Settlements & Verdicts 2015

12/30/15 Pavao v._____________, Settlement: $500,000.00 Medical Malpractice-Failure to diagnose

On April 10,2010, the plaintiff sought the care of his physician with regard to stomach cramps. His doctor was on vacation and as such was seen by the Physician’s Assistant, filling in for the doctor, who examined him and gave him a prescription for indigestion. Approximately 5 days later he returned with further complaints of pain, weight loss and a slight temperature. The PA again diagnosed him with gastritis and prescribed another medication. Mr. Pavao returned home, and the following day presented himself to the Emergency room, where it was determined that he was suffering from diverticulitis, requiring immediate surgery and a colostomy bag.

The plaintiff sought the services of Brian Cunha & Associates who filed suit on his behalf. Our expert, reviewed all related medical records in this case, which included, inpatient records from Charlton Memorial Hospital, and the surgeons medical records. He opined that based upon the related medical records he reviewed, the Plaintiff received substandard care by Physician Assistant. The violation in the standard of care occurred on April 19, 2010, when Physician Assistant, failed to recognize the objective signs of a serious intra-abdominal process, and did not consult his supervising physician, or anyone else. The expert found the chart notes created by Physician Assistant, to be inadequate, lacking a complete history, and merely listing a few symptoms instead of the pertinent details regarding the present illness. Thus, Physician Assistant, evaluation was not thorough and he did not possess enough medical knowledge to know what questions to ask, what tests to order or what consultations to make.
In addition, he opined that had Physician Assistant, ordered diagnostic tests, or ordered a rapid referral to the emergency department, Mr. Pavao=s intra-abdominal abscess would have been discovered sooner and a more favorable outcome would have ensued.
The case settled approximately one month before trial at Commonwealth Mediation in Brockton Massachusetts.

9/10/15 Roby v.________________. Settlement: $120,000.00, Fall down on Stairs

On August 29, 2011, Maureen Roby suffered a fall while descending the back wooden stairs to the single family house that she, her son and her daughter-in-law had leased from the Defendant approximately four (4) months prior to the incident.

Ms Roby claimed that approximately half-way down the stairs, the tread on which she stepped collapsed downward causing her to lose her balance and fall down the stairs resulting in a compound fracture of her left ankle An ambulance was called and Ms. Roby was transported from the scene to St. Luke’s Hospital. Unfortunately, Ms. Roby reported to the doctor that that she was about four or five (4 or 5) stairs away from the bottom of staircase when she felt her right knee give out on her causing her to fall down the stairs.
Ms. Roby was subsequently transported from St. Luke’s Hospital to Brigham & Women’s Hospital in Boston where she was admitted and surgery performed on her ankle fracture, Ms. Roby remained inpatient for three (3) days before being discharged with home care services.

Ms Roby contacted Brian Cunha & Associates regarding her claim. We immediately hired an expert to inspect the stairs. Our expert, opined that the stairs were defective in that: nails rather than screws had been used to attach the treads to the stringers, allowing the nails to raise and the tread to become loose, allowing it to pitch forward when the Plaintiff stepped on it when descending the stairs. The Plaintiff’s expert further opines that the lifted nails and loose treads had existed for sufficient period of time that would have enabled the Defendant, with even a cursory inspection to have noted the unsafe condition of the stairs.

The Defendant however, denied the claim, primarily relying on statements by made Plaintiff to the emergency room personnel and EMT’s. At the time of the incident, Ms. Roby advised the EMT’s and the ER doctors that her knee gave out causing her to fall. However, importantly, we argued with the insurer that the statements initially made by Ms. Roby were given at a time in which she had a bone protruding from her left ankle, she was in extreme pain and heavily medicated with narcotic medication to relieve the pain. Only later that evening after her pain had been dealt with, did she give a full and complete account of the incident resulting in the severe injury.

After lengthy negotiations the case was settled just before trial for a reasonable and fair amount.

9/6/15 Viera v. Liberty Mutual Ins Co.: Arbitration award: $96,000.00 Motor vehicle accident

On September 22, 2012, at approximately 11:30 a.m., Lisa-Anne Vieira was operating her motor vehicle on route 140 South in New Bedford, Massachusetts when a vehicle operated by a third party, traveling ahead of her in the right lane, lost control of her vehicle striking the guardrail and crossing over into Ms. Vieira’s lane of travel. Ms. Vieira successfully avoided striking that vehicle, swerved to go around the out of control vehicle causing her own vehicle to spin, ending up in the right lane with the front end of her vehicle facing oncoming traffic. There was no impact with the other vehicle or the guard rail.

The ambulance transported her to St. Luke’s Hospital where she complained of neck pain and a severe headache Motrin was administered and a CT scan of her head and cervical spine which was negative.The impression on this date was neck strain.

