Blog


Blog

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.

Bicycle Commuting

 

Bicycles are a great form of recreation and an environmentally friendly alternative to a car – but on the road, they should be treated and handled like any other vehicle

Cyclists on the rise

 

With 8,141 people who regularly use a bicycle as a means of everyday transportation – an equivalent of 2.4% of its population – Boston is one of the ten large American cities with the highest share of bicycle commuters, states the 2014 “Where We Ride” report – an analysis of bicycle commuting prepared by the League of American Bicyclists. Boston is also one of the cities where bike commuting is growing the fastest. The same report mentions that in the state of Massachusetts as a whole, the number of people commuting by bike increased by a staggering 106% since 2005.

There can be little wonder as to the reason for this trend. In a city that has been reported to be the home of some of the rudest drivers in the US  as well as one of the most traffic-congested, the

benefits of swapping a car for a bike for the morning commute seems to be self-evident. Biking may be one of the fastest ways to travel around Boston, as is likely also the case with many other cities in the Commonwealth. Additionally, a Bostonian who wants to bike commute to work does not even have to have their own bicycle – citizens can rely on a public bike sharing program. The Hubway, as it is called, covers the Boston metro area and includes more than 180 stations and 1,600 bikes that can be rented for a small daily, monthly, or yearly fee. In addition, bike riding is environmentally friendly and good for health and overall fitness – a 30-minute bike commute can burn up to 500 calories and people who bike regularly have better blood pressure and insulin levels.

Checking out a commuter bike using Boston’s Hubway. A city-wide bicycle rental program.

 

Healthy and green – but not always safe

Nevertheless, while its benefits are enticing to many, biking can be dangerous too. The National Highway Traffic Safety Administration (NHTSA) has reported that in 2015, 818 cyclists died in traffic accidents, a number which accounted for 2.3% of all traffic fatalities in that year. 71% of those deaths occurred in urban areas. In addition, NHTSA further estimated that 45,000 cyclists were injured in crashes in 2015. Clearly, then, bicycles are not mere toys – they are vehicles and are subject to certain traffic laws when used on public roads. Bicycle commuters, therefore, must be familiar with these laws and comply with them. It is also vital to be acquainted with one’s rights as a pedalcyclist as well as to know, and apply, some basic safety principles. The good news is that Massachusetts has been ranked as the 4th most bike-friendly state in the US by the League of American Bicyclists, which can be taken as a sign that cyclists in the Commonwealth are not subject to overly-complicated or unreasonable traffic regulations. What, then, are some highlights of the Massachusetts bike law that every bike commuter should always have in mind?

Massachusetts bike law

Cyclists in the state of Massachusetts are allowed to use any public road, street, or bikeway but it is prohibited to ride a bicycle on clearly marked limited access or express state highways. The streets are considered to be the safest place to ride a bike, but cyclists are required to strictly obey the same traffic rules as motorists. Sidewalks outside of business districts may be used too unless local regulations state otherwise. If planning to stop or turn, a cyclist must signal the maneuver with their hand and may use either hand to do so. Pedestrians are regarded as a privileged group for cyclists too, meaning that they must always be given the right of way and also audibly signaled before a biker can overtake or pass them – except that it cannot be done with a siren or a whistle. Stunt lovers will probably be disappointed to learn that at least one hand must be held on the handlebars at all times and that it is prohibited to ride without a regular, permanently attached seat. Helmets, on the other hand, are required only for cyclists who are 16 years old, or younger; nevertheless, it is advisable that all cyclists use them, regardless of their age. A helmet must be well-fitted and fastened with a chin strap.

