posted at InjuryBoard by Ken Margolin

Mediation of Personal Injury Cases

Ken Margolin — Thu, 31 May 2007 07:00:00 GMT

Clients often ask me if "my case will have to go to court?" By that question, they mean, will it have to be tried before a jury, or will it settle "out of court." Most clients, even those who appreciate that they could get significantly more money with a verdict than through settlement, prefer the surety of a settlement over the high stakes gamble of a big score vs. nothing. Sometimes a case that appears inevitably headed for trial, can be resolved with the help of a professional mediator.

Many courts now require counsel to file a certificate, attesting that they have discussed with their clients, the possibility of alternate dispute resolution ("ADR"). Some clients are eager to mediate a case, thinking it a quick road to compensation. I explain to my clients that mediation can result in a fair settlement, but only if used properly, and in the right case. The most important point I make to clients is that mediation cannot be seriously considered too early, lest the defendant's insurer take it as an opportunity to offer short money. In a case of serious personal injury, there is usually no alternative to completing discovery before mediation is proposed.

Mediations in wrongful death cases or other serious injury cases, can never be approached casually. I generally prepare a mediation book to be distributed to defense counsel, the insurance adjustor, and the mediator. The book - a large 3-ring notebook, will contain a bullet point summary of plaintiff's position, and key deposition pages and exhibits advancing plaintiff's case. In appropriate cases, I will be prepared with blowups or other demonstrative evidence, including day-in-the life or other persuasive videos. In one case, involving a little girl who died when an improperly protected construction trench collapsed on her, I used a CD of the mother's chilling "911" call.

The purpose of a mediation is to persuade the defense that they face significant exposure at trial. Even though there are no rules of evidence at mediations, I use exhibits and demonstrative evidence that I know will be admissible at trial. Although I may make an exception, for example, a narrated day-in-the life, I want to avoid using evidence that is dismissed because defense counsel advises the insurance adjustor that a jury will never see it.

I always caution my client not to go into a mediation believing that they must come out of it with a settlement at any cost. Every experienced plaintiff's counsel has seen the mediation process abused, with the defense proffering a trivial offer, and using the mediation for discovery purposes. Other times, if the defense sees a strong plaintiff's case and is unable to extract excessive concessions at mediation, a case that fails to settle by the end of the day, may still settle before trial. The mediation will not have been wasted, because it set the stage for settlement.

I will write a piece on the subtleties of the mediation process in another blog. Mediations can be useful tools, if prepared for thoroughly, and attended with the attitude that trial is the answer if the defense is too stingy by mediation's end.

Originally posted at InjuryBoard by Ken Margolin

Slip, Trip, and Fall Traps

Ken Margolin — Thu, 19 Apr 2007 13:15:00 GMT

Very serious injuries can result from incidents of slipping, tripping, or falling down. A fall can end careers, from such injuries as broken bones, traumatic brain injury, spine injuries, and others. But winning a fall down case in Massachusetts, is quite difficult. A number of legal theories stand in the way of success for even a severely injured plaintiff. If the incident occurred on a municipal way, there is no incentive for an attorney to accept the case, since a Massachusetts statute caps recovery, if the fall was caused by a defect in the public way, at $5,000 - that's right, five thousand dollars.

If an accident occurs on ice or snow, the plaintiff must show that the ice or snow was an "unnatural accumulation." Mere failure to keep a walkway clear, even if the hazard is appreciable by the landowner, will not support a case. If a person slips on a foreign substance in a store, for example, on a banana peel or spill in a supermarket, the injured person must be able to present evidence that the substance was on the floor for a sufficiently long period of time, that the store management should have known of it, and had the opportunity to clean it. That standard is not an impossible task, but can be difficult. And, as I have written before, there is a suspicion in many jurors, that people ought to look where they are going.

Despite the difficulties, slip, trip, and fall cases involving serious injuries, are well worth investigation. Sometimes, a less obvious theory of liability will carry the day. For example, if a defect causing injury, in and of itself, does not seem substantial, the case may yet have merit, if placement of barriers forced individuals near or over the defect. Inadequate lighting may be a fruitful avenue of investigation in a night time fall down case. The more severe the injury, the greater the reason to explore legitimate grounds of liability.

Originally posted at InjuryBoard by Ken Margolin

Dangers from Above

Ken Margolin — Wed, 21 Mar 2007 16:10:00 GMT

I'm not a deer hunter, but I have a few friends who are. They tell me that the reason why hunting deer from a tree stand is so successful, is that deers have no natural enemies who prey on them from trees. Deers don't look up to spot potential dangers. Humans are similarly at risk from objects falling from above them. Some truly catastrophic brain injuries, crushing injuries, and deaths, have been caused by falling objects. The big box stores which I've written about on this site before, are too-frequent culprits. So too are careless construction companies whose foremen fail to insure that objects at height are secured and that pedestrians are steered well clear of high-level work done on buildings fronted by public sidewalks. Workers are also at risk from objects that fall on them because not properly secured or behind barriers, or that are lifted improperly or with the wrong equipment. OSHA, the federal Occupational Safety & Health Administration, gives four chilling examples of falling object injuries to workers; three of the incidents resulted in fatalities. Since people are not wired to routinely scan the skies for hazards, the obligation of those working above ground level, to follow safe practices, is in every way, a high one.

Originally posted at InjuryBoard by Ken Margolin

Swimming Pool Accidents

Ken Margolin — Tue, 20 Mar 2007 13:45:00 GMT

Swimming season is not far off, and with it will come the inevitable swimming pool tragedies. Most likely to experience pool accidents are children, usually because they fall into pools while supervising adults are not present. Persons with backyard pools who have children, or whose neighbors have children, are therefore advised to install appropriate fences, door alarms and/or pool covers to prevent very young children from accidentally drowning. Swimming ability of pool users also helps, though is no guarantee of safety, as evidenced by the instances every year, of skilled swimmers drowning in swimming pools.

Diving accidents are most commonly the cause of severe pool-related injuries and deaths in adults, most often occuring to males. Most diving accidents occur because the water is not deep enough to slow or stop the diver before he hits the bottom. Often a visual examination from above cannot convey an accurate sense of how deep the water is. Moreover, it can be difficult to see the curve of the pool's submerged walls or to see where the water level is along the upper portion of the side walls. Light conditions, time of day, water clarity, refraction and other visual obstacles or tricks interfere with reliably gauging how much water is in a pool in the absence of markings clearly indicating the depth. Having the depth of the water clearly marked can mitigate such ambiguity. Failure to have such markings, depending on forseeable use of the pool, and other factors, may be negligent.

Diving boards magnify the risk of diving accidents. Many private and public pools remove them or no longer install them at all, which is not to say that there is anything inherently wrong with having a diving board. The reasonableness of the height that a diving board should be above the water, as well as reasonableness of the depth of the water below it, may vary considerably, dependintg on forseeable use. A high diving board that is suitable for a private club with competitive divers amongst the members, and with clear rules for pool and board use, may be unreasonable if placed above a motel pool, where no supervisor is present and where children of all ages and abilities can be expected to play. Robyn Shelton, staff writer for the Orlando Sentinel, provides a good short-list of considerations to help avoid swimming pool deaths, in her "Health Check" blog.

Originally posted at InjuryBoard by Ken Margolin