Boston Injury Lawyer Blog

The Massachusetts Supreme Judicial Court, sitting in Boston, Massachusetts, has had a busy week handing down significant case law. The Law Office of Neil Burns reported earlier regarding slip and fall injuries on ice and snow, and the change in the law in evaluating those cases. Also this week, the Court changed how the medical bills of a personal injury plaintiff, someone injured a car accident, for example, are submitted into evidence at trial.

Thus, the actual medical bills, not the substantially lower bills actually paid by the insurer, are admissible at trial. The Court also found, however, that the defendant - who allegedly caused the car accident in which the plaintiff was injured - could still submit evidence regarding the range of payments accepted by medical providers as payment in full for such services.

This is because the Court found that Massachusetts General Laws "Section 79G states unambiguously that medical bills are admissible to establish the reasonable value of services rendered where the services are related to the injury for which the claim was made," Justice Margot G. Botsford wrote on behalf of the Court. Nonetheless, the Court also found that §79G clearly permitted the defendant to present evidence of the range of payments that a provider accepts for the particular services received by the plaintiff.

It was noted that the practical reality is that in smaller cases with lower medical bills, not much will change whereas a defendant would not likely elect to incur the additional expense of calling such witness for trial. But in cases where medical bills are substantial, the impact of the Court's ruling could be significant. For in those cases where the defendant elects to offer testimony regarding the range of payments accepted by medical providers as payment in full for such services, it will be up to the jury to decide what constitutes a reasonable charge for the medical service provided.

Massachusetts has recently seen a rash of Boston area car accidents involving Massachusetts State Police officers. Thus, the State Police Association of Massachusetts -- the troopers' union -- is calling for action: they want more personnel on major highways during peak hours, primarily Friday and Saturday nights. The attorneys at the Boston Law Office of Neil Burns want all Boston and Massachusetts residents to drive with caution as we see firsthand the results of personal injuries resulting from car accidents and those injured in car accidents.

Recently, a Massachusetts state trooper was recently killed in Mansfield, Massachusetts and two more state troopers were injured during car accidents in Cambridge, Massachusetts and Taunton, Massachusetts. These crashes are thus increasing road, traffic, and automobile safety concerns in recent weeks and prompting Massachusetts to take action.

The move is getting a lot of attention and for good reason. Across the country, the number of officers killed in traffic accidents is up 35 percent this year.

Continue reading "Massachusetts State Troopers Try to Improve Safety" »

Boston area residents should be role models when it comes to bicycle safety. Massachusetts General Laws, Chapter 85: Section 11B, requires all persons 16 and under to wear an approved bicycle helmet while operating their bike on any public way in Massachusetts. The Law says nothing regarding adults and those over 16, however. The Boston Law Office of Neil Burns represents individuals injured in bicycle accidents and knows the importance of wearing a helmet in promoting bicycle safety.

The importance of wearing a bicycle helmet, regardless of age, cannot be overstated. More than 90 percent of the 714 bicyclists killed in 2008 were not wearing helmets, according the Institute for Highway Safety. So even though there is no law, per se, requiring helmet use for those older than 16, safety is the real issue.

Continue reading "Bicycle Helmet Safety" »

Just today, the Massachusetts Supreme Judicial Court, sitting in Boston, has handed down new law regarding slip and fall injuries involving snow and ice. It used to be that the duty of care owed by landowners to lawful visitors on their property did not include any obligation to remove snow and ice that had accumulated naturally. Now, however, that has changed. The attorneys at the Boston Law Office of Neil Burns know the importance of staying up-to-date and current regarding applicable laws affecting our clients.

There is no longer a distinction for land owners regarding snow and ice. We now have a standard rule of reasonable care for all property owners--commercial and residential.

The case arose from an accident at a department store. The plaintiff parked in a handicapped parking place, passed a pile of snow which had been plowed, and did his shopping. On his way back to his car, the plaintiff fell on ice which had either fallen from the pile or accumulated as a result of melting from the pile, later re-freezing. The trial court ruled that the accumulation was natural and granted summary judgment for the defendant store and landscaping company. The Appeals Court affirmed.

Continue reading "New Slip and Fall Injury Law " »

In a case handed down by the Massachusetts Supreme Judicial Court, the Court took employers off the hook for the responsibility of their employees while off site. Essentially, the Court said that in the "comings and goings" of an employee, the employer is not responsible. We see many such cases: there is insufficient motor vehicle insurance, so the injured party needs to file a claim against third parties. The case involved a pedestrian injured by a driver who had been drinking with his boss prior to driving home. The driver was convicted of driving under the influence of alcohol.

