Boston Personal Injury Lawyers Blog

The Law Office of Parker Scheer has been recognized in the 2012 edition of Boston's Top Rated Boston Personal Injury Lawyers. The list, created by LexisNexis Martindale-Hubbell, uses its Peer Review Ratings to identify lawyers who have been given its highest rating of AV Preeminent. This rating is based on the opinions of lawyers and members of the judiciary who have been invited to participate.

Attorney Eric J. Parker was named to the Plaintiff's Personal Injury list of top Boston lawyers. Click here to read his bio.

Attorney Barry S. Scheer was named to the Commercial Litigation list. Click here to read his bio.

A Superior Court judge recently ruled that a son who has been designated as the Health Care Proxy for his mother who was being admitted to a nursing home with diagnoses of dementia and Alzheimer's, could not waive his mother's constitutional right to a jury trial in favor of mandatory arbitration because that type of decision would be legal, not medical in nature.

Nursing homes, for years now, have drafted and re-drafted their mandatory arbitration agreements to conform to changes in the law. These agreements are presented to the patient or their family at the time of admission to the facility when they are also presented with a stack of other documents to sign so that the resident can be admitted to the facility. Nursing homes love this timing because this is when a family is least likely to question a document such as this because they are so focused on getting the patient admitted to a facility.

Judge Paul E. Troy of the Massachusetts Superior Court recently held that (1) the health care proxy had not been activated by a physician attesting to the resident's incompetence; and (2) even if the health care proxy had been activated, this decision is not medical in nature and thus, cannot be made by a health care proxy. This is a significant distinction because it attacks who can sign these forms. Often, the resident is plagued with some cognitive deficit - be it dementia or Alzheimer's - and would be unable to sign the form on his or her own behalf. This ruling has limited who can sign away a person's right to a jury trial. Judge Troy believes that the person cannot be a health care proxy.

I suppose the next step is whether a Durable Power of Attorney can waive such a right. Stay tuned for that battle...

Eric Parker was featured in the April 27, 2012 issue of the Boston Business Journal's "Viewpoint" section. In "Roadmap to Reform Needs New Direction," Parker gives his view on the Massachusetts Medical Society's recently announced plan to reform the State's medical liability system. Click here to read more.

On October 1, 2011, Medicare slashed their reimbursement rates to nursing homes by 11%, which resulted in concerns that jobs would be lost due to declining revenue and thus quality of patient care would suffer. However, 2011 year-end and 4th quarter earning statements among publicly-traded nursing homes were strong and many had better than expected operating results.

Unfortunately, despite rising profits, patient care in most nursing homes is mediocre at best and executives tend to target labor costs as a means to offset any decline in reimbursement rates. So, while investor profits surge, more patients are the victims of neglect and abuse.

Given the amount of money at stake - record annual revenues up 198% in 2011 - executives at nursing homes are going to maintain status quo, or worse, cut patient care even more and turn a greater profit for investors. At present, there is no way to monitor these nursing homes because the corporate structure makes it almost impossible to determine the actual entity responsible for running the facility. This loophole results in no one entity having overall responsibility - and in turn, culpability - for poor patient care.

For the complete article, click here.

The family of Elvira Nunziata was awarded $200 million from a Florida jury against a nursing home that the jury found responsible for her wrongful death. The family, however, will unlikely collect any of the verdict because of the complex corporate structure in place at the nursing home in question. This complicated corporate structure exists in many of the nation's largest nursing homes and renders most judgment proof and unaccountable. This case, and the huge verdict that may go uncollected, has put this issue at the forefront again.

Elvira Nunziata was a 92-year-old patient at a long-term care facility in Florida who had dementia and was in a wheelchair. She was able to pass through a door that was likely left open by employees going outside for a smoke. She toppled down a flight of stairs strapped to her wheelchair and died as a result of her injuries.

Her family brought a wrongful death lawsuit against the nursing home responsible for her care and safety. The attorneys retained by the family to pursue the wrongful death case soon found out that the entity responsible for running the nursing home no longer existed. Trying to trace who would be responsible for paying the judgment has proved nearly impossible.

