Bergstresser in the News:
Family Gets $3M In Med-Mal Case
January, 2004
Pharmacist May Be Sued For Faulty Prescription
Lawyers Weekly, January, 2004
Woman settles medical malpractice case for $1 million
MBA Lawyers Journal, December, 2003
Revere man wins $7M malpractice suit
The Boston Herald, December 13, 2002
CRISIS IN THE CHURCH
The Boston Globe; August 16, 2002
CELTIC PIERCE OK AFTER STABBING ATTACKED AT CLUB; HAS LUNG SURGERY
The Boston Globe; September 26, 2000
Suicide patient discussed suing husband, sources say.
The Boston Globe; August 24, 1996
Group drafts suicide statute; Would define rules for doctors, patients.
The Boston Globe; March 18, 1996
Jury awards $ 1m to patient;
Sponge found in Plymouth woman following Caesarean
The Boston Globe; July 31, 1993
Archived Articles
1989 - 1992
HEADLINE: Family Gets $3M In Med-Mal Case
BODY: A Norfolk Superior Court jury awarded the family of a 71-year old Westwood man more than $3 million last month, finding the man's doctor responsible for his 1998 death.
James Schock, the former executive vice president of the Dedham Institution for Savings, died in 1998 after being treated by Dr. Christopher Cua at Boston Faulkner Hospital for an infection caused by his pacemaker, The Boston Globe reported.
According to the attorney for Schock's family, the defendant doctor removed the infected pacemaker but not the wire, causing an infection to spread into Schock's bloodstream and resulting in his death.
Lawyers Weekly, January 2004
Copyright 2004 Lawyers Weekly
HEADLINE: Pharmacist May Be Sued For Faulty Prescription
SUB-HEADLINE: Should Have Known Drug Combination Unsafe
BYLINE: by By Jason M. Scally
BODY: A pharmacist could be sued for prescribing a combination of drugs that caused an adverse reaction in the customer who took them, a Superior Court judge has ruled.
The pharmacist argued that he had no duty to warn of the potential harmful consequences of drug interaction because a patient's physician acts as a "learned intermediary" between the drug manufacturer and the patient.
But Superior Court Judge Peter M. Lauriat disagreed, denying the defendant's summary judgment motion.
The judge observed that while the Supreme Judicial Court had decided in 2002's Cottam v. CVS Pharmacy that pharmacists have no "general duty" to warn a customer of the potential adverse reactions between medications, the SJC's decision only dealt with the situation where pharmacist had no knowledge of the particular customer's situation.
"Accordingly," Lauriat said, "it is clear that the learned intermediary doctrine, as adopted in Massachusetts, does not eliminate a pharmacist's duty to warn a particular customer of the potentially adverse interaction of two drugs which the pharmacist knows the customer is taking."
The five-page decision is Brienze, et al. v. Casserly, et al., Lawyers Weekly No. 12-354-03. Subscribers to Lawyers Weekly who have registered for our Internet Archives can find the full text of the ruling on our website, www.masslawyersweekly.com.
Clyde D. Bergstresser of Boston, the attorney for the plaintiffs, could not be reached for comment prior to deadline. Efforts to reach defense counsel were also unsuccessful.
Bad MedicineIn late October 1999, Dr. Brian Casserly, one of the defendants, performed a physical examination of the plaintiff, Daniel Brienze.
As part of this physical, the doctor noted all of the medications that the plaintiff had been taking, including the drug Theophylline.
However, after the medical exam, Casserly gave the plaintiff a prescription for Cipro, an antibiotic which has the potential to cause harmful effects when taken with Theophylline.
The plaintiff later had his Cipro prescription filled by pharmacist Andrew Lee, another one of the defendants, who was working at CVS in Stoneham.
Lee was also apparently aware of the potential harmful effects of the drug interaction between Cipro and Theophylline because of his training, and the CVS computer reportedly also alerted him to the potential conflict.
The plaintiff's wife picked up the prescription without speaking to the pharmacist, and the pharmacist never gave any additional warnings to the plaintiff's wife.
The only warnings were allegedly listed in fine print telling users of Cipro to inform their doctor if they are also taking Theophylline.
The plaintiff later suffered undisclosed personal injuries, allegedly as a result of the drug interaction.
The plaintiff brought a suit against Casserly, Lee and CVS, to recover for his injuries. The executor of the plaintiff's now-deceased wife's estate also brought a claim for loss of consortium.
The pharmacist and CVS then brought motions for summary judgment.