In this case, Lev verses Beverly Enterprises, the employee, Ahern, and his boss were having drinks, discussing work. After having approximately two drinks, Ahern left the bar to drive home. Unfortunately, Ahern's motor vehicle struck Mr. Lev as he was crossing a street - suffering two broken legs and other serious injuries. The plaintiff, Lev, alleged that Ahern was acting within the scope of his employment because it was essentially a work meeting, notwithstanding the fact that it was "off campus" and that, therefore, the company was responsible for Ahern's negligent driving. Unfortunately for Ahern, the trial judge, Merita Hopkins, sided with the employer and the Supreme Judicial Court affirmed stating that the drive from the bar home was "not an essential part of the employer's mission."

A case recently decided in Boston and upheld by the First U.S. Circuit Court of Appeals found no merit in an employee's personal injury lawsuit, where claim she should be able to sue her employer because at the time of her injury she was working for a wholly-owned subsidiary of her employer. The Boston attorneys at the Law Office of Neil Burns have successfully resolved cases for employees injured at work through no fault of their when liability rests with a party other than the employer. We can evaluate your work injury claim to determine if this option is available to you.

In deciding that under Massachusetts law an employer cannot be held personal liable when an employee's personal injury occurs in the scope of their employment, the Court looked whether an employment relationship existed, including whether the entity directed and controlled the employee's activities.

In the case, a flight attendant suffered severe back injuries when the plane came to an abrupt stop on the runway. She underwent multiple spinal surgeries but was unable to return to work as a flight attendant. She agreed to accept a lump sum in lieu of future workers' compensation payments. The agreement listed her employer as "Song Airlines/Delta (in dispute)." She also sued Delta for her personal injuries, arguing that Song Airlines, not Delta, was her employer.

The U.S. District Court, District of Massachusetts granted summary judgment for Delta, finding that it was immune from personal liability because the claimant was a "loaned servant" when her injuries occurred. Because an employment relationship existed, the Massachusetts Workers' Compensation Act provided the exclusive remedy for the claimant's injuries. The 1st U.S. Circuit Court of Appeals agreed, upholding the lower court's decision.

Boston automobile drivers face many tough road conditions while driving in Massachusetts. If your car is damaged in an automobile accident because of someone else's negligence, first try to work things out with your automobile insurance company. But if you cannot get the relief you seek or feel you are entitled to, then you may consider bringing your property damage (or car accident damage) claim before the Massachusetts small claims court.

The Boston Law Office of Neil Burns wants you to know that a dispute regarding damage to your car is sometimes best handled in Massachusetts small claims court. But, if you are injured in a car accident, you should seek advice from an attorney because your personal injury claim will most likely not be able to be filed in a Massachusetts small claims court.

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Continue reading "Massachusetts Small Claims Court For Property Damage" »

The Massachusetts Statehouse in Boston is abuzz with pending legislation set to be finalized shortly. The attorneys at the Boston Law Office of Neil Burns recently brought you an article concerning efforts to pass legislation banning texting while driving. As attorneys representing those injured in car accidents and other personal injuries, we know firsthand the importance of safe driving practices: distracted driving leads to many Boston residents being involved in car accidents, and suffering pedestrian and bicycle injuries.

The pending legislation includes more than just banning texting while driving. Massachusetts legislators sought to how best limit distracted driving, generally, and thus said they would also bar the youngest drivers, those under age 18, from talking on the phone while driving and would require the oldest drivers, those 75 and above, to have vision tests and to renew their license in person, rather than online.

The legislation, known as the Safe Driving Act, would make Massachusetts the 29th state to ban texting for all drivers and the 29th state to ban all phone use for drivers under 18, according to the Governors Highway Safety Association. The texting ban would also cover e-mailing, Internet searching, and other non-calling activity on a phone, laptop, or handheld electronic device by anyone operating a motor vehicle. It would apply to drivers not only while they are driving but also while waiting at traffic lights and stop signs. Texting -- and talking for those under 18 -- would still be allowed by a driver in an emergency or when the car is pulled over and parked.

Massachusetts courts are facing devastating budget cuts, with Boston courts trying to do more with less, notes Suffolk County Clerk-Magistrate Michael Donovan. The Massachusetts Bar Association (MBA) assembled a task force to examine the day-to-day effects of recent court budget cuts. The Boston personal injury attorneys at the Law Office of Neil Burns are mindful of the important role courts play in adjudicating car accident and personal injury cases.

