Massachusetts Personal Injury Blog

Important New Massachusetts Snow and Ice Decision

The Massachusetts Appeals Court recently decided the case of O'Brien v. Leahy Landscaping.  In that case, the plaintiff, O'Brien, sustained a fractured wrist after slipping and falling due to snow and ice that had remained on the Defendant's premises for five days following a snow storm.  As you may know from reading this blog, the only way to create liability in Massachusetts snow and ice cases is to show the accident was caused by an 'unnatural' accumulation of ice and snow.  Many times, this is difficult, if not impossible to show.

O'Brien's lawyer successfully argued that the snow and ice had been converted to an 'unnatural' accumulation by the landowner's failure to clear it within a reasonable period of time.  This case is significant because it expands the definition of what constitutes an 'unnatural' accumulation of ice and snow in Massachusetts.  That means those injured in snow and ice accidents now have an added way in which to create liability on the part of a landowner.

Why Doctors Have the Advantage in Medical Malpractice Trials

I found the following post on the Atlanta Injury Law & Civil Litigation Blog which makes reference to a report published in the May issue of the Michigan Law Review about how, and why doctors have the advantate in medical malpractice trials.  Here is the post:

A report which will be published in May in the Michigan Law Review.confirms what most tort law practitioners have long recognized: the defense has a strong advantage in medical malpractice trials.

Philip Peters Jr., of the University of Missouri-Columbia School of Law, concluded that juries treat doctors favorably, "perhaps unfairly so," and are more likely than even fellow physicians to defer to a doctor's opinion. Peters found that most malpractice suits end in defense verdicts, and that the cases that go to trial tend to be the weakest ones, since those with strong evidence usually settle before trial.In an examination of win rates, Peters found that 27 percent to 30 percent of filed medical malpractice suits end in a plaintiff's verdict, the lowest success rate of any type of tort litigation.

In the study, jurors found in favor of physicians significantly more often than independent reviewing physicians would have.  The study asked independent physicians to evaluate incoming claims and rate them as defensible, indefensible or unclear. Plaintiffs won 21 percent of those cases rated as defensible, 30 percent of those rated unclear and 42 percent of those rated indefensible. Thus, plaintiff wins were in the minority even in the most meritorious cases.

Why Are Massachusetts Injury Victims Losing at Trial?

Currently, plaintiffs in Massachusetts are losing at trial at an alarming rate.  This is notably reflected in soft-tissue, minor impact motor vehicle accident cases.  In these cases, defense attorneys in Massachusetts are winning the battle while injured plaintiffs are losing the great majority of these cases.

Jurors deciding these cases are arguably reluctant to award money to a plaintiff who has only suffered a neck or back strain stemming from a low-impact motor vehicle accident.  What these jurors don't know is that severe injuries can result from low-impact accidents.  That is why testimony of a physical therapist or chiropractor at trial can serve to educate a jury that injuries, and often substantial injuries, due in fact result from low-impact accidents.

The testimony of such practitioners is relatively inexpensive, and it is a great way to argue, and perhaps convince a jury, about the nature and extent of your personal injuries.  By bringing these providers to court to testify is one possible way of reducing the overwhelming number of defense verdicts in Massachusetts courts.

Important New Massachusetts Premises Liability Decision

The Supreme Judicial Court of Massachusetts recently altered the law surrounding slip and fall accidents.  Under the traditional approach, a storeowner would only be liable if there was notice of the dangerous condition that caused the injury.  Notice could be shown in one of three ways.  First, that the owner created the dangerous condition.  Two, that the owner knew of the dangerous condition.  Three, that the owner should have known about the dangerous condition, and failed to correct it.  Establishing any one of these standards is often difficult for a plaintiff to prove.

Now, under the more modern "mode of operation" approach, a storeowner can be held liable for injuries where (1) injury is caused from a "self-service" mode of operation where customers help themselves, and the risk of injury is reasonably foreseeable and (2) the owner failed to take reasonable measures to protect against the risk of injury, and (3) that the owner failed to act reasonably.

Big Medical Malpractice Jury Award in Brockton Today

A Brockton, Massachusetts jury awarded a medical malpractice victim a 3.15M verdict today in the Brockton Superior Court.  2.5M of the jury verdict was allocated to damages and roughly $634,000.00 was allocated to interest.  Congratulations to attorney Jay Lynch of Lynch & Lynch who was the Plaintiff's attorney.  I will be sure to provide more details of this case as they become available. 

