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If You Have Employees, Know Your Responsibilities

This summer, a local construction worker in Woburn died when a 2,000-pound boulder fell and landed on top of him. He was working on the Woburn Public Library’s foundation as part of a multi-billion dollar renovation project. The cause is still under investigation by the Massachusetts State Police and the Occupational Safety and Health Administration (OSHA).

The construction worker was a husband, father of two daughters, a son and friend of many in his community. He was the ninth workplace death in 2017.

“We are deeply upset to hear about the death of another young construction worker,” Massachusetts Coalition for Occupational Safety & Health (MassCOCH) Executive Director Jodi Sugerman-Bozan said  in a statement. “Every year we work with families who lost a loved one on the job. For many of us, we read about worker deaths in a passing paragraph in the news, but these families are affected by these tragedies for the rest of their lives.”

When compared to other states, Massachusetts has a low rate of workplace injuries below the national average. The most recent Occupational Safety and Health Statistics Program found that the State had 79,800 work-released injuries or illness. The majority of the injuries came from the private sector workforce.  Of that number, 29,000 cases resulted in days away from work, and 6,800 cases forced a job transfer or restrictions on working ability. They might just look like numbers, but those numbers are people.

“Serious workplace injuries are far too common,” wrote Arbill CEO Julie Copeland on the company blog. “4,405 workers were killed on the job in 2013 while millions more suffered serious non-fatal injuries. Every day in America, 13 people go to work and never come home. 3.3 million people suffer a workplace injury from which they may never recover.”

Arbill has been promoting workplace safety for more than 70 years, as well as being an industry leader for the education of workers about the proper protective equipment and their rights.  

 

Workers Compensation in Death

 

Massachusetts workers are protected against costs incurred from an injury when the injury happens while on the job. The regulations that govern the payouts and the review process are overseen by the Massachusetts State Department of Industrial Accidents. In most cases, the Workers Compensation system will cover medical expenses and a portion of lost wages from a workplace injury.

In the event of a death, death benefits can be paid out to dependents such as spouses and other family members, according to Section 31 of the Worker’s Compensation Law. Compensation for the widow or widower, for as long as they remain unmarried, can be up to two-thirds of the weekly wage of the worker.

Section 33 of the law adds “In all cases, the insurer shall pay the reasonable expenses of burial” up to a certain amount.

Worker’s Compensation can also cover medical expenses and care the injured worker received before they died that was the result of a workplace injury.

 

Common Workplace Injuries

 

“Of the 10 most common injuries on the job, the majority are those random incidents that can happen to anyone and at any time,” Copeland said.

Arbill’s Top 10 Most Common Workplace Injuries for the US were:

  1. Overexertion Injuries
  2. Slipping/Tripping
  3. Falling From Heights
  4. Reaction Injuries (incurred while falling or slipping)
  5. Falling Object Injuries
  6. Walking Into Injuries (such as walls, cabinets, tables, etc.)
  7. Vehicle Accidents
  8. Machine Entanglement
  9. Repetitive Motion Injuries
  10. On the Job Violent Acts (from other employees or customers)

 

Locally, in Massachusetts, the list isn’t much different in the private sector.

  1. Overexertion and reaction injuries – 34.5%
  2. Falls, Slips, and Trips – 27.2%
  3. Contact with Objects or Equipment – 24.3%
  4. Workplace Violence – 5.6%
  5. Transportation Accidents – 4.2%
  6. Exposure to Harmful Substances or Environments – 4.1%
  7. Fires and Explosions – 0.1%

The majority of injuries were in the service industry, transportation, and construction.

 

Construction Injuries Top Fatalities Lists

 

Accidents like those in Woburn have been on the rise with 2016 marking a 10-year high in the rate of workplace-related fatalities. Just 32 died in 2012 – seeing the death rate double in just four years.

The latest MassCOSH study showed that 70 Massachusetts workers died in 2016. 62 died on the job, many in construction and the rest were firefighters who died from “occupational illnesses”.

In a Boston Globe article, National Council for Occupational Safety and Health Co-Executive Director Marcy Goldstein-Gelb said “the rise in deaths reflects the increase in workers employed by subcontractors and staffing agencies that are less invested in worker safety.”

 

Responsibility of Employers Regarding Safety

 

“Not only is it the employer’s responsibility to ensure a safe work environment, each employee also has a responsibility to themselves to take caution when on the job,” Copeland said. Organizations like OSHA and the Massachusetts State Department of Industrial Accidents are in place to protect employers and employees. OSHA violations against employers can incur large fines for companies and are usually violations because they threaten either employee or public safety. Even if negligence is not involved, Worker’s Compensation can cover workplace injuries and costs. When negligence is involved, it’s even more important to discuss the situation with a lawyer.

