Car accidents happen. Experts say the average American driver will experience a collision every 10 years. However, Boston drivers average one accident every three years. The Boston Globe newspaper reported that motorists are 157.7 percent more likely to get in a crash than other drivers in the U.S.

While it’s the law to have minimum insurance coverage as a Massachusetts registered driver, there are a lot of options about the minimum to choose from. Any option will affect the insurance premiums, but may also help down the road.

What is Auto Insurance?

Basically, auto insurance is a contract. It’s a legal agreement between a vehicle owner and an insurance company. The owner agrees to pay premiums for the policy and the insurance company agrees to cover your losses that are laid out in the insurance policy. To what extent that happens is determined by the coverages chosen by the owner and offered by the insurance company.

How Much Do I Need?

In an attempt to save money, some may choose to find the lowest insurance premiums and basic coverage. While this saves money upfront, it can become a headache in the event of an accident.

“If you’re found legally responsible for bills that are more than your insurance covers, you will have to pay the difference out of your own pocket,” warns the Insurance Information Institute. “These costs could wipe you out!”

Massachusetts Minimums

The State mandates minimum limits, that is, the maximum amount the insurance company will payout for a claim. All registered Massachusetts drivers must have these limits in their policy and pay for them with premiums.

• Bodily Injury to Others
  • $20,000 per person
  • $40,000 per accident
• Personal Injury Protection (PIP)
  • $8,000 per person, per accident
• Bodily Injury Caused by Uninsured Motorists
  • $20,000 per person
  • $40,000 per accident
• Damage to Someone Else’s Property
  • $5,000 per accident

Buying Additional Coverage

In addition to the minimums, having additional coverage is wise. The Centers for Disease Control and Prevention (CDC) found that in 2013 crash deaths resulted in $44 billion spent on medical and work loss costs in the United States. Massachusetts accounted for $438 million. The National Highway Traffic Safety Administration found in a 2014 report that $1 trillion was lost in 2010, which included the CDC crash deaths amount. This amount came from $277 billion in actual cost, and an estimated “$594 billion in harm from the loss of life and pain and decreased quality of life due to injuries.” In a nutshell, that’s what auto insurance is paying for and when it doesn’t cover enough, that’s what a policyholder pays out of pocket.

Policyholders can choose to pay premiums that cover higher limits than the state requires and also add-in optional coverage.

Coverage Types

• Liability Insurance – Property Damage and Bodily Injury
  • Pays for bodily injury to others or property damage. This takes care of any damages the policy owner’s car causes in an accident. It can also cover repairs to the policy owner’s vehicle and medical payments.
  • The Insurance Information Institute recommends buying additional coverage than the state minimum as “the required coverage is pretty low” and the costs will likely be higher if an accident occurs.
• Collision Coverage
  • Pays for damage to the policy holder’s vehicle when they hit another vehicle, object (like a pothole) or flipping over.
  • “Even if you are at fault for the accident, your collision coverage will reimburse you for the costs of repairing your car, minus the deductible.” (Insurance Information Institute)
• Comprehensive Coverage
  • Pays for loss due to theft or damage caused by something other than another car (like falling objects, fire, explosion, weather-related events, etc.)
  • Some companies also cover windshield damage under comprehensive coverage
• Personal Injury Protection (PIP)
  • Pays for treatment of injuries to the driver and passengers of the policyholder’s car. May also pay for funeral costs
• Uninsured/Underinsured Motorist Protection
  • Pays for property loss and medical costs if the at-fault driver has insufficient insurance to pay.
  • This can cover the policyholder, family members or a designated driver
  • Also, covers hit-and-run situations

A Recent accident involving a taxi at Logan airport has been described as a “tragic accident” – what should a personal injury claim in a similar situation include?