There are also special regulations concerning riding at night and altering the design of a bicycle. When it comes to the former, a cyclist must use a white headlight and red taillight or rear reflector while riding between half an hour after the sunset and half an hour before the sunrise. The headlight must be visible from 500 feet and the taillight from 600 feet. The rear reflector must likewise be visible from 600 feet in the low beams of a car’s headlights and must be clearly seen from the back and sides. If a bicycle is not equipped with pedal reflectors, at night cyclists must wear ankle reflectors for safety. The Massachusetts bike law prohibits altering the design of the bike so that the hands are higher than the shoulders while gripping the handlebars, and the fork cannot be extended or modified in any other way.

Safe on the bike-commute

When it comes to other general safety principles, one of the most fundamental rules is to be predictable on the road. This not only includes obeying all the traffic rules while cycling on a public road or a street but also riding and acting like motorists do. Cyclists should go with the direction of the traffic, stay in the right lane, avoid lane splitting and weaving in and out between the cars. This will help to avoid many of the dangers cyclists are prone to – like being in a driver’s blind spot or falling victim to a “door prize collision” (where a car’s door opens right in front of an incoming bicycle). Cyclists should also remember that riding a bike requires the same amount of attention, motor skills, and coordination as driving a car, if not more so – thus, they should never allow themselves to drink and ride – even though it is not an offense or punishable crime in the state of Massachusetts. Likewise, avoiding any distractions while cycling can be a matter of life and death, so using the phone on the bike is highly inadvisable.

Bicycles are a great form of recreation and an efficient means of transportation in a world where traffic is ever heavier and gas prices continue to rise. For those who want to stay in shape, save money, and reduce their carbon footprint, cycling may be a great alternative for a car. But before swapping 4 wheels for 2, it is vital to learn about all local bike laws and safety principles. In this way, cyclists will ensure that during their morning and evening commute they will stay out of harm’s way, while contributing to their own health and that of the planet.

The Teenage Brain and 100 Deadly Days of Summer

As school ends and teenagers get behind the wheel more often, many express concerns about the safety of teenage driving

Teenage drivers beware

Out of nearly 220 million licensed drivers in the US, more than 5%, or almost 12 million, fall into the category of young drivers, that is, motorists aged 15-20. Sadly, in the same age group, motor vehicle crashes are the leading cause of death, according to the National Center for Health Statistics. In 2015 alone, car accidents claimed the lives of 1,886 young drivers and left about 195,00 injured. In other words, about 6 teenagers in the U.S. die from motor vehicle injuries every day. The statistics become bleaker still during the summer break period when young drivers are most likely to get behind the wheel. In the period between Memorial Day and Labor Day, which is sometimes gruesomely referred to as the 100 deadly days of summer, fatal crashes involving adolescent drivers go up by 16% in comparison with other days of the year, resulting in an average of 10 fatalities a day, according to the statistics provided by the AAA Foundation for Traffic Safety.  What are some factors that make teen driving so dangerous? Should additional legal measures be taken to ensure that the accident rates drop?

Natural risk takers

On the whole, teenagers are more likely than adults to engage in risky behaviors while driving. For example, a survey conducted in 2015 showed that only 61% of teenagers wear seatbelts while driving with other passengers in the car – this makes them one of the demographics least likely to buckle up. According to data provided by the AAA Foundation for Traffic Safety, not wearing seatbelts was a factor in 60% of fatal teenage crashes. Distracted driving is likewise a much bigger problem among young drivers than among other age groups. AAA reports that research based on crash videos concluded that distraction was involved in teen crashes in almost 6 out of 10 times! In 15% of those cases, teenage drivers were distracted by other passengers, while 12% of distracted driving instances were related to using a cellphone. AAA also notes that in the moments leading up to a crash, distracted teens were looking down at the screen of their mobile phones, taking their eyes completely off the road, rather than simply having a telephone conversation which in itself can be dangerous enough. AAA observes that this is a disturbing trend that has emerged only in the recent years. Moreover, studies show that young drivers are more likely to speed, underestimate dangerous situations, and make critical errors than older, more experienced drivers. For example, data from the Youth Risk Behavior Surveillance System maintained by the Centers for Disease Control and Prevention show that in 2014, 36% of young males aged 15-20 who were involved in a fatal accident were speeding at the time of the crash and 24% were under the influence of alcohol. In the demographics of teenagers and young adults aged 16-20, 17% of fatal motor vehicle crashes involved drivers with BAC level of .08% or higher.

