Malis | Law

IT’S NOT ALWAYS A WAR — MALIS|LAW Negotiates $1 Million Settlement After Hospital Admits Fault

Mon, 21 Feb 2022 18:51:00 GMT

Sometimes, it’s not about fighting for a settlement. It’s making sure that the settlement is fair and just — like this case we resolved in 2021.

We were contacted in Summer 2021 by the daughter of a 61 year old Chinese immigrant who had received a notice from his treating hospital after a routine doctor’s visit disclosed that he had developed lung cancer which was in advanced stage.

The hospital’s “risk management” department noted that he had been examined 2 years before and had a routine x-ray which was benign. However, at that time the hospital and the treating primary physician who examined her father did not follow up on a recommendation that the xray be repeated in 6 months, and in the time between visits the cancer had developed and grown essentially untreatable.

The hospital had reported the error to the State Board of Health and was urging the client to get a lawyer to handle possible settlement negotiations. They hired a local lawyer and, as often happens, he had no experience in medical malpractice cases or the issues that can be involved in resolving them, and through a network of shared contacts, found us.

We used the hospital’s medical portal to review the patient’s records and found the error that the hospital had, to their credit, admitted to.

End of story, right? Not quite. While the hospital was cooperative, they were not simply laying down and resolving the case.

The patient also had concurrent heart disease which could have ended his life before the lung cancer led to his demise, which the hospital’s risk administrator noted on our first call. Also, there was evidence we found in the record that the patient’s daughter, herself a nurse, had read the initialy xray and with it, was at least “exposed” to the information that a follow up xray was recommended — so, arguably, or so we feared, there was indirect evidence that the 61 year old Chinese speaking client should have arranged for his follow up himself.

We began to conduct research on the problem of follow up xrays, and found significant literature suggesting that caregivers frequently do not pass on recommendations for follow up radiological tests when the initial xray is “negative”, or shows no disease. Ironically, this included a study from the hospital where our client had treated.

We used this information to contradict the possible arguments that the hospital would use to undermine a possible claim, and understanding that it would be best for the client to see a recovery while he was still alive, were able to reach agreement for payment of $1 million.

But there was another wrinkle — the settlement would be paid for the hospital’s causation of lung cancer, and Medicaid, which by this time had paid over $200,000 in medical expenses, has a statutory right to be repaid (called a “lien” in professional parlance) for medical treatment that was the result of another party’s negligence if a settlement is recovered. Were this to be repaid in full, this would substantially reduce our client’s recovery.

Here, along with the settlement negotiations themselves, was where we could provide “value added” in a situation where a defendant admitted fault. We engaged in negotiations with Medicaid, with the assistance of an outside firm which specializes in Medicaid reimbursement. We were able to persuade Medicaid that if the cancer had been detected earlier, our client would have needed the same treatment he was currently receiving. In other words, the medical care which Medicaid had paid for was not really the result of the malpractice; it was the result of the cancer. The only difference was, sadly for our client, the likelihood of outcome.

Medicaid accepted the argument, and within two months of our assuming representation, the client received his settlement. We then arranged for Elder Care representation to ensure that the funds would be safe for his family.

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MALIS|LAW Shows Door Owner and Door Repair Companies the Door — and Settles Case for $900,000+

Mon, 21 Feb 2022 17:56:00 GMT

In 2016, an 84 year old semi-retired engineer was leaving an electronics company after delivering a lecture on detection of forged computer chips when an automatic door closed on him, knocking him to the ground.

He severely fractured his hip and during corrective surgery to install a pin and hardware, suffered a stroke. Although he recovered from the stroke in a few weeks, he began to show signs of accelerated dementia, and by the time the lawsuit began, was a shell of his former, remarkably active self.

Despite the pandemic preventing in person depositions, we were able to successfully use streaming video to interview witnesses under oath, using technology which MALIS|LAW had installed years before the pandemic in anticipation of increased remote discovery.

Depositions of critical witnesses disclosed that the “presence sensor” of the automatic door, which was programmed to stop the doors and reverse their motion, had been unplugged in a way that demonstrated that the disconnection had to have been done deliberately. Investigation during litigation also revealed that these doors had been observed to be in deteriorated condition with evidence of electronic and physical corrosion from weathering over two years prior to the accident but the door’s owner would not authorize replacement.

