Articles Posted in Legal Strategies

Civil litigation revolves around questions of whether the named party or parties were negligent and whether the defendant or defendants caused the injury. There is less of a general discussion around another element that must be proven: damages. It is easy to assume that if someone was injured, he or she is probably paying for doctors’ bills and prescriptions that were previously absent from his or her daily life. However, if the injured party had pre-existing medical conditions with overlapping symptoms, the proof becomes much more intricate than providing a stack of receipts to the court. Medical experts may be necessary to testify as to what physical and psychological conditions, and therefore treatment of those conditions, can be attributed to the accident. Testimony may also be necessary to not only show what happened in the past but advise what lifelong impairments will result from the injury.

In a recently published decision, Fyffe v. Massachusetts Bay Transportation Authority, the Massachusetts Court of Appeals addressed several issues stemming from a damages-only trial. The woman was injured when she rode a public transit trolley that crashed into another trolley. Both sides agreed that the operator was negligent, but they disagreed as to what the defendants’ obligation was for reasonable and fair compensation for the injuries she suffered. The woman was employed as a gate agent for an airline and suffered injuries to her spine from the accident. The injuries prevented her from performing one of her main duties of lifting heavy suitcases. She was able to earn up to $40,000 per year plus benefits and was eligible for a 4% raise every three years, but she found herself working as a waitress for around $15,000 a year due to her injuries.
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Under Massachusetts law, there are several types of damages an injured person can recover through civil action: economic damages, which cover medical expenses, continuing medical care, lost wages, and inability to earn future income; and non-economic damages, which include pain and suffering, loss of enjoyment, and disfigurement. In recent news, a Florida jury awarded $23.6 billion in punitive damages to a widow who lost her husband in 1996 to lung cancer. The widow alleged that the tobacco industry failed to warn her husband that nicotine was addictive and can cause lung cancer. The deceased husband smoked from age 13 till his death at age 36.

Punitive damages are damages designed to punish through monetary means and discourage similar behavior in the future by the at-fault party and the general public. They are reserved for the most egregious and outrageous behavior by at-fault parties. In Massachusetts, punitive damages are only available if granted by statute. (See International Fid. Ins. Co. v. Wilson, 443 N.E.2d 1308 (1983).) Examples of actions that allow punitive damages are wrongful death actions under Chapter 229, Section 2 and employee discrimination actions under Chapter 151B. Punitive damages are available for medical malpractice suits, but those have a cap of $500,000 unless the injury is catastrophic. Massachusetts case law has established that punitive damages are only available for conduct that is outrageous due to the defendant’s evil motive or reckless indifference to the rights of others.

In Haddad v. Wal-mart Stores, Inc., 455 Mass. 91 (2009), the Massachusetts Supreme Judicial Court reinstated a $1 million punitive damage jury verdict for a woman who sued her employer, Wal-mart, for discrimination in violation of Chapter 151. In this case, the woman was awarded $972,774 in compensatory damages, but the judge set aside the $1 million punitive award, reasoning that punitive damages could only have been awarded if the employer acted with the specific knowledge it was violating the anti-discrimination statute. The Supreme Judicial Court noted in its decision that this requirement only applied to age discrimination cases. The Court also referred to prior rulings that held if the employer unlawfully interfered with the legally protected rights of others, that would be enough “reckless indifference” to warrant punitive damages. The Court noted the history of refusing to pay the hourly differential to the plaintiff, a female pharmacist, and firing her for one offense after 10 years of employment equated to egregious behavior.
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When any personal injury case goes to trial, the client’s medical records and itemized medical bills must be certified in order to be introduced into evidence. Without this mandated certification, the judge will throw out the medical records and bills.

A certification is a document that the doctor or authorized agent of a hospital signs certifying that the bills are fair and reasonable and that the records are true and accurate. Massachusetts law requires that the certification be “subscribed and sworn to under the penalties of perjury.” M.G.L. c. 233 § 79G.

More importantly, a copy of the medical records and bills, along with a “written notice of intention to offer such bills or reports as evidence” must be mailed via certified mail return receipt requested to all opposing parties no less than ten (10) days before trial. M.G.L. c. 233 § 79G. Once the return receipt has been received, counsel must file an Affidavit with the court stating that he or she has complied with the obligations required by M.G.L. c. 233 § 79G.
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According to the Medicare Secondary Payer (MSP) Act, Medicare automatically has a lien on your settlement for reimbursement of all injury-related medical expenses it paid on your behalf as a result of your accident or injury. This means that Medicare is legally entitled to a portion of your settlement proceeds. Medicare’s payments, i.e. conditional payments, are payments made to your medical providers for medical expenses that were incurred on or after your date of injury up until the date of your settlement. Under Federal regulation, Medicare has a right to recover from your settlement proceeds for all the money it [Medicare] paid out for your injury-related claims.

Over the past few years, there has been discussion about personal injury cases and whether a Medicare Set Aside Arrangement (MSA) is appropriate. “Determining whether a Medicare Set Aside Arrangement (MSA) is appropriate is based on case-specific facts.” Tort Trial & Insurance Practice Section, The Brief, Fall 2012.Whether a MSA is needed in a workers’ compensation settlement depends on the settlement terms. For example, when a workers’ compensation case settles on an unaccepted basis, the settlement is three-fold containing allocations for wage loss, past medical expenses, and future medical expenses. Since the settlement specifically includes future medical expenses, a Medicare Set Aside Arrangement would be appropriate. However, in Massachusetts, almost all workers’ compensation settlements are based on accepted liability and there are no allocated future medical expenses because the settlement agreement allows the medical expenses to remain open after the settlement. This means that any future treatment would be covered by the workers’ compensation insurance company and therefore no Medicare Set-Aside Arrangement is warranted.

When it comes to a personal injury settlement, every case is different so there is no cookie-cutter mold as in workers’ compensation settlements. Personal injury cases involve various limits of liability, pain and suffering, multiple injuries, etc. In some cases, there simply isn’t enough liability insurance to cover the client’s damages. In that respect, how can Medicare require a set-aside when there isn’t even enough coverage to compensate the injured?

Since there is no specificity whether the settlement included any future medical expenses, then it would be impossible to determine whether a Medicare Set Aside Arrangement is necessary. However, if the case went to a jury and the jury specifically determined how much money was to be allocated for lost wages, past medical expenses, and future medical expenses, then it maybe MSA-appropriate. In the meantime, there is no Federal regulation mandating a Medicare Set Aside for any third party liability settlement, judgment or award.

If you would like to learn more about Medicare and Set-Aside Arrangements, please visit the following links:

Workers’ Compensation Medicare Set Aside Arrangements
Medicare Secondary Payer Recovery Contractor (MSPRC)
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If, like so many of us, you post your everyday activities and updates on social media sites, step back, pause, and let’s think about this.

Increasingly, defense investigators and attorneys routinely check and monitor sites like Facebook, Twitter, LinkedIn, GooglePlus, MySpace, etc., to easily compare claimants’ activities with their injury status. It’s obvious that postings like, “Biking the Boston Marathon course today!” and “Just finished a killer P90X workout!” are inconsistent with many claims of soft-tissue or orthopedic injury, for example.

Less obvious are more mundane posts: “Whew! Just mowed the lawn!” or “I’m so exhausted I just washed every window in this house!” You may have taken 4 hours and 2 painkillers to get through these tasks. Those details, while not post-worthy, would certainly affect the interpretation of your activity level. To a defense investigator or attorney, your posted activities may create an inaccurate picture of your capabilities. More important, without further explanation, they may seem to contradict your claim of injury.