How the law helps

Looking at all this data, it is hard not to ask what it is exactly that makes teens so likely to engage in a whole plethora of dangerous and irresponsible behaviors. Is it only lack of experience or proper preparation for driving? Certainly, this was one of the assumptions behind the introduction of the Graduated Driver Licensing laws, adopted by all the states and Washington, DC. These laws divide the process of acquiring a driver’s license by teens into 3 stages. The idea is that young adults get more supervision when they start to drive, with more driving privileges being granted as they age, use the car, and gain more experience before they can acquire a full driving license. In the stage of Massachusetts, teenagers can enter into a GDL program when they are 16, with the permission of a parent or a guardian. After passing a theoretical test, a young driver is given a learner’s permit. With the permit, a teenager is only allowed to drive accompanied by a licensed driver of at least 21 years of age and a minimum of 1 year driving experience. The next stage is to apply for a Junior Operator license. These are issued to those of at least 16 and a half years of age and who have held a learner’s permit for at least 6 months. After completing a driver education program and a certain amount of hours of supervised driving, a Junior Operator licence will be granted. Some of the restrictions for a young driver holding the Junior license is that he or she cannot drive with passengers younger than 18 who are not their immediate family members if a licensed driver (of at least 21 years of age with a minimum of 1 year driving experience) does not occupy the front passenger seat. In order to be approved for a full driving license, a person must be at least 18 years old.

The perils of the teenage brain

Graduated Driver Licensing laws do, in fact, contribute to fewer accidents involving teenage drivers. According to CDC, among 16-year-olds, participation in the GDL programs is associated with a reduction of fatal crashes by anywhere from 26% to 41% and a reduction of overall crashes by between 16% and 22%. Nevertheless, some argue that these laws are not enough and that the age limit for obtaining any kind of driving permit should be raised. The rational? The teenage brain. According to scientific research, the teenage brain is still a developing brain, with key areas responsible for control, planning, and reasoning, not fully mature. How exactly is the brain of a teenager different from the brain of an adult? First of all, the frontal lobe, which is the area responsible for goal-oriented and rational thinking, in adolescents is still less developed than the amygdala – the region responsible for more instinctive reactions such as fear or aggression. This might explain why teenagers are more likely to act on impulse and engage in risky behavior while driving. Moreover, other studies have shown that a gradual development of another part of the brain during teen years – the lateral prefrontal cortex – may be the reason why teenagers are more prone to succumb to peer pressure and tend to drive more dangerously when accompanied by other adolescents. ()

How to make the roads safer for teens

Does this mean that states should enforce a stricter age limit for obtaining a driving permit and license? Some people do advocate raising the minimum driving age to 18. Others point to the fact the Graduate Driver Licensing programs are doing good job in limiting teenage motor vehicle accidents already. Even so, AAA recommends that states review and potentially strengthen the GDL laws “to provide as much protection as possible for teens”. The Association also stresses the role that parents have to ensure their teenage kids are driving safely – and not only by being cautious and reasonable about their children’s access to a family’s cars but also by being positive role models and setting good examples of responsible driving themselves. Parents should also make their children aware of the dangers of the 100 deadly days of summer for teenage drivers, and remind them regularly about how unsafe distracted driving can be. Ultimately, there is not much to be done about the number of young drivers on the roads in the summer. Each family can make sure, however, that all possible precautions are taken when their adolescent driver gets behind the wheel. After all, making sure that a teenager will strive to drive safely and responsibly will at the same time make the roads safer for everyone.