Knowing Is The DifferenceThe plaintiff argued that the pharmacist and CVS breached their duty to warn of the potential harmful affects that might occur if both Cipro and Theophylline were taken at the same time.
The defendants, however, argued that they had no duty to warn based on the SJC's Cottam decision.
But Lauriat found that the defendants had not interpreted Cottam correctly.
"It is true that because the physician is the appropriate to perform the duty of warning a patient of the possible side effects of prescription drugs, a pharmacist has no general duty to warn," said Lauriat, citing Cottam. "However, the Supreme Judicial Court did not declare that pharmacists have absolutely no duty."
Rather, said the judge, the SJC "held simply that, where the pharmacist has no specific knowledge of an increased danger to a particular customer, the pharmacist has no duty to warn of potential side effects."
In this case, he noted, the plaintiff was arguing that the pharmacist did have specific knowledge – unlike the situation in Cottam.
"Lee was specifically aware that a particular customer, Daniel, was already taking Theophylline when he filled his prescription for Cipro, and that this posed an increased danger to him," said Lauriat. "Therefore, the duty imposed in this case is not within the scope of the learned intermediary doctrine carved out by Cottam."
He added: "Indeed, when adopting the learned intermediary doctrine for pharmacists in Cottam, the Court expressly did not address cases, such as this one, where a pharmacist failed to warn the customer when filling two prescriptions that adversely interact with one another."
In denying the defendants' summary judgment motion, Lauriat said that the learned intermediary doctrine will not act to eliminate a pharmacist's duty to warn a customer of the potential harmful effects of taking two drugs when the pharmacist knows of the two drugs that the particular customer is taking.
Questions or comments may be directed to the writer at jscally@lawyersweekly.com.
MBA Lawyers Journal, December, 2003
Copyright 2003 MBA Lawyers Journal
HEADLINE: Woman settles medical malpractice case for $1 million
BYLINE: by Krista Zanin
BODY: A woman referred to her attorney through the MBA's Lawyer Referral Service recently received a $1 million settlement after enduring a horrific illness allegedly resulting from surgery.
Atty. Clyde D. Bergstresser represented the woman who sued her attending gynecologist, a medical resident and a radiologist by alleging that the doctors' mistakes during an unnecessary hysterectomy led her to becoming severely ill with a flesh-eating bacteria.
Bergstresser said the medical team handling his client committed multiple acts of negligence, from misreading an ultrasound to giving her an unnecessary hysterectomy. A mishap during the surgery led to her sustaining necrotizing fasciitis, a flesh-eating disease, he said.
"It's amazing she did survive," said Bergstresser, of the firm Campbell Campbell Edwards and Conroy of Boston. "The only thing you can do is cut (the diseased skin) out. You can't otherwise cure it … They had to cut all of the skin, fat, muscle, fascia from her pubis to the ribs … from side to side."
The woman's painful ordeal began after she went to see her doctor because she had a history of bleeding while undergoing hormone replacement therapy (HRT). She went to have an ultrasound done, but the report issued by the radiologist gave two drastically inconsistent readings – a verbal reading showing a mildly enlarged area while a numerical figure was larger than anyone had seen. The larger figure prompted the doctor to recommend the woman have a hysterectomy even though the figure was actually a typographical error, according to Bergstresser.
Because the number was so drastically high, the reading should have prompted the doctor to call the radiologist and inquire about the figure rather than recommend the surgery, he said.
"It was a typo and (the radiologist) shouldn't have missed it, but if you read the report, there's no way you could not have seen a wild inconsistency," Bergstresser said. "The clinician didn't call up and (the doctor) recommended, at least in a significant part based on that report, a hysterectomy".
"Our allegation from the get-go was that the hysterectomy was unnecessary, not just based on this misreading of the report, but also there were other less invasive ways to pursue a diagnosis including a D&C (dilatation and curettage)," Bergstresser said.
During the hysterectomy, the doctor and a resident had to cut through a number of adhesions in the woman's abdomen caused by prior surgeries. During the surgery, one of the adhesions was cut and allegedly not sewed, Bergstressor said.
Within 24 hours of the surgery, the woman became extremely sick, because intestinal material was leaking into her peritoneum, which resulted in nectrotizing fasciitis, which is often referred to as the flesh-eating disease, he said.
The disease is caused by bacteria that gets into the body, quickly reproduces and gives off toxins and enzymes that destroy the soft tissue and fascia, which quickly becomes gangrenous. That tissue must be surgically removed to save the patient.
