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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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Massachusetts medical malpractice claims must be reviewed by a tribunal before they are allowed to proceed in the civil court system. During this review, the tribunal is made up of a superior court judge, an attorney, and a Massachusetts-licensed healthcare provider who practices in the same field of medicine in which the alleged injury occurred. The healthcare provider is often a medical doctor, but can also be a nurse, physical therapist, or pharmacist. This group asks whether there is enough evidence to present a medical malpractice claim in front of a jury. If the tribunal finds against the plaintiff, the plaintiff can appeal the denial of the claim to the Appeals Court of Massachusetts.

In Normand vs. Cambria, the injured patient filed a medical malpractice action against two doctors. The tribunal allowed suit against one of the doctors, but felt there was not enough proof against the other to move forward. The injured patient sought treatment for a thoracoabdominal aortic aneurysm. The injured patient was treated by a surgeon and an attending physician who provided follow-up care to the injured patient. During the procedure, a device was installed in the patient to drain the spinal fluid to encourage blood flow to the spinal cord and decrease pressure from the fluid.

The injured patient’s expert testified that the drain was removed prematurely, resulting in the injured spinal cord ischemia, partial paralysis, and neurogenic bladder. The expert stated that the drain should have remained in no less than 72 hours after the surgery. The removal of the drain under 48 hours formed the basis of the injured party’s allegation that this was below the acceptable standard of care.
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Massachusetts General Law, Section 34M provides personal injury protection to those injured in a car accident, regardless of fault. The law was designed to provide monies up to $8,000 for reasonable expenses within two years of the accident, including necessary medical, surgical, x-ray, and dental services. The law was created to ensure prompt payment of an injured person’s medical and out-of-pocket expenses, as well as reduce the amount of auto accident litigation and costs for the insurance companies. The coverage extends not only to the named insured, but to the injured passengers as well.

Part of the statutory requirements to receive benefits include a physical examination. Section 34 requires the injured party to submit to a physical examination by someone selected by the insurer so the insurance company can better calculate and provide amounts due. These are known as Independent Medical Exams, or IMEs. The wording of the statute reads that the person to conduct the exam is to be a physician selected by the insurer. Once the insurer receives the report with proof of the amount of expenses and loss incurred, they must issue payment within 30 days.

In the Massachusetts Supreme Judicial Court case of Ortiz vs. Examworks, Inc., the court reviewed whether or not a licensed physical therapist used by the insurance company to conduct the IME was a “physician” under the statute. A man injured in a car accident sought PIP benefits to pay for his medical expenses. The insurance company engaged a medical company to conduct the independent medical examination. The injured driver, who suffered neck and back injuries, received a letter from the company providing notice that the exam was scheduled. A second letter revealed that it was to be done by the physical therapist. The injured’s attorney sent a letter to the medical company alleging several violations of the law through its deception. The matter eventually led to this appeal.
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Under Massachusetts General Laws, an injured worker with serious, catastrophic injuries can qualify for permanent and total incapacity benefits. If an injured worker is still unable to work in any capacity after reaching maximum medical improvement, where he or she is unable to physically improve or recover even with additional surgery, that worker is entitled to benefits under the Commonwealth’s Workers’ Compensation Act. In King v. City of Newton, the Reviewing Board looked at an appeal filed by a self-insured employer who challenged the award of permanent and total incapacity benefits, disfigurement benefits, and reasonable and necessary medical expenses that included a motorized chair lift.

In this appeal, the focus centered on the testimony of the medical examiner and the Workers’ Compensation Judge’s (WCJ’s) method of issuing findings and accepting the evidence presented. The injured employee worked in the school cafeteria, which is a party of the Massachusetts’ town’s school system. She slipped and fell while clearing tables, hitting one of the tables and harming her right leg. She was seen by the school nurse, who applied ice to her leg, and used a cane the next day to get around. The injured school worker was then told by her supervisor to seek medical treatment. She followed up and was diagnosed as suffering from a sprained ankle and bruising of her right knee and lower left ribs. The city then began to pay her temporary total incapacity benefits.