Welcome to People’s Legal Voice

Welcome to the first issue of People’s Legal Voice, Kiley Law Group’s periodic newsletter for clients and friends of the firm. For more than 40 years, Thomas Kiley, Sr., and the rest of the attorneys with Kiley Law Group have spent their legal careers advising people how to recover financially from accidents outside of their control. Whether a motor vehicle accident or medical malpractice accident, we all need to be aware and informed of laws and other policies that may affect your life or the outcome of your case.

Personal injury has been our firm’s focus, and we take care to be the legal voice that our clients need. Led by Thomas Kiley, Sr., once called the “The Million-Dollar Man” by the Boston Herald Sunday Magazine, Kiley Law Group has obtained more than $400 million on behalf of its clients. Because of our reputation for taking on tough cases that other lawyers have declined, our clients have enjoyed unexpected financial restitution for their discomfort or loss.

In People’s Legal Voice, we will explore important topics in the federal and state legal world, and alert you to the ways in which the topics may change lives. In the high-stakes game of personal injury law, Thomas Kiley, Sr., Thomas Kiley, Jr., and the entire Kiley Law Group team are here to be the teammates you need to remain informed and prepared in the event of a personal injury.  Χ

Keep the Kiley Law Group
in mind as your trusted resource.

BORN TO BE WILD, LIVE TO BE SAFE

Get your motor runnin’

Head out on the highway

Lookin’ for adventure

And whatever comes our way

“Born to be Wild,” one of the most popular songs about the joy of motorcycle riding, accurately captures the feeling that many motorcycle riders get when starting their engines for the day, ready to head down the road with the breeze at their fingertips. There is something freeing about leaving the confines of a two- or four-door vehicle; unfortunately, there’s a lot of risk involved with it, as well. According to the U.S. National Highway Traffic Safety Administration, 13.10 cars out of 100,000 ended up in fatal crashes. The rate for motorcycles is 72.34 per 100,000 registered motorcycles. Motorcycles also have a higher fatality rate per unit of distance traveled when compared with automobiles.

Safety on the road should be a priority for everyone, but looking at the statistics emphasizes the need for safety amongst those who prefer two wheels over four. Here are some important safety tips to remember for motorcycle riders:

    1. Hone your skills – Whether it’s your first time or 500th time on a motorcycle, make sure that you know what you’re doing, and brush up on your skills at riding classes in your area.
    2. Wear the right gear – What you wear could save you in the event of an accident, especially helmets. Your gear can save you from wind chill, flying bugs and debris, road rash or a serious head injury.
    3. Be defensive – Heads up: In collisions with motorcycles and automobiles, in 60% of cases, the automobile driver was at fault. You may be the best driver, but stay alert and defensive to protect yourself from those who aren’t.
    4. Avoid bad weather and road hazards – In the best conditions, motorcycles are great fun. In the worst conditions, they can be a great disaster. Check the weather and road conditions along the routes you’ll be taking.
    5. Be ready to ride – Before each ride, ensure that your ride is in working order. Check the lights, horn, directional signals, brakes, chains, tires, etc., to avoid mechanical error on the road.

Motorcycle safety isn’t just for the rider; as mentioned above, 60% of motorcycle accidents are caused by automobile drivers. Share the road! Take an extra second at intersections and when changing lanes, accelerating and braking to check for motorcycles. Their lives may depend on you!

Smoke and Mirrors: Reflecting on Massachusetts’ Marijuana Law

As of January 1, 2017, marijuana is legal in Massachusetts.

Marijuana Legalization in Massachusetts: Exploring the New Law

Although there are a number of aspects of marijuana’s legalization throughout the state that will be worked out as time progresses, adults over the age of 21 will be legally allowed to possess, use and home-grow marijuana. Massachusetts joins Colorado, Washington, and five other states in the United States that have legalized marijuana for recreational use.