The infection caused the woman to have to undergo multiple surgeries over several years and she encountered additional difficulties because she was forced to use a colostomy bag.
"It's impacted her mobility and life in many ways," Bergstresser said.
The woman hired Bergstresser after her daughter called the MBA's Lawyer Referral Service. The case settled close to trial.
"It's important to note how courageous and strong my client was in surviving this and handling the legal process," Bergstresser said.
The Boston Herald, December 13, 2002
Copyright 2002 Boston Herald and
Herald Interactive Advertising Systems, Inc.
HEADLINE: Revere man wins $7M malpractice suit
BYLINE: by Michael Lasalandra
BODY: An 84-year-old Revere man was awarded $7 million by a Suffolk County jury yesterday in a medical malpractice suit against a urologist who was accused of puncturing his colon during a procedure intended to drain his bladder.
Ralph Penta, a World War II veteran, will get $9.5 million, including interest.
"It's one of the highest awards I've heard of that didn't involve a damaged newborn that needs lifetime medical expenses," said Penta's lawyer, Clyde Bergstresser of Campbell Campbell Edwards & Conroy of Boston.
Penta went to Carney Hospital in November 1998 to have his bladder drained because he was having trouble urinating, Bergstresser said.
In the course of the procedure, he said, the surgeon, Dr. Barbara Bassil, punctured his colon, a situation that went undiagnosed for six days, during which time bowel contents leaked into his abdomen.
The man suffered a severe infection with so-called flesh-eating bacteria and underwent multiple operations to remove most of his stomach muscle and tissue covering his abdomen, Bergstresser said. He remained hospitalized three months and must live today with a colostomy bag.
"The damages were pretty significant," the attorney said.
The verdict was returned yesterday by a jury after six hours of deliberations over two days following seven days of trial.
Bassil's attorney, John Ryan, could not be reached for comment.
David Yas, editor of Massachusetts Lawyers Weekly, said the verdict may be the largest in the state involving an elderly plaintiff in a medical malpractice case. "It's a striking verdict," he said. "Any multimillion settlement for an elderly person is unusual. Damages are usually calculated in terms of life expectancy. This is certainly the most notable one in recent memory."
The Boston Globe, August 16, 2002
Copyright 2002 Globe Newspaper Company
The Boston Globe
August 16, 2002, Friday ,THIRD EDITION
SECTION: METRO/REGION; Pg. A1
LENGTH: 909 words
HEADLINE: CRISIS IN THE CHURCH Globe correspondent Jenny Jiang contributed to this report.; RULING PROTECTS CHURCH IN PRIEST SUIT DECISION BY SJC IN EPISCOPAL CASE
BYLINE: By John Ellement, Globe Staff
BODY: The state's highest court yesterday ruled that an Episcopal priest cannot sue his church for publicly accusing him of immoral conduct, a decision that could effectively insulate the Archdiocese of Boston from defamation claims for identifying clergy members accused of sexual abuse.
In a unanimous ruling, the Supreme Judicial Court dismissed a civil defamation suit the priest had filed against the Episcopal Diocese of Massachusetts, two church officials, and a parishioner who said he had an extramarital affair with her.
The high court said civil courts are prohibited by the First Amendment, which protects religious freedom, from interfering in internal disputes over church discipline.
"We are bound to step aside," Justice Francis X. Spina wrote for the court. "The assessment of an individual's fitness to serve as a priest is a particular ecclesiastical matter." Spina also wrote that church leaders may notify their parishioners and the public when allegations of sexual misconduct are made against a clergy member.
"The Episcopal Church, like others, has a singular interest in protecting its faithful from clergy who will take advantage of them," Spina wrote.
Lawyers said yesterday the SJC decision signals that priests targeted in the ongoing sexual abuse scandal enveloping the Catholic Church will have little recourse in the civil courts if they are eventually cleared of any wrongdoing.
Since February, Cardinal Bernard F. Law has removed 19 priests from ministry based upon allegations that they had molested children. The archdiocese has yet to exonerate any of the accused priests.
"Some priests might get falsely accused in this climate," said David Yas, a lawyer and editor of the Massachusetts Lawyer's Weekly newspaper. "If those priests look for satisfaction in the courts, they might get turned away as a result of this decision."
Yesterday's SJC ruling came in the case of former Rev. James R. Hiles, who sued the Episcopal Diocese of Massachusetts and two church leaders for suspending him after a female parishioner told church leaders she had a five-year sexual relationship with Hiles, while he was married.