Further, an automatic door servicing company had apparently performed haphazard repairs of the door after the door owner failed to replace it, installed an inappropriate presence sensor in an attempt to repair the door, and did not take the door out of service. An independent maintenance company hired by the door owner to supervise the repair repeatedly pressured the repair company to hurry their work along and did not warn the owner of the consequences of leaving a corroded door in place.

Finally, there was evidence four months before the accident that the door owner’s maintenance foreman may have himself unplugged the critical sensor while “taking care of” a company employee’s door complaint on his own. This foreman, who had been subsequently laid off by the owner, refused to appear for deposition, despite a court order to do so. There was also evidence that the door’s owner had disposed of removed door sensors after the accident and may have been covering up the evidence of their own involvement in the door’s malfunction.

The real problem with the case was establishing a causal relationship between the client’s fall and his accelerated dementia, since he was already 84 when injured. The client had made prior complaints to his doctors that he felt his memory was slipping. MRIs had also suggested that the stroke during his operation was not caused by traumatic brain injury but by cholesterol buildup.

We presented evidence that anticoagulants that the client routinely took to prevent strokes before the accident had to be removed in order for his hip surgery to proceed, so the absence of anticoagulants likely led to his stroke. Regarding dementia, we retained a highly credentialed neurology and cognition expert to examine the client (again, using remote streaming technology) who also reviewed measurements of his developing Alzheimer’s related dementia to establish that his disease had dramatically accelerated after the accident and stroke, faster than the “normal” progression of Alzheimer’s disease. Finally, we took a deposition of the host of the seminar our client conducted on the day of the accident. That engineer testified that on the day of his fall our client was sharp, focused and was still, at 84, a leading expert in his field — which is why they had hired him to speak to company engineers on the day he was injured. Our neurological expert agreed that this demonstrated our client’s high level of functionality before the accident.

A day long mediation after completion of discovery yielded a settlement over $900,000 from the door’s owner, the door repair company and the maintenance company for our client and his grateful family, ensuring their future and his future care.

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Attorney Daniel Malis Named To Multi-Million Dollar Advocates Forum

Fri, 08 Oct 2021 12:45:00 GMT

The Million Dollar Advocates Forum is pleased to announce that attorney Daniel Malis of Cambridge, MA, owner and principal attorney of MALIS|LAW, has been recognized as a member of the MultiMillion Dollar Advocates Forum.

Atty, Malis is presently a Life Member of the Million Dollar Advocates Forum, one of the most prestigious groups of trial lawyers in the United States. Membership in the Million Dollar Advocates Forum is limited to attorneys who have won million and multi-million dollar verdicts,
awards and settlements. The organization was founded in 1993 and there are approximately 3000 members located throughout the country. Fewer than 1% of U.S. lawyers are members.
Forum membership acknowledges excellence in advocacy, and provides members with a national network of experienced colleagues for professional referral and information exchange in major cases. Members of the Million Dollar Advocates Forum must have acted as principal counsel in at least one case in which their client has received a verdict, award or settlement in the amount of one million dollars or more.

Members of the Multi-Million Dollar Advocates Forum must be Life Members of the Million Dollar Advocates Forum and must have acted as principal counsel in at least one case which has resulted in a multi-million dollar verdict, award or settlement. Mr. Malis is a member of both the Million Dollar Advocates Forum and the Multi-Million Dollar Advocates
Forum. There are presently only 14 members of both forums in Massachusetts.

Attorney Malis is a graduate of the Boston University School of Law and has been in practice in Massachusetts since 1983. He has been recognized as one of the Top 100 personal injury lawyers in the Commonwealth of Massachusetts. His practice focuses on complex personal injury matters including wrongful death, product liability, toxic torts as well as medical malpractice and serious injury claims from premises defects and automobile accidents.

For further information regarding membership and qualifications, see www.MillionDollarAdvocates.com. The Multi-Million Dollar Advocates Forum was established in 2007. There are members of the Million Dollar Advocates Forum (established 1993) who may have had multi-million dollar cases but who have not applied for membership in the Multi-Million Dollar Advocates Forum although they may be qualified. Membership in the Multi-Million Dollar Advocates Forum is not intended to imply that a member of the Million Dollar Advocates Forum may not have had multi-million dollar cases.

