Our Experience

COLE v.BLUE CROSS AND BLUE SHIELD v.DANA FARBER CANCER INSTITUTE 
Health care expenses in America have been generally paid for by private or government insurances.  The patient has had little involvement in determining what the cost of services would be or how the billing for those services would be handled. As the cost of health care escalated, insurers attempted to gain some control over expenses by limiting the services covered under the policy.  In this case, Blue Cross and Blue Shield of Massachusetts attempted to deny coverage on the basis that the services being sought were experimental and therefore, not covered. The patient suffered from refractory, testicular cancer and the proposed treatment was chemotherapy with autologous bone marrow transplant.  In initially denying coverage, Blue Cross asserted that the proposed treatment was experimental and that this was not the generally accepted mode of treatment.  The health care providers asserted that without the treatment, the patient’s disease would likely be fatal.The Massachusetts Federal District Court issued an injunction preventing the insurer from denying coverage.  This was consistent with the decisions of several courts considering similar situations.   

Cranska v. Bonanda 
This is a discrimination complaint which alleged age discrimination and retaliation as well as tortuous interference with contractual relations.  The case was tried to a jury over eight days and the jury found for our client on the claims for discrimination and for the plaintiff on the claim for interference with her employment.  The verdict was appealed by both parties.  The Massachusetts Appeals Court upheld the jury verdict on discrimination and reversed the jury verdict finding interference.       

Currie v. LaFollette 
A piece of property on Nantucket had been held in family trust for many years.  The Probate Court ordered that the property be sold over the objection of several beneficiaries.  After sale of the property, a Trustee filed an accounting and sought a disbursement of the trust funds including attorney’s fees.  Several of the trustees objected to the payment of the expenses.  There was a hearing with witnesses conducted by a Judge of the Probate Court and the Judge issued this opinion which allowed but reduced payment of the requested expenses.  

DeMatteo v. Briggs 
The role of expert testimony in professional liability trials has long been a controversial issue.  Both plaintiff’s and defendant’s usually present expert testimony in support of their respective positions regarding the appropriateness of the care rendered.  In this matter, a jury had rendered a verdict for the doctor and the patient appealed claiming that their right to present expert testimony had been unjustly limited by the trial judge.  The Appeals court refused to reverse the jury’s verdict. 

Feeley v. Baer 
A patient has the right to accept or reject medical treatment except in very rare circumstances.  Prior to making a treatment decision, a patient must be afforded reasonable information upon which to premise their decision.  This is known as the law of informed consent.  Unfortunately, defining how much information the provider is required to provide has been difficult.  In this case, a trial judge had ruled, at trial, that the evidence was not sufficient to find that the providers had not given sufficient information and therefore, would not let a jury decide the issue at trial.  The patient appealed and the Massachusetts Appeals Court disagreed with the trial judge and sent the case back for a new trial.  The providers appealed the Appellate Court Opinion to the Massachusetts Supreme Court which agreed with the trial judge’s ruling. Both the Appeals Court and Supreme Court opinion follow as these contrary holdings outline the competing arguments relating to the requirements of the informed consent law.  The Supreme Court ruling continues to be the controlling law in Massachusetts.  

Fitzpatrick v. Allen 
The right to a trial by a jury of one’s peers is fundamental to our democratic form of government.  The jury’s role is to be fair and unbiased.  During the trial, jurors are repeatedly instructed not to be influenced by information that is not presented during either party during the trial.  For example, jurors are routinely instructed today not to consult the internet for information about the matters being presented in court.  This is particularly true for matters which require expert testimony about issues that fall outside of the knowledge of a lay person.After rendering a verdict in favor of the provider, a member of the jury acknowledged that he had consulted a medical textbook about one of the medical issues.  He also testified that this had not affected his evaluation of the expert testimony presented at trial.  The trial judge refused to order a new trial due to the juror’s actions.  In this opinion, the Massachusetts Supreme Court disagreed with the trial judge and ordered a new trial. 

Godlewski v. Massachusetts General Hospital 
When an employee decides to initiate an action for discrimination in the workplace, the action is usually commenced with an administrative agency.  The laws requiring submission to an administrative agency were premised upon the belief that such agencies would resolve these issues in a more timely and cost effective manner than submission to the Court and a jury trial.  However, the employee is often provided with the choice of leaving the matter to be decided by the agency or removing the matter to a trial court.  The major difference is that in the administrative agency, a hearing officer will hear and decide the issue.  At Court, a decision will be made whether the matter will be heard by a jury or a judge.This matter alleged unlawful discrimination on the basis of sexual harassment, race and color, national origin and retaliation.  The decision was rendered by a single hearing officer at the Massachusetts Commission Against Discrimination after a three day hearing.  The hearing officer determined that the employee had failed to establish a prima facie case of sexual harassment and therefore, dismissed the complaint.  

Guardianship of Doe 
A patient has a fundamental right to accept or refuse medical treatment. In America, this right has been limited or abridged in very specific and limited circumstances.  However, a perplexing problem has been how to protect this right for those who are unable to speak for themselves.  State courts and legislatures have adopted different approaches to resolve this issue.  Many states now have health care proxy statutes which address this issue.This case considers the very difficult issue of how to determine the treatment wishes for a patient who has never been competent and therefore, never had the opportunity to express their opinions about such topics.  The Massachusetts Supreme Court adopted the substituted judgment standard and in this case, discussed the appropriate application of that standard for the never competent individual.  