Hiles, who was ordained in 1958, was removed as rector of St. Paul's Episcopal Church in Brockton.
Linda M. Hastie, who made the allegations in a 1996 letter to Bishop M. Thomas Shaw III and Bishop Barbara C. Harris, said the affair ended in 1975.
Hiles said the allegations were fabricated by the church because he was locked in a dispute with Shaw over the disposition of a $2 million bequest a parishioner had given to St. Paul's. Shaw insisted the money be turned over to the diocese, an idea Hiles would not endorse during a tense meeting between the two men in late 1995, according to the lawsuit.
In the wake of Hastie's allegations, Shaw ordered him not to disclose the identity of his accuser to anyone outside of the church hierarchy and suspended him from his duties. Church leaders notified other priests about Hiles's suspension and publicly disclosed the suspension to the press, according to court records.
In May 1996, Hiles and his wife, Lauretta, sued Hastie and church leaders. Hiles denied having a physical relationship with Hastie and sued her for defamation, accusing her and church leaders of conspiring to destroy his reputation.
Superior Court Judge Wendie I. Gershengorn dismissed the bulk of Hiles's lawsuit on First Amendment grounds, but last year the Appeals Court said Hiles should have the right to pursue his defamation suit against Hastie.
The SJC said Hiles couldn't sue Hastie either, and the case, except for allegations that a bishop assaulted Hiles by throwing a pen at him, must end.
"The First Amendment's protection of internal religious disciplinary proceedings would be meaningless if a parishioner's accusation . . . could be tested in a civil court," Spina wrote. Hastie had made her allegation directly to church officials, so they were considered part of the internal procedure.
The court said Hiles, by joining the church as a minister, had agreed to be bound by church doctrine.
"Matters arising out of the church-minister relationship, including church discipline, come within the category of religious belief and thus are entitled to absolute [First Amendment] protection," Spina wrote.
Hastie's lawyer, Clyde Bergstresser, said yesterday that his client feels vindicated by the SJC decision in her favor. He also said the ruling should make victims of clergy abuse feel confident they will not face a retaliatory lawsuit should they seek help from their church leaders.
He added: "I think in this day when we are seeing so many charges against the Catholic Church for its apparent failure to follow appropriate procedures, the paradox in that circumstance is that the parishioners had to go to civil courts" before church leaders would help.
Hiles's lawyer, Stephen C. Hoctor, did not return several telephone calls seeking comment yesterday. Hiles also could not be reached for comment.
The attorney for the Episcopalian Diocese and church leaders, William F. Looney Jr., said the SJC used a well-traveled legal path to reach its conclusions.
"It's been the law for a long time that where there are disputes between a priest and a bishop over matters involving faith and morals and church rules, that the bishop is the man who has the authority, and the civil courts will not involve themselves," Looney said.
The Boston Globe, September 26, 2000
Copyright 2000 Globe Newspaper Company
The Boston Globe
September 26, 2000, Tuesday ,THIRD EDITION
SECTION: METRO/REGION; Pg. A1
LENGTH: 1171 words
HEADLINE: Marcella Bombardieri and John Ellement of the Globe staff, and Globe correspondent Amber Bollman, contributed to this report.; CELTIC PIERCE OK AFTER STABBING ATTACKED AT CLUB; HAS LUNG SURGERY
BYLINE: By Francie Latour, and Shira Springer, Globe Staff
BODY: Boston Celtics forward/guard Paul Pierce was stabbed repeatedly early yesterday while playing pool in a downtown nightclub during a packed after-hours party.
Wrapped in gauze and bleeding from at least seven stab wounds, including one that pricked his lung, Pierce staggered into the emergency room of nearby New England Medical Center, where friends had driven him.
According to sources close to Pierce, the leather jacket he wore to the private party at the Buzz Club /Europa helped save his life, protecting his vital organs when he was stabbed in the neck, back, and face.
The sources also said Pierce, 22, was hit over the head with a bottle at the Stuart Street club. Derrick Battie, brother of Celtics player Tony Battie, and Pierce's half-brother, Steve Hosey, were at the party with Pierce and drove him to the hospital moments after the stabbing, according to sources close to Pierce.
Hospital officials yesterday said they expected Pierce - the team's top draft choice in 1998 who is regarded as a key player in rebuilding of the Celtics - to recover fully from his mostly superficial wounds. He was in fair and stable condition after undergoing surgery to repair his damaged lung.
