Articles Posted in Legal Strategies

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Massachusetts General Laws G.L. C. 176D and G.L. C. 93A are designed to help protect the citizens of the Commonwealth from unfair methods of competition and unfair or deceptive acts or practices in the business of insurance. An injured party has a right to file a claim against the insurer of the at-fault party if they “fail to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear.” The Court of Appeals recently allowed a group of injured plaintiffs in a medical malpractice suit (Conry vs. Reilly, 14-P-506) to add claims against the insurer of one of the defendant doctors. They alleged that the insurer failed to make the reasonable settlement offer after liability had become reasonably clear during the course of litigation.

The insurer moved to dismiss, but the trial judge allowed the plaintiffs’ motion to proceed. The insurer appealed, but the Court of Appeals upheld the lower court’s decision to allow the injured parties’ motion to add the insurer The Court of Appeals looked to Chiulli v. Liberty Mut. Ins., Inc., 87 Mass. App. Ct. 229, 232 (2015). In this case, a man was severely injured in a fight outside of a restaurant, suffering a skull fracture and remaining in a coma for almost three months. The staff testified that they sensed a fight would happen between two groups at the bar, but they had not been trained on safety rules and did nothing to prevent the fight from happening.

Prior to the suit, the injured man sent a demand letter to the insurer of the restaurant with a copy of the receipts for medical expenses. The injured person argued that at least the medical expenses were provable through the receipts, but the amount of earning capacity was disputed, within estimates ranging from $413,532 to $1,589,949. That meant there was an undisputed amount of damages in the amount of $1,075,460. However, the insurer only offered to settle for $150,000. The injured person won a jury award of nearly $4.5 million dollars against the restaurant, and the case settled amongst post-trial motions.
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In Massachusetts personal injury cases, the injured party has the burden of proof in showing that he or she was injured as a result of someone else’s negligent or reckless actions. The jury must believe by a preponderance of the evidence, or that it was more likely than not, that the defendant had a duty toward the injured person, that the defendant failed in his or her duty to the injured person, that the injuries alleged were the result of the failure, and that quantifiable damages were incurred. Proof includes the testimony of witnesses, the testimony and reports of medical experts, and documents that help support the claim like maintenance records, phone logs, or receipts for services.

Litigating a case involves several steps. There are many avenues of legal recourse, and one may provide greater options for recovery than another. After filing suit, exchanging evidence, and taking depositions, the injured party may entertain offers of settlement, negotiated on his or her behalf by experienced counsel. If no settlement is offered or it is unsatisfactory, the injured person’s counsel prepares for trial to meet the burden of proof placed by law. During the trial, counsel for the injured person must keep in mind what must be shown to satisfy the legal standards for that particular injury while presenting proof to the jury. The attorney must also stay alert during trial to ensure that the injured person is receiving a fair trial. If the trial results in an unfavorable verdict or award as a result of an unfair ruling made during trial, the injured person has the ability to correct the ruling through the Commonwealth’s appellate court system.
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In Escobar vs. Universal Health Services, a Massachusetts couple’s daughter was treated at a counseling service that participated in the Medicaid program, MassHealth. The parents took their daughter, who was a MassHealth benefits recipient, to this service after she experienced behavioral problems at school. The daughter was treated by staff who had no professional license to provide mental health therapy. The parents became concerned when they began to recognize that the clinical director was not meeting with their daughter. The daughter was transferred to a different staff member, but this staff person was also unlicensed and proved to be unsatisfactory to the parents.

The third staff person held herself out to be a psychologist with a Ph.D., but was someone who trained at an unaccredited online school and was rejected for a professional license. This woman diagnosed the parents’ daughter with bipolar disorder. The daughter’s problems at school continued, and the school insisted that she see a psychiatrist in order to remain at the school. The parents relayed this to the “psychologist,” who referred her to a nurse, while calling her a doctor.

This fourth staff member then prescribed a medication called Trileptal for the purported bipolar disorder. The daughter quickly began having an adverse reaction to the drug. The daughter attempted to call the nurse for guidance, but her messages were unreturned. The daughter had a seizure a week after she took the medicine. The daughter was hospitalized, and the parents expressed their frustration at the counseling service for the lack of supervision and failure to return calls. The daughter had a second seizure a month later and died as a result.
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In a Massachusetts unpublished appellate case, Silva v. The Stop & Shop Supermarket Company, LLC, the Appeals Court considered the question of what is necessary for a safe working environment. A merchandiser of a vending company injured herself while working with product displays. Part of her duties required her to remove and replace shelves and then restock with products. To do so, the merchandiser had to lift and carry materials weighing up to 35 pounds. On the date of the accident, the freight elevator was not working, and the merchandiser had to use the stairs when she transported shelves to and from the storage area. On the fourth or fifth trip, she felt a pop in her back and then severe pain.

In negligence cases, there is a discussion of whether or not someone or a company owed the injured party a duty for a safe product or environment. A trial or appellate court can rule that the person or entity alleged to have caused the injury owed no duty to the injured party, removing the liability to pay damages. In Silva, the injured merchandiser agreed that the store did not have a duty to provide elevator service, but it did have a duty to provide a working freight elevator as part of a safe working environment with the necessary safety equipment. The merchandiser also argued that elevator safety regulations required the store to provide elevator service.

