Massachusetts Injury Lawyer Blog

An important Supreme Judicial Court decision this week affirmed the statutory right for admitting medical bills in Massachusetts courts, but opened the door for rebuttal.

In Law v. Griffith, SJC-10463 (July 20, 2010), Massachusetts' highest court ruled on a Middlesex Superior Court case involving G.L. c. 233, Sec. 79G. The Supreme Judicial Court affirmed an earlier opinion of the Appeals Court, reversed a Superior Court judge and ordered a new trial in a case where the judge improperly restricted evidence of medical expenses.

The high court's decision provides a window for attorneys to ask judges to tender jury instructions on medical liens.

Read the case and analysis from Breakstone, White & Gluck here.

Continue reading "Massachusetts Lawyer Alert: A SJC Ruling on Admissibility of Medical Expenses" »

Massachusetts has banned the commercial use and sale of lacquer sealer, a highly flammable wood floor finishing product linked to deadly home fires.

Gov. Deval Patrick signed the safety bill into law this week. The bill had strong support from MassCOSH (the Massachusetts Coalition for Occupational Safety and Health), which convened a Floor Finishing Safety Task Force to investigate the problem.

The task force was convened after a 2004 house fire in Somerville claimed the lives of two Vietnamese floor sanders and burned their co-workers. Shortly after, a Vietnamese flooring contractor died in a Hull house fire. Both fires involved the use of lacquer sealer used in floor finishing.

"This groundbreaking law will save lives and end floor finishing fires that have caused so much pain and destruction," said Marcy Goldstein-Gelb, executive director of MassCOSH. "We owe a great deal of thanks to the Governor and Legislature for recognizing these grave dangers and taking action to protect workers and residents."

Following the three fatal fires, the Floor Finishing Safety Task Force issued a 2005 report stating Boston had seen 25 fires involving lacquer sealer over the 10 previous years and Needham had seen two in the prior year that threatened worker safety.

In the 2005 report, the task force recommended the state promote use of non-flammable water-based finishers to protect Massachusetts worker safety and prevent worker deaths.

The task force observed the problem of flammable lacquer sealer was targeting Massachusetts' Vietnamese community, which has a large concentration of workers in the floor finishing industry.

The bill proposing the ban was jointly filed by state Rep. Martin Walsh and Sen. Patricia Jehlen.

Breakstone, White & Gluck of Boston is a supporter of MassCOSH and its work to protect Massachusetts construction workers and other employees.

To learn more, visit the MassCOSH website.

Continue reading "Massachusetts Law Bans Highly-Flammable Floor Sealer" »

It's always a tragedy when someone leaves a bar after a night of drinking, steps in his or her car, and causes a motor vehicle accident resulting in personal injury.

For years, that tragedy was compounded by Massachusetts law, which let bars and restaurants operate without liquor liability insurance. Like other businesses, Massachusetts restaurants and bars have traditionally carried general commercial liability insurance covering on-site problems, including slip and falls and other injuries. But this insurance offers no assistance to drunk driving accident victims.

In late May, Massachusetts lawmakers corrected this and passed a law requiring restaurant and bar owners to carry liquor liability insurance. Establishments must carry a minimum of $250,000 per person/$500,000 per accident coverage. In other words, policies must provide a minimum $250,000 for bodily injury or death of one person and a total of $500,000 per incident involving bodily injury or death.

Innocent victims of drunk driving accidents still face the traditional hurdles in proving their cases against bars. One hurdle is strong juror bias. Juries do not hesitate to hold the drunk driver responsible. But juries are often reluctant to blame a drinking establishment for over-serving a patron, even though the law is perfectly clear that a bar has a legal duty to not serve someone who is intoxicated.

Restaurants and bars seek to avoid liability for over-serving patrons, and they typically claim they did not recognize that the patron was intoxicated. The recent Massachusetts Appeals Court case of Rivera v. Club Caravan, Inc., 77 Mass. App. Ct. 17 (2010), reviewed the legal standards for "dram shop cases." Generally the plaintiff must prove the patron showed outward signs of intoxication by the time he or she was served her last drink. However, circumstantial proof can also be sufficient. If the patron had consumed excessive quantities of alcohol, a jury can draw an inference that he would have been visibly intoxicated. So, where a patron is served fourteen drinks in two hours, as in the Rivera case, or was served six or more white Russians, as in another Massachusetts case, the circustantial evidence is strong enough.  

