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When a terrible injury occurs, whether from a car crash or a work site accident, pinpointing the date of injury can be an easy exercise. Some injuries are not always as clear. When you file a medical malpractice action in Massachusetts, you are bound by the statute of limitations, which requires medical malpractice injury claims to be brought forth within three years of the date of the injury, or the date you should have known about the injury. The latter part of the requirement allows for the delayed discovery of injuries that may not be apparent on the date of the accident or injury-causing event.

In the Appeals Court case of Parr v. Rosenthal (13-P-1150), the court extended existing case law, which now allows the statute of limitations to toll, or pause, when there is ongoing treatment performed on an injury. In Parr, the parents of a small child filed suit against the surgical physician. The child was born with a tumor in his right leg that impeded nerves and blood vessels. When the child was eight, he had surgery to have the lesion removed, but the doctor performing that surgery was unable to remove all of it. The boy continued to see other doctors who were all part of a sarcoma group and was later referred to another to perform a specialized procedure. During this surgery, a burn formed above the tumor site, causing complications during the surgery and immediately after the procedure. The parents of the child were advised it was a “superficial burn” and that the child would be able to heal quickly.

The burn did not heal and caused the boy’s health to become very unstable, despite extended hospital visits, in-home physical therapy, and a visiting nurse providing him care at home. Eventually, the boy’s leg had to be amputated below the knee. The lawsuit was filed within three years of the amputation, but more than three years after the second surgery. At trial, the jury was not provided with an instruction that allowed for the period of continuing care to be considered when looking at whether or not the injury occurred within the three-year statute of limitations. The jury found for the defendant, and the parents suing on behalf of their child appealed.
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Who do you want your will to benefit or avoid? This was a central question in a Massachusetts appellate case, Barounis vs. Barounis (13-P-1270), in which three children contested wildly differing wills. One written in 2003 greatly favored one daughter and excluded the other children, and the other written in 2004 favored the other two siblings and excluded the daughter. All of the children filed appeals of the trial court’s ruling, which excluded the 2004 will and modified the 2003 will. The trial court’s decision reveals the importance of having a very clear answer to the question of who does or does not receive shares of your estate after your death.

In Barounis, the testator and central figure in this case had signed three different wills within a seven-year span of time, one in 1998, another in 2003, and a third in 2004. The most recent, properly executed will is typically the document to which the court will give legal effect. However, if the circumstances surrounding the execution of the document are found to be questionable, such as when there has been fraud or undue influence, the will, or portions of the will, may be set aside, leaving the remaining portions or a different, properly executed document to be probated.

The father ran a market for nearly 20 years with the assistance of his wife and three children. Two years after he retired, he composed a will that provided $10,000 to one child and left the rest of the estate in trust to the other two children in equal parts, if his wife pre-deceased him. Additionally, an annuity was set up to benefit his wife until her death and afterward the daughter who was awarded the $10,000 sum. When this daughter learned of the will, she became upset, telling her father that her other siblings were far better off financially than she was. Eventually, she began to manage properties her father owned and then the store.
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Recently, the appellate court of Massachusetts reviewed an appeal from the parents of a deceased delivery driver who was murdered while working for a Domino’s franchise. In the case, Lind v. Domino’s Pizza LLC (14-P-928) the parents appealed the trial court’s decision to dismiss the claims against the pizza corporation after considering its eleventh-hour motion for summary judgment. The case discusses how far liability extends and the legal concept of agency, which often plays into personal injury and wrongful death cases.

When determining whether a person’s injury or death was due to the negligence of another, the courts look at whether a duty, created by law, was owed to the person, whether there was a breach of that duty, whether the breach caused the alleged injury or death, and whether damages were incurred. Sometimes people are injured or hurt by another person who was working for a company when the injury occurred. For example, if an employee was responsible for cleaning up spills in a grocery store but failed to do so, the employee would be the immediate person responsible for any injuries sustained by a customer who slips and falls on the spill. However, the employer is also accountable for the injuries sustained because the employee was acting on behalf of the company, or as an agent.

In Lind, the question comes up about how far this logic extends as far as liability is concerned under civil law. Popular chain restaurants are often franchises, in which an individual or group purchases the rights or ability to use the logo, menu, and recipes of an established brand but holds the majority of the day-to-day responsibilities of running the store. The murdered employee worked for a franchisee of the Domino’s Pizza brand. As part of the wrongful death action, the administrator of the estate filed a wrongful death action against several parties, including the murderer and the pizza franchisor.
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If you or a family member has suffered an injury while working in construction, there may be multiple legal routes to obtaining monetary relief. Typically, an injury is covered by workers’ compensation insurance held by the employer, but the injured person may also hold other parties accountable through personal injury actions. A recent unpublished Massachusetts case, Leahy v. Daniel O’Connell’s Sons, Inc. (14-P-1215), looks at suits filed by an injured subcontractor employee as well as the suits filed by his employer, all stemming from his injury. The injured worker was on a break and sitting on a pallet when a previously installed limestone panel fell on him, crushing his legs and arm. These injuries caused serious and permanent damage.