5 Personal Injury Lawsuit Myths That You Need to Know Aren’t True

The moments immediately following a personal injury accident are usually filled with chaos and a lot of quick decisions. As the dust settles, and it becomes clear that filing an injury claim is necessary, misinformation of any kind can quickly derail the process.

This is even true when considering the so-called myths of a lawsuit. In reality, they’re just misunderstandings.

Consider five common misunderstandings:

  1. I can wait to file my claim
  2. I will financially ruin the at-fault party
  3. I can’t sue because I’m partly to blame
  4. I can represent myself
  5. I can’t afford a lawyer

 

For any of these, you can contact us at Kiley Law Group for a free consultation at 1-888-516-3740 or continue reading.

Though many points below refer to car accidents, these same principles apply to all other personal injury lawsuits – slip and fall accident, work related accident, medical malpractice, etc.

 

1) I Can Wait to File My Claim

From the moment the personal injury accident occurs, the clock starts ticking. Waiting too long after the accident, no matter the impact on the victim’s life or health is a missed opportunity.

According to Massachusetts state law, a personal injury lawsuit, property damage lawsuit or wrongful death lawsuit must be initiated within 3 years under the Statute of Limitations. (Mass. Gen. Laws ch. 260, § 2A; Mass. Gen. Laws ch. 106, § 2-318; Mass. Gen. Laws ch. 260, §§ 2A, 4; Mass. Gen. Laws ch. 106, § 2-318; Mass. Gen. Laws ch. 229, § 2) Once the term is up, no lawsuit can be filed.

Additionally, as recent studies have found, witness testimony becomes increasingly less reliable as more time goes by or other details are presented after the fact.

“The immediate aftermath of a car accident can be chaotic,” says retired Texas Judge Anthony P. Calisi on his blog Injury Claim Coach.

“An injured victim’s first thoughts are not about talking to strangers. They’re focused on their injuries, vehicle damage, and calling the police or paramedics.”

While it’s not recommended to further injure oneself in order to get witness statements, if able at the time it can help.

“A car accident victim can take advantage of the time between the collision and the police arriving,” continues Calisi. “During that brief period, begin your search for witnesses who might help with your personal accident report. The more detail in your report, the better. You’ll probably only have one opportunity to take witness statements, so try to collect as many as possible.”

Once a claim is filed and the case goes to court, the claims adjuster and the insurers’ lawyers will consider witness testimony in the case.

Allowing too much time between either filing the lawsuit or gathering witness testimony can mean missing important windows.

 

2) I will financially ruin the at-fault party

This can be particularly worrisome if the victim knows the at-fault party personally, such as a friend or colleague, and is concerned about the financial pressure it will put them under.

Fortunately, this is what insurance companies and insurance policies are for. In the negotiations prior to the lawsuit, insurance companies will use a claims adjuster to try to settle the case out of court. This limits how much money they will pay out – regardless of the maximum limits the policyholder has in their insurance policy.

“The at-fault driver’s insurance will try to lowball you and your insurance company in order to save as much money as possible. They will try to get away with whatever they can,” says LawKick, a social network that puts victims together with lawyers. “Although your insurance company will advocate for you, it has a conflict of interest because it also wants to keep costs down and limit its own overhead.  Insurance companies often settle early in order to save money, so keep that in mind before you make the decision.”

 

3) I can’t sue because I’m partly to blame

While it may seem like being partly to blame for the accident is a disqualifier for a court to order damages paid in your favor, the state of Massachusetts realizes that there are often two parties to an accident.

In some cases, one party may be 100 percent at fault for an accident and be held responsible for damages. In other cases, both parties may share some fault.

Massachusetts, like many other states, requires that the victim must be less than 49 percent at fault for them to receive damages.

For example, consider a situation where someone is texting while driving and they strike a pedestrian who crossed the street when the crosswalk said “Don’t Walk.” Both individuals were at fault to a degree – the driver for putting himself and others at risk, and the pedestrian for putting himself at risk by entering the street when he wasn’t supposed to.

In legal terms, this is referred to as “comparative negligence” – both parties can be held accountable to a degree for the accident.

It’s best to talk with an experienced personal injury lawyer, like those found at Kiley Law Group, to understand the level of fault and what costs could be regained in a lawsuit.