“Tragic accident” at the airport taxi parking lot

On Monday, the 3rd of July, the vast asphalt taxi parking lot located on the outskirts of Boston’s Logan International Airport became the scene of a serious motor vehicle incident that left 10 people with injuries ranging from minor to severe. The tragedy unfolded at a staging area at the head of the lot, where taxi drivers relax while waiting to be signaled into the airport to pick up passengers. According to the police and the reports of witnesses, at about 1:40 pm, one of the taxis jumped the curb and crashed into a group of taxi drivers standing nearby, trapping some of them under the vehicle. The driver of the cab has been identified as a 56-year-old man from Cambridge, MA, although his personal details will not be released unless he is criminally charged. Nevertheless, the man is a well-known figure within the airport taxi drivers community and he seems to enjoy a good reputation with his peers. The police also mentioned at a news conference that the driver did not have a history of violations. The crash is under investigation but has been described as a “tragic accident”.

Odds of injury in a taxi accident

Although comprehensive statistics on motor vehicle accidents involving taxis or other cars providing ride-hailing service are limited, those that are available reveal that chances of being injured in such an accident are high. For example, a study conducted in 1999 on crash rates for taxis operating in one of the biggest American cities revealed that 71% of cab accidents resulted in an injury to passengers and 13% caused severe injuries to pedestrians. Even so, the total number of taxi trips in Boston in 2015 exceeded 5 million. If a person is injured as a result of negligence on the part of a taxicab driver, what action should they take to successfully pursue a personal injury claim? This article will explore available legal options.

Employee or independent contractor?

First of all, the person injured in a taxi-related accident should expect to be able to recover the damages from the company that provided the cab. The burden of proof that the company had a certain kind of employer-employee relationship with the driver, however, lies on the injured party. From the perspective of the law, the existence of such a relationship may not be self-evident as the  company may hold the position that the driver is an independent contractor rather than an employee thus trying to evade liability. There are several ways to prove the relationship between the company and the driver. For example, the driver may be the company’s agent, servant, co-participant in a joint venture, or a regular, contracted employee. If the company operates as a franchise and the driver is the franchisee, this may be sufficient to establish the company’s liability. Also, the vehicle that the driver was operating at the time of the accident may be owned by the taxi company and leased to the driver. In many states, including Massachusetts, the owner of a vehicle can be held responsible for the damages and injuries arising from an accident caused by a third-party who operated the vehicle in question with the owner’s permission, by the virtue of a legal concept called vicarious liability. In addition, even if the company is not the legal owner of the vehicle used to provide the vehicle-for-hire services, it may still hold itself out as the operator of the cab. This would mean that the taxi bears discernible signs, for example, a logo which would indicate to the passenger that the company is employing the driver. Proving that the company is holding itself out as the operator may be sufficient to hold it liable for the damage and injuries sustained in a crash.

Proving the damage

As is the case with other motor vehicle accidents, a person injured in a crash involving a taxicab will also need to prove the damage and injuries sustained as well as the negligence on the part of the driver. Although most injuries arising from such crashes are minor, in some cases a person may suffer broken bones, whiplash, spinal injuries, or internal organ damage. Medical bills for treating such injuries and resulting conditions may reach into the hundreds of thousands of dollars or even more. The typical amount of injury coverage a taxi driver carries varies between $250,000 and $500,000. This in some cases may be insufficient to cover the financial losses resulting from the costs of medical treatment. In such cases, the injured party may try to make use of the uninsured or underinsured driver coverage of their own policy if it is included the policy’s terms.
Dealing with the physical injuries and other consequences of a taxi-related accident may make it challenging to collect from the insurance company, especially if the cab company takes actions aiming to evade liability. Therefore, the help and counsel of an experienced attorney may be essential in order to effectively pursue justice in the aftermath of a taxi cab accident.