Even though marijuana is legal in the state, there are some legal aspects of which you need to be aware:

  • Although marijuana possession is legal statewide, it remains a federal crime. Marijuana cannot be brought across state lines, sent by U.S. mail or used on federal property.
  • Selling marijuana is a crime both federally and statewide. Although the possession of marijuana is now legal, there is no legal way to purchase it in the state yet. At best, state regulations will be solidified and retail locations will begin operation mid-2018. Until then, users’ only options are to use their homegrown products. You may give and receive small amounts from other adults, but exchanging money for marijuana remains illegal.
  • Driving while under the influence of marijuana is a crime. Although there is no way to yet test drivers on the spot for driving under the influence, it is best to avoid the practice for your safety and for the safety of those around you.
  • Marijuana is only legal in the home and in private spaces. Possession is legal; however, you are not able to smoke marijuana in public like you would a cigarette. You also cannot use it while driving, as marijuana cannot be kept in a motor vehicle, except in the trunk or a locked glove compartment. If you are growing it at home, the marijuana must be kept discrete. It may not be visible from the street or public areas, and must be cultivated in a secure location. You must also abide by the rules of your rental agreement: if your landlord has prohibited smoking, tobacco and marijuana smoke are treated the same.

As with all new laws, there will be a period of adjustment for citizens, law enforcement, and elected officials, where the law will continue to evolve and change to best suit the interests of everyone in the state. If done well, the legalization of marijuana in Massachusetts could prove to be as successful and profitable as it has been in Washington and Colorado, which have both seen more than $250 million for the state through excise taxes.

As Massachusetts continues to explore and enact the successful implementation of marijuana’s legalization throughout the state, Kiley Law Group will continue to monitor developments. Although there is no way to completely prevent accidents that may occur, knowledge of the law may be one of the best methods to keep our community safe.

Autonomous Vehicles – Future Predictions, Part II

-Will autonomous vehicles disrupt personal injury practice?

 

This is the second article of a series on the changes that the advance of self-driving cars are predicted to bring about to the automotive industry and related businesses. To read how autonomous vehicles are predicted to change the insurance industry, please read the previous article.

 

Ultimately safer, though accidents happen

When it was disclosed last year that a Tesla Model S car driving in the Autopilot mode was involved in a fatal crash, the question on everyone’s mind was: “Can the Tesla Motors company be held liable for the accident?”. Enthusiasts of autonomous driving technology likely held their breath when the National Highway Traffic Safety Administration, NHTSA, announced that it was opening a preliminary evaluation into the performance of the Autopilot to establish whether it could have been responsible for the crash. Indeed, the stakes were high and possible ramifications for the future of self-driving cars may have seemed daunting. If this incident was going to be brought before a court of law, it would become a first impression issue – a court case without any existing precedent that would set precedent for future cases. If it were established that the Autopilot system had, indeed, caused the crash, public perception of AI vehicles would likely be dramatically influenced and could potentially contribute to a considerable slowdown in the advancement and proliferation of the technology.

The NHTSA investigation lasted for 8 months and in the end, it was determined that the Autopilot mode was not responsible for the crash due to any software malfunction or design fault. The Tesla vehicles with an Autopilot system were not to be recalled, and no other legal ramifications were going to result from the incident. The Tesla company and Elon Musk, its CEO, could heave a sigh of relief, along with other enthusiasts of autonomous driving technology.

For now, the Tesla fatal crash remains an isolated incident. There have been other collisions involving self-driving cars run by Google and Uber, but with no serious injuries or damage. Google autonomous vehicles boast a rather impressive record of having completed almost 2 million miles since the project was initiated, with only 14 minor collisions, such as rear-end crashes, out of which the Google car’s software was responsible for only one. In fact, if autonomous cars become widespread on US roads, the number of accidents could drop by 90%, according to one report. Nevertheless, a universal adoption of driverless vehicles would not eliminate accidents completely. In a world where robot cars are the norm, some of the crashes will be caused by bad decisions made by computer software. In turn, these kinds of situations will call for completely new paradigms in personal injury law. The present article, the second in the series on the impact of the advance of autonomous vehicles, analyzes what may change with regard to fault and liability issues once AI cars truly hit the roads.