For more information on negligence and comparative negligence see our blog on the topic.

 

4) I can represent myself

Massachusetts law does allow this. There is even a book on the subject for those who are interested in representing themselves (also known as pro se litigants).

However, it does offer this warning:

“You have the right to represent yourself in court. If you are thinking about proceeding without a lawyer, you should know that representing yourself in court may be difficult and will require research, time, and knowledge of the case law, applicable statutes, procedures, standing orders and a variety of other rules that govern the court process.”

The book also warns that, while it is allowed, “if you choose to represent yourself, the court will hold you to the same standards as if you were a lawyer.”

This will include writing motions, filing forms and documents that comply with court rules, meeting court deadlines “regardless of your other commitments including your job” and “childcare arrangements,” speaking in public, and preparing witnesses to testify.

According to the book, the challenge of representing oneself becomes more difficult if the other side has legal counsel representing them, which is likely the case.

“Lawyers are trained professionals. Many spend years learning how to present cases in the courtroom and studying the law. Although you may be able to handle your case, if the other side has a lawyer, it may be more difficult for you.”

 

5) I can’t afford a lawyer

While there are legal fees associated with filing a lawsuit, Kiley Law Group works on a contingency fee basis, so there are no fees unless our trained personal injury lawyers win your case. This arrangement makes it possible for someone of any financial means to have the same legal representation as anyone else.

Different Auto Insurance Options Explained

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

School’s In! – 5 Ways to Stay Safe and Sane During the Morning Commute

A recent study by Allianz, a British insurance company, found that parents’ stress levels were 30 percent higher in the morning, as they anticipate the school drop-off. The stress hormone cortisol peaked around 8:15 a.m. when parents were heading out the door. Further, a third of the parents said the school run could mess up “timings for the rest of the day” and a majority admitted, “it sets their mood for the rest of the day – good or bad.”

“The first weeks of the new school year are usually the most hectic because people are not yet used to the fact that the relaxed summer time is over,” said a press release from Sygic, a popular GPS Navigation company.

“Everybody is trying to get back to normal or adjust to new routines, so it is important to be very cautious when driving.”

 

Back to School Safety Tips

 

1) Give Yourself Twice as Much Time As You Think You’ll Need.

For many parents, some of the stress comes from arriving on time.

“Roads with less traffic in the summer may face congestion, so allow extra time to get to your destination. You don’t want your kids to be late for the first day of school. Or any day of school for that matter. And you don’t want to be late for work or miss that important appointment,” Sygic said.

With the back to school season just around the corner, experts are cautioning parents and other drivers to be extra alert. Property Casualty Insurers Association of America noted that U.S. traffic deaths continue to increase, further impressing the point of safety in the morning.

“With more people on the roads, often driving in unfamiliar territory, the potential for a traffic crash increases. We encourage motorists to plan their routes in advance when traveling to new destinations, be patient, and allow for extra travel time,” they said.

 

2) Be Prepared for Delays and Traffic

Parents across Massachusetts will be facing the same struggle of getting kids to school before the bell, and for many, that means just one thing to finish before the rest of the day starts for themselves.

“Parents often do not have enough time to drop their kids off and then get to the office, so they feel rushed and stressed. This can be avoided by trying out the route beforehand and allowing some extra time for delays on the road. It’s always better to be a little early, rather than a little late,” Sygic said. It may also be wise to use a hands-free navigation app that shows accurate and up-to-date traffic information that can direct you around bad traffic situations.

 

3) Be Patient and Watch for Children Walking to School.

A study by the National Safety Council found that most of the children who lose their lives in bus-related incidents were walking.

“They are hit by the bus, or by a motorist illegally passing a stopped bus,” they said. Additionally, 23,000 children ages 5-15 were injured and 250 were killed while walking or bicycling in another recent study by the Safe Routes to School National Partnership nonprofit.

Drivers – even those who are not parents – must keep careful watch of situations that involve young pedestrians.

“Be alert; children often are unpredictable, and they tend to ignore hazards and take risks,” said the National Safety Council. Sygic also recommended being careful with kids on the roads.

“Children are often unpredictable, so pay extra attention when driving in the school areas, near playgrounds & parks, and in residential areas. Don’t forget to watch out for pedestrians when parking as well.”

 

4) Make Sure Children Know Where to Go After Drop Off

Most schools will have school attendants or teachers at the drop-off point. Children’s uncertainty for the first day of school can be reduced by being sure they’re equipped with all the information they need to get to class and start their day.