The injured worker filed a personal injury suit against the general contractor, the masonry company that was installing the limestone, the insurance company insuring the masonry, and other subcontractors on the job. The general contractor filed a third-party complaint against the injured worker’s employer and the insurance company used by the property owners to cover the general contractor and its workers. The general contractor also filed against the subcontractor and its policy, also alleging they were owed indemnification. The general contractor felt the insurance company was obligated to indemnify them in the subcontracting injured worker’s suit, since the work was part of the project covered by the umbrella insurance policy.
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Workers’ compensation may be available in different forms, depending on who your employer might be. If you work in construction, your claim would likely be filed through your employer’s insurance company and benefits reviewed through the boards and hearing officers under Massachusetts’ Workers’ Compensation Act. If you are employed as a civilian defense contractor through the United States Government, and are hurt or killed while working in construction or work related to national defense, war activities, or a public use of the U.S., you or a qualified family member can file a claim through the Defense Base Act (DBA), which is an extension of the Longshore and Harbor Workers’ Compensation Act. Like state workers’ compensation claims, the injury or death-causing accident generally occurs during the course of employment. However, under the DBA, an exception exists for injuries caused while in a “zone of special danger,” where it isn’t necessary for the injury to occur during work hours or during activities that would ultimately benefit the employer.

In Battelle Memorial Institute v. Dicecca (No. 14-1742), the First Circuit Court of Appeals reviewed whether an injury occurred in a zone of special danger in an appeal by an employer and its insurance company. The petitioners in this case argued against the award of death benefits under the DBA granted by the Benefits Review Board (Board) to the widow of a contract employee in Tbilisi, Georgia. Her husband was allowed a special stipend for vouchers to use on taxis to get around the city for any purpose, whether professional or personal, and was provided an extra 25% salary supplement for “hardship pay” for working in conditions that are unusually difficult or dangerous, or facilities that are inadequate. The man was traveling to a grocery store 20 minutes away when another driver hit his taxi and killed him. The wife filed suit for death benefits under the DBA, pointing to the special pay allotted for dangerous conditions as support for her claim, in addition to the perpetual “on call” nature of her spouse’s job.
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In personal injury cases, the focus is typically on the accident itself and its effects on the injured person. The actions of the person at fault, or defendant, are discussed, beginning with the question of whether he or she owed a duty to the injured party. The next question is whether the at-fault party’s actions led to the accident that caused the injuries sustained. The injured person investigates the at-fault party’s behavior, looking at his or her actions immediately preceding the accident. This investigation could extend to prior behavior like DUIs or negligent care of property to reveal a pattern of negligence. Sometimes, though, the at-fault party and his or her counsel will look at the medical history of the injured person to argue that the injuries alleged were not ones that stemmed from the accident.

In a recent unpublished Massachusetts appeals court case, Hannon vs. Calleva (14-P-1061), the at-fault party argued that the injuries claimed in that case were the result of the injured person’s decades of work as a telephone installation repair man. During the accident, the injured man was driving a large commercial van and was stopped at a red light. The at-fault driver pulled up behind him and and heard a beeping sound. When she turned around to look for the source of the sound, her car came into contact with the rear bumper of the van in front of her. The injured driver sought medical attention a few days after the accident, complaining of neck pain. Eventually, the neck pain became chronic for the injured driver. At trial, the driver discussed prior medical conditions that could have contributed to the pain, including treatment for a shoulder injury incurred at work. He also discussed his struggle to return to work and the inability to perform his duties when he was there, despite the physical therapy and trigger point injections.
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Many personal injury suits in Massachusetts are filed within the Commonwealth’s court system. Some lawsuits end up in federal court if a violation of a federal law or regulation occurs, or if one or more of the parties involved in litigation reside or conduct business in another state. The injured party would likely argue that his or her state is the most appropriate place for the litigation to unfold. Federal District Court cases from Massachusetts are heard in the First Circuit Court of Appeals, which also includes the district courts of Maine, New Hampshire, Puerto Rico, and Rhode Island. Any published decisions from the First Circuit are binding and instructive on similar matters arising from any and all districts.

