BOSTON'S PREMIER PLAINTIFFS' PERSONAL INJURY & MEDICAL MALPRACTICE LAW FIRM FOR MASSACHUSETTS AND NEW ENGLAND

LATEST ARTICLES

CLYDE BERGSTRESSER NAMED BEST LAWYERS 2014 “LAWYER OF THE YEAR” FOR PLAINTIFF’S MEDICAL MALPRACTICE – BOSTON


In the current issue of Best Lawyers, New England edition, Clyde D. Bergstresser received the singular honor of being named the Best Lawyers “Lawyer of the Year” for plaintiff’s medical malpractice law in Boston. The magazine prepared a thoughtful article describing how Clyde started his career in medical malpractice law trying the first delay in diagnosis of breast cancer case in the Commonwealth and what drives him to continue pursuing justice for the victims of medical malpractice, legal malpractice and other complex torts. To review the article, please go to our Publications and Presentations page.

CLYDE BERGSTRESSER ASKED TO PRESENT ON THE COLLECTIBILITY OF UNDERLYING/ILLUSORY DAMAGES AFTER CONSENT JUDGMENT AT THE UPCOMING ABA SPRING 2014 NATIONAL LEGAL MALPRACTICE CONFERENCE


Clyde D. Bergstresser was asked to speak on the topic of the Collectibility of Underlying/Illusory Damages After Consent Judgment at the ABA Spring 2014 National Legal Malpractice Conference scheduled for April 30, 2014 – May 2, 2014 in Boston. Sponsored by the ABA Standing Committee on Lawyers Professional Liability, the program will assemble leading legal malpractice and professional ethics practitioners from around the county who will present on a variety of topics relevant to this area of practice.

RUSS POLLOCK PRESENTS ON VOIR DIRE AND TRIAL: THE ANATOMY OF JURY SELECTION AND THE TRIAL PROCESS


Russell X. Pollock was asked to speak on the topic of Voir Dire and Trial: The Anatomy of Jury Selection and the Trial Process by Congregation Beth Shalom of the Blue Hills in Milton, MA. First presented at the University of Massachusetts in Boston, this interactive discussion provided insight into the often split second decisions that trial attorneys have to make on very limited information when selecting a juries in the Commonwealth and presenting evidence to juries at trial.

BERGSTRESSER & POLLOCK HOSTS BOSTON AREA BROOKLYN LAW SCHOOL ALUMNI RECEPTION


On February 11, 2014 Boston-area graduates and friends joined Brooklyn Law School Dean Nicholas W. Allard at the offices of Bergstresser & Pollock, LLC, for an evening of cocktails and conversation. A lively discussion ensued regarding current events, law school admissions, the legal job market and other issues relevant to alumni.

RUSS POLLOCK PRESENTS ON CLOSING ARGUMENTS AND THE VERDICT FORM IN THE SUPERIOR COURT


Russell X. Pollock again was asked to speak on Closing Arguments and Post Trial Motions at the Massachusetts Continuing Legal Education (MCLE) seminar on Trying Your First (and next) Civil Trial in the Superior Court. Topics he presented include Closing Arguments, the Verdict Form, Questions During Deliberations, Jury Instructions and Post Trial Motions including Motions for a New Trial, JNOV, Remittitur/Additur and Relief from Judgment. Other panelists included the Hon. Christopher Muse of the Massachusetts Superior Court, Neil Sherring, Esq. of Dakoyannis & Sherring LLC, Rosemary Connolly, Esq. Chief of the Civil Division of the United States Attorney’s Office and Kevin Scanlon, Esq. Chief Legal Counsel of the Massachusetts Division of Professional Licensure. To review the PowerPoint slides used during the presentation, please go to our Publications and Presentations page.

RUSS POLLOCK PRESENTS ON THE COLLECTABILITY OF LEGAL FEES IN A LEGAL MALPRACTICE CASE FOR THE MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS


The fact that many legal malpractice cases are taken on a contingency fee basis, the issue often arises as to whether the legal fees in the underlying case are collectible or whether the attorney’s own fees in the legal malpractice case are collectible. This discussion explored how this issue has been handled by a variety of practitioners in a variety of jurisdictions. To review an article contained a summary of the law on this issue, please go to our Publications and Presentations page.