 

5) Instruct Children About Good Walking Safety

People walking are twice as likely to be struck by a vehicle in locations without sidewalks, says Safe Routes to School National PartnershipsThey advise parents to walk the route to school with their kids, talk to them about potential dangers and explain the importance of staying safe alongside traffic. Lastly, parents should remind their children to not speak with strangers or accept a ride from someone they don’t know.

 

Vision Zero and the Slow Streets Program

Each year, 30,000 people – the population of a small city – die as a result of car accidents in the United States. Boston sees around 1,300 traffic incidents a year requiring emergency medical services and 20 people die every year, according to city data. Add to that the hundreds that die on Massachusetts roads, and officials and advocates say there is a problem.

Boston recently joined the Vision Zero movement with the goal of having zero traffic fatalities on city streets by 2030.

Vision Zero was first implemented in the 1990s in Sweden, where it has proved successful across Europe.

“The Swedish architects of Vision Zero set zero as the ‘only justifiable fatality target for road traffic,’” said Vision Zero Network, the advocacy group that champions the initiative throughout the U.S.

“Calling out a vision of zero deaths (and, in some places, serious injuries) sends a strong message: traffic-related fatalities and injuries are not an inevitable and acceptable side-effect of the transportation system. With its name alone, Vision Zero fundamentally reconceptualizes how we understand injuries and deaths on our streets as preventable.”

They also noted that American car-related fatalities and injuries are not solely the result of driver error.

“We call this suffering traffic ‘accidents’ — but, in reality, we have the power to prevent traffic collisions,” they said. “Even those attempting to address the problem — the traffic engineer, police officer, policymaker, advocate or public health specialist — are working upstream, often isolated in silos or trying to move forward without reliable data, resources, or political support.”

The Vision Zero initiative works to assess what can be done on a transportation system level to prevent the impact of traffic accidents.

 

Vision Zero in Boston

 

Recently, Boston held a vigil. To call attention to the local issue, cutouts of people were placed at locations of fatal crashes across the city. The goal of the vigil was to offer a tangible image of the lives lost. The vigil itself was also a visible representation of the city’s attempts to make a change on public policy to keep its promise by 2030.

Vision Zero encourages lawmakers to realize that it is not just “bad drivers” that are responsible for accidents. Instead, they want them to look beyond the driver and enact strategies such as lowering speed limits, redesigning streets, implementing behavior change campaigns, and data-driven traffic enforcement.

“As with other preventable public hazards (think measles, smallpox and other diseases prevented through vaccines), Vision Zero calls on us to be proactive; to identify risk and take steps to prevent injuries by designing the transportation system in a way that collisions won’t result in fatal or serious injury,” Vision Zero Network said.

“The focus thus shifts from solutions focused on perfecting individual behavior, to solutions focused on perfecting a transportation system that failed to protect people who made predictable errors.”

 

The Slow Streets Program

 

Boston is just one of the many U.S. cities putting that initiative into action by making changes to the system. The city was one of several Massachusetts cities to reduce the speed limit on all city streets, recently reducing the speed limit from 30 mph to 25 mph. They also took it one step further.

“Rather than planning and implementing changes on one street at a time, Boston will address an entire ‘zone’ within a neighborhood,” counselors announced in a press release on their website.

In 2017, the city government chose five zones of the city to reduce speeds to 20 mph. This is because of recent studies that state that at 30 mph the likelihood of pedestrian fatality by a car crash is 50 percent. At 20 mph, the number changes to an 88 percent chance of survival.

The slow speed areas in Boston will be 10-15 blocks per zone. After the area is chosen, data will be used to assess system changes to reduce the impact of crashes on victims.

“When each zone’s plan is implemented, streets will have visual and physical cues to slow drivers to 20 mph — making each street feel more inviting for people of all ages who are walking, playing, or bicycling. The Slow Streets program will emphasize quick-install, low-cost fixes, such as signage, pavement markings, speed humps, and daylighting,” Boston Officials said via a press release on their website.

“In some places, you could see additional changes, such as raised crosswalks, curb extensions, and neighborhood traffic circles.”

The application process is held annually, wherein communities can sign a petition and send in letters of support for the area becoming a zone. When selected, the city will take up planning and then implement changes to the transportation system.

Personal Injury at Concerts

Patrons injured in an accident during a music concert may have a valid reason to file a claim – but the knowledge of how it differs from other personal injury cases will be essential

What can go wrong at a concert?

