April 15, 2014

Proving Causation in Single-Car Accident Cases

As discussed in a recent decision from the Massachusetts Appeals Court, to sustain a claim of negligence, a plaintiff must establish that the defendant owed him a duty, that the defendant breached that duty, that the plaintiff was injured, and that the defendant's breach was the cause of those injuries. Defendants often attack the elements of a plaintiff's negligence claim by arguing that the plaintiff cannot prove "causation." In other words, the defendant claims that even if there was a breach of duty, the plaintiff is unable to prove that the defendant's negligence caused the injury.

It can be especially challenging to prove causation in car accident cases when only one vehicle is involved, and the passengers of that vehicle are injured. In Alford v. Department of Transportation, the plaintiffs were driving on Route 1A when they crashed into the roadside barrier on the ramp to the Massachusetts Turnpike. The plaintiffs were unable to remember the details of the accident, but the investigating police officer, who had spoken with a witness at the scene, was able to provide important information. The police officer testified at his deposition that the driver in the plaintiffs' vehicle lost control of the vehicle after it contacted heavy snow left behind on the exit ramp. He testified that he observed a strip of snow roughly two feet wide and six to twelve inches deep on the ramp, which extended across two lanes to the roadside barrier. According to the supervisor of highways and tunnels, the road had just been plowed and salted. The officer stated that the snow path was consistent with a set of plows leaving snow behind.

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April 11, 2014

Appeals Court Affirms Award of Workers' Compensation Benefits to Employee's Dependants Following Employee's Suicide

Last week, the Massachusetts Appeals Court issued an opinion in Chaput's Case, in which it affirmed an administrative judge's finding that the suicide of an employee who had suffered a work-related injury was causally connected to that injury, and thus the employee's dependants were entitled to workers' compensation dependency benefits.

In the case, the employee had worked as a drywall taper. According to testimony from the employee and his wife, prior to his injury, the employee lived a happy life with his wife and children. He enjoyed handy work around the house, repairing cars, fishing, hunting, yard work, and playing sports and other activities with his children.

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April 4, 2014

Worker's Disability and Workers' Compensation Benefits Unaffected by Preexisting Back Injury

Injuries or conditions affecting an employee prior to sustaining an injury at work can have an impact on the employee's claim for workers' compensation benefits, but only if there is evidence connecting the preexisting condition with the injuries sustained in the workplace accident. To illustrate, in a decision issued last week, the Massachusetts Appeals Court affirmed a decision of an administrative judge to award an employee workers' compensation benefits following a workplace injury, notwithstanding the fact that he suffered from some back pain prior to the accident.

In Moreira's Case, the employee was a corrections officer who had previously served two active duty tours in Iraq with distinction. While deployed in Iraq in 2006, he had suffered from an injury to his lower back. Although he had suffered occasional low back pain from 2006 to 2009, he did not require medical care for it, and was able to engage in such strenuous activities as full active combat field duty in Iraq, full military training, and his duties as a corrections officer at a prison upon his return.

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April 1, 2014

One in Three Patients Harmed in Nursing Homes

A government report released last month revealed that one third of patients in nursing facilities suffered a medication error, infection, or some other type of harm related to their treatment. The statistics highlight the ongoing issues with the standards of care at nursing facilities across the country. As discussed in a previous post, Massachusetts is actively raising the bar for treatment of nursing patients, but the concern remains widespread.

An article from Propublica discussed the government report in depth, emphasizing the fact that most of the injuries patients sustained while being treated were preventable. The report was produced following a study commissioned by the U.S. Department of Health and Human Services (HHS). The study focused on skilled nursing care and treatment provided in nursing homes to patients residing in the facility for over 35 days. The report solicited the opinions of physicians who reviewed the records of 653 nursing home patients from 600 facilities across the country.

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March 28, 2014

Report Urges Implementation of Safety Standards to Protect Massachusetts State Employees from Workplace Hazards

According to an article from WorkersCompensation.com, findings relative to Massachusetts state workers' risks of workplace injury, illness, and death have been released by Governor Deval Patrick's Advisory Committee on the subject. The Advisory Committee was created as part of Governor Patrick's initiative to address health and safety issues for Massachusetts state employees, who are not covered by federal OSHA standards and rules.