Personal injury attorney Ronald Gluck called the new law "a step forward" for the safety of Massachusetts residents.  "Restaurants and bars will want to have strong policies in place--and to follow them--not just to avoid liability but also to avoid large increases in their insurance premiums. The new liquor insurance law should help reduce drunk driving accidents in Massachusetts."

Click here for the full text of the law.

Continue reading "Massachusetts Bars Must Now Carry Liquor Liability Insurance" »

Welcome news today as the Massachusetts Legislature has finally agreed on a new law that will make it illegal to text while driving. Once the bill is signed by the Governor, Massachusetts will be in line with twenty-eight other states that have already outlawed text messaging while driving.

This law comes in the wake of several tragic text message-based accidents. In May 2009, 62 people suffered personal injury after a Massachusetts Bay Transportation Authority trolley collided with another trolley because the driver was texting his girlfriend. In September 2008, a California commuter train engineer missed a stop signal while trading texts with a friend, leading to a train accident resulting in the wrongful death of 25 people. In addition, there have been several high profile motor vehicle wrongful death cases in recent memory which were caused by inattentive drivers who were texting as they drove.

The law has several other public safety improvements. The new law will require that older drivers renew their licenses in person and take an eye exam every five years beginning at age 75. Older drivers were involved in several serious car accidents in 2009 in Massachusetts. Further, the law will forbid anyone under the age of 18 from using a cell phone while driving.

Boston personal injury attorney David White said of the new law, "Distracted driving is a serious safety problem. The use of cell phones and text messaging are two of the biggest distractions for drivers. These new provisions will vastly increase the safety of Massachusetts roadways."

A recent study found that texting while driving makes a person twenty times more likely to get into a car crash or near-crash. The problem is most severe for inexperienced drivers. It is hoped that this new law will raise awareness to this growing epidemic of serious personal injuries caused by careless texting motorists.

 For more information

Boston Globe

Virgina Tech Transportation Institute Research Project

Continue reading "Massachusetts Law Will Ban Text Messaging While Driving" »

Preventable hospital infections are claiming some 100,000 lives a year nationwide and threatening patient safety, despite a renewed focus on cleaning up hospitals, the US Department of Health and Human Services' Agency for Healthcare Research and Quality has found.

A recent report found in-hospital infections warrant "urgent attention," with rates of post-operative bloodstream infections and catheter-associated urinary tract infections increasing by 8 and 4 percent respectively. Yet there is good news: the Agency found overall health care quality is slowly improving.

The Agency found hospitals have adopted basic standards for hand hygiene, disinfecting patients, sterile handling of equipment and antibiotic use. 

The Secretary of Health and Human Services, Kathleen Sebelius, anticipates a new law will improve the rates for hospital-acquired infections and prevent fatalities.  Starting in the 2015 fiscal year, hospitals with high rate of infections will face penalties.

Hospital-acquired infections are pervasive and fatal but also extremely preventable.  The Committee to Reduce Infection Death (RID) points to several areas where hospitals can improve: First, over half the time, doctors do not disinfect their hands immediately before touching a patient.  Also, many hospitals do not screen incoming patients for MRSA, one of the most pervasive in-hospital infections.  Finally, surgery patients may not be advised to shower with chlorhexidine soap daily before the operation, although the practice reduces the risk of infection.  RID hypothesizes as evidence of the preventable nature of in-hospital infections grows, so will hospital liability.

For more information on the Agency's Annual Quality and Disparities Report, see this press release or the reports themselves.

For information about different types of hospital-acquired infections and methods to reduce infections, see this guide from the World Health Organization.

Continue reading "New Report Finds that Preventable Infections Still Plague Hospitals-- New Law to Crack Down on Unclean Hospitals" »

A lawsuit over tired truck driving may eliminate an embattled rule that concerns safety advocates about the risk of truck accidents, motor vehicle accidents and wrongful deaths on the nation's roadways.