Sixteen months after these benefits, the self-insured city filed a complaint to discontinue the temporary benefits based on the report of the employer’s examining physician. The WCJ heard that motion in addition to the injured employee’s motion for the employer to pay for a motorized chair lift. At this hearing, the judge granted the request regarding the motorized chair lift and denied the employer’s request to discontinue weekly benefits Following this hearing, the employer appealed and the injured worker was examined again, this time by an impartial medical examiner. After receiving the impartial examiner’s report, the employer moved for a finding of inadequacy regarding the impartial examiner’s report.
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Personal injury suits in Massachusetts that involve cancer are typically medical malpractice actions that involve a misdiagnosis or negligent care. One specific type of cancer, mesothelioma, has a unique status due to the history of employees suffering negligent and reckless asbestos exposure at the hands of their employer or a business owner. Usually those affected were employed in the construction industry or by a company that manufactures products often used in the construction business. Over the last several decades, several civil actions have been filed for those who have suffered from asbestos-related diseases. Recently, the First Circuit Court of Appeals released a precedential opinion in February that upheld a lower court’s dismissal of a suit filed by a trust that was created to assist injured employees’ claims after an asbestos-manufacturing company went into bankruptcy.

In Barraford v. Lydon, the First Circuit addressed a set of claims filed by a trust created as part of an asbestos manufacturer’s bankruptcy plan. While most companies have their liabilities discharged upon plan confirmation, the liability for the company’s asbestos exposure suits remained. The trust was formed to act as an agent for those injured by the exposure. The trust brought a suit on behalf of a group of injured employees, nearly 10 years after the claim accrued. The company claimed that the statute of limitations had run on the collective claims and moved for dismissal of the case.
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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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The construction of a will or trust in Massachusetts can determine whether or not the estate of a deceased person is distributed according to his or her wishes. The placement of punctuation or the absence of two words can completely change the meaning of a document and how assets are issued. The structure of the document can certainly affect how or whether the assets are taxed upon transfer.

At the end of last year, the Massachusetts Supreme Judicial Court issued a ruling on one of the trusts created among a series of trusts for the benefit of a couple’s children and grandchildren. The couple each created trusts in their names to provide income for their sons, preserving principal for future generations. The trust under the patriarch’s name was irrevocable upon his death and established two trusts for his wife’s benefit during her lifetime. She was granted the power of appointment over the marital trust, and when she passed, the principal of the patriarch’s trust was divided into two “share trusts” for each son. The sons had the power of appointment over these trusts to “one or more of the Donor’s issue.”

These share trusts were not subject to the Federal generation skipping transfer (GST) tax, which taxes property transfers made to grandchildren that were not subject to the estate tax upon the trust’s initial transfer. This tax was enacted in 1986 and offered exemptions up to $3.5 million. This tax was enacted after the patriarch’s death, but while the matriarch still lived, so she created her own trust to help avoid the taxation of the GST. She used her power of appointment over the marital trust by appointing it to her new trust, directing that amounts equal to the exemption be held in a family trust. The trust explicitly stated that her grandchildren and remote descendants are fully exempt from the GST tax.
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When a Massachusetts worker faces the pain and inconvenience of an injury, the frustration over the inability to work can sometimes be overwhelming. Aside from facing lost wages during the recovery period, the employee may face the daunting reality of learning a new job skill if the injury was severe enough to prevent a full return to the work he or she had previously been able to do. Learning a new trade and potentially changing one’s occupation completely is challenging enough after a serious injury, but it can become a more complex decision if the worker suffers a series of moderate injuries over a period of time instead of catastrophic injuries from one accident.

In the Commonwealth of Massachusetts Reviewing Board Decision, McDonald v. Brand Energy Services, Inc., the Board affirmed the award of Section 34 benefits (Temporary Total Incapacity) for an injured employee. The employee was a union laborer who had worked and been injured in industrial accidents over the years, dating back to 1991. The injured employee suffered back injuries four times prior to the immediate case on appeal. The employee acquired lump sum settlements in each case, and returned to work three years after the fourth accident in 2001. He did not work the heaviest jobs but did push through daily moderate back pain to complete other tasks.

In 2012, the employee sustained another back injury when a piece of staging was dropped by a colleague as they were loading a truck together. The employee was approved for light work following the accident, but he did not return to work. When he brought his application for benefits, the insurer alleged that by returning to work after several back injuries, he was committing serious and willful misconduct that precluded his ability to receive workers’ compensation for this injury. The workers’ compensation judge at the initial hearing ruled against the insurer, making a finding that the employee did not commit willful or serious misconduct and did not misrepresent his injury, since he advised he could not perform the heaviest tasks, like jackhammering. The Reviewing Board also did not believe that the employee’s return to work was misconduct, and it found that the injury was the result of the other employee hitting him, and it was no fault of his own.
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