Frighteningly, this is not a rare occurrence. A review of the 10 largest for-profit nursing home chains in the United States revealed several layers of ownership. One layer might own the building; while another would lease the building, hire staffers and pay the bills. Nursing homes are structured this way in a concerted effort to provide protection from lawsuits. Even the federal regulators who issue the licenses to these nursing homes and Medicare and Medicaid who pay the bills are unable to determine which affiliated companies control what. If regulators pull an operator's license for substandard care, that company could dissolve and an affiliated company could take over.

Why does this matter?

This complex corporate structure is deceptive to families whose loved ones are in nursing homes and holds the entities that run them unaccountable. It not only presents a problem in the collectability of judgments, but also the day-to-day operations of nursing homes. While families may assume that the administrator of a nursing home or the local owner is making the decisions regarding staff and supplies that is not always the case. These decisions, made solely based on a for-profit scheme, could actually be made by a real estate investor in New York.

Congress must get involved and enact legislation to require transparency in the corporate structure of these facilities. At the very least, this must be done to promote patient safety. To read more on the case involving Elvira Nunziata click here.

Continue reading "Record Nursing Home Verdict Proves Nearly Impossible to Collect" »

Mass High Tech Business News recently published an article by Parker | Scheer LLP founding partner, Barry S. Scheer, Even Startups Need Severance Agreements. "As a business attorney, I am often asked by struggling startup company executives, faced with having to lay off employees, whether they are obligated to make severance payments." Scheer acknowledges "there is no legal obligation to make severance payments" but that "severance payments and severance agreements generally provide intangible benefits and social utility that far outweigh their cost -- even to struggling companies. "This," he writes, "is especially true for technology companies...."

Please click here here to read the full piece.

A Massachusetts Superior Court judge (Fahey, J.) recently denied an attempt by the French-based ski manufacturer, Salomon SA, to dismiss a claim brought by a Massachusetts resident for injuries suffered by him when the ski binding failed while skiing in Utah. Salomon SA argued that because they had no ties or presence in Massachusetts, they should not be compelled to defend an action brought in Massachusetts. Susan Bourque, of Parker | Scheer LLP, argued on behalf of plaintiff that the claim against Salomon SA should be allowed to proceed in Massachusetts because Salomon SA maintained a website that directed consumers to authorized retail locations in Massachusetts where consumers could purchase Salomon goods.

In siding with the plaintiff, Judge Fahey ruled that because Salomon directed consumers to Massachusetts retail locations, they (Salomon) were transacting business in the Commonwealth within the meaning of the Massachusetts Long Arm Statute. The issue: Could a website alone confer jurisdiction upon an out-of-state corporation - was the first of its kind decided in Massachusetts. This decision follows the expanding trend of evaluating the "interactivity" of a company's website in determining whether or not the corporation was targeting consumers within a particular state.

Click here to read more about this case from an article that appeared in Mass Lawyer's Weekly.

Parker | Scheer LLP is pleased to announce that a decision, favorable to our client, has been cited by Massachusetts Lawyers Weekly as among the "Most Important Decisions of 2011." The motion, which involved issues of insurance coverage law, was successfully argued by Managing Partner, Eric J. Parker. Parker Scheer associate, Lisa Scalisi, researched and drafted the plaintiff's brief. To read more about this case, click here.

The Las Vegas office of Parker | Scheer LLP, Parker Scheer Lagomarsino, was cited in an article published today in the Las Vegas Review-Journal about a former Wynn Resorts Ltd. employee who has brought suit against the company for unpaid overtime compensation.

Parker Scheer Lagomarsino has been retained by Richard Derek Olsen, a former Wynn Las Vegas corporate investigator, who claims he was not paid for hours spent providing security for company executives and celebrities, including Chairman and CEO Steve Wynn.

For more information please read the full article here.

Written by Attorney Susan M. Bourque

On September 9, 2011, in a matter of first impression for the Commonwealth of Massachusetts, the United State District Court (Zobel, D.J.) held that a mandatory arbitration clause, agreed to by a decedent, is not binding on the estate in connection with its claim for wrongful death. The case was brought, in part, by the parents of Lisa Tam Chung who was killed while on a student tour in Mexico organized by the defendant, StudentCity.com. The Chungs alleged that the defendant tour operator was negligent and legally responsible for the wrongful death of their daughter.