Car-crash personal injury claims today

To understand how personal injury cases related to car crashes may change in the future, we first need to be aware of how such cases proceed today. A personal injury claim starts with an injury, damage, or a loss, most likely caused by a person’s negligence. For example, a car was rear-ended by another vehicle whose driver exhibited negligence by failing to exercise sufficient caution; or a car was t-boned by another car that did not yield the right of way. In both of those cases the negligent driver was clearly at fault and thus the injured party asks the at-fault party to take the responsibility for the damage. The at-fault party should then contact its insurance company to check if the damage is covered by the policy they own and what the cash limit of a potential claim is. Usually, the insurance company will investigate the extent of the damage and offer the injured party a cash settlement. The injured party has the right to accept or refuse the offer. In the case of a refusal and a failure to achieve any other settlement, the injured party may ask their personal injury attorney to evaluate the case. If the attorney thinks the claim has merit, they may speak on behalf of the injured party to the insurance company. If further attempts to renegotiate the claim with the insurance company prove ineffective, the case will most likely be settled in the court of law.

Shifting paradigms

How may this process change with a wide adoption of autonomous vehicles? The central issue in most personal injury cases today is negligence liability. The at-fault driver is liable for the damage or injury because they displayed negligence – a failure to act with the sufficient level of care. But who will be found negligent, and thus liable, in an accident where there was no human driver? The automaker? The software company? The manufacturers of various subcomponents that allow the car to drive in autonomous mode, such as cameras, ultrasonic detectors, or lidars? There is no easy answer to that question. As one lawyer has put it: “You’re going to get a whole host of new defendants. Computer programmers, computer companies, designers of algorithms, Google, mapping companies, even states. It’s going to be very fertile ground for lawyers”. In any case, it is very likely that the process of proving fault after an accident may become much more complicated than it is now, especially because under the current law, in personal injury claims, there is little room for blaming the manufacturer of the car. If a driver wants to do that, they need to prove the negligence on the part of the automaker under the product-liability law. As we hinted in the previous articles in this series, however, product-liability does not stipulate for driverless cars yet. As David Strickland, former head of NHTSA, noted: “There’s going to have to be some changes to the laws. There is no such thing right now that says the manufacturer of the automated system is financially responsible for crashes”.

Self-driving car manufacturers are already hinting at their approach to liability in crashes involving autonomous vehicles. Google, Mercedes, and Volvo have declared that they will accept full liability whenever one of their cars driving in autonomous mode is involved in a crash, although some attorneys dismiss such claims as marketing ploys. On the other hand, Elon Musk, Tesla’s CEO, has said that the company will not be responsible for such accidents unless caused by a fault “endemic to our [Tesla’s] design”. Musk compared the issue of liability in an AV crash to an elevator accident. “Does the Otis [an elevator manufacturer] take responsibility for all elevators around the world, no they don’t”, he noted. In the case of an elevator accident that results in a personal injury claim, it is possible that a company responsible for elevator maintenance or the property owner will be found liable. Now, autonomous cars’ software rely on external visual indicators such as lane markings, traffic lights, or road signs while making some traffic-related decisions. If those indicators are not clearly visible and an AV causes a crash, it might just as well end up in a negligence claim against, say, municipality for a failure to exercise sufficient care for the state of local roads.

Can personal injury practice come out unscathed?

The problems and examples mentioned above clearly show the need for new laws and regulations. Although NHTSA has already released self-driving car guidelines, the individual states still need to develop uniform policies for autonomous vehicles, and many unsolved issues will probably find their answers in the course of specific cases settled in the courts once the AVs become the norm. The change, however, is inevitable. Therefore, the question is, will personal injury lawyers find themselves out of business with the advance of driverless cars? According to one specialist, “personal injury attorneys would see car-related cases all but disappear”. One attorney even advised law school graduates not to choose personal injury as the field they plan to practice because autonomous vehicles will “eviscerate a significant portion of the personal injury bar”. Nevertheless, attorneys deal with many different types of personal injury claims, so the drop in motor vehicle crash-related claims may not be as devastating for attorneys as it can be for the car insurance industry. Moreover, as some attorneys point out, it will not be the first time that legal practice changes and the practitioners will most likely adapt to yet another shift.