Early reports of the stabbing had Celtics fans fearing the worst, calling to mind the untimely deaths of other young, promising players such as Len Bias and Reggie Lewis.
In a family statement yesterday, Pierce's relatives said, "We would like to thank everyone in Boston and the Celtics fans for their thoughts and prayers . . . Paul is in good spirits and is looking forward to putting this ordeal behind him and returning to doing what he does best, playing basketball."
The stabbing marked the second time in less than three months that a Celtics player has been the victim of a crime. In July, Antoine Walker and Nazr Mohammed of the Philadephia 76ers were robbed of cash and jewelry, including a $55,000 wristwatch, while sitting in a car with friends outside a Chicago restaurant.
As Pierce recovered, police yesterday focused on two separate targets: associates of a Roxbury-based rap group identified by witnesses as the alleged stabbers, and a nightclub with a history of violence and code violations.
Investigators had no suspects or motive in the stabbing, which occurred at 1:10 a.m. yesterday, but were investigating associates of the rap group Made Men, Boston police spokeswoman Mariellen Burns said.
But according to a police report, a witness who was working as a security guard for the party said he recognized the suspects as members of Made Men.
In April, a member of the Made Men trio, Marco Ennis, was among several stabbing victims when a brawl broke out backstage at the FleetCenter during a national tour of rap artists. The group has been linked to several melees in the past, and one of its former members was stabbed to death in a Roxbury nightclub in 1990.
But a lawyer representing Made Men said none of the rap group's three members were involved in Pierce's stabbing and accused Boston police of having a vendetta against them after the group recorded a controversial song criticized by police as an anti-cop rant.
"My clients had nothing to do with [Pierce's stabbing]," said John Swomley, who represents Ennis, Raymond "Ray Dogg" Scott, and Anthony Grant. "Whether or not anyone who is wanna-be [Made Men] did, I don't know."
Swomley said he had contacted investigators in the stabbing and asked if they wanted to speak to his clients, but the investigators declined.
Scott and Ennis, through Swomley, said they were at the party but had nothing to do with the brawl. Grant, they said, was recording in New Jersey at the time. They said they didn't know Pierce.
Ennis, who owns a Newbury Street clothing store, was at the party because he outfitted models who had appeared in a hairdressers' show earlier in Symphony Hall. The party at the club followed the show.
As police searched for suspects and a motive, attention also focused on the Buzz Club/Europa, whose liquor license has been suspended five times in five years. The club is also the target of a lawsuit by a former employee who was stabbed in the heart and lungs in 1996.
According to a police source, a club manager who helped bandage Pierce refused to call 911, and later denied having any knowledge of the stabbings when police questioned him.
It would not be the first time the club was accused of failing to call an ambulance: In April, the club received a warning stemming from a fight that broke out a few months earlier in which club officials refused to call emergency medical crews, despite a patron's request, according to the city's Licensing Board.
That fight was one of three that brought the club before the Licensing Board this year. In one incident, a man said a bouncer beat him with a flashlight and in another, a man said bouncers punched him and tossed him down a flight of stairs after a bartender complained about a lousy tip.
The club, which alternates between the names Buzz and Europa, attracts a diverse clientele on theme-oriented nights.
According to state records, the club is owned by International Europa Inc.
Robert LaBerge, the company's president, said he is still investigating yesterday's stabbing, which he termed rare. "We hope for a speedy recovery and our best wishes are with him and his family," LaBerge said of Pierce. "We hope that everything comes out OK."
The building's owner, William M. Kaylor of Boston, could not be reached for comment.
Harry Collings, executive director of the Boston Redevelopment Authority, has been working at the club as a promoter on Saturday nights for about five years.
"We've never had any problems on Saturday nights," said Collings, who has cleared his second job with the BRA.
International Europa Inc. is being sued by the guardian and family of Torrey McCargo, a former employee who was stabbed in the heart and lungs by a patron in July 1996.
McCargo, who reportedly stepped between fighting patrons, has been in a vegetative state since his injury, said his attorney, Clyde Bergstresser.
The club was chided by the city's Licensing Board in December 1996 for its problems. "Over a period of several years, this establishment has had a number of suspensions due to disturbances and failure to controls its patrons."
The city slapped the club with three two-day suspensions in 1995 and 1996 for serving alcohol to minors and allowing patrons to loiter outside and block traffic.
Sources close to Pierce said the player, who is from Inglewood, Calif., had resisted the lure of the streets at an early age and was careful to avoid violent situations.