The Advisory Committee assessed data from different state agencies to identify workplace hazards for public employees, including serious risks such as chemical hazards, confined space, electrical hazards, and falls from heights. In its report, the Advisory Committee found, among other things, that between 2010 and 2012, 3,000 state workers experienced sufficiently serious job-related injuries that required time off from work. Such injuries resulted in death for four state workers during that same period.

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March 25, 2014

In Unique Cases, Suit Against Employer for Injuries Sustained at the Workplace May Not Be Barred

A Massachusetts federal court recently discussed the specifics of what constitutes an injury that arises out of and that is in the course of one's employment, distinguishing the types of cases that may or may not be barred by the exclusivity provision of the Massachusetts Workers' Compensation Act. The case examines the right to sue an employer when an employee is considered to be on a personal venture at work, and the conditions under which the employee may be able to hold her employer liable for injuries sustained on work premises.

In Delvin v. Aramark Healthcare Support Services, LLC and Tufts Medical Center, Inc., the plaintiff was employed by Tufts Medical Center (Tufts), and also gave birth to a child prematurely that remained in Tufts' Neonatal Intensive Care Unit (NICU) for several months. The plaintiff returned to work following the birth of her child, and made arrangements with her manager to use various break times to pump milk for and visit with her newborn in the Tufts facility. She would begin her day early and stay later to compensate for the time she took during those breaks. During one of the breaks, the plaintiff slipped on a wet floor in the NICU and was injured.

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March 25, 2014

Known Safety Defect in GM Vehicles Blamed for Up to 303 Deaths

Following pressure from lawmakers, General Motors (GM) has recently recalled 1.6 million vehicles that reportedly share a defective ignition switch linked to a number of deaths across the country. According to reports, the ignition switch in the recalled vehicles, which is connected to the airbag system, activates the airbag system when drivers start their cars. However, the airbag system does not remain active the entire time the vehicle is running, a serious safety defect in the device. Alarmingly, GM employees and designers admittedly knew about the defective parts since as early as 2004.

The car company has recalled six models of vehicles manufactured between 2003 and 2007, which share the same ignition parts. In a press release, GM explained that there is a risk, under certain conditions, that the ignition switch in certain vehicles may move out of the "run" position, causing a partial loss of electrical power to the safety system in the vehicle. GM acknowledges that adding a key fob or having other keys on a ring may increase the risk of the partial electrical loss occurring. The press release advises drivers to remove all other keys and key fobs from their key rings to avoid any issue, but the risk of having the safety system rendered ineffective remains.

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March 18, 2014

Pier Owner's Duty to Warn Depends Upon Foreseeability of Deceased's Use of Property

In a recent case before the First Circuit Court of Appeals, the estate of a deceased commercial fisherman brought a wrongful death action against the owner and leaseholder of a pier, alleging that the defendants failed to provide safe and reasonable access to the fishing boat on which the deceased was working. While the lower court ruled in favor of the defendants on summary judgment, the First Circuit reversed and remanded the decision, finding a genuine issue of material fact as to the foreseeability of the fisherman's specific use of the property that caused his death.

In Cracchiolo v. Eastern Fisheries, Inc., the pier was used primarily to process fish and berth vessels. At the facility, there were a number of entrances and exits to access various areas on the property. A main route was regularly plowed and led to the fish processing areas and to the pier. There was also an alternative route through a large gap in the fence surrounding the facility, which provided a path directly to the pier and berthing area that was much shorter than the main pathway. The alternative route was clearly visible and the path was shorter by way of crossing the retainer wall surrounding a portion of the pier.

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March 14, 2014

Over-the-Road Truck Drivers May Be Entitled to Massachusetts Workers' Compensation

Every year, over-the-road truck drivers are involved in accidents while driving in Massachusetts. Regardless of fault, those drivers, if injured or killed, are entitled to the benefits provided by the Massachusetts Workers' Compensation Act, no matter where that driver lives. The employer's place of business does not force an injured trucker to file a claim in that location.

When an over-the-road trucker is injured in Massachusetts, his employer is required to file a First Report of Injury with (1) the Massachusetts Department of Industrial Accidents, (2) its workers' compensation insurer, and (3) the injured worker within 5 days after the injured trucker misses his fifth scheduled work day. This deadline often comes and goes without the filing of such a report, but it does not mean that an injured trucker cannot file a claim; it merely means that the employer has not followed the law.

