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During the winter months, Massachusetts residents brace for the snow and ice that cause slick and slippery roads, sidewalks, and driveways. Some public establishments take the time and care necessary to ensure safe passage, while others neglect their property. Injuries that occur due to poor property maintenance are known as “slip and fall” cases, and more formally as “premises liability.” Slip and falls extend beyond icy passages and can include accidents like a slippery floor in a grocery store, or a decrepit, poorly lit staircase in an apartment complex. Owners are responsible under state law to maintain their premises in a safe condition for everyone who can reasonably expected to be on the property. If someone suffers an injury as a result of neglect, she or he can seek compensation for medical bills, lost wages, and pain and suffering from the property owner.

Thorough investigation conducted as soon as possible after the injury can greatly aid in the pursuit of damages. Each slip and fall case is unique, and individual facts that arise from an investigation can affect the outcome and amount of award an injured party receives. Frequently, owners will point to the injured party’s actions to rebut claims of negligence, or to their own attempts to warn or prevent injury.

The Commonwealth Court of Massachusetts recently issued a Memorandum and Order in Monaco vs. Vacation Camp Resorts International, Inc., which provides an example of the legal analysis conducted in a premises liability case. In this case, a man sought recovery for serious injuries when he fell down a hill. This hill was used by campers to reach a shower building, and the injured guest argued that the owners of the resort failed to light the pathway, keep it in a safe condition, or warn against its dangers. The trial court issued a summary judgment in favor of the resort, and the injured guest appealed.
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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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With the holiday season upon workers and residents of Massachusetts, it is important to remember to stay safe when traveling to and from festivities during the holidays. Several establishments and events serve alcohol, and other drivers may become reckless by driving while intoxicated or become distracted by texting others, which are both prohibited under Massachusetts law. While it may be easy to determine that the driver of the other car should be held accountable for your injuries, it may become apparent and necessary that other people or entities should be held responsible as well.

In a civil action, the injured person, or plaintiff, must show the defendant, or the party alleged to have caused the injury, had a duty toward him or her. If a person violates this duty, and this causes an injury, he or she is responsible for damages under Massachusetts civil law. If there is no duty or link between the accident and the injury, liability does not exist. Examples of duties toward others can be found in Massachusetts statutory law. A driver has a duty to others on the roads or sidewalks to operate his or her vehicle safely. Businesses that sell or serve alcoholic beverages have a duty, known as Dram Shop Liability (Massachusetts General Laws Ch. 138, Sec. 69), to stop or abstain from serving alcohol to an intoxicated person. Likewise, a host is responsible under Social Host Liability laws (Massachusetts General Laws Ch. 138, Sec. 34) to refrain from providing an underage or intoxicated person with alcohol. Both commercial establishments and private hosts must remain vigilant about how much alcohol is being served and to whom it is served.
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In Massachusetts, Personal Injury Protection (PIP) benefits are often found in drivers’ car insurance policies. While this type of coverage is not required by law and can be waived, it is frequently purchased by Massachusetts drivers. These are often described as “no-fault” benefits and are available to the driver or a passenger of the insured vehicle. They are also available to injured pedestrians from the policy of the vehicle that hit them. PIP benefits were designed to cover reasonable and necessary medical expenses, funeral expenses, loss of wages, and ordinary and necessary household services that you can no longer provide for yourself as a result of the injury. However, the amount of PIP available to an injured party may vary, depending on several factors.

Someone injured in an auto accident while working cannot access PIP benefits, since he or she would be able to use workers’ compensation benefits, which also cover medical expenses, funeral expenses, and lost wages. They are also unavailable to those who are injured while committing a felony or driving while under the influence. The maximum amount of PIP benefits is $8,000.00, but only $2,000.00 of those benefits are assuredly available to the injured. If the claimant does not have health insurance or MedPay, he or she is covered up to $8,000.00. If the policy holder has a separate health insurance policy, any amount over $2,000.00 must be submitted to the health insurer for a determination of whether or not the claim is covered. The claim cannot be denied based solely upon the existence of PIP, but if the claim is not covered under the health insurance policy, it can be denied by the health insurer for reasons outlined in the policy. The claim may be re-submitted to the motor vehicle insurer for consideration. While an auto insurance carrier can deny claims using the same reasons as the medical insurer, such as the injured person going to an out-of-network provider, it must pay for items that may not be included in the health insurance plan, like chiropractor and dentist visits.
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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 accidents happen at the workplace, the injured person has no control over the severity of the injury and whether or not he or she suffered from other medical ailments independent of the workplace. Pre-existing conditions often present large hurdles to obtaining workers’ compensation benefits. While fault or negligence does not have to be shown, the injury must have occurred while furthering the business of the employer. Complex medical records and expert testimony from physicians or other medical professions may be necessary to show the origins of the injury and what type of medical treatment will be necessary to make the employee whole from the work-place accident.