Hlatky v. Dana Farber Cancer Institute 
Many discrimination complaints arise when an employer has announced an intention to take an adverse employment action, such as a termination.  The employee may allege that the action is being taken for illegal reasons, such as the age or gender of the employee, rather than the expressed, legitimate reason, such as poor performance. An employee who confronts such a situation may seek an immediate order from a Court which would enjoin an employer from taking the intended action until a final decision in the matter has been rendered.  This decision involved such a request by an associate professor and research scientist for such an order preventing her termination.  The Plaintiff’s complaint alleged that the termination was due to gender discrimination rather than a change in scientific focus as the employer had asserted. The Superior Court Judge determined that an injunction should not issue and issued this written opinion. 

Jones v. Smith 
Medical malpractice disputes have for years been submitted to juries for their resolution.  For years, participants in the process have been concerned that lay jurors may not be able to comprehend complex medical issues. Therefore, alternatives dispute resolution processes have been considered. One of those approaches is arbitration.  Arbitration has long been utilized to resolve business disputes.  In those settings, the matter can be resolved by a single arbitrator or a panel of arbitrators who have some familiarity with the legal and substantive issues presented.  In recent years, medical malpractice disputes have been submitted to arbitration if both parties agree. This is the opinion of an arbitrator who heard a dispute which involved a patient who had been paralyzed following spinal surgery.  Expert and lay testimony was presented over several days and the arbitrator considered whether the surgeon had breached the standard of care causing the patient to be partially paralyzed following the procedure.  

Kyle v. Mongan 
Employers have been encouraged to provide honest and forthright opinions when providing recommendations for employees.  However, concerns about legal action for defamation or interference has, sometimes, been an impediment  to open disclosure.  Therefore, statutes have been enacted protecting individuals when they provide honest evaluations.In this case, the president of a corporation was sued for responding to a letter from a public official about an employee and her discharge.  The trial court had dismissed the complaint because it was protected conduct and there was insufficient evidence to find that he knew his opinions to be false when he rendered them.  The Massachusetts Appeals Court upheld the dismissal.  

Landrigan v. City of Warwick 
There are federal statutes which specifically address conspiracies by public officials to violate a citizen’s constitutional rights.  Many of these suits involve allegations of police brutality or conspiracies to cover up police misconduct.In this case, the First Circuit Court of Appeals considered the many legal precedents that arise with such an action.  The Plaintiff was appealing from the Rhode Island Federal District Court’s dismissal of his complaint.    

Luna v. Harvard Community Health Plan 
Although much has been written about discrimination law suits, the burden of proof on a plaintiff alleging discriminatory conduct in an employment relationship is quite difficult.  The premise is that all employees can be disciplined or terminated for any reason as long as the act is not being taken for legitimate business reasons but rather for illegal reasons.  For example, disciplinary action taken because of a person’s race or gender is illegal.  In these cases, there is usually a dispute between the employer’s articulated reason and what the employee asserts is the real reason.In this case, an employee alleged age and national origin discrimination.   Prior to trial, the employer moved to dismiss the complaint prior to trial.  The motion for summary judgment was allowed.  The Plaintiff appealed this decision to the Appeals Court which upheld the dismissal.  

McKenzie v. Brigham and Women’s Hospital 
Many law suits for discrimination assert violations of both federal and state laws.  In this case, the Massachusetts Supreme Court upheld the dismissal of a law suit asserting race bias in the decision to discharge him.  The Supreme Court held that the plaintiff could not prove a case under state or federal discrimination statutes.     

MILLER V. BLUE CROSS AND BLUE SHIELDOF NEW HAMPSHIRE 
This is another case in which patients sought treatment for breast cancer.  The proposed treatment was to be provided at a Boston teaching hospital pursuant to a treatment protocol.  The Superior Court ordered that the defendant provide coverage for the proposed treatment.  The defendant then moved to add the hospital, as a plaintiff.  In this case, the Court denied the request to add the hospital as a party. 

NARDONE v. MASSACHUSETTS GENERAL HOSPITAL
In this case,  the employee alleged sexual harassment in the workplace.  However, after a lengthy hearing before a hearing officer at the Massachusetts Commission Against Discrimination, the Plaintiff’s complaint was dismissed when the hearing officer concluded that “the Complainant was not subjected to sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that was continuous, pervasive or that created a hostile work environment.” The decision also considers several procedural issues that frequently arise in this cases such as  whether there was a continuing violation which would have tolled the running of the statute of limitations for these claims.            

NICOTRA v. NISSEN
The employee filing a charge of discrimination must first file his claim with an administrative agency.  However, after a few months, the employee may elect to remove the claim from the administrative agency to a trial court.  Once in a trial court, the employee may have the case heard by a jury or a single judge.  There are a number of strategic considerations that are involved in making this evaluation.  This decision was written by a Superior Court Judge who was allowed to hear and decide the case without a jury.  The case alleged gender discrimination in hiring by a bakery.  The defendant alleged that, even though most bakeries did employ women in its production facility and it did not, the reason for not hiring the plaintiff was her conduct during the interview process.         

PADRAH v. CHILDREN’S HOSPITAL 
In this case, an employee alleged that she was passed over for promotion because of national origin discrimination.  After discovery was completed, the defendants moved for dismissal of the complaint on the basis that there was no evidence upon which to find that she had been treated unfairly due to her national origin.The trial court dismissed the case.  The Appeals Court upheld the dismissal on the basis the employee could not prove that she reasonably and in good faith believed that her employer was engaged in wrongful discrimination.             

PARDO v. GENERAL HOSPITAL CORPORATION 
Pretrial discovery has become increasingly complex and time consuming, particularly in the academic and life sciences workplaces.  The protection of peer review materials has long been valued in academic medicine.  In employment cases, comparative data is often used to prove disparate treatment.  Therefore, motions to protect peer review materials from discovery is often a major issue.