Boston Attorney General Takes Action

    Here we are on the last day of February 2021! Looking back, how was your month of February? Regardless of how it was, looking forward, there’s much happiness to come, one of which is your J.D. degree! Keep working hard and put in the effort and keep your eye on the prize. Today, I’m bringing before you a lawsuit that was filed by the Attorney General of Boston, Laura T. Healey, against Boston Sports Clubs gyms. Enjoy Reading!

Ms. Healey sued Boston Sports Clubs’ parent company, Town Sports International, for violating sections of state law governing health clubs and consumer protection, arguing that it failed to honor scores of member cancellations and violated terms of an earlier agreement with her office. Specifically, “members had the right under state law to cancel their contracts without penalty due to substantial changes in operations amid COVID-19 pandemic, but Boston Sports Clubs continued to charge monthly fees while gyms were closed and improperly sought cancelation fees, Healy alleges”. 

Boston Sports Clubs had closed its gyms back in March in accordance with shutdown orders, but it “charged members a full monthly membership fee in April, even while closed”. While some customers tried to cancel their membership, Boston Sports Clubs said they had to pay a cancellation fee if they did. Due to the hindered freedom of the customers, Ms. Healey took action and in April, sent a letter demanding the Boston Sports Clubs locations to stop billing its members, to freeze all accounts at no cost, and allow cancellations with no fee. 

The Defendant agreed to the changes but in July, when the gyms reopened with limited capacity, they unfroze all the accounts and started charging membership fees to all members and that too, without notification. 

Thereafter in September, the Defendant filed for Chapter 11 bankruptcy. Then in October, Ms. Healey said that they reached an agreement with the Defendant where the Sports Clubs will refund its members and allow cancellations without penalties. However, unfortunately, Ms. Healey said that the company “has since refused to make any effort to live up to the terms of the agreement”. 

Massachusetts Lawyers Weekly Vo. 49, No. 48

#StayInformed

Malpractice Case Involving Accidental Incision of the Common Bile Duct

       We’re almost through the month of February! Can you believe that? How are you doing? We’re pretty much a month into this semester… wow! I want you to know that you got this! Keep putting in the work, the time and effort, and know you will make it to the end with that J.D. degree in hand. This week, I want to share a case with you involving a surgeon who accidentally cut into a patient’s common bile duct. Happy Reading! 

The Plaintiff suffered from inflammation of the gallbladder (known as cholecystitis) and came under the Defendant surgeon’s care to get his gallbladder removed (known as cholecystectomy). The Defendant surgeon originally decided to use an intraoperative cholangiogram (an x-ray tool that gives surgeons a real-time video of the patient’s bile ducts), but just prior to the start of the procedure, decided not to, “because the patient’s white blood count was within normal limits”. The surgery was performed on August 21, 2013.

About eight days after the surgery, the Plaintiff reported back to the Defendant surgeon after experiencing abdominal pain. Blood work was done which revealed elevated white blood cell count. The Defendant surgeon referred the Plaintiff to get an endoscopic retrograde cholangiopancreatography (ERCP) which is a procedure done to diagnose problems in the gallbladder. 

The results of the ERCP test showed “findings concerning for common biliary duct transection” which means there was a cut found in the common biliary duct. Thereafter, on September 2, 2013, “the Plaintiff was taken to the operating room for surgical exploration and a Roux-en-Y hepaticojejunostomy with intraoperative cholangiogram was performed.” This is a procedure that allows digestive juices to drain from the liver directly into the small intestine. 

In preparation for trial, the Plaintiff obtained an expert medical opinion from a general surgeon who is board certified and who had performed hundreds of similar surgical procedures that the Defendant surgeon performed. “He opined that the Defendant [surgeon] failed to meet the standard of care by failing to identify and verify the anatomical landmarks necessary during a laparoscopic cholecystectomy, namely the cystic and common bile ducts”. The expert was planned to testify at trial “that if there is any uncertainty, a surgeon should perform an intraoperative cholangiogram to clearly identify the biliary structures before cutting”. 

Due to the surgery complications, the Plaintiff is at a higher risk for biliary strictures, liver injury, liver failure, and the need for further hospitalizations for treatment of cholangitis. The Defendant argued that “such an injury is a known and foreseeable risk of laparoscopic cholecystectomy, even in the absence of negligence”. He claimed that, “there are multiple variations on ductal anatomy that can contribute to injury and that injury occurs in 1.5 percent of all gallbladder operations”. 

Trial was pushed off because of COVID-19 but the parties started discussing settlement offers. The case eventually settled for $250,000. 

Massachusetts Lawyers Weekly Vo. 49, No. 48

Do You Side with the Plaintiff Patient or the Defendant Surgeon? Why?