Subsequently, due to worsening headache, neck pain and the new onset of difficulty focusing, Ms. Vieira sought further care with complaints of pains as well as feeling emotional and having difficulty performing duties at work. After examination, her doctor opined that Ms. Vieira was suffering from: headache, neck pain, difficulty focusing post MVA and further suspected post traumatic stress disorder from her accident.

On October 12, 2012, a neurological consult/evaluation occurred. It was the impression of the neurologist that Ms. Vieira was suffering with: Post-concussive syndrome with associated cognitive deficits and vertigo as well as PTSD and acute posttraumatic headache. On October 18, 2012, a brain MRI was obtained at Fall River New Bedford Regional MRI which was normal.

The party that caused the accident was uninsured and the plaintiff brought a claim against her insurer who denied the claim stating that there was no impact with any car or the guardrail and all she did was spin around once. The insurer further claimed and that there was no evidence that she had a concussion as she did not lose consciousness. The Insurance company had her examined and their doctor opined that at most she had a neck strain.

Brian Cunha & Associated demanded arbitration. At the hearing we were able to prove that she had a concussion and indeed suffered from PTSD through medical testimony and records The arbitrator rejected the reports of the insurance company doctor and awarded a fair sum for her injuries.

9/20/15 Esposito v Novartis Pharmaceutical Co.Defendants- Defendants Motion to dismiss and Summary Judgment Denied

Plaintiffs, Cynthia Esposito, executrix of the estate of decedent Roselyn Esposito, and Bernardo Esposito, Mrs. Esposito’s husband, filed a personal injury suit against Defendant Novartis Pharmaceuticals Corporation (“NPC”) for harm caused by the drug Zometa to Mrs. Esposito. NPC’s Motion for Summary Judgment is DENIED.

I. Background

Plaintiffs’ claims for injuries stem from Mrs. Esposito’s development of bisphosphonate-related osteonecrosis of the jaw after being treated with the drug Zometa, manufactured by NPC. Zometa is administered to counteract the effects of cancer that has spread to the bones. Plaintiffs seeks damages for Mrs. Esposito’s injuries and her husband’s loss of consortium, premised on strict product liability, failure to warn, negligence, and breach of warranty under Rhode Island law.

Plaintiffs initially sued NPC in Rhode Island Superior court on October 23, 2009. NPC removed on diversity grounds, after which the case was transferred to the Middle District of Tennessee for coordinated or consolidated pretrial proceedings, and then transferred back to Rhode Island. NPC claimed that Plaintiffs’ action was time-barred because Plaintiffs failed to file suit within three years after the cause of action accrued. NPC argued that as a matter of law that Mrs. Esposito knew or should have known that she had a cause of action against NPC well before October 23, 2006, and was entitled to summary judgment.

Mrs. Esposito was diagnosed with renal cell carcinoma and underwent surgery to remove a kidney in July 2002. In September 2003, she was diagnosed with metastatic cancer after her clavicle was pathologically fractured. (Id. at ¶ 31.) She subsequently underwent various forms of radiation treatment, and in November 2003, began to receive Zometa therapy, prescribed by her oncologist, Dr. Sundaresan Sambandam, to slow the advancement of cancer-induced bone damage. Dr. Sambandam testified that he first learned about the association between Zometa and osteonecrosis of the jaw (“ONJ”) at some point in 2004.

On August 19, 2005, Dr. E. Joseph Domingo, an oral surgeon, extracted one of Mrs. Esposito’s teeth. Dr. Domingo testified that although he was aware that invasive dental procedures were not recommended for patients taking Zometa due to the risk of ONJ, Mrs. Esposito had not informed him of her ongoing Zometa treatment.Mrs. Esposito’s Zometa treatment was discontinued in October 2005.

In denying the Defendants motion for summary judgment the judge found that Mrs Esposito did not have sufficient information from her doctors to determine that the use of Zometa was the cause of her OMJ as more fully described below.

On February 22, 2006, Mrs. Esposito’s dentist, Dr. Kerry Callery, extracted another tooth, and noted in subsequent visits in late March that Mrs. Esposito’s bone was exposed at the site of the extraction. On April 3rd, another dentist noted that Mrs. Esposito had exposed bone, but no pain or swelling.

On April 11, 2006, Dr. Domingo saw Mrs. Esposito again and found out that Mrs. Esposito was taking Zometa. He recorded that he “[e]xplained to patient the effects of Zometa on healing.” His noted “Assessment” was “Bisphosphonate osteonecrosis” and according to his notes and testimony, he prescribed Peridex, an antibacterial mouth rinse. Dr. Domingo testified that he did not recall what he told Mrs. Esposito at this visit or whether he would have correlated Zometa with her condition at that point, that he “probably wouldn’t” use the term “bisphosphonate osteonecrosis,” and as for his “assessment,” he stated, “it looks like I was coming to the conclusion that it was possible from the medication that she had taken.”

