Massachusetts Lawyer Blog

Massachusetts laws prohibiting discrimination against people with disabilities in Massachusetts disability cases, arising under Federal and MA Discrimination laws, may have different meanings in different contexts.

If you are being discriminated against due to a disability or perceived disability there may be a number of legal claims for you to consider to aid in protecting your rights.The enforcement of disability discrimination laws can involve different courts or commissions and may require various types of expert evidence and testimony.

The MA Disability Law Center offers a chart on Massachusetts laws prohibiting discrimination against people with disabilities and provides some examples of legal resources which may be available as a starting place.

Attorney John Parry has authored the book, Disability Discrimination Law, Evidence and Testimony. A Comprehensive Reference Manual for Lawyers, Judges and Disability Professionals, which covers a host of topics your lawyer or disability advocate may consider in handling your disability discrimination case.

Additionally, The Massachusetts Office on Disability (MOD) has prepared an online pamphlet to:

increase awareness of the rights of persons with disabilities, both by persons with disabilities themselves and by the larger community. Other goals of the Office include: the elimination of discrimination against persons with disabilities; the creation of a barrier free environment; the improvement of the state’s services delivery system for persons with disabilities, and the creation of fully integrated and accessible education, housing, transportation and employment in the public and private sectors.

Topics listed include:

• INTRODUCTION
• ABUSE / NEGLECT / TREATMENT CONDITIONS
• ARCHITECTURAL ACCESS
• AUTOMOBILES & TRANSPORTATION
• DISABILITY COMMISSIONS
• EDUCATION
• EMPLOYMENT
• EQUAL RIGHTS
• HATE CRIMES
• HOUSING
• PUBLIC PLACES & PROGRAMS
• SERVICE ANIMALS
• TELECOMMUNICATION AND TECHNOLOGY
• VOTING
• WHEELCHAIRS
• ZONING

Attorney Kevin Whitaker serves as a town councilor and as an appointed member of the Town of Weymouth, MA Commission on Disabilities.

Boston.com article, "Mass. woman kills self before home foreclosure," reports:

A 53-year-old wife and mother fatally shot herself shortly after faxing a letter to her mortgage company saying that by the time they foreclosed on her house that day, she would be dead.

According the the article, her husband did not know the foreclosure was scheduled today because his wife took care of the bills and mail.  The article also indicates the woman may have thought that life insurance proceeds could be used to pay for the home -- this isn't true.  No life insurance company that I'm aware of is going to pay any amount of an insurance policy for a suicide claim.  Let me be clear, suicide in not a solution.  This tragedy does, however, speak to the problem being faced by many -- times are financially tough and many people don't know what to do.

I'm seeing more despair and anxiety in my Weymouth law office with both new and old clients.  Often I'm meeting with distressed individuals, families, and business owners who break down in tears as they tell their story.  Many are relieved just by talking to someone or by getting their problems off their chest.  Later, when they learn alternatives to bankruptcy and foreclosure may exist for them, they ask, "Why didn't I do this sooner?"

If you are feeling overwhelmed by debt, the harassing phone calls, and threatening letters, then you need to seek help. You deserve the opportunity to explore all of your available options and to do so with an objective adviser.  There should be no guilt, or shame, or judgment associated with doing this.  Getting help is the responsible thing to do and it can often put you on the path toward a fresh start.  A new beginning without the burden and distraction of constant worry and anxiety could be right in front of you without you even knowing it.

This morning my daughter suggested we take the net (from that game where you hit the thing that looks like an empty ice cream cone) and use it to play volleyball.  I knew immediately she was talking about the net from the old badminton set because the "empty ice cream cone" was certainly the birdie we hit back and forth about a month ago.  In communication and in law context is everything -- both combined can lead to real value.

You shouldn't need to talk in legal mumbo jumbo to get your point across or to achieve the result you desire.  Find a lawyer who knows the law but also gets where you are coming from.  Seek out an attorney who will invest in building a relationship with you.  This is the foundation for providing value -- a real value that seeks to first understand and then meet your needs.  Anything else is just an empty ice cream cone...