"Paul is the type of individual who's very selective of who he hangs around with and where he goes out," said Patrick Roy, his coach from Inglewood High School. "Inglewood was a tough area to live in. If you can survive in Inglewood, you can survive anywhere. If people or places present a remote chance of something bad happening, he wouldn't go."
The Boston Globe, August 24, 1996
Copyright 1996 Globe Newspaper Company
The Boston Globe
August 24, 1996, Saturday, City Edition
SECTION: METRO/REGION; Pg. A1
LENGTH: 727 words
HEADLINE: Suicide patient discussed suing husband, sources say
BYLINE: By Judy Rakowsky, Globe Staff
BODY: Judith Curren of Pembroke, who traveled with her husband last week to Michigan for Dr. Jack Kevorkian's assistance in her suicide, approached at least three law firms in recent years to discuss suing her psychiatrist husband for malpractice, according to sources.
Curren, 42, appeared exhausted and depressed in meetings with the lawyers, according to the sources, and blamed her husband for her deteriorating health. She traced her decline to psychiatric treatment she began in 1982 with Franklin C. Curren, whom she married four years later.
Judith Curren told the lawyers that Franklin Curren "seduced" her when she was his patient at a community mental health center in Revere, the sources said. Yesterday, Franklin Curren acknowledged his wife sought legal advice about a possible suit against him.
"I know she wasn't trying to do anything about me and malpractice in recent years," he said. "She might have been doing that when she was furious at me.
"She had plenty of opportunity to have thought through and have taken action against me, and she didn't," he said, adding that she also looked into suing other doctors who had treated her.
But Franklin Curren denied he did anything wrong in beginning a personal relationship with Judith, saying his personal involvement began in 1984 only after they ended their doctor-patient relationship.
"I did not seduce her while she was in therapy or in treatment with me," Curren said in an interview last night.
Franklin Curren, 57, said the rules governing the relationships between psychiatrists and former patients have changed in the years since their relationship began.
Until 1989, American Psychiatric Association rules stated that "Sexual activity with a patient is unethical." That year, the APA added that "sexual involvement with one's former patients generally exploits emotions derived from treatment and is almost always unethical."
Only in 1993 did the APA change the rule to "Sexual activity with a present or former patient is always unethical."
"Today as a treater I would never have become involved with her," Franklin Curren said in an interview. "It has become a major taboo."
Judith Curren pursued lawyers to take her case most vigorously from 1992 to February 1994, when the couple were separated and she was also, separately, considering a divorce. During the same period, Judith Curren was in therapy for depression - and showed evidence of being addicted to painkillers and anti-anxiety drugs, according to a doctor who treated her and has spoken to the Globe on condition of anonymity.
That doctor also said Judith Curren suffered from severe depression.
Judith Curren, who was also diagnosed with chronic fatigue syndrome and fibromyalgia, died Aug. 22. Kevorkian's lawyers have said Judith Curren chose to end her great suffering, but the medical examiner said an autopsy showed no evidence of a physical disease.
Questions of Judith Curren's competence have been raised in light of her past allegation against her husband of physical and psychological abuse.
As a practical matter, the lawyers told Judith Curren that her case would be nearly impossible to win because jurors would not accept her claim that she was harmed, since she married him and they had two children.
No lawyer ever took on Curren's case despite her many phone calls and visits to law offices, sources said.
Legal and psychiatric specialists say that her interest in suing her husband speaks to her state of mind about the relationship.
"If a patient was in a dysfunctional relationship and addicted and depressed - then there would be all kinds of red flags for anyone screening for competence," said Clyde Bergstresser, a lawyer who specializes in therapist-patient sex-abuse litigation, speaking in general terms.
Judith Curren, according to sources, spoke to lawyers as recently as last year about suing her husband.
She told lawyers that her patient-doctor relationship had not yet ended when she became romatically involved with Franklin Curren in 1984. At the time, he was separated from his first wife. Previous Globe coverage on the on the six-year-old Kevorkian controversy, along with an on-line questionaire on the Subject of euthanasia and links to related sites and resources, is available on Globe Online at http://www.boston.com. The keyword is: Kevorkian.
The Boston Globe, March 18, 1996
Copyright 1996 Globe Newspaper Company
The Boston Globe
March 18, 1996, Monday, City Edition
SECTION: METRO/REGION; Pg. 13
LENGTH: 1063 words
HEADLINE: Group drafts suicide statute; Would define rules for doctors, patients
BYLINE: By Richard A. Knox,Globe Staff
BODY: Convinced that doctor-assisted suicide is gaining acceptance, a group of Boston-area legal scholars, lawyers, doctors and ethicists is proposing a state law designed to prevent potential abuses.