As Clerk-Magistrate Donovan noted, Boston area courts see their case load continue to go up, with "the only thing that's declined is the resources we need to serve the public." The statics as reported by the Massachusetts Bar Association are grim. Overall, the Massachusetts trial courts have lost 9.7 percent of its staff between July 1, 2007 and May 10, 2010, due to a hard hiring freeze. This equates to a whopping 740 staff position that are currently vacant and remained unfilled due to budget constraints.

Continue reading "Massachusetts Courts Facing Budget Crisis" »

Massachusetts and Boston's surrounding suburbs are a difficult place for medical malpractice claims. Massachusetts Lawyers Weekly recently reviewed every medical malpractice case tried in Massachusetts Superior Court's in 2009. The end result showed how difficult it is to win your case against a Boston or Massachusetts area hospital or doctor. The experienced personal injury attorneys at the Boston Law Office of Neil Burns know first-hand how difficult it is to win at trial. "The survey done by Massachusetts Lawyers Weekly simply demonstrates what we know firsthand," says Boston personal injury attorney Neil Burns.

The survey is sobering. There are 10 counties in Massachusetts, and Barnstable County (encompassing Cape Cod and the Islands) has returned the highest percentage of medical malpractice verdicts at 25%. Half of the counties in the survey did not return a single plaintiff's verdict for all of 2009. As stated in Massachusetts Lawyers Weekly following their survey, "it was nearly impossible to win medical-malpractice claims."

Continue reading "Massachusetts Medical Malpractice Trials" »

We warn our clients to secure Uninsurance and Underinsurance coverage for their motor vehicles all the time. This is because in my 25 years representing victims of motor vehicle accidents, one of the biggest problems we face is clients with significant injuries and insufficient insurance. A new bill, aimed at illegal immigrants requires the Registry of Motor Vehicles to secure the license number of the person registering the vehicle.

Again, the point of the law is to stop illegal immigrants from registering a car. Regardless of the intent, our fear as personal injury attorneys, reading the statistics that both sides publish, is that there are too many people out there without any effective insurance. If they are driving a car without a license, they are more likely to be uninsured.

Thus, whatever your position on illegal immigrants, review your insurance coverage as soon as possible to purchase sufficient uninsurance and underinsurance coverage.

Located in Boston, the Massachusetts Crimes Against Children Task Force (ICAC) was created to help Massachusetts State and local law enforcement agencies enhance their investigative response to offenders who use the Internet, online communication systems, or other computer technology to exploit children. Protecting children includes monitoring their time on the internet. The Boston attorneys at the Law Office of Neil Burns represent children injured, and children hurt in accidents and childhood-type accidents and injuries, and we bring this message to help keep Boston and Massachusetts area children safe.

And by way of update, risks associated with internet use can be potentially serious. A recent survey done by Cox Communication, Inc., shows preliminary results where more than 80 percent of teens surveyed believe what they post online could impact their personal reputation. Despite this understanding, however, teens continue to engage in risky behavior online. For example, 50 percent of those surveyed said they have posted a fake age online and 38 percent have become social network friends with someone they did not know.

During the past five years, these surveys have shown a dramatic increase in teen online access both in the home and via sophisticated wireless devices, the rise of social networking, the migration of bullying to online forums, and even the careless exchange of sexually suggestive texts (sexts). The surveys have also shown that one thing has not changed, however, education is key. Parents need to be more vigilant than ever in monitoring their children's online activity; they must strive to create an open dialogue with their kids both for their protection and for their future success.

Boston Municipal Court's Appellate Division recently decided an important case clarifying a Massachusetts insurer's use of the Personal Injury Protection Application in relation to extending Personal Injury Protection benefits. Boston personal injury and car accident attorney Thiadora A. Pina, of the Law Office of Neil Burns, notes this case lends direction to a long standing issue regarding payment of PIP benefits. "Massachusetts insurers have long held to the notion that you must return their individual form in order to be eligible for PIP benefits," notes Attorney Pina. "Finally, we know the issue remains prejudice to the insurer, not what particular form is filed."

The facts of the case recently decided concerned a 2005 motor vehicle accident in which a claimant was injured while an occupant in a motor vehicle insured by defendant Pilgrim Insurance Company under a standard Massachusetts automobile policy that provided personal injury protection benefits. Six days later, on February 8, 2005, Pilgrim was notified of both the accident and the claim by its insured, and of the injuries sustained in the accident.