Medical malpractice cases can be challenging – and this is even more true with regards to claims against practitioners of alternative medicine

Alternative medicine – a growing trend

The US spends more money on health care than any other country in the world. According to a report by the Centers for Medicare & Medicaid Services, US health care expenditure increased by 5.8%, in 2015, reaching a staggering figure of $3.2 trillion, which translates into about $9,900 per person. Nevertheless, the amount of money spent on health care does not seem to always be reflected in the quality of the services received. For example, in the World Health Report released by the World Health Organization in the year 2000, the United States health care system quality ranked as the 37th in the world and there is little evidence of any substantial change since then. In addition, as was mentioned in last month’s post on medical malpractice, negligence and provider error with regard to procedures or medications are the third leading cause of death in the United States, with only heart disease and cancer claiming more lives each year.

These statistics are perhaps one of the reasons why a large percentage of Americans are increasingly turning to complementary and alternative medicine or CAM. This umbrella term describes a wide variety of health care methods and practices that remain outside of the scope of standard medicine, such as chiropractic, acupuncture, or homeopathy, to name just a few. Even though many of such therapies still lack rigorous scientific research that would back up the faith their enthusiasts have in their efficacy, as much as 30% of Americans regularly use CAM remedies, spending on them some $30 billion a year – and these numbers are likely to grow in the years to come.

Since virtually any kind of medical treatment, standard or alternative, involves a certain degree of risk, the more people turn to CAM, the greater the chance some will sustain damage as a result of undergoing an alternative medical procedure. Thus, the trend may have interesting legal consequences. Since many practitioners of alternative medicine are not physicians in the legal sense of the term, that is to say, they are not board-certified medical doctors, can a medical malpractice claim be filed against them if a patient sustains damage in the course of the treatment? If so, will such a claim be any different than a standard medical malpractice case? These questions will be the main focus of the present article.

How to define the standard of care

As mentioned in the last month’s article, a medical malpractice claim is essentially a negligence claim, where it is supposed that a physician was under a duty to the patient to treat them according to a certain standard of care, and because of breaching that standard, a damage to the patient’s health occurred. The standard of care is a legal term usually defined as “the degree of care and skill of the average health care provider who practices the provider’s specialty, taking into account the medical knowledge that is available to the physician”. In other words, the standard can describe all the typical actions a reasonable doctor of a given specialty may take in any given medical circumstance. However, the standard of care that applies to physicians will not apply to the practitioners of alternative medicine. This legal consensus is based on the decisions of most courts that have issued sentences in cases related to malpractice involving CAM doctors. Thus, the principle currently adopted is that practitioners of alternative medicine are judged according to the standard of care recognized within the field in which they are licensed. This means that in a malpractice claim against, say, a chiropractor, an expert witness testimony will be needed to lay out before the jury what exactly constitutes the standard of care within this particular field and what practices are inconsistent with it.

Different interpretations in different states

Not in all circumstances, however, is it left to the sole discretion of a given field’s specialists to define whether a certain action complies with or compromises the standard of care. This is especially evident in cases where damage to a patient’s health may occur if a practitioner of alternative medicine fails to recognize that their patient may have a condition that qualifies as a contraindication to alternative treatment. Again, the established precedent from previous court cases is usually that doctors of alternative medicine need to be able to discern whether a particular condition qualifies for the treatment their field offers. Failure to do so and a resulting damage can be a basis for a malpractice claim. If a CAM practitioner determines that their patient is not a good candidate for the treatment they offer, different states have different laws regarding whether or not the practitioner is required to refer the patient for standard medical treatment or refrain from giving any medical opinion whatsoever. Some states explicitly oblige doctors of alternative medicine to do so; in this case, a failure to refer may also become a basis for a malpractice claim. In other states, the currently established precedent is that offering any kind of medical advice, including a referral to a physician, would constitute a breach of the standard of care.

Was the risk disclosed?

Another legal issue connected with complementary and alternative medicine is that of informed consent and assumption of risk. These two legal principles can be used by defendants in medical malpractice claims as forms of defense. Informed consent means that all the information of potential risks related to a given treatment was disclosed to a patient beforehand so in case of any complications and damage to the patient’s health, the health care provider cannot be held liable because the patient assumed the risk, for example by signing a certain document (express assumption of risk) or even by simply allowing the practitioner to proceed with the treatment (implied assumption of risk). If the risks were not properly laid out to the patient, this can also give a basis for a malpractice claim.