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March 11, 2014

Disputed Facts as to Surgeon's Negligence are for Jury's Consideration

When a plaintiff's medical malpractice case was dismissed following a medical malpractice tribunal's conclusion that her offer of proof was "not sufficient to raise a legitimate question of liability appropriate for judicial inquiry," the plaintiff appealed. The Massachusetts Appeals Court vacated the dismissal, finding that the plaintiff's proffered evidence, though disputed by the defendant surgeon, was sufficient for a jury's consideration.

In Abrea-Riley v. Lerner, the 44-year-old plaintiff presented to her gynecologist complaining of chronic pelvic pain. Her doctor recommended an operative laparoscopy to evaluate the pelvis, to possibly free up scar tissue and to potentially remove the plaintiff's ovaries. The plaintiff provided informed consent to the recommended procedure.

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March 7, 2014

Injuries to Employees Hired in Massachusetts While Working Out of State

Every person who is hired in Massachusetts is covered by the Massachusetts Workers' Compensation Act, regardless of where he or she lives or is injured. In today's mobile society, employees often are assigned to out-of-state locations or travel out of state in furtherance of their employers' work. If one is injured during such a trip, or while working at a foreign site, employers and insurers often attempt to misinform the injured worker that she or he must file in the state where the injury occurred. Pursuit of a claim under these circumstances may be very difficult, as it would involve traveling to attend proceedings in other states.

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March 4, 2014

Death of Toddler Raises National Concerns About Pediatric Dentistry Practices

Millions of Americans visit their dentists routinely for check-ups and teeth cleanings. Typically, such visits are without complications, but occasionally, serious issues with treatment may lead to claims of malpractice. One incident garnered national attention when a three-year-old died after visiting her dentist. According to an article from the Huffington Post, the family of the deceased child is now suing the dentist office for improperly administering anesthesia that resulted in serious brain damage and death to the child. This incident has sparked a national discourse analyzing pediatric dentistry practices and the precautions that dental professionals should take with young patients.

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February 28, 2014

Employer Fined $144,000 for Exposing Workers to Cave-In Hazards at Worksite

A recent OSHA News Release reports that Joseph P. Cardillo & Son Inc., an excavation and utilities contractor out of Wakefield, Massachusetts, has been cited for willful and serious violations of OSHA's excavation safety standards. The company faces $144,000 in fines for its failure to ensure that its workers, who were installing water mains in a trench six feet, 8 inches deep in Milton, were provided cave-in protection and a ladder to exit the trench, which exposed the workers to falling debris.

As OSHA's local area director observed, "The proposed fines reflect both the gravity of the hazards and that the employer knowingly refused to comply with using required safeguards... These workers could have been crushed and buried in seconds beneath tons of soil and debris, without any escape options. This risk is unacceptable, and this employer has been cited previously for the same hazards."

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February 25, 2014

New Care Standards for Dementia Patients in Nursing Homes

The Massachusetts Public Health Council has approved new regulations regarding nursing home care in the Commonwealth, slated to take effect in March 2014. Prior to these regulations, there were no training requirements for staffers handling dementia patients, and many nursing home residents went unattended or without quality care. The new regulations require better care for nursing home residents, impose new requirements for care givers handling dementia patients, and set a minimum standard of care at all licensed nursing homes in Massachusetts.

The regulations impact the Dementia Special Care Unit (DSCU) law. Advocates for the changes often emphasized that, on average, 60% of nursing home residents have some form of dementia. Many nursing homes lack employees trained in caring for Alzheimer's patients, special requirements for meaningful activities for those patients, and specifications for physical environment modifications to promote safety and quality of life. Despite this, many nursing homes have been able to take advantage of a statutory loophole that allowed the facilities to claim they specialized in Alzheimer's disease care. The new regulations address each of these areas.

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February 21, 2014

OSHA's Concerns Grow Over Cell Tower Worker Deaths and Injuries

According to a recent OSHA press release, four deaths have occurred in the first five weeks of 2014 as a result of workers' falls from cell towers. The disturbing statistic follows a final tally of thirteen similar fatalities in 2013, and has OSHA increasingly concerned for cell tower employees' safety.

As the OSHA article explains:

"Of the 13 communication tower-related fatalities that occurred in 2013, the majority were a result of falls. OSHA requires employers to provide adequate fall protection equipment, train employees how to use the safety equipment and ensure that they use it properly and consistently. In the past few months, tower workers have also been injured or killed by falling objects, the structural collapse of towers and equipment failures."

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