Since 2004, advocacy groups have been battling an hours-of-service rule passed by the Bush administration that increased the maximum number of consecutive hours a trucker could work from ten to eleven and decreased the rest and recovery time from fifty hours to thirty-four. Safety advocates claim that the changes are likely to lead to more motor vehicle accidents, serious personal injuries and wrongful deaths.

Twice, advocacy groups have successfully challenged the rule in court just to have the administration reissue the same rule.  In 2004, the court vacated the hours-of-service rule on the grounds that the government did not adequately consider the effects of longer driving hours on individual truck driver welfare and public safety.  In 2007, the court vacated the rule again because the agency did not allow public notice and comment on the new crash risk analysis used as justification to reissue the same rule. 

Advocacy groups brought a third lawsuit in 2009 and will finally see an outcome. As part of a legal settlement, the Department of Transportation and the Federal Motor Carrier Safety Administration (FMCSA) have agreed to redraft the existing hours-of-service rule. In January, the agencies held several sessions around the country to gather public comment.

As they start work, safety advocates hope that the new rule will reflect the dangerous reality of tired truckers.  The deaths and personal injuries caused by drivers falling asleep in the cab can be catastrophic for truck drivers and people on the road. 

The U.S. National Transportation Safety Board points to driver fatigue as a likely factor in twenty to forty percent of truck crashes.  Safety advocates, including members of Parents Against Tired Truckers and Citizens for Reliable and Safe Highways, applaud the settlement as a step in the right direction towards safe roads.

There are typically over 1,000 Massachusetts truck accidents every year, nearly half of which involve out-of-state motor carriers. In 2006, 34 people were killed in Massachusetts trucking accidents.

For more information on the regulations, see the FMCSA website.  For an overview of what information FMSCA is considering in formulating a new rule, see this presentation. The Truck Safety Coalition has a collection of stories and press releases on the hours-of-service rule and trucker fatigue.     

Continue reading "Tired Truckers and Truck Accidents May Be Reduced with New Regulations---Massachusetts Highways Should Be Safer" »

The Massachusetts Appeals Court has affirmed the broad admissibility of certified medical reports under M.G.L. c. 233, § 79G. The case, O'Malley v. Soske, Appeals Court No. 09-P-315, (March 31, 2010), is an important reminder of the intent of the legislature when the statute was amended in 1988. In short, in any proceeding commenced in any court, commission or agency, the judge should admit properly certified medical reports.

The plaintiff was injured in a car accident in Boston. She claimed that she suffered neck and back injuries, and required surgery. The defendant contested the nature of the injuries.

The court upheld the admission into evidence of the report of Dr. Lupien, an orthopedic surgeon, who is usually identified as a defense expert, who had examined the plaintiff for the defendant. His opinion was that the accident had not caused serious trauma. The plaintiff lost at trial on the issue of medical causation and her lawyer appealed. The Appeals Court affirmed the judgment.

For a complete analysis of this case, please see the Practice Alert on our website.  

The Massachusetts Supreme Judicial Court has ruled that non-patient claims for personal injury resulting from medical malpractice must first be presented to the Massachusetts medical malpractice tribunal.  The tribunal's job is to review medical malpractice personal injury claims and decide whether there was actual medical malpractice involved or if the injury was merely an unfortunate medical result.

The decision concerned a hospital worker who was killed when a heavily medicated woman lost control of her car and drove it into an entrance to the Brockton Hospital where the victim worked.  The victim's wife sued the doctors for her husband's wrongful death, alleging they had failed to warn the woman that it was dangerous to drive while on her medications.

Ordinarily, medical negligence cases may only be brought by a patient against his or her medical provider. However, third parties may bring claims against a provider if the provider failed to warn the patient of the effects of medication, and the patient then injured the third party. The exception is a narrow one.

The case clarifies pre-trial procedures in such third party cases, as it was unclear whether or not an injured non-patient was required to bring their medical malpractice claim before the tribunal.  However, with today's Massachusetts Supreme Judicial Court ruling, it is now clear that any person looking to bring a claim for personal injury resulting from medical malpractice must first present their claim to the medical malpractice tribunal, whether or not they were the patient.

The case was Vasa v. Compass Medical, P.C., SJC-10457, March 2, 2010.