While not a Massachusetts finding, the New York Times in an article entitled Legal Drugs Kill Far More Than Illegal, Florida Says, states:

An analysis of autopsies in 2007 released this week by the Florida Medical Examiners Commission found that the rate of deaths caused by prescription drugs was three times the rate of deaths caused by all illicit drugs combined.
...
The Florida report analyzed 168,900 deaths statewide. Cocaine, heroin and all methamphetamines caused 989 deaths, it found, while legal opioids — strong painkillers in brand-name drugs like Vicodin and OxyContin — caused 2,328.

The article also states,

The report’s findings track with similar studies by the federal Drug Enforcement Administration, which has found that roughly seven million Americans are abusing prescription drugs. If accurate, that would be an increase of 80 percent in six years and more than the total abusing cocaine, heroin, hallucinogens, Ecstasy and inhalants.

It's been a Happy Fathers' Day, made so by my children. We are preparing to go visit my father (and for a swim in his pool). I did a quick email check before we head out. An email I received from the Kingsbury Club in Duxbury states,

"Drowning is the #1 cause of death in children under the age of 5 in the state of Massachusetts."

Infant Swimming Resource is a comprehensive drown prevention swim program where a life saving technique and a swim skill are taught to children from age 6 months to 6 years.

Happy Fathers' Day but keep an extra eye on those kids when they're around water.

The U.S. Environmental Protection Agency (EPA) has released its 2008 Report on the Environment.

The document is public resource to enable understanding of trends and challenges to quality in air, water, land and human health. It seeks to measure progress toward protecting the environment and human health by providing data relevant to planning.

The EPA’s website states,

To accomplish its mission to protect human health and the environment, the U.S. Environmental Protection Agency (EPA) must pay close attention to trends in the condition of the nation’s air, water, and land, as well as related trends in human health and ecological systems. To meet this needs, EPA embarked on a bold initiative in 2001 to assemble, for the first time, the most reliable available indicators of national environmental and health conditions and trends that are important to EPA’s mission. EPA initially presented these indicators in its Draft Report on the Environment (ROE) Technical Document (TD), and its publicly oriented companion document the Draft Report on the Environment (ROE), both released in 2003. Since then, EPA has revised, updated, and refined the ROE in response to scientific developments, as well as feedback from EPA’s Scientific Advisory Board (SAB) and stakeholders. As a result, the EPA's 2008 Report on the Environment provides both an update and an improvement over the 2003 draft editions.

List of Regions for Regional Indicator Reports

Region One Indicators Report (Includes Massachusetts).

Imagine getting divorced, thinking the law states after divorce your ex is no longer your life insurance beneficiary. You don’t name a new beneficiary thinking the payout will go to your estate.

Maybe not...

Marla Presley in her firm’s website discusses a case in Penn, decided May 9, 2008 where the Penn. Superior Court ruled that the Employee Retirement Income Security Act (“ERISA”) preempts a state law that mandated the revocation of beneficiary designation upon divorce. The gentleman had filled out the beneficiary form listing his wife as the primary and his nephew as the contingent beneficiary. After his divorce he never changed the form. The ex got it all. Probably not the result that was intended.

Beneficiary designation forms are an often overlooked area of estate planning that can have dire consequences if not taken care of. I represented one person in a case where the beneficiary form was executed, put in an envelope, but never mailed. It became an expensive stamp.

Today was a great day for a bike ride and my four and a half year old daughter let me know it. We rode our bikes about ½ mile to Joe Fucile’s bike shop in Columbian Square. Our mission was to buy her a new helmet. Tweety bird may have been cool a couple of years ago, but now it’s time for an upgrade. While Joe was out today, we were pleasantly helped in finding her a new pink helmet with flowers on it. The outing was lots of fun. Although it can be difficult to keep pace with a flash of lightning on training wheels, I managed and the conversation was lots of fun.