Learn to Love Yourself

    Happy Valentine’s Day! Wishing you a very special day, one filled with love! I thought it would be appropriate to write about one of the most important love a person can give: self-love. This was a foreign concept to me until recently. Many people do not know what self-love is or if they do know, they don’t give importance to it. Self-love is crucial for our happiness, well-being, mental health, confidence, and self-esteem. I’m no expert on self-love as I am learning more and more about it myself. According to Psychology Today, “Self-love means finding peace within ourselves - resting comfortably within the depths of our being.” I used to think self-love was just another chore. I didn’t think much of it until one of my good friends told me I need to give myself some more “me time”. I thought she was crazy, until I realized I was going crazy due to lack of “me time”. 

You may be wondering what “me time” is all about. Basically, it is when you take time out of your week or even day, just to spend time for yourself, give attention to yourself, and love yourself. It can consist of going to the spa, getting a massage, hanging out by the pool, meditating, golfing, etc. anything that is enjoyable to you can be considered activities you can do during your “me time”. Self-love isn’t just about pampering yourself though; it also involves being kind and gentle to yourself. When you couldn’t spend quality time in the evening with your child due to work, don’t beat yourself over it. When you didn’t do as good as you expected to on a particular exam, don’t stress over it. When you wanted to impress your in-laws with a great cooked meal but ended up burning the food, don’t hate yourself for it. When you beat yourself up because you missed the point of a major court holding in a case assigned for class, remember next time that we all fail forward and get things wrong, it is part of the learning process. Reach out to classmates, mentors or academic support for some assurance. 

Instead of taking it so hard on yourself next time, think positively! Rather than saying, “oh this will never work out” when the situation seems impossible, say, “this will work, and I will make it happen.” Rather than saying, “I’m not meant for this, there’s no way” when you’ve lost hope, say, “I have what it takes, and I will be one of the best.” Just the mere act of positive thinking will help lighten your mood and make you realize that you are doing just fine. It’s so easy to put down ourselves and see ourselves as incompetent, but every time we do that, we are taking a step back, when we should be taking a step forward. Give yourself credit for trying; give yourself the happiness you deserve; give yourself the attention you need. When you do, you find yourself to be happier, think positively, and have a hopeful outlook on life. Just know, you are priceless, and you are amazing! Love yourself and shine because no one can shine like you do! 

Do you give yourself “me time”? 

Victim of Credit Card Theft Lacks Standing to Bring Lawsuit

      Welcome to the start of the second week of February! How’s the semester going so far? I hope you have a beautiful week ahead because you deserve nothing but the best! Keep working hard, keep studying, and know you are another week closer to your dream of becoming a lawyer. This week, I want to present to you a case dealing with standing. We mainly learn about the concept of standing in Civil Procedure and speak more about it in Constitutional Law. Whether you took that class, are in it, or still have to take it, this is a great case to read because it is a real case that shows the importance of standing and how one must have it in order to bring a lawsuit. Happy Reading!

     Plaintiff was a Macy’s customer whose credit card information and identity were stolen in a cyberattack on Macy’s online database. The Plaintiff alleged that even though the hackers did not misuse his information after stealing it, the data breach caused him emotional distress. He also claimed he lost “time and money attempting to remediate the situation by cancelling his credit card, contacting each vendor that had his card number on file, and purchased data monitoring services to protect against future breaches.” The Plaintiff also alleged that he had increased risk of future harm due to the breach which constituted sufficient injury-in-fact to satisfy the standing requirement. 

        The Defendant, Macy’s, Inc., filed a Motion to Dismiss claiming that such harms were insufficient to constitute an injury-in-fact that would set grounds for standing to bring his claim. The judge agreed with the Defendant. 

 

        Judge Patti B. Saris referenced a Supreme Court case that decided in 2013, that a Plaintiff threatened with future injury has standing to sue when such injury is, “certainly impending”, or when there is, “substantial risk that the harm will occur.” Clapper v. Amnesty Int’l. Judge Saris stated that, “Here, even under the caselaw most generous to finding standing, [Plaintiff] has not alleged sufficient facts to support a substantial risk of future harm.” The judge continued to conclude that, “First, there are no allegations of any fraudulent use or even attempted use of the personal information to commit identity theft with respect to any Macy’s customer whose credit information was stolen. Second, the information stolen was not highly sensitive or immutable like social security numbers. Third, immediate cancellation of a credit card can effectively eliminate risk of credit card fraud in the future.” The judge granted the Defendant’s Motion to Dismiss for the Plaintiff’s lack of standing. 

Massachusetts Lawyer’s Weekly, Vo. 49, No. 47. 

If you were the presiding judge over this case, how would you rule?