Continue reading "Massachusetts Court Requires Medical Malpractice Tribunal in Third Party Claims" »

New Trial Ordered for Tenant Who Suffered Broken Hip

Have you been injured when you slipped and fell on ice? This case may be important to you.

The Massachusetts Appeals Court has granted a new trial to a plaintiff injured after falling on ice after the Superior Court justice misapplied the legal rule governing open and obvious dangers in a premises liability. The Court limited the application of the open and obvious rule in snow and ice cases.

At the trial, the judge allowed instructions on the defense of an "open and obvious" danger, and failed to instruct the jury on comparative negligence. The verdict was for the landowner which had failed to treat a large area of frozen slush with deep footprints in it.

The case made it clear: The open and obvious defense does not apply to snow and ice cases. Snow and ice do present obvious dangers to pedestrians, but often there is no safer route for a pedestrian to take. The proper questions for a jury is whether the landowner was reasonable in his or her effort to reduce the danger from an unnatural accumulation of snow or ice, and whether the plaintiff was comparatively negligent.

The case is good news for pedestrians, whose rights to recover for injuries in snow and ice cases are made stronger by the case.

For a more complete discussion of this case, please read the article on our website, Massachusetts Appeals Court Clarifies Law on Responsibility of Landowner to Remove Snow and Ice.

The case was Soederberg v. Concord Greene Condominium Association, Appeals CourtNo. 09-P-380, February 25, 2010.

If you have been injured after slipping and falling on ice: Please contact our office if you need legal representation for personal injuries caused by slipping and falling on ice. We have over 80 years of experience on these types of cases.

The Federal Government is taking a firm stand against the dangers caused by texting drivers. U.S. Transportation Secretary Ray LaHood announced Tuesday that, effective immediately, commercial bus and truck drivers are prohibited from texting while driving. Texting truck and bus drivers face civil or criminal penalties of up to $2,750. 

The goal of the new law is to reduce truck accidents and motor vehicle accidents caused by distracted driving.  According to the Federal Motor Carrier Safety Administration, drivers take their eyes off the road for an average of 4.6 seconds out of every six seconds while texting.  This means drivers who text are more than 20 times more likely to get in an accident than nondistracted drivers.

This is not the first move that the government has made to reduce the dangers of texting drivers.  Nineteen states have passed laws banning texting while driving.  President Obama has also signed an executive order requiring federal employees not to text while driving government-owned vehicles or with government-owned equipment. 

The attention on texting comes after several high profile accidents caused by texting motor vehicle operators.  In September 2008, a California commuter train engineer missed a stop signal while trading text messages with a friend, leading to a train accident resulting in the wrongful death of 25 people.  In May 2009, 62 people suffered personal injury after a Massachusetts Bay Transportation Authority trolley driver collided with another trolley while texting.

For more information about the dangers of distracted driving, see the Transportation Department's website www.distraction.gov.

Continue reading "New Law Against Texting Intended to Reduce Distracted Driving and Truck Accidents--Rule Should Improve Safety for Massachusetts Drivers" »

The Massachusetts Appeals Court has allowed the claim of a child who was bitten by a dog to proceed to trial against the landlords, even though the landlords did not own the dog.  The ruling reverses a lower court ruling in favor of the landlord.

The plaintiff was ten years old when he was attacked by a pit bull named Tiny. Tiny belonged to another tenant in the same 4-family building. Tiny had been found in the woods and adopted by the family. Tiny had demonstrated some aggressive behavior prior to the date of the incident.  The plaintiff's family maintained that they had lodged multiple complaints with the landlords about not just the presence of the dog, but also its aggressive behavior. The landlords were also informed that Tiny was allowed to roam unrestrained, a violation of the Waltham leash law. The landlords claimed they had no knowledge that the dog might be dangerous.

The landlords had a no-dog policy for the premises, but failed to enforce that policy with regard to Tiny.  In fact, the plaintiff's family had previously given up its dogs because of the landlords' policy.

On the date of the incident, Tiny was sitting on a porch, unrestrained, then ran across the yard, jumped a fence, and bit the plaintiff who was playing in the neighbor's yard. The ten-year old had mulitiple dog bite injuries to his leg.

The Superior Court judge ruled that the landlords were not negligent, and that the fears of the pit bull were "subjective."  The Appeals Court disagreed.