A few minutes ago, I checked my email and found a funny reminder that the ½ Ironman triathlon I signed up for, Mooseman, is a few weeks away. The water temperature is measuring a brisk 51 degrees. As I contemplated the lack of time training I’ve put in recently, I began to wonder... Perhaps I can use my daughter’s training wheels for the bike portion. Meanwhile my wife, Sue, is walking in the Avon Breast Cancer Walk this weekend. Her, her two teammates, and many others will be embarking on a marathon walk on day one, sleep in a tent for the night, and finish with a half marathon walk on day two. My firm is a sponsor of her walk, and I’m very proud of her commitment. Sue walks in memory of her mother, Barbara, who passed away from breast cancer when Sue was thirteen. You can read an article Ed Baker of the Weymouth News wrote about Sue a few months ago.

My daughter and son are very proud of her too. They have been hard at work on their t-shirts to cheer on their mom. Unfortunately, I had used the wrong side of the iron-on decorations, which in turn ruined the iron. To her credit, I think Sue was impressed I knew how to turn the iron on -- I’m no longer allowed to use the clothes washing machine after a similar incident.

But anyway, here’s my limited time special offer…

Some may find this an odd post to read on lawyer’s blog. As I was considering what to write about, it struck me that May is national bike month and The League of American Bicyclists is promoting Bike-to-Work Week from May 12-16 and Bike-to-Work Day on Friday, May 16. Having had a great bike ride with my daughter today, thinking about the bike ride I’m not looking forward to in a few weeks, and reflecting on our family’s pride in Sue’s efforts, I’ve decided to do something a little different in this post.

Many of our clients know we are active with many local causes and events. In fact, many of our clients are active too. I’d like to invite you to join us and to take action. If you live in Massachusetts and you send me a picture of you and your bike – with the picture postmarked before Sunday, along with a donation for any amount you decide upon payable to the Avon Breast Cancer Two Day Walk, I’ll prepare a simple will for you personally or for you and your spouse for free. That’s right, no legal fee whatsoever.

The donation amount is completely up to you and the amount will have no bearing on the offer. If you send me an email address, I’ll send you a questionnaire so we can get started or I can mail it to you if you prefer. After I receive your answers, I’ll call you if I have any questions or send you a draft will within one week. Once you’ve received the draft will, I’ll be happy to answer any questions you have at no charge. Next I’ll make any needed changes before sending you a final draft with instructions on how to execute it.

Since I do, however, want to strike while the iron is hot (in consideration of the iron I ruined), this offer is only open to the first ten people or couples who respond. If you’re number 11 or above, I’ll return your donation or forward it along, it will be your choice completely.

What do you have to lose? Simply:

1. Take a bike ride,
2. Send me a picture,
3. Make a donation to help fight breast cancer, and
4. Receive a free will prepared by a Massachusetts attorney.

Get pedaling…

Mail to:

Wilson & Whitaker, LLC
Attn: Avon Walk for Breast Cancer
53 Winter Street
Weymouth, MA 02188

p.s. To the skeptics out there, this isn’t some gimmick. I’ve done things like this before with other charitable events. Sue has already greatly exceeded her fundraising goal as have both her teammates. This is just frosting on the cake. What are you waiting for. Everyone wins.

p.p.s I'll make it even easier. Make a contribution on her donation site now, and I'll give you an extra week for you to send a picture of you and a bike. I can't, however, refund donations made through the site. If you're not donator 10 or under (since this was posted), you don't get the deal. Act now!

Whether you’re a passenger, driver, or pedestrian in a Massachusetts auto accident, the insurance issues can be tricky. It’s not uncommon for someoe injured in a car accident to go see a medical provider thinking their medical care should be covered by the person who caused their accident. If it’s not covered, they believe their medical insurance company should cover the bills. After all, that's why we pay so much for all this insurance, right? But did you know that thinking the insurance issues are simple and will take care of themselves could lead to receiving big bills for unpaid medical expenses?

The failure to take the right steps with insurance coverage in MA accidents can lead to a bill going unpaid and later ending up in collection. This is not a good result for someone who was injured by another in a car accident. Here’s a very basic overview for someone injured in an accident. (For simplicity sake, I’ll assume no time was missed from work, but that’s a bad assumption for lawyers to make in most serious car accidents.)