A recent case arising from the District of Puerto Rico, Rosa-Rivera v. Dorado Health, Inc. (No. 13-1328) reviewed a jury award to an injured baby and his parents, after he received negligent care in the hospital by the doctors and staff. In this case, the parents, acting on their own behalf and on behalf of their son, alleged that the hospital and the obstetricians who delivered him were negligent and caused him to suffer trauma, shoulder dystocia, and ultimately paralysis of the arm. The parents took the matter to trial, and the jury found both the defendant doctors to be negligent, but only one was responsible for causing the injuries. The jury awarded the family $807,500. Dissatisfied with the verdict, the family sought a new trial but was denied by the district court. The family alleged several procedural errors during the trial to the district and circuit courts, but they were denied a new trial in both courts. The family argued that the trial judge erred in not allowing their attorney to ask a nurse at the defendant hospital leading questions. They also claimed that the judge should have used one of the proposed jury instructions offered by their attorney and that the jury gave an inconsistent verdict.
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Summer months are often the time when home repairs are done. Home owners hire general contractors for a project, and those contractors may hire subcontractors to do specific parts of the project. If one of the workers gets hurt, questions of liability instantly arise. If the worker is an employee of the subcontractor or general contractor, he or she may qualify for workers’ compensation benefits through his or her employer. The injured worker may also choose to hold the home owner or other parties involved in the work liable through a personal injury suit. Litigation and payment of costs are often taken up by the insurance companies involved, and they may dispute amongst themselves the additional issues beyond the facts surrounding the injury.

Preferred Mut. Ins. Co. v. Vermont Mut. Ins. Co. (No. 13-P-1890) discusses whether or not the insurance company that provided a homeowners’ insurance policy for the family, including the son, could withdraw from their responsibility to provide coverage in the presence of another insurance policy covering the son’s business. The discussion began after the family began to to renovate their second floor bathroom and hired a business to work on the plumbing. An employee of the plumbing contractor injured himself after he fell from the second floor, due to an unsecured railing that was unfastened by the son when he was moving a cast iron bathtub. The employee and his wife sued to hold the parents and the son personally liable for the accident and for the wife’s loss of consortium.

The company issuing the home owner policy refused to defend the son. The son’s policy issued in connection with his business as a self-employed electrician agreed to defend the son in the suit but reserved the right to withdraw, depending on whether or not his role in the renovation project was personal or professional. The injured plumber and his wife were ultimately successful at the jury trial, winning an award of over $225,000.00 for the plumber and more than $12,000.00 for the wife. The son’s business insurance company had previously filed another action naming the home owner insurance company, the son, and the parents as defendants, declaring that if their policy limits were exceeded, the other insurance company was obligated to defend and indemnify the son.
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If a Massachusetts worker is injured or falls ill while conducting a work-related activity, he or she may be able to pursue a variety of benefits, including workers’ compensation, to help pay for daily expenses and medical bills. This system, under the Commonwealth’s workers’ compensation laws, is designed to make the process easier for all parties. The employer does not have to worry about extensive personal injury suits, and the injured worker does not have to prove fault and wait a long time for payment of benefits. Other structured benefits, like unemployment benefits, may also be available to help pay for the expenses.

The main difference between workers’ compensation and unemployment assistance through the Massachusetts Department of Unemployment Assistance (DUA) is that the DUA provides benefits to workers who are not working through no fault of their own, but are able to work. Workers’ compensation is designed to provide benefits to injured workers who are unable to work, both temporarily and permanently. The difference between what types of benefits are available can hinge on a very slight variation of fact or circumstance of when the illness or injury occurred, and what action was taken to address the injury or illness.

A recent Appeals Court case, Ferreira v. Dept. of Unemployment Assistance (14-P-423), reviews a situation where an employee sought benefits under the DUA after he left the employment of a motorcycle dealership as a result of a health condition that he felt compelled the resignation. Massachusetts case law has established that “an employee who leaves work due to a reasonable belief that his work environment was causing a health problem is not disqualified from benefits.” (See, e.g., Carney Hosp. v. Director of the Div. of Employment Security, 382 Mass. 691 (1981). The set of facts in Ferreira primarily looks at the medical proof offered to determine whether or not the injured person was entitled to unemployment benefit payments.
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When organizing your Massachusetts will and estate, you may wonder about the extent of the powers and responsibilities given to those with titles like attorney-in-fact, health care proxy, trustee, guardian, or conservator. Estate planning includes assigning responsibility to someone in the course of your lifetime in the event you are unable to handle your own affairs. One of the documents you may use is a Power of Attorney. The Commonwealth Appeals Court recently issued a decision in Petriello v. Indresano (14-P-135) that reviewed whether or not the woman who acted as a health care proxy agent, and eventual designated agent with power of attorney, had the right to apply for harassment prevention orders against the children of her deceased domestic partner of 45 years. The Appeals Court ruled that a Power of Attorney can apply for the orders on the person’s behalf but ultimately decided to remand the case on another issue.

In Petriello, the court discussed the effect of a written power of attorney, which they considered to be a legal issue and not one for the jury to determine. Case law established that the court, when evaluating a power of attorney document, must put themselves in the place of the parties and give the words in the instrument their plain and ordinary meaning. A power of attorney is read like any other contract and is interpreted as a whole with effect given to all the provisions to enact its overall purpose. As the court reviewed the power of attorney instrument in Petriello, they felt the document gave explicit authority to the agent to “exercise or perform any act, power, duty, right or obligation” that the woman had, as if she was personally present. The power of attorney document granted the agent full authority and was executed soon after she designated her as her health care agent and in the midst of the conflict with her deceased domestic partner’s family.
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