On May 26, 2006, Mrs. Esposito visited an urgent care clinic complaining of a sore area on her tongue. According to her treating physician’s notes, Mrs. Esposito complained that her tongue was rubbing against the area where her teeth had been pulled, and “said she had cancer and took [some] medication and she said it had affected the bone in the area.” The physician determined that Mrs. Esposito had an ulcer on her tongue, and wrote in her “Assessment and Plan” that she would give Mrs. Esposito “Magic Mouth Wash.”

On June 2, 2006, Dr. Sambandam, Mrs. Esposito’s oncologist, made positive notes on Mrs. Esposito’s status in the “Subjective” section of his report.

On June 14, 2006, Dr. Sambandam saw Mrs. Esposito again, and noted in the “Subjective” portion of his report that Mrs. Esposito “feels overall okay except for a problem with her tongue and the short area of avascular necrosis of the mandible irritating the lateral bottom of the tongue.” He goes on to list his findings, the majority of them positive, and writes in his plan that he would “probably send her [to] Dr. VanDongen who has experience with radiation induced avascular necrosis. . . . I think he is a good resource who might be able to help us.”

On September 27, 2006, Dr. Sambandam again evaluated Mrs. Esposito, and states in his report that she “has been treated in the past with Zometa and she has done well with it. Unfortunately, she developed necrosis of the mandible.” The section titled “Subjective Complaints,” mentions nothing relating to ONJ, but symptoms are described in “Objective Findings,” where Dr. Sambandam reports that Mrs. Esposito “has tenderness in the left mandible near the angle of the mandible where she has a lesion present. She has an infection there. I put her on antibiotics now.” Dr. Sambandam testified that he could not recall what Mrs. Esposito told him at this visit, that there are several possible reasons people develop osteonecrosis, and that he thought Zometa was a “contributor,” but did not form an opinion “to a reasonable degree of medical certainty” as to the cause of Mrs. Esposito’s condition.

On October 10, 2006, Mrs. Esposito visited Dr. Domingo, who noted that there had been no change in the area of the exposed bone, “although tissue appears healthier,” and that Mrs. Esposito had not been taking any pain medication. He writes, “[d]iscussed again the effects of Zometa and the limited treatment available.” He testified that he understood the effects of Zometa to be “[d]elayed healing . . ., leading to osteonecrosis.”He further stated, “I don’t recall the conversation with Miss Esposito exactly. But from my notes, it sounds like that’s what I was explaining to her.”

Mrs. Esposito went to another oral surgeon, Dr. Brian P. Hogan, on October 17, 2006, who, in a letter dated October 20, 2006, writes to Dr. Fisher that Mrs. Esposito “presents with exposure of the left mandibular osseous tissue.” He writes that Mrs. Esposito claims that this condition developed following extractions, and that “[s]he claims that at times she has had significant swelling but at this point she feels more comfortable.” (Id.) He explains that “the panoramic radiograph taken today reveals an osteolytic area of the left body of the mandible consistent with recent extractions and osteonecrosis which is also consistent with her history of Zometa IV bisphosphate therapy,” but that “we have no current treatment protocol for bisphosphate osteonecrosis.” Nothing in the record indicates how much of this information was conveyed to Mrs. Esposito, in what terms, or when.

Plaintiff Cynthia Esposito testified that her mother’s jaw pain “would come and go, but then it was constant.” According to the notes of Catherine Viens, a psychiatric clinical nurse specialist whom Mrs. Esposito saw on October 27, 2006, Mrs. Esposito was “reporting on and off pain.” Nurse Viens noted that Mrs. Esposito “presents with a left swollen jaw reporting that she has an infection. She had teeth pulled last year but secondary to a cancer medication, this area will not heal. The patient is now taking penicillin.”

On February 28, 2007, Mrs. Esposito saw Dr. Sambandam, who notes that Mrs. Esposito “had developed osteonecrosis in her jaw because of the Zometa. She is now managing. She is taking Penicillin trying to keep things good.” On March 5, 2007, Dr. Ray English, an oral surgeon, diagnosed Mrs. Esposito with “Zometa induced osteonecrosis of mandible.” Cynthia Esposito and Bernardo Esposito both testified that they first heard that Zometa caused Mrs. Esposito’s ONJ after her visit with Dr. English. . Mr. Esposito testified that he “brought [Mrs. Esposito] to many doctors” before determining the cause of his wife’s condition. When describing what his wife had done after her second tooth was extracted and her jaw wouldn’t heal, he stated: “She was worried. We started seeing oral surgeons all over the place to find out what the hell is going on.” (Id. at 37:9-15.) He further testified that “[n]obody knew,” and that no medication was prescribed as far as he knew because “[n]obody knew what it was.”