Their proposed "model statute" will be introduced in the Massachusetts Legislature late this year. It is intended to prevent lethal overdoses of drugs being provided to people whose judgment is clouded by depression, for example, or to individuals who are pressured by family members to hasten their deaths to avoid depleting an estate.
Its architects say they formulated the proposed statute to disarm critics and reassure skeptics by providing some traction on what could otherwise be a slippery slope. Recent court decisions in California and Michigan that favor assisted suicide should incline those who are worried about abuses to support regulation, argues professor Charles H. Baron of Boston College Law School, one of nine architects of the model statute.
"All of a sudden it seems to us that the opponents of physician-assisted suicide, those who have been most wary about it, have at least as much at stake in passing such legislation as the proponents," Baron said. "They should help pass a statute that prevents a slide down the slippery slope."
The model statute defines who would be eligible for physician-assisted suicide: individuals who are terminally ill and expected to die within six months and those suffering from incurable and "unbearable" illness.
It specifies that diagnosis must be made by a doctor responsible for the individual's care and confirmed in writing by a consulting doctor. A psychiatrist, psychologist or psychiatric social worker must attest in writing that the individual's judgment is not distorted by depression or other mental illness, and that he or she is not unduly influenced by any other person.
The proposal contains other safeguards designed to guarantee that the individual's suicide request is serious and fixed, that hospice care and adequate pain therapy have been offered, that unbiased witnesses attest to the request and that instances of assisted suicide are reported confidentially to state health authorities.
State Rep. Douglas W. Petersen, a Marblehead Democrat, said he will introduce the model statute late this year for consideration in the Legislature's 1997 session. He has not decided whether to accept the group's long-debated decision to propose extending eligibility beyond the terminally ill to individuals who have chronic "unbearable" illnesses from which they are not expected to recover, such as Lou Gehrig's disease or Alzheimer's disease.
The model statute was drawn up over a two-year period by a group that also included James Vorenberg of Harvard Law School; Boston attorneys Clyde Bergstresser, Garrick F. Cole and Judith A. Johnson; Dr. Lowell E. Schnipper of Beth Israel Hospital; Dr. Sidney H. Wanzer of Harvard University Law School's health service; Brown University ethicist Dan W. Brock; and Nancy S. Dorfman, chairwoman of the Greater Boston Hemlock Society.
Proponents of physician-assisted suicide nationally have been greatly encouraged by a March 6 decision of the US Court of Appeals for the 9th Circuit in San Francisco that strongly asserts a "right to die," the first ruling of its kind at such a high level of the judiciary - just one step below the US Supreme Court.
The federal court's decision was followed by a Michigan jury's acquittal of Dr. Jack Kevorkian for assisting in the suicide of two people.
The verdict, the second time in two years Kevorkian has been acquitted on the charge, illustrates how difficult it is to convince lay people to punish a doctor who assists suicide, even a flamboyant physician who acts alone outside of any guidelines.
Baron's argument notwithstanding, it does not appear that opponents of assisted suicide, especially within the right-to-life movement, are about to make common cause with right-to-die advocates.
Cardinal Bernard Law, chairman of the committee for prolife activities of the National Conference of Catholic Bishops, assailed the federal appeals court decision as "erroneous and unjust" and predicted it will be "consigned to the trashbin of history where it belongs."
Meanwhile, however, most legal experts expect that the San Francisco decision will clear the way for Oregon's controversial 1994 law legalizing physician-assisted suicide to take effect soon. The law, passed by ballot initiative, was declared unconstitutional last year in a district court decision that the appeals court is expected to overturn in light of its ringing endorsement of a constitutional right to die.
Those on both sides of the issue are also watching another case before the US Court of Appeals for the 2d Circuit that challenges a New York law banning assisting in suicide. Whichever way the East Coast appeals court decides will be important, although if it rejects the 8-3 decision of the San Francisco panel that will virtually require the Supreme Court to rule on the issue.
Knowledgeable observers are sharply divided on the likelihood that the Supreme Court will embrace the right to die newly articulated by the 9th Circuit Court's 102-page opinion.