The Appeals Court addressed the first argument in two parts. First, the court stated that case law has not included a freight elevator as a necessary piece of safety equipment. Chapter 149, Sec. 6 of the Massachusetts General Laws establishes the need for places of employment to provide suitable safety devices for accident prevention, as determined by Commonwealth agencies. Other sections of Ch. 149 provide specific requirements for confined spaces, power transmission equipment, and dangerous undertakings, but they do not include requirements for elevators. Without the requirement to provide elevators as safety equipment, the injured merchandiser lacked the ability to show the store had a duty to her to provide a safe environment in which to work.
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Massachusetts Workers’ Compensation is designed to provide benefits for employees who are injured during the course of their employment. No act of negligence, or wrong-doing, needs to be shown. However, an insurance company or employer can contest how much of the medical care and expenses are actually attributable to the work injury. If the insurer decides to deny your claim, an appeal is available, and you or your family member can file a claim with the Department of Industrial Accidents (DIA). The DIA requires certain forms to be filled out, including medical evidence that supports the claim. The DIA, in its Guide for Injured Workers, encourages legal representation after an insurer denies the claim.

If your claim is accepted, or at least part of the claim, different benefits are available at different points of your recovery following the injury. Medical Benefits under Sec. 13 and Sec. 30 of the Workers’ Compensation Act provide payment for reasonable medical care that stems from the injury. Included is reimbursement for travel to and from the doctor’s office. There are also Temporary Total Incapacity Benefits, called Sec. 34 benefits, which are provided if the work injury causes you to miss work completely. The maximum amount of time that Sec. 34 benefits can be received is three years. If an injured worker is able to work, but not at the same capacity and pay before the injury, he or she is eligible for Partial Incapacity Benefits (Sec. 35). The injured worker can receive up to 75% of what the he or she would qualify to receive under Sec. 34 benefits. These benefits can be paid up to five years.

If the injured worker has received every type of medical treatment available for the injury, or reaches maximum medical improvement, then he or she can file for Permanent and Total Incapacity Benefits (Sec. 34A). These benefits are available as long as the worker is disabled. The Reviewing Board of Massachusetts recently reviewed an appeal from an employer in Tracy v. City of Pittsfield, who was also a self-insurer, who disagreed with the award of Sec. 34A, Sec.13, and Sec. 30 benefits to an injured employee who hurt himself after he hit a pothole while operating a road paver. He bounced out of his seat and injured his back, requiring surgery on his spinal column at different locations. The self-insurer agreed that the injury was a result of the workplace accident, but did not accept responsibility for the surgery and the protrusions.
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Injuries in Massachusetts can take many different forms. Car accidents, construction accidents, and slip and falls on slick sidewalks all come to mind as the types of personal injuries one reads about in the news. They are also the type of injuries that are eligible for legal action if a third party’s negligent actions caused the accident. In a civil suit for negligence, the injured party must show that the at-fault party causing the accident had a duty, that the defendant failed in that duty, and that the injury was caused by the negligence. If the injured party can present proof by the preponderance of evidence, he or she may be able to obtain damages, or costs incurred as a result of the injury. Injuries that qualify for monetary damages extend beyond bodily injuries. Massachusetts common law also allows for the recovery of monetary damages for mental and emotional harm under the causes of action for Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress.

An unusual injury was recently discussed in a U.S. 1st Circuit Court of Appeals case,Tobin v. FedEx Corp. A package was mis-labeled and delivered by mistake to a woman, who opened it to discover that the package contained a large quantity of marijuana. The woman was distressed by this unexpected arrival of an illegal substance in front of her young daughter. The woman handed over the substance to the authorities, but she became more distressed after a stranger arrived at her door with two other strange men waiting in the car, asking if a package was sent to her by mistake. The woman slammed the door in his face and called the police. The woman became distraught, believing that the employees of FedEx had shared her home address with people involved in illegal drug trading, and she filed suit for invasion of privacy, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress.
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Accidents can be complicated events, with multiple parties involved and contributing to the cause of the accident. For example, two drivers at an intersection may both act recklessly while driving across. One may be texting while driving, and the other may be speeding to “beat” a yellow light about to turn red. If the texting driver suffers injuries, he or she may pursue civil action against the other driver, but questions will quickly arise as to fault and compensation. The texting driver may wonder whether or not he or she can recover anything from the other driver.

Massachusetts follows the doctrine of comparative negligence. In the scenario described above, if the speeding driver is found to be more than 50% at fault, the texting driver can recover damages from the speeding driver. The texting driver, however, can have his or her award reduced by the amount of fault assigned by a judge or jury. If the texting driver seeks $50,000 worth of damages from the speeding driver, but is found to be 40% at fault, the texting driver would only be able to recover $30,000 under Massachusetts law.

