Massachusetts Personal Injury Blog

Massachusetts Nursing Home Abuse and Neglect a Serious Problem

Abuse and neglect of the elderly in nursing homes is a serious and prevalent problem.  In Massachusetts these deplorable and heinous acts take place with alarming frequency.  Here is a post provided courtesy of the Medical Malpractice Law Blog on this very sad phenomenon:

As our population ages and people are living longer lives, more and more people are turning to nursing homes to help with the care of their family members. According to the U.S. House of Representatives, Committee on Government Reform – Minority Office, over 17,000 nursing homes in the United States care for more than 1.6 million residents, a figure that is expected to quadruple to 6.6 million residents by 2050.

While many nursing homes provide exceptional care, far too many do not. Nursing homes are required care for patients and take into account their individual needs. Unfortunately, this does not always occur. According to recent studies, nearly one million nursing home patients are victims of nursing home abuse and neglect each year.

Brain Injuries on the Rise

Far too many people in Massachusetts suffer head injuries stemming from traumatic personal injury events.  These injuries run the gamut from the fairly innocuous, to the catastrophic.  Here is an article provided courtesy of Reuters concerning the recent and sudden rise in the number of head injuries throughout the nation:

WASHINGTON (Reuters) - More Americans are being hospitalized with very serious head injuries, and government statisticians say they don't know why.

Statisticians on Wednesday reported a 38 percent increase in hospital admissions for the most serious kind of head injury, type 1 traumatic brain injury, between 2001 and 2004. The biggest single cause was falls.

The rate had been declining for 10 years so the finding is puzzling, said Dr. Claudia Steiner of the Agency for Healthcare Research and Quality.

"We take our data, we look at it, then we see these kinds of trends," Steiner said in a telephone interview.

She said she hopes the report would spur people with more expertise in the area and policymakers to look into the issue and see what the causes are.

Underinsurance Motorist Coverage (UIM) in Massachusetts

Underinsured motorist coverage is provided by your insurance company per your automotive insurance policy.  It comes into play when you have been involved in a motor vehicle accident in Massachusetts and the person responsible for the accident does not have enough liability coverage to cover your losses and pain and suffering stemming from the accident.  However, you are only entitled to that amount of underinsured coverage to the extent that your UIM policy exceeds the liability limits of the person who caused the accident.  Let us take an example to flush this out.

Suppose that you have $80,000.00 in damages following the accident.  You also have $100,000.00 in UIM coverage from your insurance company.  But, the person who hit you only has the required, minimum amount of liability coverage of $20,000.00.  In that case, you would first collect the $20,000.00 from the other driver's liability coverage.  Then you would make a first-party claim (your underinsured claim) against your auto insurance carrier.  But the most you could collect for the UIM claim is $80,000.00.  That is because you are only entitled to UIM benefits to the extent that they exceed the total amount of the at-fault driver's liability policy.  Therefore, the most you could collect would be a total of $100,000.00, and not $120,000.00.

Confidentiality and Malpractice Settlements in Massachusetts

Massachusetts attorney Eric J. Parker has written a great article concerning the role confidentiality agreements play in Massachusetts medical malpractice settlements.  Here is the article:

Negotiated settlements of claims arising from medical negligence frequently involve the issue of confidentiality between the parties. In cases where a defendant physician, facility or other health care provider demands a confidentiality provision as part of a settlement agreement, plaintiff’s medical malpractice lawyer must consider several factors prior to agreeing to include confidentiality as a material term of a release and settlement agreement.

The first and most obvious consideration is the client’s intent and objective in bringing the action in the first place. A client that is dealing with their own, or a family member’s loss, as a result of a medical error experiences a wide array of emotions in deciding whether to pursue a claim. A frequently stated motivating factor is the desire to “make sure this doesn’t happen to someone else.” As noble a cause as this may seem, it does not square with the remedies available in most jurisdictions, or the purpose of the civil trial system. The civil litigant is entitled to fair compensation for their injuries, and that remedy is the “justice” available.

Slip and Fall Accidents and the Critical Significance of "Notice"

The success of slip and fall cases in Massachusetts hinge on the element of "notice."  Property owners in Massachusetts are required to keep their property in a reasonably safe condition free from defects.  These owners must take reasonable measures to insure their property is safe for those lawfully on the property.  In order to establish negligence on the part of a property owner, you need to show the owner had notice of the dangerous defect that caused your slip and fall injuries.