Arthur Caplan, a University of Pennsylvania ethics professor, predicts victory for the right-to-die proponents. "Americans are fascinated with autonomy, liberty and privacy," Caplan said. "Critics of assisted suicide like myself are going to lose against these powerful values in public policy and law."
John A. Robertson of the University of Texas Law School, a constitutional law scholar and bioethicist, found the 9th Circuit's reasoning persuasive, and characterized that court as "clever" for developing a limited right to die from the due-process clause of the 14th Amendment and from recent Supreme Court pronouncements on abortion and on the right of individuals to refuse unwanted medical treatment.
But Leonard Glantz, professor of health law at Boston University School of Public Health, predicted "the Supreme Court will probably find the 9th Circuit went too far."
The right to refuse treatment, Glantz noted, "is based on the right to be left alone, which is a very old, traditional right. The right to have someone help you kill yourself doesn't have that kind of pedigree. And this court doesn't seem likely to invent a new right.
The Boston Globe, July 31, 1993
Copyright 1993 Globe Newspaper Company
The Boston Globe
July 31, 1993, Saturday, City Edition
SECTION: METRO/REGION; Pg. 15
LENGTH: 484 words
HEADLINE: Jury awards $ 1m to patient; Sponge found in Plymouth woman following Caesarean
BYLINE: By Dean K. Wong, Contributing Reporter
BODY: A Norfolk County jury awarded nearly $ 1 million Thursday to a Plymouth woman who discovered three years after delivering a baby by Caesarean section at Quincy Hospital that a surgical sponge had been left in her abdomen.
After deliberating for less than three hours, the jury found that a doctor and two nurses at the hospital were negligent during the 1983 operation and awarded damages and interest totaling $ 970,000 to 34-year-old Virginia Wightman.
Attorney Clyde D. Bergstresser, who represents Wightman, said, "I think this is the largest verdict, I'm aware of, for finding a foreign object left in the body. I think these . . . kinds of cases . . . don't often get publicized. . . .it's a good example that shows something is wrong with the system." In July 1983, Dr. Richard Adams performed a Caesarean section and tubal litigation operation on Wightman, who had previously undergone two Caesarean deliveries at the hospital. Adams died in 1990.
"My client had discomfort for years," said Bergstresser, adding that the cause of Wightman's pain was revealed in 1986 by an X-ray which showed a sponge lodged in her lower left abdomen.
"By the time it was removed, the sponge had developed into an almost football-sized abscess," said Bergstresser.
Wightman, who could not be reached for comment, filed a medical malpractice suit against Adams and two nurses who assisted him during the operation.
During the four-day trial in Norfolk Superior Court, Barbara Hayes Buell, attorney for Adams' estate, argued that the sponge was left inside Wightman during one of her earlier Caesarean sections.
"The young woman had symptoms that predated the surgery that Dr. Adams did," said Hayes Buell, adding that the late doctor "did not have a chance to really tell his side of the story.
"I really believe that it was not Dr. Adams' surgery," said Hayes Buell, rejecting the suggestion that Adams and the nurses would've found the sponge in surgery if it had been left during an earlier operation.
Given the small size of a Caesarean incision, "you're not going to see something down in the lower left abdomen," Hayes Buell said.
The speed of the jury's decision may suggest they were swayed by sympathy for Wightman's plight, Hayes Buell said. "They had a lot of issues to deal with, and one has to think - that poor woman - and they wanted to give her some money," said Hayes Buell. "They did what they thought they needed to do then, which is unfair because the verdict and facts don't match."
Hayes Buell predicted, "After an appeal, Dr. Adams will be exonerated."
The city of Quincy is liable for the nurses' actions since they are city employees, and will be required to pay damages up to $ 100,000, said Bergstresser. He said Adams' estate will most likely be held responsible.
Joan Eldridge, an attorney for the City of Quincy, could not be reached for comment yesterday.
Medical Malpractice :: Elder Neglect :: Sexual Abuse :: Birth Injuries :: Legal Malpractice :: Wrongful Death :: Personal Injury :: Premise Liability
Firm Profile :: In the News :: Practice Areas :: Free Evaluation :: Cases of Interest :: Legal Links :: Legal Disclaimer :: Referring Lawyers :: Contact Us
|
Campbell Campbell Edwards & Conroy One Constitutional Plaza Boston, Massachusetts 02109 © 2002 - 2008 Clyde Bergstresser, Bergstresser Medical Malpractice Group |
Tel: (617) 241-3000 Fax: (617) 241-5115 Site Credits: Drive Thru Designs, Inc.
|