In Massachusetts, a third party such as a landlord, is not liable under the Massachusetts strict liability statute governing dogs. While a dogs owner or keeper is strictly liable for injuries caused by their dog, a third party can be liable only if he or she is negligent. A landlord does not insure that the property will be safe, and has a duty to use reasonable care for the premises.  Thus, in this case, the plaintiff is required to prove that the landlord knew or should have known of the dangers of the dog.  The landlords could not be held liable just on the fact that the dog was of a dangerous breed, but could be held liable if they had knowledge of its dangerous behavior.

The Appeals Court also noted that negligence cases are ordinarily best left to a jury's consideration, since the cases often turn on disputed facts. Given the disputed facts in this case, namely whether the landlord had received reports of the dog's dangerous behavior, the case was sent back to the Superior Court for trial.

The name of the case is Nutt v. Florio, Appeals Court No. 08-P-81 (October 19, 2009).  

Continue reading "Massachusetts Appeals Court Allows Dog Bite Case Against Landlord to Proceed" »

On August 29, 2003, several people suffered personal injuries and one person was killed when an improperly secured gate arm at the Gillette Stadium in Foxboro swung into a bus traveling on an access road. The stadium, which is the home of the New England Patriots, is on property managed by Foxboro Realty Associates, LLC, with security provided by Apollo Security, Inc,. parking operations managed by Standard Parking Systems.

According to the evidence, the accident occurred when the gate arm was not properly secured by its three pound pin, and a gust of wind blew it from the open position. The evidence demonstrated that Foxboro Realty Associates had promulgated a policy on securing the gate, but had failed to put the policy in writing. It was the job of Apollo to unlock the gate and the job of Standard to open and secure the gates at the appropriate times.

After a trial lasting several weeks, the plaintiff (who was the wife of the deceased passenger from the van) was awarded $4,400,000 for her husband's conscious pain and suffering and wrongful death arising from the negligence of the defendants.

There were two issues on appeal: The instructions the trial judge gave the jury about discussing the evidence; and the issue of control, and whether Foxboro had sufficient control over the parking operations to be found negligent for the actions of its indpendent contractor.

The Massachusetts Supreme Judicial Court ruled that the judge's instructions to the jury that they could discuss the evidence in the case during the trial (which is most unusual in Massachusetts) were improper, because such discussions can only be allowed in civil cases when all parties agree. One party had objected. However, the court found that the error was harmless, because the evidence of the defendant's negligence was very strong.

The Court also ruled that the trial judge had given proper instructions to the jury on control. Under Massachusetts law, an employer is not liable for the acts of an independent contractor unless the employer "retained some level of control over the manner inwhich the work was performed."  The judge had instructed the jury that the employer could be found liable if it failed to exercise its control with reasonable care. The judge's instructions were found to be consistent with Massachusetts law, and the judge was not required to give the instructions requested by one of the defendants. 

The case is Kelly v. Roxboro Realty Associates, LLC, 454 Mass. 306 (2009).

Continue reading "Massachusetts Court Upholds Verdict in Premises Liability Case; Discusses Innovative Jury Techniques and Question of "Control"" »

The Massachusetts Supreme Judicial Court ruled today that a hospital does not owe a third party a duty of care for injuries arising as a result of hospital treatment of a patient. Accordingly, a police officer who suffered personal injuries in a car accident responding to a pedestrian accident scene, cannot recover against the hospital after its patient was killed in the pedestrian accident.

The case was brought by Leavitt, a police officer for the town of Whitman, MA. He received an emergency call to respond to the scene of an accident where a pedestrian had been struck and killed by a car. On his way to the accident, Leavitt's cruiser was struck, and he was seriously and permanently injured.

It was determined that the pedestrian had been treated earlier that day at the Brockton Hospital, where he had undergone a colonoscopy. As part of the procedure, he had received narcotic medication. He was allowed to leave the hospital without an escort, which was against hospital policy and, plaintiff alleged, good and accepted medical practice.

The court found that the hospital owed no duty of the plaintiff. Specifically, the court ruled that the theories of general negligence, of a special relationship, and of a voluntary assumption of a duty of care were all without merit. The duty of care in a special relationship is extremely limited in Massachusetts, and there is, the court concluded, simply no duty to control a patient who might be impaired by medication.