The first $2,000 in medical bills should be paid by your Auto Insurer’s Motor Vehicle Personal Injury Protection (PIP) insurance benefits. If you have health insurance, then your health insurance provider should pay for claims beyond the first $2,000 unless you have MedPay benefits under your auto insurance policy. If you have MedPay, a recent case confirms your health insurer may defer coverage to the MedPay insurer and the MedPay policy should pay until it maxes out its payments in accordance with the policy. Then, your health insurer would make the remaining payments. For the purposes of this post, I won’t get into how these issues also relate to settlements and trials.

No matter what, however, don't make the costly mistake of going outside your health insurance plan or you risk having to pay for the medical services out of your own pocket. “[E]ven when there is health insurance, PIP does not cover claims denied by a health insurance provider because the insured has failed to comply with the health insurance contract, for example by seeking out-of-network care.” Dominguez v. Liberty Mut. Ins. Co., 429 Mass. 112, 115-117 (1999).

If you don’t have health insurance, then your PIP benefits should pay the first $8,000 in claims and if you have MedPay benefits, it should pay until the coverage limit is reached.

The interplay of PIP, MedPay and Health Insurer issues was recently addressed with the Massachusetts Supreme Judicial Court (SJC) concluding there is “… nothing in the statutory language governing PIP or MedPay to prohibit health insurers from deferring coverage due to the existence of MedPay benefits...” Metropolitan Property and Casualty Insurance Company vs. Blue Shield of Massachusetts, Inc. SJC-09944 (slip opinion)

Justice Bostford, writing for the court, provides a statutory framework of the insurance issues raised.

Statutory framework. The Massachusetts "no-fault" insurance plan, adopted in 1970, originally provided for PIP benefits (up to $2,000) to be paid in place of tort recovery for injuries that caused less than $500 in medical expenses. See § 34A (defining "[p]ersonal injury protection"), as amended through St. 1970, c. 670, §§ 1, 2; G. L. c. 90, § 34M, inserted by St. 1970, c. 670, § 4; G. L. c. 231, § 6D, inserted by St. 1970, c. 670, § 5. See also Pinnick v. Cleary, 360 Mass. 1, 5-10 (1971). In 1988, in an effort to bring the statutory amounts in line with escalating medical costs and further to control automobile insurance premiums, the Legislature increased the tort threshold to $2,000 and increased PIP coverage to $8,000, but provided that PIP would pay only the first $2,000 in medical expenses in cases where the insured also had health insurance that would cover expenses above that amount. See § 34A, as amended through St. 1988, c. 273, §§ 15-16; G. L. c. 231, § 6D, as amended by St. 1988, c. 273, § 55. See also Creswell v. Medical W. Community Health Plan, Inc., 419 Mass. 327, 329-330 (1995). This "coordination of benefits" scheme providing for the sharing of costs between automobile and health insurers is expressed in two sentences in the final paragraph of § 34A:

"[P]ersonal injury protection provisions shall not provide for payment of more than two thousand dollars of expenses incurred within two years from the date of accident for [medical and funeral services] if, and to the extent that, such expenses have been or will be compensated, paid or indemnified pursuant to any policy of health, sickness or disability insurance . . . . No policy of health, sickness or disability insurance . . . shall deny coverage for said expenses because of the existence of personal injury protection benefits."

§ 34A, as amended through St. 1988, c. 273, § 16. Under these provisions, PIP only covers medical expenses above $2,000 if they are not covered by health insurance. Moreover, even when there is health insurance, PIP does not cover claims denied by a health insurance provider because the insured has failed to comply with the health insurance contract, for example by seeking out-of-network care. Dominguez v. Liberty Mut. Ins. Co., 429 Mass. 112, 115-117 (1999).