As mentioned in the previous month’s article, medical malpractice claims are notorious for being time-consuming, complicated, and challenging for the plaintiff. This may often prove to be even more true in the case of claims related to complementary and alternative medicine therapies. However, the bottom line is that such claims can be made and can be brought to a successful closure. As always, however, the help of an attorney experienced in these type of cases will be essential.

 Without proper supervision and adequate safety measures, a summer swim in the backyard pool can quickly take a tragic turn

Chilling statistics on household pools

There are approximately 10.4 million residential swimming pools in the US and with recent Boston temperatures creeping up into the low 90’s local homeowners who have one on their property have surely been making good use of them. Swimming is the fourth-most popular sport among Americans, and especially for children and teens for whom it is hands down, the favorite recreational activity. The data on unintentional drownings, however, can be as chilling as a jump into a cold pool on a hot day. As the Centers for Disease Control and Prevention (CDC) agency informs, the average number of drowning deaths from 2005 to 2014 was 3,536 annually. Statistics provided jointly by the American Red Cross and National Swimming Pool Foundation additionally inform that over 200 young children drown in backyard swimming pools each year. These numbers will surely seem alarming, to say the least, to every parent, but childless homeowners should also take note as swimming pool accidents and injuries can give rise to liability claims for which the owner of the pool can be held responsible. As this fact often comes as a surprise for those who have backyard pools on their property, this article will offer additional information on the risk factors involved in swimming pool accidents and how the risk can be mitigated.

Keep an eye on the children

The first thing to know in relation to unintentional drownings is that although insufficient swimming ability, or a complete lack thereof, poses a substantial danger for swimming pool users, most accidents actually occur when the pool is not being actively used for recreational purposes but rather is simply left unsupervised. This has to do with the fact that many victims of swimming pool accidents are young children. Sadly, among children 1 to 4 years-old, only birth defects are a more common cause of death than drownings. The reason for this is that it takes a relatively short time for this kind of accident to occur. A tragic incident can happen when a child is left unsupervised near a pool for even a very short while, for example, when a parent is answering the door, trying to salvage an overcooked dinner, or engaging in any other kind of urgent activity that can temporarily consume their attention. Thus, the American Red Cross recommends installing appropriate safety measures that could prevent such accidents. Among the  suggestions made by the organization is equipping the pool with a 4-feet high fence or a barrier with a self-closing and self-latching gate. Placing a safety cover on the pool or even installing an alarm can increase safety even further.

Always supervise

A lack of proper supervision is arguably the first and foremost issue from which liability may arise in case of an accident. Of course, as in many other similar circumstances, liability will be closely connected with the issue of negligence – or a breach of a duty of care. The home pool owner is expected to take such care and to ensure that all users of the pool are properly supervised. Children should never use the pool if an adult is not present but it is also a good idea to designate a person responsible to watch the water any time someone is using the pool, regardless of their age. Providing life jackets or other flotation devices for those whose swimming skills are poor can likewise decrease the probability of an accident. Home swimming pool owners should also be aware that local regulations may exist obliging them to equip the pool with specific safety measures not mentioned in this article.

Slippery issues

Another factor to be taken into consideration are potential liability claims arising from slip and fall injuries. The risk of this kind of accident is obviously high in the area surrounding the swimming pool and so its owner should take reasonable measures to prevent slip and fall accidents. A failure to provide such safety means as non-slip surfaces around the pool or even a failure to clean up puddles of water on the pool deck can all become the basis for a negligence liability claim in case of an accident.