RUSS POLLOCK QUOTED FOR PLAINTIFF’S PERSPECTIVE ON WHETHER AN INSURER’S REFUSAL TO PAY FOR A REFERRAL PROVIDES A DEFENSE TO LIABILITY FOR THE PHYSICIAN IN JULY 2013 ISSUE OF PHYSICIAN RISK MANAGEMENT


Russell X. Pollock was interviewed for the plaintiff’s perspective on whether the failure of an insurer to permit a referral to the specialist can provide a defense to liability if the physician is sued in a medical malpractice lawsuit. The answer is a resounding “no.” At Bergstresser & Pollock, we handle cases involving, for example, the negligent failure of a primary care physician to refer a patient to a specialist or the negligent failure of an emergency department physician to obtain a surgical consultation. Regardless of whether the failure was because the physician did not think the referral was needed or because the insurer or hospital guidelines did not permit the referral, the ultimate question on negligence will be whether the failure to refer the patient was a departure from the standard of care of the average qualified practitioner practicing in that medical specialty at the time. While the issue of obtaining a referral from an insurer may be a procedural morass for the treating doctor, “the physician will likely not regret the effort he or she expended on the patient’s behalf, but might regret the failure to do so.” To review the articles Russ Pollock was quoted in, please go to our Publications and Presentations page.

RUSS POLLOCK PRESENTS ON CLOSING ARGUMENTS AND THE VERDICT FORM IN THE SUPERIOR COURT


Russell X. Pollock gave a presentation on Closing Arguments and Post Trial Motions at the Massachusetts Continuing Legal Education (MCLE) seminar on Trying Your First (and next) Civil Trial in the Superior Court. Topics he presented include Closing Arguments, the Verdict Form, Questions During Deliberations, Jury Instructions and Post Trial Motions included Motions for a New Trial, JNOV, Remittitur/Additur and Relief from Judgment. To review the PowerPoint slides used during the presentation, please go to our Publications and Presentation page.

SCOTT HEIDORN AND RUSS POLLOCK PRESENT ON THE NEW MASSACHUSETTS HEALTH PAYMENT REFORM ACT


Scott M. Heidorn and Russell X. Pollock gave a presentation of the new Health Payment Reform act to the Professional Liability Committee of the Boston Bar Association on January 25, 2013. With respect to medical malpractice litigation, changes to the law include: a 182 day “cooling off period” before filing an action so the parties can exchange information; an increase in the charitable immunity cap for nonprofit health care providers to $100,000; a provision that apologies by medical care providers are inadmissible during the case, unless they are contracted by the defendant or defendant’s expert; a provision requiring a full written disclosure of any significant “unanticipated outcome” suffered by the patient; and a reduction of prejudgment interest (except in wrongful death cases). To review an article containing a summary of the portions of the statute relating to medical malpractice litigation, please go to our Publications and Presentation page.

MASSACHUSETTS RECOGNIZES THE LOSS OF CHANCE DOCTRINE IN MEDICAL MALPRACTICE CASES


In a typical wrongful death case, a plaintiff must prove that the negligence of defendant more likely than not caused the decedent’s death. In a medical malpractice case, an individual may start out with a chance of survival less than 50% because of his or her medical condition. If the medical care provider’s negligence further reduces the individual’s chance of survival, a plaintiff can still recover under what is called the loss of chance doctrine. The rationale for permitting recovery in these circumstances is that a person’s prospects for surviving a serious medical condition is something of value, even if the possibility of recovery was less than even, prior to the physician’s tortious conduct. The Massachusetts high court has recently expanded the scope of this doctrine broadening the circumstances when such a case can be brought.

Damages in a loss of chance case will be proportional to the harm caused by the medical care provider’s negligence. The judge will ask the jury to calculate damages as follows:

(1) Calculate the total amount of damages allowable for the wrongful death statute (i.e. $6,000,000).

(2) Next calculate the patient’s chance of survival before the medical malpractice (i.e. 45%).

(3) Then calculate the chance of survival that the patient had as a result of the medical malpractice (i.e. 15%).

(4) Then subtract the two amounts (i.e. 45% – 15% = 30%).

(5) Then multiply that amount by the total damages to arrive at the damages for the loss of chance. (i.e. $6,000,000 x 30% = $1,800,000).

Time will tell whether the loss of chance doctrine will be expanded beyond medical malpractice wrongful death cases.

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Bergstresser & Pollock PC • 52 Temple Place, Boston, MA 02111 • For a free consultation, call us at 617-682-9211 or email us at office@bergstresser.com
Disclaimer: Material presented on the Bergstresser & Pollock website is intended for information purposes only.
It is not intended as professional advise and should not be construed as such.