The defendant sought to dismiss the case citing the mandatory arbitration clause agreed to by Lisa when she booked the trip using the on-line registration form which stated, in pertinent part, "that any dispute...concerning my Trip, the Trip itself or any claim for damages due to injury or death which occurs on the Trip shall be resolved exclusively by binding arbitration." Based on this provision, the defendant insisted that the plaintiff was compelled to arbitrate their claim rather than have it heard by a jury. The Court disagreed, stating that because the wrongful death statute is not derivative of the decedent's claim, it would "be inconsistent with fundamental tenets of contract law to nonetheless hold that those beneficiaries, who did not sign an arbitration agreement, are bound by the decision of the decedent, whose estate holds no interest in this claim, to sign the arbitration clause." The Court relied upon similar holdings in other jurisdictions where this issue has been addressed.

This decision will have significant impact on the growing trend to include mandatory arbitration clauses in Nursing Home Contracts. Such clauses, which have been upheld as valid in Massachusetts, still apply to non-death cases where the plaintiff claiming injury is the one who signed the agreement. However, in the most serious of cases, where negligence is alleged to have caused a death, the Chung case may help to level the playing field by allowing families to pursue their wrongful death claims through the court system where the case can be decided by a jury of their peers.

Continue reading "Mandatory Arbitration Clauses - 'Til Death Do Us Arbitrate?" »

PRESS RELEASE, October 14, 2011, -- Eric J. Parker, co-founder and Managing Partner of Parker | Scheer LLP was recently appointed by Massachusetts Bar Association President Richard P. Campbell, to Co-Chair a task force that was created in response to law school grads having difficulty finding jobs in the current Massachusetts economy.

The task force will examine root causes for the perceived over-supply of graduates, along with strategies for finding solutions to benefit graduates, the Massachusetts legal system, and the affected community.

Click here to read more about the task force and quotes from Mr. Parker in the latest issue of the Massachusetts Lawyers Journal.

In today's mobile economy it is not unusual for a person hired in the Midwest to be assigned temporarily to work out of state. While one might think that this limits such an employee to workers' compensation benefits for the state in which he was hired or where his employer is located, this is not necessarily true.

Massachusetts law provides that it has jurisdiction over workplace injuries that occur within its borders regardless of the residence of the injured employee, or his employer. As Massachusetts benefits are amongst the highest in the country, it is essential that an employee injured in the Commonwealth of Massachusetts while working for an out-of-state employer consider filing his claim here.

Massachusetts also has jurisdiction over cases involving workplace injuries in other states if the injured employee was hired in Massachusetts. Several years ago, a New Hampshire resident working for a Pennsylvania corporation was injured while working in New Jersey. Under these facts one might assume that Massachusetts has absolutely no jurisdiction whatsoever. This was not the case, however, as that employee was hired in Massachusetts. In that case, the injured worker's weekly workers' compensation benefits increased by more than 35% over the payments made by the workers' compensation insurance company under New Jersey law after his claim was filed in Massachusetts.

Likewise, if an injured worker, hired in another state, is the victim of a workplace injury in Massachusetts, the Massachusetts rates will apply provided that a claim is filed in Massachusetts. These principles are applicable regardless of the nature of the claim or injury. If an employee is tragically killed in a Massachusetts workplace accident, his survivors are entitled to bring a claim in the Massachusetts Department of Industrial Accidents seeking the typically higher Massachusetts workers' compensation rates.

The rate of weekly workers' compensation benefits are not the only reason that an out-of- state employee, injured in Massachusetts, may seek to establish jurisdiction in Massachusetts. Most states prohibit lawsuits against employers for work place injuries or death otherwise covered by workers' compensation. Massachusetts provides that workers' compensation payments, including those for medical expenses, are doubled "If the employee is injured by reason of the serious and willful misconduct of an employer or of any person regularly intrusted with and exercising the powers of superintendence." This involves a heightened standard, but is often applicable in situations in which an employer fails to provide proper safety equipment, fall protection, or forces an employee to use equipment known to be unsafe.

As in all instances involving serious injury or death, it is advisable to contact an attorney who is experienced in these complicated jurisdictional questions. To speak with a highly experienced workers' compensation lawyer, click here, or telephone Parker Scheer LLP seven days a week, toll free at 886-414-0400. There is no fee charged to discuss your case, and all information furnished, will be kept strictly confidential.