Attractive nuisance

Although residential swimming pool owners should take considerable care to ensure the safety of their facilities, in most cases they will be free from liability if a person injured on their property was trespassing. A notable exception to this rule however is if those trespassers happen to be children, according to the legal doctrine known as attractive nuisance. This legal theory states that property owners are under a special obligation to take additional safety measures to protect trespassing children if something on their property can be considered so attractive to children that it is likely to impel them to trespass on the property. Liability claims made against the property owner based  on attractive nuisance make sense in a court of law because children are considered to lack the ability to understand potential dangers. Parents of a child who was involved in this type of accident should consult an experienced attorney to explore all viable legal options.

The next 6 weeks or so in Boston are likely to see temperatures reaching an average high of 80°F, with some days continuing to climb close to 90°. The opportunities to enjoy a recreational swim will, therefore, be many, especially for those who have a backyard swimming pool on their property. Remembering to take reasonable precautions and to follow necessary safety measures, such as those mentioned in this article, can help all to enjoy this summer safely and with peace of mind.

As medical malpractice cases can be complex and challenging, the value of being properly informed cannot be underestimated.

Little awareness despite high payouts

A completely inaccurate diagnosis leads to a prolonged, ineffective, and painful treatment; a careless surgeon leaves a piece of medical equipment in a patient’s body, resulting in infection and life-threatening complications; a nurse administers a wrong dosage of a prescribed medicine causing severe organ damage. Even though it may be hard to believe, instances of medical negligence and malpractice, like those just mentioned, constitute the third most-common cause of death in the U.S. In fact, according to the Journal of Medical Association, only heart disease, and cancer take a more deadly toll than medical negligence. In 2012, the total sum of medical malpractice recoveries reached over $3 billion. That averages out to one payout being released every 43 minutes; in 2016 that number climbed again, total payouts for medical malpractice cases in 2016 amounted to almost $4 billion.

Although judging by this data, it may seem that medical malpractice lawsuits are extremely common and have very high chances of success, the reality is markedly different. As a matter of fact, medical malpractice cases comprise only 15% of all personal injury claims filed in any given year – even though an estimated 200,000 people die as a result of medical errors annually. Moreover, the injured patients or their surviving family members, particularly those who fail to secure the assistance of an attorney, win less than a fifth of such lawsuits – in the overwhelming majority of such cases, the plaintiffs are granted no compensation at all.

The reasons for this are diverse. As most attorneys specialized in this particular field are quick to note, medical malpractice claims are often technically complex, difficult to prove, and costly to litigate – this makes them nearly impossible to win without the assistance of an attorney who has experience with these types of cases. In fact, in some instances, a less experienced lawyer may even refuse to take up such case.

In other situations, however, patients may not even realize that medical malpractice has occurred. This may happen due to the fact that most state laws do not require that the victim be informed of malpractice. Thus, according to some estimates, as much as 90% of documented malpractice is not pursued by the patients. Those who are aware that they have fallen victim to negligence on the part of a healthcare provider may still be hesitant to pursue a claim. For example, oftentimes, a victimized patient may require continuous medical help and attention and thus may fear that filing a medical malpractice claim will result in other doctors refusing to treat them. Others may mistakenly think that pursuing litigation will make the cost of their medical care increase. And some choose not to pursue the claim because of the projected costs associated with legal action. None of these reasons, however, accurately reflect the reality of a person trying to receive compensation for damage and injuries sustained as a result of medical malpractice. Thus, the value of being thoroughly informed about one’s rights and legal possibilities cannot be underestimated. This is one of the reasons why every July, the National Medical Malpractice Advocacy Association (NMMAA) organizes and promotes Medical Malpractice Awareness Month. In the spirit of this initiative, this article will provide some basic information about medical malpractice and the ways to proceed for those who suspect they, or someone under their care, may have fallen victim to it.

