Boston Personal Injury Lawyers Blog

As Halloween draws near, government safety officials are advising parents to make sure their children's costumes are flame resistant and without large sleeves, capes or skirts that could easily catch fire from candles, Jack-O-Lanterns and other ornaments, resulting in a serious burn or injury.

Indeed, most of us forget about the dangers of flammable clothing. Devastating injuries caused from flammable children's clothing in the 1940s prompted the 1953 enactment of the Flammable Fabrics Act (FFA). The Consumer Product Safety Commission is now responsible for administering the law, and it still struggles to minimize the risks of flammable clothes, sometimes leading to product recalls.

The Boston Globe: Safety officials advising flame-resistant costumes

Continue reading "Parents Advised of Importance of Flame-Resistant Children's Costumes" »

On October 26, 2010, a car ran a red light, struck a pedestrian and slammed into a Los Angeles school bus. The bus tipped over injuring 18 high school students and the bus driver, and killing the pedestrian. The car was a black BMW driven by three youths who fled on foot until a construction worker stopped them and held them until police arrived at the scene of the accident. The pedestrian was an unidentified adult. Police are investigating whether drugs or alcohol were a factor in the crash.

The Boston Globe: 1 dead, 19 hurt as car strikes a pedestrian, then slams into LA school bus

Continue reading "Car Hits Pedestrian and Slams into Bus; 1 dead and 19 injured" »

Civil litigation in Massachusetts moves slowly. So slowly in fact that clients routinely voice frustration to their personal injury attorneys over how long their cases take to resolve. This is particularly true in the area of medical malpractice litigation, where the life of an average case, from intake through trial, can easily take upwards of three or more years to complete. These days, medical malpractice cases seem to be taking even longer to resolve.

One reason for the snail's pace of medical malpractice litigation may have something to do with a "bone" the Massachusetts legislature threw to the medical malpractice insurers a few years back. I'll call it "the free ride" bone.

In almost any other category of claim for personal injury, for example,. auto-related injury or product liability, commenced in Massachusetts State court, the plaintiff is legally entitled to receive - on top of the amount ultimately awarded by the jury or judge - "pre-judgment interest" at the rate of 12% per year, calculated from the date of the filing of the civil complaint with the court (not the date of injury) through the date the court enters final judgment. So, by way of example, if a person is injured as a result of a car accident and files a law suit against the negligent driver on January 2, 2010, and the jury returns a verdict in favor of the plaintiff on January 2, 2013 in the amount of one million dollars, the plaintiff would be entitled to receive a total award of $1,360,000.00 (one million dollars plus $360,000 in pre-judgment interest).

The reasoning behind pre-judgment interest is to disincentive defendants (insurance companies for the most part) from dragging their feet and denying funds to which the plaintiff is legally entitled. The system works quite well. Insurance companies hate paying pre-judgment interest, and, in fact, have worked quite hard to convince Massachusetts law makers that the rate of 12% is excessive - particularly in today's low-interest rate environment.

Fortunately for plaintiffs, the Massachusetts legislature understands that pre-judgment interest has something more than an economic benefit in mind; it was designed to prevent insurance companies from sitting on their hands and doing nothing (something insurers would otherwise love to do in every case).

Enter the Massachusetts Medical Malpractice Insurance Lobby. In what should be regarded as nothing short of a coup, the insurance companies that insure doctors in Massachusetts successfully convinced the Massachusetts legislature to lower the pre-judgment interest rate in medical malpractice cases only, from the standard 12% annual rate, to a rate that is tied to United States Treasury rates - in short - just about 0% these days. The net effect of this coup was to provide the medical malpractice insurance companies with every reason in the world to work slooooowly. So slowly in fact that medical malpractice cases currently take longer than just about any category of injury-related litigation.

In a perfect world, members of the Massachusetts legislature would actually take notice of the monster they've created by virtually eliminating pre-judgment interest and the intended goal of the pre-judgment statute. But Massachusetts remains a long, long way from the perfect world, so don't count a change in the law any time soon.

Continue reading "Another Reason Massachusetts Medical Malpractice Cases Can Take a Long Time to Resolve" »

The Massachusetts Appeals Court recently addressed this exact issue as it related to a guest who was struck in the back of the head by a softball while visiting a friend's home. The plaintiff was seated on the defendants' deck while other guests engaged in a softball game including one of the defendant homeowners. The softball game took place in close proximity to the deck where the plaintiff was seated. As the game progressed one ball was hit onto the roof above the porch. After that ball went astray, the defendant homeowner asked the participants to hit the ball down, to bunt and/or to swing half way when making contact with the ball. Shortly thereafter, the plaintiff was struck in the back of the head with the softball hit by another guest.