In the Affidavit of Cynthia Esposito submitted by Plaintiffs in support of their opposition to NPC’s Motion for Summary Judgment Cynthia Esposito states that, “as a result of the information received by me and my mother in the Spring of 2007, I began to investigate Zometa on the internet and learned of the wrongdoing of [NPC].”

Medical records document the worsening of Mrs. Esposito’s BRONJ. Her pain and swelling increased and she had difficulty swallowing or eating. Her jaw bone fractured in multiple places, she developed a broken abscess draining mucus to her sinus and chronic bone infection, and by 2008, she had developed a fistula draining from her mouth to her neck, and was diagnosed with “Stage III bisphosphonate-related osteonecrosis of the jaw.” Dead bone in her jaw broke off internally. According to Cynthia Esposito’s deposition testimony, “[a] piece of the jawbone was sticking up inside of her — the top,” after which Dr. English performed a debridement. Dr. Sambandam’s February 13, 2008 report states that Mrs. Esposito “is giving up.” Mrs. Esposito passed away in November of 2008 from a recurrence of cancer.

In a great win, based on the above facts, the judge concluded that as a matter of law the Defendants failed to prove that the Plaintiff had sufficient information of Defendants wrongdoing and denied the motion. The plaintiff is now preparing for trial on the merits of the claim.

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strong>8/20/15 Settlement – $275,000.00 Minor Pedestrian/Auto accident

The minor Plaintiff, 13, was operating 4 wheel ATV at his friends house in Rhode island, when he was struck, severely fracturing his ankle, by an oncoming vehicle as he entered the roadway. The plaintiff alleges that he was not paying attention as he was attempting to avoid being hit by snowballs being thrown at him by one of the other teenagers present on the site.

The Plaintiff alleged that homeowner was negligent in allowing the Plaintiff and the three other minors present to operate the ATV on the street and without any supervision or guidance as well as a claim against the homeowners policy of the young man that was pursuing him while on the ATV and the operator of the vehicle that struck him. All of the defendants denied the allegations. Brian Cunha, from Brian Cunha & associate requested mediation and the case was successfully settled at a mediation before William Poore in RI with each party contributing to the settlement.

<5/3/15 Settlement $125,000 Fall Down on snow and ice

On 1/20/12, at approximately 1:30 a.m., the male plaintiff,46, observed three individuals breaking into a vehicle located in the driveway in front of his apartment. When he went outside to assess if there was damage to the vehicle, he was caused to fall on a patch of snow and ice that was covering a circular depression in the pavement of the driveway. As a result of the fall, he sustained an acute rupture of the tendon in his right shoulder which required surgical repair.

According to attorney Sharon D. Sybel, from Brian Cunha & Associates, critical to the settlement of the case was her decision to hire to a forensic engineer to evaluate the area where the plaintiff fell and to have certified weather reports documenting the weather conditions at the time. Attorney Sybel was able to convince the insurer of the defendants negligence as it was the expert’s opinion that the depression acted as a catchment for run-off water which then froze. The accumulating snow that fell that evening covered the depression, which the defendant knew or should have known about and failed to repair the driveway making it unsafe and dangerous.

Without establishing through an expert that this case was a defective premises case and not merely a fall on snow or ice as the attorneys for the insurance company argued, a jury could have easily determined that the landlord – defendant acted reasonably under the circumstances. Here, the landlord defendant knew that the depression existed for at least 4 years, yet she did not make any repairs. The matter settled after a three hour mediation.

4/1/2015 Settlement $360,000.00 Construction Accident

In 2010, The Plaintiff,54, an employee of one of the building subcontractors fell from a ladder that had been attached by a bungee cord by an employee of the roofing subcontractor to a commercial building under construction in Rhode Island. As the plaintiff ascended the ladder the bungee cord was insufficient to prevent the ladder from falling, causing the Plaintiff to sustain several fractures and an injury to his arm.

The Plaintiff retained Brian Cunha & Associates to handle the claim. Attorney Brian Cunha was able to obtain an expert who opined that the use of a bungee cord to fasten the top of a ladder to a building is a violation of the building code and OSHA regulations.

In addition to bringing a claim against the roofer, the Plaintiff brought a claim against the General contractor, who Plaintiff claimed was responsible for ensuring that the roofing subcontractor employed safe practices on the job. The insurer for the roofing subcontractor and the general contractor each contributed approximately 50% of the final settlement amount.

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