What the victim should know

At the core of every medical malpractice case lies negligence, or a failure to provide the recognized standard of care that could reasonably be expected in a given situation, that is to say, the same type of care that other medical professionals would have provided in the same circumstances. It is vital to note, however, that not every error of judgment or mistake that results in a bad outcome for the patient will qualify as the basis for a successful malpractice case. In some cases, unintended, unforeseeable or unpreventable complications occur. These normally do not qualify as malpractice. In addition, even a bad diagnosis does not automatically warrant a solid claim – in this case, the plaintiff will need to show that a doctor of the same or similar specialty would not have misdiagnosed the patient given the same medical circumstances. Similarly, an unsuccessful surgery that results in an injury to the patient is not automatically an instance of malpractice – rather, it needs to be proven that the damage or injury was preventable and occurred because the surgeons did not follow the appropriate standard of care.

The second element of a medical malpractice claim is related to causation. The plaintiff must be able to demonstrate a causative link between the negligence and the damage sustained, or in other words that the damage or injury would not have occurred but for the malpractice. At times, this may be problematic to prove since it must be very clear that the damage, injury or suffering is the result of negligence on the part of a healthcare provider and not the result of any other underlying or preexisting conditions. For example, if a doctor fails to diagnose a certain type of cancer and the patient dies as a result, it may be a basis for a malpractice claim. However, if the particular type of cancer the patient had was very aggressive, untreatable, inoperable and resulted in death in virtually all patients, the doctor could not be charged with malpractice because an earlier diagnosis would not have been likely to change the result.

Other factors that are taken into consideration during a malpractice case are whether the damage is quantifiable and if a preponderance of evidence exists. The damage is quantifiable if it translates into wages lost as a result of current or future inability to work, or if the injury sustained necessitated more treatment thereby incurring more medical bills. Preponderance is a term which means that the majority of evidence presented indicates that malpractice occurred.

Preparing a malpractice claim

What should be done, therefore, by those who suspect that they, or someone under their care, have fallen victim to medical malpractice? Without allowing themselves to be intimidated in any way, such a person should ask for his or her complete medical records. Then, they should contact an experienced attorney specializing in medical malpractice cases and hand them over the records for review. A seasoned attorney will not only be able to determine if a case is actionable but also will be in the position to contact expert witnesses whose testimony will be crucial to winning the case. Most medical malpractice attorneys work on a contingent fee basis, which means that they only charge their clients in case damages are paid as a result of a settlement or a verdict favorable to the client. The actual value of the fees depends on the amount of payout. It is important to note, however, that if a case is lost, the plaintiff might be expected to pay the court costs incurred, at least partially. This, however, depends on the agreement the plaintiff had with their lawyers.

Statute of limitations in Massachusetts

A person who suffered from medical malpractice must also be aware of the statute of limitations applicable to such cases, this means the time limits within which a person must file a malpractice claim. In the state of Massachusetts, a primary time limit is 3 years. There are, however, some exceptions to this rule. The first one is called the discovery rule and it means that if a person could not reasonably have discovered they fell victim to medical malpractice within the standard period of 3 years, then they have a possibility to file a claim for 3 years from the moment they acquired the knowledge of the fact. Massachusetts law also includes the statute of limitations for minors. In the case of children younger than 6 years old, a parent or a legal guardian is able to file a claim until the child’s ninth birthday; for any other minor, the time limit for a parent or a legal guardian is 3 years from the discovery of the medical malpractice case. The statute of repose in the state of Massachusetts, or a period of time after which a malpractice claim cannot be filed regardless of any other circumstances, is 7 years. The statute of repose does not apply to cases where a foreign object was left in the body of a patient by a surgeon.

Medical malpractice lawsuits can be challenging, lengthy, and costly. Patience and persistence, as well as close cooperation with an experienced attorney, will be essential for a successful outcome. However, even if it appears that the odds are unfavorable, a person injured or damaged as a result of malpractice should not be intimidated or discouraged. The struggle for justice may be hard but the victims are not in it alone. Initiatives like Medical Malpractice Awareness Month testify that there are legal specialists and independent organizations ready to offer assistance to anyone treading on this uneasy path.