Appreciated for their artistic value and unique atmosphere, large music concerts can provide a fair share of excitement and entertainment both for music aficionados as well as for those who look for a fun way to spend leisure time with friends or family. With summer in full swing, music concerts and multi-day festivals are held virtually every weekend in many open-air venues or indoor arenas throughout the U.S. However, as with any kind of public event that draws big crowds, large music concerts present some inherent risk for significant personal injury. Live music can induce strong emotions and the way people act when they are a part of a crowd can easily get out of control, especially if alcohol is allowed at the venue. Thus, even minor security shortcomings or perhaps irresponsible behavior on the part of the artist during the show can result in chaos among the attendees, leading to tragic consequences. A notable example of such tragedies is the 1979 The Who concert, where a crowd rushed the stage causing 11 fatalities and leaving 27 attendees injured, or the incident at the 2001 Pearl Jam concert at the Roskilde Music Festival in Denmark, during which a stage collapsed, resulting in 9 deaths and 26 additional injuries. More recently, 42 concertgoers were injured following a barricade collapse at a Snoop Dogg and Wiz Khalifa show at the BB&T Pavilion in Camden, New Jersey that took place last year. One of the performers, as well as the venue managers, are now facing nearly 20 individual lawsuits in connection with the incident.

A person who has been injured in an accident at a concert or a similar event at an entertainment venue may consider filing a personal injury claim against the organizers of the event or the venue manager. In order for such a claim to be valid and ultimately successful, certain key elements must be met. One of them will be to prove that the accident and injuries arose from negligence on the part of the above-mentioned parties. To do so, the injured party needs to understand the responsibilities concert promoters and venue operators have to ensure public safety during large music concerts or other entertainment events. This article will present information pertaining to that subject as well as examples of situations leading to injuries that may merit a lawsuit.

Types of liability and foreseeability of danger

In connection with accidents that happen at mass events like music festivals or large-venue concerts, two types of liability are usually mentioned – landowner liability and third-party liability. These are not mutually exclusive and may occur at the same time or even be related to one another. In general terms, landowner liability means that the owner of a property, for example, a concert venue, can be held liable for injuries that occur on said property if he or she did not take reasonable care to put into place adequate security measures to prevent harm. Here, however, the issue of foreseeability plays a crucial role. This legal concept states that in order for the landowner to be held liable, the conduct that caused the injuries must be shown to have been a foreseeable danger, or in other words, a danger that could have been reasonably anticipated.

A stampede that occurred at a concert as a result of, say, the absence of appropriate supervision, the number of attendees that exceeded the limit of people that can safely use a given venue or a combination of both, may be a type of a situation that exemplifies the legal concepts mentioned above. In this case, a stampede will likely be judged a foreseeable danger, and if proven that the accident could have been averted or contained by the introduction of adequate measures – for example, a larger number of attendants or security personnel – then the property owner may be found guilty of negligence and liable for injuries that concert-goers sustained as a result of the stampede.

Third-party liability – not always a personal injury case

A concert-goer might also sustain injuries as a result of the deliberate action of another concert-goer. This is where the concept of third-party liability comes into play. An attendee who hits another attendee may be held liable for the resulting injuries; however, rather than a personal injury claim, a criminal charge may be pressed in this case. Criminal charges will not secure financial compensation in the same way a personal injury case would. Nevertheless, a property owner or the concert promoter still may be held liable for the damage arising from the actions of third-parties – in this case, battery – if it is proven that they were negligent in providing security measures that could have prevented the incident. Again, however, in case of a personal injury claim against the concert promoter, securing an outcome favorable to the injured party will depend on the ability to demonstrate that, first, but for the negligence of the promoter, the accident would not have happened and, second, that the incident fits into a definition of a foreseeable danger.

As can be inferred from the examples presented above, a careful analysis of all the circumstances of an accident and all the potentially responsible parties must be made before a personal injury case can be brought and successfully pursued. Also, the plaintiff may expect to have the key elements of his claim challenged – that is, the issue of foreseeability of the risk that engendered harm and whether the security measures provided were inadequate. In some cases, the assistance and opinion of an expert in the field of security will be needed. In addition, a thorough examination of the case may identify multiple parties responsible for the accident, leading to naming multiple defendants in the lawsuit. All the details of a personal injury claim for injuries sustained at a music concert may seem confusing and overwhelming, but with the help of a seasoned personal injury attorney a successful outcome and fair compensation are achievable.

Taxi drives into crowd at Logan airport

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.

Can a doctor of alternative medicine be charged with malpractice?

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.

Swimming Pool Liability and Safety

 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.

July is Medical Malpractice Awareness Month

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.