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The National Trial Lawyers Announces Daniel Malis as One of Its Top 100 Civil Plaintiff Trial Lawyers in Massachusetts

Wed, 15 Sep 2021 20:22:00 GMT

The National Trial Lawyers is pleased to announce that Daniel Malis of Malis Law has been selected for inclusion into its Top 100 Civil Plaintiff Trial Lawyers in Massachusetts, an honor given to only a select group of lawyers for their superior skills and qualifications in the field. Membership in this exclusive organization is by invitation only and is limited to the top 100 attorneys in each state or region who have demonstrated excellence and have achieved outstanding results in their careers in either civil plaintiff or criminal defense law.

The National Trial Lawyers is a professional organization comprised of the premier trial lawyers from across the country who have demonstrated exceptional qualifications in criminal defense or civil plaintiff law. The National Trial Lawyers provides accreditation to these distinguished attorneys, and provides essential legal news, information, and continuing education to trial lawyers across the United States.

With the selection of Daniel Malis by The National Trial Lawyers: Top 100 , he has shown that he exemplifies superior qualifications, leadership skills, and trial results as a trial lawyer. The selection process for this elite honor is based on a multi-phase process which includes peer nominations combined with third party research. As The National Trial Lawyers: Top 100 is an essential source of networking and information for trial attorneys throughout the nation, the final result of the selection process is a credible and comprehensive list of the most outstanding trial lawyers chosen to represent their state or region.

To learn more about The National Trial Lawyers , please visit: http://thenationaltriallawyers.org/ .

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Patriots Day – COVID – And A Revolution of Law and Science

Mon, 19 Apr 2021 01:01:00 GMT

Every year in Massachusetts, we celebrate Patriot’s Day –when Paul Revere mounted his horse and rode to Lexington and Concord to rally fighters. After British troops rowed to Cambridge (landing across the street from our office!) and marched to confront the rebels at Lexington’s Common, the first shots were fired in a war which would turn the world upside down. The Minute Men stood shoulder to shoulder on that green, each supporting the other, because they knew their freedom depended upon their acting together to repel a foreign invader.

While the Revolution was fought, Massachusetts was plagued by another invader, this time microscopic — an epidemic of smallpox, caused by a virus. Smallpox had plagued Europe for centuries, and was often thought to be God’s punishment for lack of sincere belief and for sin.

Doctors in Boston thought better, and adopted a new practice; vaccination, or exposing healthy people to small doses of smallpox to train their immune system to fight the disease. Millions were saved by this practice, which led eventually to the development of vaccines. Vaccines led to the eventual eradication of both smallpox and polio, and also controlled lethal diseases such as measles, the mumps, and eventually influenza through regular vaccination.

The Founding Fathers were great believers in the power of reason over superstition. They were children of the age of science, and wished to detach faith from the science of governing as well – hence the “Establishment Clause” of the First Amendment, which banned the creation of an official religion.

The Founders knew their history, and that oppressive rulers had used religion, recognized by their kingdoms as “true faith”, to oppress independent thought and to impose their will on their people. The Establishment Clause represented the Founders’ faith that logic and science, not superstition and fear, would be the guiding principles of a new age.

Our courts and Constitution have embraced this concept over the last two centuries. Constitutional law requires that every statute passed by Congress and local governments have a “rational basis” – in other words, based upon real evidence, and not upon blind faith and superstition.

Why am I mentioning this in such detail? Well, timing is everything.

April 19th is now also nationwide “vaccine day”, the day on which COVID vaccines are avaliable to all over the age of 16, regardless of medical history. Over a million people in Massachusetts have already made the decision to be vaccinated, wear masks to avoid infecting others, and to continue social distancing.

These vaccines are a medical miracle. They were developed by private companies with support from our government in a fraction of the years developing a vaccine ordinarily required, using cutting edge genetics to activate immune systems to defend a person from a COVID infection in an entirely new fashion. They have been proven by reliable scientific study, verified by independent government and private scientists, to be both safe for use and effective. They have also been made available to the public through enormous logistics innovation and governmental action in an equally extraordinary way.