Final thoughts

As we mentioned in the previous article, autonomous vehicles can be regarded as an example of disruptive technology, with considerable, even paradigm-shifting, impact on the automotive industry and many related industries. Insurance companies will likely see a huge decrease in profits as premiums get lower due to fewer accidents. Similarly, personal injury practice will change with the issue of negligence liability possibly shifting from individuals to manufacturers or other third-parties. It is nearly impossible to foresee all of the complex consequences the advance of self-driving cars will bring about. In this shifting, unpredictable ground, one thing is certain – the change is underway. There is only one thing the various industries and business set to be influenced by that change can do – brace for impact.

Autonomous Vehicles – Future Predictions, Part I

What the Arrival of AI Vehicles Means to the Insurance Industry

 

Disruptive innovations

When the very first Ford Model T automobile left the factory in Detroit, MA, on September 27, 1908, a car was hardly a revolutionary innovation anymore. In fact, before the Model T, “horseless carriages”, as automobiles were sometimes called at the time, had been around for decades. Automotive industry could already boast some technologically sophisticated and aesthetically pleasing machines, for example, the luxury Rolls-Royce Silver Ghost model, whose production began two years earlier. However, it was the Model T that became a true game-changer for the industry, a breakthrough that opened the world of cars to the masses and “put the world on wheels”, as it were. In little under 20 years, the Ford Motor Company sold 15 million Model T cars; as of 2012, it still was one of the 10 best-selling cars in the history of the automotive industry.

While it is true that the Model T became the first affordable automobile and as such created a whole new market for relatively easy to obtain cars, its impact on the society as a whole was even more far-reaching. For example, more people having cars meant that government earned more from taxes on gasoline – and that money was in turn invested into infrastructure. Moreover, more cars on the roads inevitably translated into more collisions. Although the first car insurance policies were being sold already by the end of the 19th century, they were neither obligatory nor widely bought. Thus, even if the at-fault party could be determined in the case of a car crash, many drivers were not able to cover the liabilities. To tackle that situation, many states started adopting legislation that evolved into compulsory insurance laws and gave rise to the US personal automobile insurance market. This market now generates more than $220 billion in annual revenue, accounts for more than 277,000 jobs, and is responsible for almost 40% of the financial sector’s GDP.

The car insurance business was brought about by what some scholars call a disruptive innovation. In broad terms, this can signify an invention “whose application significantly affects the way a market functions”. As outlined above, this is precisely what the Model T did to the auto market. Ironically, it is likely that in the years to come the very same industry that gave rise to car insurance companies may, in effect, become their undoing. All of that thanks to another disruptive innovation within the automotive market that in recent years has been steadily gaining momentum. In one of our recent posts, we hinted at some of the revolutionary changes that the advance of autonomous cars is predicted to cause not only to the automotive industry but also to other parts of the economy. This and the following post in this series will analyze in more detail how driverless cars may change insurance industry and personal injury paradigms.

Headed for extinction?

If anyone should have an opinion about how autonomous vehicles will change the insurance industry, it is likely to be Warren Buffet. The American business magnate and investor leads Berkshire Hathaway – a conglomerate holding company which owns GEICO, the second largest auto insurer in the US. Indeed, in February, CNBC interviewed Buffet on the subject of what changes self-driving cars are likely to bring about once the technology truly hits the market. The opinion the magnate gave was anything but optimistic for insurance companies. Buffet said that the advance of autonomous vehicles will “hurt GEICO’s business very significantly”. He also added that if driverless cars are safer, it will cut the insurance costs and “that brings down premium buy significantly”. How exactly could this scenario play out?