An example of a comparative negligence can be found in the case of Baudanza v. Comcast. In this car accident case, a service truck struck the driver’s side of an automobile while driving through an intersection. The injured driver filed suit against the truck driver and his employer. The defendant company argued that the injured driver was also negligent and attempted to bring in an expert witness to extrapolate the injured driver’s blood alcohol concentration at the time of the accident. However, the judge found it to be too speculative and excluded the defense expert’s testimony from the jury trial.
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To pursue a medical malpractice action in Massachusetts, an injured patient must show that there was a failure to use the generally accepted practices and procedures of a specific disease or disorder, commonly used by medical professionals in the same area of medicine, during his or her treatment. This is usually described as a breach in the standard of care. When filing a medical malpractice action, the injured patient must submit her or his case to the Medical Malpractice Tribunal (MMT) for review, so it can determine whether or not there is enough substantiated evidence to bring a case before a jury or judge. This can include testimony from a qualified expert, who attests to whether or not the standard of care was breached.

In Washington vs. Cranmer, the injured patient went to an emergency room for various symptoms. The 37-year-old woman complained of body weakness, left arm weakness, dizziness, high blood sugars, and blurry vision. The injured patient already had a history of diabetes, chronic hypertension, and high cholesterol, and she presented upon arrival with slow responses, high blood pressure, and difficulty walking. She was examined, treated, and released by an E.R. doctor, who determined that she was alert, able to walk and move, and oriented. The E.R. doctor prescribed blood pressure medicine after the injured patient revealed she had not taken her medicine that morning. A CT scan was conducted, which did not reveal any abnormalities. An MRI was additionally ordered so that the E.R. doctor could better determine her condition. The injured patient was claustrophobic and ultimately did not go through with the MRI, and she had elevated blood pressure. Despite the lack of test results to make a determination, the injured patient was discharged with instructions to return if she suffered any additional problems.

After her release, the injured patient suffered a stroke overnight, and she now has permanent neurological damage. The woman filed her medical malpractice action in the Massachusetts Superior Court and submitted it to the MMT for review, as required, but did not post the $6,000. The MMT concluded that the proof was insufficient to bring a legitimate question of liability in front of a fact-finder and dismissed for the lack of the statutorily mandated bond.
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Workers’ compensation injuries often involve individuals who work for companies that perform contract tasks for other entities. Workers’ compensation is designed to provide financial relief to an injured employee, while removing the possibility of extensive litigation for the employer. In other words, if an injured worker obtains Massachusetts workers’ compensation benefits, she or he is generally precluded from pursuing negligence damages in a civil suit with the employer that carries the insurance. However, if another party is either partially or fully responsible for the injuries, such as a contractor, the employee can pursue civil action against the third party in addition to the workers’ compensation benefits received.

Massachusetts General Laws, Ch. 152, Section 15, allows an injured employee to receive workers’ compensation from his or her employer, but it also provides the employer’s insurer the opportunity to place a lien over any third-party settlement for its payment to the employee. This statute allows the insurer to recover costs already paid to the employee and includes the ability to offset future compensation benefits. The injured employee receives the remaining amounts in addition to amounts he or she paid toward costs from the third-party settlement.

A recent Massachusetts Appeals Court case provides an example of how far insurance companies will go to recoup the costs paid to an injured employee. In DiCarlo vs. Suffolk Construction Company, an injured worker received workers’ compensation benefits and then sued the owner of the building and received a settlement from the third-party tortfeasor. Part of this settlement was allocated as non-economic damages to the injured employee for pain and suffering and lack of consortium for his spouse. The employer’s workers’ compensation insurer attempted to file a lien under G. L. c. 152, § 15, with the insurer insisting that the lien applied to the non-economic damages. The Appeals Court disagreed and ultimately allowed the injured worker and his spouse to keep the portion of the settlement allocated as non-economic damages.
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When workers are injured in Massachusetts, they have access to different types of workers’ compensation benefits: temporary disability, permanent partial disability, and permanent total disability. When filing a claim for benefits under the Workers’ Compensation Act, there is no need to prove that a co-worker or employer was negligent. An injured worker must only show that there was an injury that occurred during the course of employment. This can require extensive medical testimony, and it usually involves a prediction about the effects of the injury upon the worker in the future.

The questions, “Is there anything I can do if my condition worsens?” and “What happens if my benefits run out?” may arise following an award of permanent partial disability. The Reviewing Board Decision of Tsitsilianos v. Worcester Housing Authority sheds some light on the process. In this case, the Board looks at two cases determining the award and claim of partial incapacity and total incapacity benefits under § 35 and § 34 benefits, respectively.

A Massachusetts industrial worker had previously been awarded payment of § 35 benefits, including medical bills and psychiatric treatment for an accident that resulted in bilateral trauma to his calf muscles and depression. However, the judge denied full disability, since the orthopedic physician opined that he could still perform full-time sedentary light work. After the employee exhausted his § 35 benefits, he refiled for total incapacity benefits, which were denied at conference. During an appeal, additional medical evidence regarding the worker’s physical injuries was submitted, but the judge determined there was insufficient proof of the worker’s mental health decline and denied benefits.
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