The Pandemic has killed over a half million Americans, devastated people’s workplaces and businesses, and closeted us in our homes and away from ones we love. The vaccines have given us a chance to take our lives back. They may not totally eradicate this lethal disease, which is the “flu on steroids”. Like the flu, this virus and its variants may be with us for a long time. But vaccination will prevent you from becoming fatally ill or disabled, and recent research is starting to indicate that it may also inhibit transmission of the disease, which has been frighteningly easy, to others. With the vaccines, we also may build up “herd immunity”, which may hold out the hope that we can eliminated the disease longterm, or control it the way we do any other flu on a yearly basis. This is a good thing.

So, with all of this evidence, all of this effort and innovation, why isn’t everyone getting the “Fauci Ouchy?”

Because some in power are cynically rejecting the logic and reason that our Founders fought for. They are mixing up “responsibility to our fellow citizen” with “governmental control”, in the same superstitious way that organized religions in the service of the aristocracy did nearly three hundred years ago. These “antivaxxers” and “deniers”, inspired by a former President who thought that COVID-19 was less of a threat to people’s lives than a threat to his need to be re-elected, argue in the face of advice from independent scientists that refusal of mask wearing and refusing vaccination is a gesture of defiance to “political correctness” and a rejection of supposed thought control. The leaders of this movement are playing upon fear and superstition to retain power. Sounds familiar, no?

We at MALIS|LAW say differently. As lawyers, dealing with the rights of wrongfully injured people, we honor the rule of law, and advocate for our clients using logic and an understanding of science, particularly medicine. And we know false prophets, and deniers, when we see them, and fight against them to help our clients.

So this year, we urge our friends and clients to treat Patriot’s Day like a Patriot should. Reject superstition, like our Founders did, and accept the rule of reason. Take care of your fellow Patriot, wear a mask; keep distanced; and get the vaccine. The first battle in Lexington was fought by men who were willing to give their lives to save and free others. Now, you can be a Patriot and save and free others from the oppression of this Pandemic by saving your own.

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Law in the Time of the Coronavirus

Wed, 18 Mar 2020 09:07:00 GMT

These are strange times. People are “socially distant.” We live in fear of invisible enemies and an insidious virus. We wear gloves and masks because we’re afraid to touch anything. “Working from home” used to be something we did when our kid was sick, or what bosses did when they were really going to the beach.

It’s a brand-new world out there.

Fortunately, while the federal government may not have been ready for this crisis, MALIS|LAW was.

Our firm has been paperless for the past 13 years. For the past five, we’ve gone a step further and moved our practice into “the cloud” – a website with numerous firewalls, virus and security protection, and encryption using Amazon Web Services. This means that our client’s private information stays private while allowing us to access it from anywhere.

We have the equipment and software to do just about everything “virtually” – from making conference calls to reviewing medical information to video conferencing to attending virtual depositions.

It’s just like another day in the office, just not … in the office.

Why, if we weren’t expecting a biologic disaster, were we ready for a virtual office?

More than 35 years ago, Dan (then a first-year associate) asked his boss for a computer – unheard of at the time. He decided that when he opened his own firm, he’d build it around the latest technologies to create a truly forward-thinking practice.

This pandemic is forcing many employers into a virtual world where they have never worked and aren’t comfortable. However, centralized workplaces may soon be a thing of the past. We might be forced to get comfortable.

Now, Dan’s of the opinion that there’s no replacement for being in the same room as another human being. That’s the same whether it’s a routine meeting or a court hearing. A person’s subtle facial cues can be missed on a two-dimensional screen, and that information is crucial when interviewing witnesses. Despite everything, lawyers are in the people business and work better with others.

We hope for a speedy resolution to this crisis so that “work from home” doesn’t become the new normal. However, if it does, MALIS|LAW’s ready for the challenge. This works well for our clients, because we can meet with them wherever is convenient. It also works out well for our lawyers and staff, because it gives us more control over our work environment.

We’re working for you and thinking of you. We hope that you and your loved ones are safe and healthy. We’ll see you soon — virtually or in the real world.

AND WASH THOSE HANDS!

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