Ellen Epstein Cohen

• Malpractice Defense
• Dental and Oral and Maxillofacial Surgery Malpractice Defense
• Product Liability
• Healthcare Licensing & Regulatory
• Civil Litigation
• Insurance Defense
• Appellate

Recent representative successful results obtained on behalf of Ellen’s clients include the following:

In February 2020, Ellen Epstein Cohen and Megan Grew Pimentel were very gratified to obtain a defense verdict on behalf of all their clients in the highly publicized case of Justina Pelletier, et al. v. Boston Children’s Hospital, et al. The plaintiffs alleged that the defendants failed to properly diagnose and treat her complex condition, and that as a result she was subjected to a very lengthy hospitalization causing post-traumatic stress disorder and interference with the parent/child relationship, as well as violation of their civil rights related to the filing of a mandated report of suspected abuse or neglect. In addition to suing the Hospital, the plaintiffs brought claims against child and adolescent specialists in neurology, psychology and psychiatry, as well as a child abuse pediatrician. Further complicating the situation was the fact that the Suffolk County Juvenile Court ordered the Massachusetts Department of Children and Families (“DCF”) to take legal custody of the child and to direct her care and treatment, as well as visitation and contact with her family, throughout her hospital admission.

The plaintiffs intentionally created a media storm of attention at the time of the hospital treatment. At that time, the central dispute was whether the patient had mitochondrial disease and whether that was properly considered in her evaluation and treatment. By the time of trial seven years later, there was very little discussion about mitochondrial disease, and the focus had shifted to whether there had been a good faith basis to file a mandated report of suspected child abuse and neglect, a so called “51A report.” There was considerable testimony regarding the child’s clearly documented history of prior over-medicalization by numerous providers at different institutions over state lines for many years by her parents, and questions about medical child abuse. The testimony made clear, however, the reason the 51A report was filed was not based on a history of questioned abuse, but rather because of the very real and present risk of medical neglect that would have resulted from the parents’ attempt to remove the child from hospital level of care in the extremely dysfunctional and debilitated condition in which she had been brought to the Hospital.

A jury trial was held in the Suffolk Superior Court over the course of nearly six weeks from January 2020 through February 2020, during which supportive experts in mitochondrial disorders, child and adolescent psychiatry, and child abuse pediatrics testified on behalf of the defendants. The plaintiffs experts consisted of a philosopher/bioethicist, a forensic psychologist, a retired E.R. physician and one of the patient’s prior treating doctors. At the conclusion of trial, on February 19, 2020, after only 6 hours, the jury returned a verdict fully in favor of all defendants on all claims, finding that the plaintiffs had not proven any of their claims; that is, that none of the defendants had been negligent in their care and treatment of the minor patient and that they had not violated the civil rights of the plaintiffs.

The jury’s verdict firmly vindicated the very talented and dedicated team of providers at Boston Children’s Hospital, each of whom worked so hard during this long hospital admission for the best interest of their patient under extremely challenging circumstances and pressures. In addition, the verdict had broader significance with regard to its effect on the critical role of mandated reporters. This trial emphasized that those who work with children must file a 51A report if they have good faith basis to suspect child abuse or neglect (physical, sexual or medical abuse or neglect), and that the immunity conferred on them by statute for so filing will protect them from unfounded claims such as those asserted in this case.

If a provider has any question about when and whether to file a 51A report they are encouraged to consult with the Child Protective Team of their institution, their practice risk manager, or legal counsel. We are happy to advise healthcare providers in this regard.

Following this successful outcome, Boston University School of Law published an article regarding the case, and the verdict Ellen obtained on behalf of her clients. The article can be viewed here.

Additional successful results Ellen has obtained on behalf of her clients include the following:

Obtained a defense verdict on behalf of 3 OB/GYNs in a trial involving a stillbirth. The allegations included that all 3 OB/GYNs were negligent for having not performed a cesarean section delivery quickly enough. After a three week trial, and roughly 3 hours of deliberations, the jury returned a verdict in favor of all 3 physician defendants.

Obtained a defense verdict on behalf of two surgeons in a case alleging wrongful death after blunt abdominal trauma. The allegations involved the management of a patient on a trauma service after a single motor vehicle crash; the patient ultimately died of a ruptured spleen. After 9 days of trial the jury returned their finding that both surgeons had complied with the standard of care in their management of this patient.

Obtained a Defense Verdict on behalf of a pediatrician who was sued following the death of a 1 year old. The case alleged that the doctor should have anticipated that the child would become severely dehydrated and die within 18 hrs of being evaluated in the office. The defense proved that this child presented with very common signs of a new onset viral illness with ear infection, and that it was completely unforeseeable he would develop an acute and fatal GI bleed in his sleep later that night. The jury returned a verdict that the doctor was not negligent.

Obtained a defense verdict on behalf of an oral surgeon in a case involving an alleged delayed diagnosis of an ameloblastoma of the mandible in a teenager who eventually underwent mandibular resection and reconstructive surgery. The jury returned a verdict finding the surgeon was not negligent in his care of the patient.

Obtained a defense verdict on behalf of an OB/GYN who was sued with regard to an alleged injury after newborn circumcision. The defense focused not only on defending the technique used by the physician for performing a Mogen clamp circumcision, but also contested that there was any real or significant injury. After 7 days of trial, the jury returned a verdict quickly indicating that the defendant physician had not been negligent. 

Obtained a Defense Verdict on behalf of two clients - a hospitalist and general surgeon. The plaintiff alleged the physicians provided negligent post-operative care to a patient who had recently undergone a paraesophageal hernia repair surgery by failing to timely diagnose bowel ischemia, allegedly resulting in her death. The jury found in favor of both defendants, finding that the physicians' post-operative care of the patient met the applicable standard of care for their respective specialties, and they were not negligent.

Obtained a defense verdict on behalf of a gastroenterologist in a case in which the plaintiff sustained injury to her spleen requiring splenectomy surgery following a screening colonoscopy. Spleen injury is a rare but known risk of colonoscopy. Plaintiff tried to use the fact that spleen injury occurred as evidence that there must have been negligence in the performance of the colonoscopy; Defendant adamantly denied anything improper in the technique he utilized, and proved that this patient had aberrant anatomy regarding her spleen and colon proven by pathology, which could not have been known by the gastroenterologist in advance of the procedure. The jury returned a verdict in favor of the defendant finding that he had not been negligent.

• Boston University School of Law, Boston, Massachusetts

  J.D., 1983
  Law Journal: Boston University International Law Journal, Case and Note Editor and Staff Member, 1981 - 1983

• State University of New York at Binghamton

  B.A., 1980
  Honors: With Honors
  Honors: Phi Beta Kappa

• Massachusetts
• District of Columbia
• U.S. Court of Appeals 1st Circuit
• U.S. Supreme Court