Should You Give a Recorded Statement to the Insurance Adjuster?

No.  Never.  It will only hurt your case.  Insurance adjusters are trained to ask certain, specific questions which are intended to make the strongest personal injury claims look weak.  Here is a great post regarding recorded statements, and their pitfalls from Maryland personal injury attorney Ronald Miller over at his Maryland Injury Lawyer Blog:

Most insurance adjusters tell personal injury lawyers that they need a recorded statement from the lawyer's client to "firm up liability" or to "assess credibility." But providing a recorded statement is typically a "loose-tie." It rarely results in a finding on liability in favor of the accident attorney's client. Of course, this is not to say that this is always the case, but absent special circumstances, the downside far outweighs any benefits.

Arbitrating a Massachusetts Personal Injury Claim

Arbitration is an increasingly common method for resolving personal injury cases in Massachusetts.  One of the great benefits of arbitration is that you avoid the anxiety and unpredictability of a jury trial.  Also, like mediation, arbitration is quick, as opposed to a jury trial which can be protracted and delayed.  Another great benefit of arbitration is the fact that they are inexpensive, unlike jury trials where expenses can be substantial.

You must understand the decision of the arbitrator is final and that you are stuck with whatever decision the arbitrator makes for your case.  But, most if not all arbitrators know the real value of a case so as a plaintiff, you can be confident that you will not be shafted if you have a good case.

The Benefits of Mediating a Massachusetts Injury Claim

I find mediation to be a great alternative to trying a Massachusetts personal injury case before a jury.  It is not that I don't like trying a case before a jury (it is actually quite fun).  Rather, jury trials are so uncertain and unpredictable because trying a jury case is a complete and total crap shoot; you never know how the jury will decide the case, until the end when the verdict is reached. Those concerns are obviated with mediation.  It is for that very reason that I love mediating cases.

Mediation is great for a few different reasons.  First, it is a relatively inexpensive process as opposed to the high costs associated with a jury trial.  Second, mediations usually are quick in that they can range from as short as two hours to at most, a couple of days.  Third, mediation is non-binding, as opposed to the binding nature of a jury decision (barring any appeals).  Fourth, mediation is a cooperative environment whereas litigation is purely adversarial.  Fifth, mediations can be a win-win for all parties involved.  That is because with a successful mediation, there truly are no losers because both or all parties win.

If your Massachusetts injury lawyer can get the insurance adjuster to agree to mediate your claim, it can be a very quick, cooperative and gratifying experience.  But remember that if a settlement is not reached at your mediation - which is a common occurence - you need to be ready and willing to let a jury decide your Massachusetts personal injury claim.

Great Advice for Negotiating a Personal Injury Case

If you are attempting to settle your Massachusetts injury claim without an attorney, you are going to need to know a few things about insurance adjusters.  The following was written by Maryland personal injury attorney Ronald Miller who wrote a guest post for the Trial Lawyer Resource Center.  Note that the post is geared towards personal injury attorneys who deal with claims adjusters on a routine basis.  Nonetheless, the post will educate you about aspects about the negotiating process you may not be aware of.  Here is the post:

Every day, I speak to insurance claims adjusters on the phone attempting to resolve personal injury cases.  It is dangerous to try to put people with complex goals and motives into simple boxes.  But let's do it anyway. 

There are three categories of insurance adjusters: (1) "It is not my money, I just want to get this file off my desk one way or another and keep my job"; (2) "It is not the insurance companies' money, it is my money.  Moreover, all claimants are liars and I'm dying to litigate these cases over the phone with you in an effort to repeatedly underscore my view of personal injury victims generally;" and (3) "I know my job is important, I am competent, and I evaluate cases fairly on a case-by-case basis.  I'm not paying more on a case than I think it is worth but I'm also not afraid to pay it what it is worth." Luckily, most adjusters fall into category one or three.

Misdiagnosis and How it Leads to Medical Malpractice Claims in Massachusetts

Here is an excellent op-ed article from yesterday's (March 19, 2007) Boston Globe written by Massachusetts doctor Jerome Groopman, M.D.  The article provides explanations as to why doctors make mistakes in Massachusetts.  Unfortunately, these mistakes often lead to medical malpractice claims against these doctors.  Here is the article:

Five years ago, a woman named Leslie developed indigestion, abdominal discomfort , and, occasionally, diarrhea. She has just given birth to her third child, and life was understandably hectic at home. Her primary-care physician gave her antacids, but this afforded only slight relief.