'Day in the Life' Videos for Catastrophic Massachusetts Injury Cases

Today, with the help of an experienced videographer, I shot my first 'Day in the Life' video.  Well, I should say that the videographer shot the footage, and I was merely a bystander to the shoot. 

These videos are really only appropriate in catastrophic injury cases where death or serious disfigurement has occurred.  If done well, these videos effectively showcase the injury victim and how he/she manages life's daily requirements.  The videographer will shoot the injury victim and effectively portray how he/she struggles to do the most mundane activities such as cleaning one's face or mopping a floor.

A well-made 'Day in the Life' brings to life and conveys to the viewer the struggle the injury victim faces each day.  These videos can be used at mediation or trial in order to communicate the nature and extent of the victim's limitations, and how he/she deals with the injury on a daily basis.

My 400th Post!

I am pleased to announce this is my 400th post to the Massachusetts Personal Injury Blog.  It has been a pleasure writing this blog, and I thank those of you who read the blog!  Stay tuned for some exciting changes to the blog that will be happening very soon.

Fractured Wrist Information

If you have sustained a fractured wrist from an accident - these injuries often are caused by slip and falls - it is important for you to know about what this means to your wrist.  Here is some information on wrist fractures provided by Hughston Health Alert:

The wrist joint is made up of the two bones in your forearm (the radius and the ulna) and the many tiny bones in the base of your hand (carpal bones). The radius is the bone on the thumb side of the forearm, and the ulna is the outer bone of the forearm located on the side of the pinky (Fig. 1). Fractures of these bones in the forearm are the most common wrist fractures in all age groups. These fractures generally occur during a fall on an outstretched hand. Children with these fractures may have only a small amount of swelling and deformity (the bone is out of its normal position). In adults, particularly the elderly, fractures near the wrist can cause a large amount of swelling and deformity.

The physician's first step in treating anyone with wrist pain after an injury is to obtain and evaluate an x-ray. This will usually be all the testing necessary to tell if a bone is fractured (broken, cracked, chipped, or smashed). Sometimes, however, more testing may be necessary (such as an MRI, CT, or bone scan) to help determine the best form of treatment.

The treatment of a wrist fracture varies widely and depends on its location, position, and stability, and how many pieces of broken bone have been created by the injury. Most fractures are treated simply with a cast; sometimes the bone fragments must be gently pushed back to a more normal position before casting. Some fractures are unstable enough that a cast cannot hold the pieces of bone in a normal position for healing, and surgery may then be necessary. Patients with wrist fractures usually do very well, although some may have problems with slight stiffness or loss of motion. Arthritis can also develop sometime in the future, particularly if the smooth, shiny joint surfaces were disrupted by the fracture pieces.

Are Medical Malpractice Settlements Taxable in Massachusetts?

No.  As is the case with auto accident, slip and fall, dog bite, and all other personal injury settlements, medical malpractice settlements are not taxable in Massachusetts.  The reason such settlements are not taxable is because they are intended to put the injury victim in the position they were in before the accident.  Receiving a settlement is not a taxable event because there is no "gain" because the injury victim is "made whole" through the settlement.  However, settlements for emotional distress, as well as punitive damage awards, are in fact taxable.

Slip and Fall Accident Information

You would be surprised how many people in Massachusetts are significantly injured in slip and fall accidents every year.  If you are one of these people, it is important for you to know how fault, or negligence, is determined in these cases.  Here is a great post provided by Dallas personal injury attorney Jeffrey H. Rasansky over at injuryboard.com on this very topic:

Many thousands of people are injured each year -- some very seriously -- when they slip or trip and fall on a dangerous floor, a flight of stairs or a rough patch of ground. If you have been injured in this way, first consider that it is a normal part of living for things to fall or to drip on a floor or the ground, and for smooth surfaces to become uneven. Also, some things put in the ground -- a drainage grate, for example -- serve a useful purpose there. Therefore, someone who owns or occupies property cannot always be held responsible for immediately picking up or cleaning every slippery substance on a floor. Nor is a property owner always responsible for someone slipping or tripping on something that an ordinary person should expect to find there or should see and avoid. We all have an obligation to watch where we're going.