The plaintiff filed a lawsuit alleging the defendant homeowner was negligent of the safety of his guests resulting in a premises liability because he organized and participated in the game. The defendant, homeowners filed a Motion for Summary Judgment alleging they owed no duty to the plaintiff under these circumstances. A Massachusetts Superior Court allowed the defendants' Motion for Summary Judgment. The plaintiff appealed the decision.

Massachusetts law does not typically hold homeowners liable for the conduct of other persons who cause a personal injury at their home. In this case however, the homeowners' ownership of the equipment and the right to control the use of the equipment placed them in a position of authority to which a duty attached. The Appeals Court held that the defendant homeowners owed a duty to the plaintiff because the defendant homeowners:(1) owned the softball equipment; (2) had the right to control the use of the equipment; (3) were present and aware the equipment was being used; and (4) were aware of the danger to the guests on the porch given that one ball was hit onto the roof above the porch. The Appeals Court remanded the case back to the Superior Court. In doing so, the Appeals Court noted that the ultimate issue of whether the defendant homeowners are liable for the plaintiff's injuries must be left to the fact finder.

Continue reading "Does a homeowner who invites guests to his home owe those guests a duty of care for actions of third parties? " »

Many people are now aware that most nursing homes request that the resident or resident's representative sign an Arbitration Agreement upon admission to the facility, which provides the only forum within which to resolve any dispute, including personal injury, is by way of arbitration. Often though, the resident is unaware that signing this agreement is voluntary and is not a pre-requisite to admission to the facility. This misconception comes from story after story of administrative agents for these facilities stating the contrary. They tell residents and family members that this agreement must be signed on order for a bed to be secured at the facility. This practice is not only illegal, but it usually is contrary to the language in the Arbitration Agreement.

Because these Arbitration Agreements have come under judicial scrutiny all over the country, they have evolved and have been re-drafted to include language that is usually clear, unambiguous, and sets forth exactly the time frame the resident has to rescind the agreement (usually 30 days). These newly drafted agreements clearly set forth the rights the resident is waiving by signing the agreement - the right to a jury trial and the right to appeal the arbitrator's decision - and set forth that execution of the agreement is not a precondition to admission to the facility. Further, and most important, the agreement sets forth the time period in which the resident has to rescind the contract after signing it. In most agreements, the resident has up to 30 days from the date he or she signed the agreement to rescind it by providing written notice of same to the facility within the prescribed time period.

Since the resident or their family members may be getting wrong information while several documents are thrust in front of them to sign during the admission process, it is important to slow down, review each document before signing, understand what you are signing, and you do not understand a form or agreement, take it with you to have it reviewed by someone you trust or an attorney. If the facility requires that all documents be signed at one time, consider that a red flag that they are trying to include a form or agreement that is not necessarily in your best interests. Be wary and know what you are signing as it may have significant impact on your legal rights should a dispute or claim arise.

Continue reading "Nursing Home Arbitration Agreements - Mandatory or Not?" »

A few years ago, there was a lot of buzz surrounding so-called "Mandatory Arbitration Agreement" that were included in nursing home packages as one of several documents a resident or their designated representative had to sign upon admission. There was not a lot known about these arbitration agreements when they first surfaced. Questions arose regarding their validity, enforceability, and application.

In Massachusetts, there have been at least two decisions that have shed some light on these agreements. In 2007, the Supreme Judicial Court heard arguments in the case of Miller v. Cotter, 448 Mass. 671 (2007) regarding whether an arbitration agreement executed in the context of a resident's admission was unconscionable, which would render the agreement void. While the Supreme Judicial Court held that the arbitration agreement they reviewed was not unconscionable, they did hold that because there is no clear, all-purpose definition of unconscionable, each review of unconscionability would have to be made on a case-by-case basis. The SJC held that deciding factors for finding an arbitration agreement unconscionable would be whether the contract provision could result in unfair surprise and was oppressive to the allegedly disadvantaged party.

In 2008, the Massachusetts Appellate Court heard arguments in the matter of Constantino v. Frechette, 73 Mass. App. Ct. 352 (2008) regarding whether the family of a deceased nursing home resident could maintain a lawsuit against individuals nurses not specifically parties to the contract. The nurses tried to argue that they were intended third party beneficiaries of the contract and should be bound by it. The court held that only those parties that were named in the contract would be covered by the agreement. The court held that the contract could have included language to include agents, servants, and employees of the nursing home and because it did not, the individual employees were not covered by the agreement.

There was some momentum a few years back for Congress to enact legislation to ban these types of agreements in the nursing home setting, but the bills in both the House and the Senate stalled in the "committee stage."

Since not all arbitration agreements are created equal, it is important to consult with a personal injury attorney to determine whether the agreement you or a loved signed would likely be held valid under current Massachusetts case law.

Continue reading "Nursing Home Arbitration Agreements - Here to Stay?" »