Today, insurance companies make the majority of their profit on premiums. How high the premium depends on many factors, but generally speaking, it is related to the likelihood of a damage claim being made, in other words, how likely it is that a driver will have an accident in which they may be found to be the at-fault party. Thus, insurance rates are calculated based on previous claims history, driving records, and other details related to the driver. Now, autonomous vehicles can change that in a two-fold way. First, as Warren Buffet noted, self-driving cars are predicted to be much safer. Vehicles already equipped with some level of autonomy seem to confirm that prediction. For example, since Tesla Autopilot mode was first installed in 2015, crash rates for Tesla cars dropped by 40%. The Autopilot is considered to display the so-called “Level 2” in the 5-level scale of driving autonomy. Level 2 signifies partial automation that still requires a human driver to be paying constant attention to the road. Level 5, once it is reached, will mean that a car’s automated system is capable of fully controlling the vehicle on all roads and in all conditions. Currently, two companies – Google and Ford – are trying to develop Level 5, fully self-driving cars. Ford has already announced plans to introduce a whole fleet of cars without steering wheels or gas and brake pedals by 2021. Considering that today human error is estimated to be the cause of at least 90% accidents, this will likely mean a huge improvement in traffic safety. According to many, safer cars should entail lower insurance premiums and this translates into lower revenues for the insurance companies. Because of this one change alone, the personal auto insurance industry is predicted to decrease by 40% in the next 25 years, or even by 60% according to some estimates.

Where will the liability lie?

The second way driverless cars are predicted to change the insurance industry has to do with liability and personal injury claims. Although autonomous vehicles will almost certainly be safer, this does not mean that accidents will not happen; it only means that whatever incidents will occur, a human driver will no longer be at fault. The question, then, is: who would be found liable in the event of a self-driving car accident? There is more than one answer to this question. One potential solution to this issue can be found in what is called a strict liability regime. According to one definition, strict liability “imposes legal responsibility for damages or injuries even if the person who was found strictly liable did not act with fault or negligence”. Today, strict liability is applied, for example, to injuries caused or related to a product’s manufacturing defects. In the case of autonomous vehicles, however, strict liability would mean that the responsibility for the crash would be automatically placed on the owner of the vehicle. This scenario, though, assumes that the proliferation of self-driving technologies will not affect private car ownership. It is not unlikely, however, that autonomous vehicles will be owned and operated in fleets by manufacturers themselves or by third-party companies. Could corporations like Google or Ford automatically assume responsibility for crashes where their vehicles will be involved?

The answer, simply speaking, is yes. In fact, Google, Volvo, and Mercedes have already issued statements to the effect that they will self-insure their cars and accept full liability in the case of accidents in which their car was driving in autonomous mode. Tesla seem to be heading in a similar direction, judging by their plan to include the cost of insurance in the final price of the car, a model that the company has been experimenting with in Asia.

Changing models

Does all of this mean that car insurance companies are headed for extinction? Not necessarily. Self-insurance models that Google, Volvo, and Mercedes are vowing to adopt may encounter some opposition both from within the AI vehicles industry and from the general public. Why? First, self-insurance may be costly. Smaller companies, especially innovative start-ups, will most likely be unable to afford to self-insure their products and thus may still want to turn to insurance companies. Second, as one Forbes’ article points out, manufacturers that will self-insure may “censor” some of the routes, that is to say, prevent that their vehicles from entering certain areas based on perceived risk of an accident. This idea may not sit well with the general public, so, independent insurance companies may still have a vital role to fulfill in a world in which autonomous vehicles take over.

As mentioned earlier, another area on which self-driving vehicles are likely to have considerable impact is personal injury paradigms and laws. Our next blog post will analyze how autonomous vehicles may affect personal injury cases and potential legislation in that regard.