Going further, the court also concluded that the incident was outside the foreseeable risk of harm associated with the colonoscopy procedure. The court also rejected the application of the rescue doctrine, deciding that the risk would not reasonably be anticipated to arise from the rescue.

Importantly, the court did not disturb its earlier ruling in the case of Coombes v. Florio, 450 Mass. 543 (2006). In that case, the court held that a doctor may be liable for injuries caused to a third person if it is determined that the physician negligently failed to warn the patient of the effects of treatment. The court distinguished Coombes because no failure to warn was alleged in the case against the Brockton Hospital.

The name of the case is Leavitt v. Brockton Hospital, Inc., SJC-10296 (2009). 

The Massachusetts Appeals Court recently reviewed a case in which the defendant homeowner, Johnson, hired a contractor to remove several trees from her land. The contractor subsequently hired a subcontractor/crane operator, West, to help with the project. The crane was damaged during the work, and the crane operator sued the homeowner. The jury found in his favor. His case was before the Appeals Court to determine whether the homeowner was liable for his damages.

Johnson had several conversations with the general contractor about the exact location of her septic system, which was important for him to know in order to safely remove the trees. The contractor apparently conveyed information about the septic system to his subcontractor, the crane operator. The day the crane arrived, Johnson noticed that it was set up in the location of the septic system. Though she was a surprised, she did not interfere with his work.

Soon after, the crane's outrigger pierced the septic system and the crane tipped over, causing damage to the crane and to the house. The crane operator sued Johnson, cliaming that she had a duty to warn him about the septic system.

The Appeals Court determined there was no duty. Even though Johnson may have been suspicious of the crane's placement, she did not have a further duty to give warnings. She retained no control over the work in general, and crane operator's work in particular. Her only duty to the general contractor was to give accurate information about the septic system, which she did. It was the responsibility of the original contractor to oversee the actions of the crane operator.

Accordingly, the crane operator's case was dismissed. The case is West v. Johnson, Mass. App. Ct. No. 08-P-130 (2009). 

As a homeowner, how can I protect myself from these types of lawsuits?

An important consideration in determining liability is control: the less control you have over a situation, the less likely it is that you will be liable for damages. One of the many benefits of hiring a general contractor to help with a residential construction project is the shift of liability from you to the contractor. If a contractor agrees to oversee all aspects of subcontractor performance, the homeowner will likely have no direct contractual agreements with the subcontractors and, therefore, retain no control over their work.

Before hiring a contractor, be proactive. Ensure that they are registered with the state, and are carrying adequate insurance. Review the details of your contract, don't be afraid to ask questions, and ask for proof of his/her registration and insurance certificates. Browse the additional links below for more tips on how to choose a contractor. 

Additional links:

• Homeowners FAQ's - The Massachusetts Executive Office of Public Safety and Security
• Choosing a Professional Contractor - The Eastern Massachusetts Chapter of the National Association of the Remodeling Industry

 

Continue reading "Massachusetts Homeowner Found to be Not Liable for Subcontractor's Damages" »

Massachusetts drivers now have another law to obey: Drivers need to slow down and move over when approaching stationary police, emergency response, and construction vehicles that have their lights flashing. The penalty: $100, and your insurance rates will probably also go up.

This well intentioned bill was enacted to prevent injuries caused by car accidents. First responders to accident scenes and work crews have suffered serious injuries as the result of negligent drivers who fail to slow and move over, and the legislation is designed to make their work safer.

But can you legislate this kind of safety? The bill itself is quite vague. A driver is required to change lanes "if practicable." A driver is required to reduce his or her speed to a "reasonable and safe speed for road conditions." How will that be judged?  And will emergency vehicles leave the scene to chase down violators of this new law?

Saving lives and preventing injuries are, of course, important goals. But real safety comes from a broader awareness of our duty to ensure the safety of emergency and construction personnel, and that awareness begins with proper driving training. It also begins with simple common sense and courtesy.

 

 

 

Continue reading "Massachusetts Car and Truck Drivers: Slow Down and Move Over to Prevent Accidents--It's the Law!" »