The family of an 8 year old boy recently obtained a $4.6 million settlement with the maker of a clamp used during a botched circumcision, according to an article appearing in the Los Angeles Times.

The boy's penis was partially amputated when he was circumcised as an infant. The accident is one of many examples of injuries caused by circumcisions around the country.

Parker | Scheer LLP has handled numerous botched circumcision cases on behalf of children who suffered partial or total amputation of the distal penis following circumcisions, including one resulting in a $1.26 million structured settlement for the child.

In that case, a pediatrician who performed the circumcision inadvertently amputated a portion of the infant's glans penis. The doctor used sutures to repair the damage, leading to the loss of tissue. The pediatrician did not recommend surgical repair by a pediatric surgeon, which if it had been performed, would likely have improved the cosmetic result and reduced the degree of a condition involving the abnormal placement of the urethra opening on the penis.

The device used for the circumcision in the case we handled - the Mogen clamp - was also used on the boy in the recent case in California. The Mogen clamp was first invented in 1954 by a Brooklyn rabbi who wanted to standardize circumcision equipment. The Mogen clamp loosens the foreskin, then pulls it through the clamp and clips it with a single cut. Some think the Mogen clamp has a design flaw because it doesn't allow users to see what they're cutting.

The other two devices commonly used for circumcisions - the Gomco clamp and Plastibell circumcision instrument - are two-part systems designed to protect the tip of the penis during the procedure.

Approximately 56 percent of boys born in the U.S. are circumcised in hospitals, according to the Centers for Disease Control and Prevention. The CDC does not track the number of circumcisions performed in religious ceremonies, such as the Jewish bris .

Miltex, Inc., the defendant in the California botched circumcision case, stopped distributing the Mogen clamp in 1994. In 2000, the U.S. Food and Drug Administration issued a public health notice concerning the Mogen and Gomco clamps after receiving about 20 injury reports annually since 1996, including lacerations, hemorrhaging, amputations, and urethral damage. The FDA did not recall the clamps, but warned users on the proper use of the devices.

Despite continued reports of injuries involving the Mogen clamp, the device remains popular among physicians who perform circumcisions.

Continue reading "Botched circumcision leads to $ 4.6M settlement" »

Eric Parker, managing partner of Parker | Scheer LLP, recently sat down with the radio show hosts of Mind Your Own Business (MYOB) on WBNW 1120AM, Rick Brutti and Jeffrey Davis, to discuss the legal industry today and how a boutique law firm like Parker | Scheer LLP continues to be successful.

Please click below to listen to the audio.

Eric J. Parker, Parker | Scheer LLP founding partner, was recently interviewed by Boston Business Journal's Lisa van der Pool. The article was published in the BBJ's "Outside the Box" section, a tribute to Parker's original mindset. As the interview illustrates, Parker is a compassionate and ground breaking personal injury attorney, whose own happiness is founded on the happiness of others.

The article is from the Boston Business Journal, Vol. 31 o. 25, July 15021, 2011.

Please enjoy an abbreviated version of the interview below, and find the full the version posted to the personal injury section of the Parker | Scheer LLP website.

What do you think of the term ambulance chaser?
I hate the expression and I hate the perception. I think it's unfounded. We're a trial firm that helps small and midsize business and individuals, in a crisis.

When is it not a good idea to sue a hospital?
I would say it's a fair statement that we probably turn down 80 to 90 percent of the medical malpractice cases that we review every year. There's a wide-spread misconception in the difference between medical malpractice and an unfortunate medical result. For all the people who are critical of plaintiff's attorneys ... if they ever knew how much the plaintiff's bar does to spare litigation. We do more explaining and sit-downs with people who want to sue. We have no interest in pursuing baseless cases.

Definition of a good day?
When I come home and I hear that my daughters or my wife got good news.

Toughest business decision?
Starting my own firm. I was made partner at one of the most wonderful trial firms, Sarrouf Law LLP in Boston. I left to give it a go on my own ... and it was the best decision.

Pet peeves?
One thing that's driving me nuts is watching the number of lawyers that Massachusetts is pouring into the legal system without regard to the economy. You have no idea no many unemployed graduated I've interviewed.

Traits that give you a competitive edge?
Probably an extreme case of empathy.

Three greatest passions?
Getting to the truth, learning something new every day and being a good friend.