In Lastih v. Erickson Retirement Community, a bus driver for a retirement community injured her lower back while lifting a resident’s walker. After a denial by the insurance company for benefits, she sought a hearing in front of a Workers’ Compensation Judge, where the insurance company claimed that she had pre-existing conditions as its defense. The judge ruled in favor of the injured bus driver, relying on testimony from the impartial medical examiner, who opined that she sustained lumbar and sacroiliac (lower back) strain that aggravated the pre-existing degenerative joint and disc disease in her spine. The judge found her to be totally incapacitated and ordered benefits. No party appealed this decision.

Two years later, the insurer filed to have the benefits discontinued, which was denied. The insurer then had another impartial medical examiner assess the injured bus driver. The insurer withdrew the appeal following the report, and the employee filed for total, permanent incapacity benefits. After an additional examination, reports, and appeals, the judge awarded total and permanent benefits. The judge found that the employee’s disability was casually related to the injuries she sustained when lifting the resident’s wheelchair onto the bus.
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In Massachusetts, when a medical malpractice action is filed in court, the case must be submitted to the Massachusetts Medical Malpractice Tribunal (MMT) for review. The MMT was established in the mid-1970s, and it does not apply to those who present claims in a letter addressed to the healthcare provider. The tribunal has one superior court judge, an attorney, and a Massachusetts-licensed healthcare provider. The provider is often a physician but can be a nurse, pharmacist, or physical therapist; and he or she must be a provider that works in the same medical specialty in which the alleged injury occurred.

Tribunals ask the question of whether or not the injured person or the deceased person’s estate has enough properly substantiated evidence to bring a case before a jury. A statement from an expert stating the standard of care was breached and caused injury to the patient must be included. The MMT reviews medical, hospital, and office records to make a determination. If two of the three panelists agree with the injured patient, the case can proceed. If the MMT agrees with the defendant hospital or physician, a bond has to be posted to proceed.

In a Massachusetts case, Thou v. Russo, the Appeals Court reviewed an appeal from a dismissed malpractice action. The deceased patient suffered a heart attack after liposuction and abdominoplasty procedures. The injured patient’s estate filed suit against the anesthesiologist, who used a solution containing lidocaine and epinephrine delivered through “several small stab incisions” in the areas to be suctioned. During the surgery, the patient’s blood pressure dropped, and emergency procedures were performed for an hour and a half. The patient became stable for an hour and a half but eventually went into cardiac arrest.
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Massachusetts residents often travel to nearby states, and several out-of-state drivers make their way to Massachusetts. If an accident occurs in Massachusetts, and the at-fault party has an out-of-state policy, the question of which law applies may arise in a personal injury action, especially if there’s a difference in the required minimum coverage. Individual states each have their own car insurance policy requirements that dictate minimum amounts of coverage. Individual insurance companies have uniquely written policies that comply with the state in which they are licensed. As medical bills add up, maximizing the amount paid by an insurance company can mean saving thousands of dollars, and a judicial determination of which law applies can affect how much is paid out of pocket.

A Massachusetts state appellate case, Clarendon Nat’l Ins. Co. vs. Arbella Mutual Ins. Co., provides an example of how state courts handle this situation. In this case, a woman was driving a loaner car from her dealership when she had a car accident with four other vehicles. The loaner car was covered by an insurance policy in Rhode Island. When there are two competing laws that could apply to a car accident, the forum state’s conflict-of-laws rules choose which state’s law is applicable. The accident in Clarendon occurred in Massachusetts, so the court looked to Massachusetts case law and the Restatement of Conflict of Laws to determine whether Massachusetts or Rhode Island insurance law applied.
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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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