On February 8, 2005, Pilgrim sent its insured a PIP package, which was resent to the insured's attorney on March 14, 2005 after Pilgrim was notified that its insured had retained counsel. Ultimately, Pilgrim never received a completed PIP package per se from either the insured, or her attorney. By letter dated August 15, 2005, the attorney notified Pilgrim that he no longer represented the insured.

The insured was treated by Advanced Spine Centers, Inc., and was billed $5,910.00 for its services. Advanced Spine updated Pilgrim several times during the course of its treatment regarding the insured's medical notes and bills. In response, Pilgrim sent form letters advising that it was unable to issue payment because it was 'waiting for the insured to submit an application for benefits.' On July 12, 2006, Pilgrim sent Advanced Spine the same form letter, but inserted the following language: 'Personal Injury protection benefits were denied. Please contact the claimant for additional information.'

The attorneys to the case agreed that the issue presented was whether the insured's failure to submit the specific PIP package sent by Pilgrim was a material breach of the cooperation clause of the standard automobile policy and a violation of G.L.c. 90, §34M, which precluded her recovery (and, thus, Advanced Spine's) of PIP benefits.

The Court concluded that "Neither [the insured's] motor vehicle policy that was made part of the record, nor G.L.c. 90, §34A, requires any particular form to be used by the PIP applicant to provide the necessary information to the PIP insurer. ... We find no prejudice to Pilgrim in the manner it received the information it had requested in the PIP package. Pilgrim was in possession of all the information that it needed to process [the] PIP claim. . . ."

It should be noted that both Advance Spine and the insured's attorney had sent several additional documents, including the treatment bills and records, to Pilgrim. Thus, enabling the Court to conclude that "Pilgrim was in possession of all the information that it needed to process [the] PIP claim. . . ."

We welcome you to contact our office with any questions.

Lynn City Council's office maybe following in Boston's footsteps as the Massachusetts city considers an ordinance requiring all pit bulls in Lynn be muzzled while they're out in the street on a leash. "Dog bite injuries can be very serious," notes Boston attorney Neil Burns of the Law Office of Neil Burns, "cities should take steps they feel are appropriate in order to protect people from dog bite injuries and attacks."

"They're powerful animals," Lynn City Council President Tim Phelan said. And because of a recent wave a pit bull attacks on Lynn residents, he is proposing the ordinance take effect. "You just don't see yellow labs in the news attacking people all the time," Phelan said. What does Lynn City Council President Tim Phelan say to charges he is discriminating against one breed? "Tough," he said.

But Dr. Amy Marder of the Animal Rescue League of Boston noted that there is no evidence that such an ordinance results in a decrease in the reported rate of dog bite attacks. In addition, Dr. Martha Smith, director of veterinary medicine of the Animal Rescue League of Boston, opined that while she "understand(s) completely why people are desperate to find a solution, a muzzle law is not going to solve the problem." As for a muzzle law, these veterinarians noted that Boston already has one.

On Tuesday, June 15, 2010, Lynn City Council President Tim Phelan is expected to propose the ordinance to the rest of the Council. There will be a public hearing on the matter.

Located in Boston, Lawyers Weekly of Massachusetts recently reviewed civil verdicts rendered in Superior Courts in Boston and throughout Massachusetts. The review showed that the deck is heavily stacked against tort plaintiffs, particularly those who go to trial in Norfolk County and other Boston suburban communities. The Boston attorneys at the Law Office of Neil Burns recommend that those clients considering taking their personal injury, car accident or other injury case to trial listen to the advice of their attorney. A lot of factors must be weighed before taking a case to trial, and the rate of success is certainly one large factor to consider.

Lawyers Weekly noted that of the civil verdicts rendered in Superior Court in 2009, only five of the 35 personal injury verdicts returned in Norfolk County in 2009 favored plaintiffs. The county's 14 percent success rate was 22 percentage points lower than Essex County, which had the highest rate of plaintiffs' verdicts, and 12 points behind the statewide average of 26 percent.
The only region in Massachusetts with a lower success rate than Norfolk County was the Cape and Islands, which saw eight of its nine tort trials decided in favor of defendants.

Superior Court Judge Patrick F. Brady has been keeping track of verdicts for negligence trial he has presided over. Of the 151 negligence trials Judge Brady has heard since 1993, when he first started keeping track, only 16 have resulted in plaintiffs' verdicts, he said. In Norfolk County, only seven of 69 verdicts ended in favor of plaintiffs. Of the 52 trials he has heard in Plymouth County, 49 - or 92 percent - were decided for the defense.

Continue reading "Trying the Negligence Case in Massachusetts" »