MedPay benefits are not part of the statutory scheme that established the no-fault system with its central feature of PIP benefits. Since 1943, G. L. c. 175, § 111C, has authorized, for various types of liability insurance policies, including automobile policies, optional endorsements to provide coverage for reasonable medical and related expenses. G. L. c. 175, § 111C, inserted by St. 1943, c. 375, § 1. Beginning in 1968, however, under G. L. c. 175, § 113C, automobile insurers doing business in the Commonwealth have been required to offer every person purchasing a policy the option of purchasing "medical coverage, so called . . . to a limit of at least five thousand dollars." G. L. c. 175, § 113C, as amended by St. 1968, c. 643, § 3. This obligation to offer optional medical, or MedPay, benefits is reflected in Part 6 of the standard Massachusetts automobile insurance policy (policy). In particular, Part 6 of the seventh edition of the policy, applicable to the accident in this case, provides in relevant part: "Under this Part, we will pay reasonable expenses for necessary medical and funeral services incurred as a result of an accident. . . . We must sell you limits of $5,000 per person if you want to buy them." Thus, it appears that G. L. c. 175, § 111C, authorizes automobile insurers to offer MedPay coverage, and G. L. c. 175, § 113C, requires them to do so. Accord Morin v. Massachusetts Blue Cross, Inc., 365 Mass. 379, 385 & n.5 (1974).
[Footnotes deleted]

In the end, it’s important to realize protecting your case (and your credit rating) is not simply about liability but also requires dealing with complicated insurance issues. Failure to take the right steps in a Massachusetts auto accident can lead to collections efforts against you and ultimately to you paying out of pocket for an injury (even when you were a passenger or completely blameless.)

A study entitled Legal Liability: The Consequences of School Injury in the Journal of School Health, May 2007, Vol. 77, No. 5, (Abstract only) examined cases involving schools, lawsuits, and injuries. Schools paid awards about 2/3 of the time, either by verdict (26.8%) or settlement (40.4%). The average case lasted just under 4 years from the time of injury to the case’s resolution by trial or settlement. Surprisingly, they found it difficult to predict the cases resulting in an award, stating: “this study found no difference on any case characteristics between cases that resulted in awards and those that did not.”

They authors concluded,

Many of the injuries documented in this study may have been prevented through better maintenance of school facilities, equipment and playing fields; addition of safety features and equipment; improved supervision of students; education of school officials, students, and parents; and enforcement of building codes and rules, especially during sports and recreational activity.

Award Range: $1 to $15,398,762; Mean: $562,915; Median: $50,000; 25th percentile: $9,750; and 75th percentile: $300,000.

Massachusetts has a number of schools (listed below) reported as affected on the USDA beef recall list. Records of beef purchased throughout the two years covered by the recall were reviewed. Note: not all School Food Authorities (SFA) listed had product remaining in inventory when the recall began and inclusion on the list does not necessarily indicate that any individual school within an identified SFA received any of the recalled ground beef products.

The recall followed after disturbing video shot by the Humane Society of the United States (HSUS) was released. On its site, the Humane Society states, “An HSUS investigation reveals one of the leading suppliers of the national school lunch program is permitting sick and injured dairy cows to enter the food supply.”

The list of Massachusetts schools taken from the USDA national list of schools reported by the beef recall includes:

Continue reading "Massachusetts School Food Authorities affected by Beef Recall: List Published by United States Department of Agriculture (USDA)" »

Medical malpractice claims (or other claims) involving Massachusetts residents vacationing in a foreign country may need to be pursued in that foreign country. This issue was discussed in a Massachusetts woman's lawsuit (through her estate) involving her trip to the Dominican Republic. In Marilyn Gianocostats and George Gianocostas, Administrators of the Estate of Jennifer Gianocostas vs. Interface Group-Massachusetts, Inc. doing business as GWV International (SJC-10017, Slip Opinion), the court wrote,

"When... conduct occurs in a foreign country... [and] ... concerns medical services provided to travelers by residents of that country, our interests may have to bend to those of the foreign jurisdiction. The balance tips decisively in favor of a foreign jurisdiction when a primary issue to be litigated is the standard of medical care that may be (or has been) obtained there."

Actor Heath Ledger, 28, died, apparently drug related. Here's yet another story of a smart, funny, and talented performer being lost in the prime of his life. Drugs change people and ruin lives. The damage they cause may even reach beyond the grave. Could drug use and overdose fatalities form the basis for legal challenges in probate matters? Sure. Overdose and drug use could certainly be raised as issues concerning mental capacity. Drug use -- prescription or street -- may have a growing impact on probate matters.

D.N.R. -- these three letters are an abbreviation for do not resuscitate but they hold vastly different meanings for different people. Regardless of one's beliefs, it remains a deep personal decision and one that should be known by family members and potential medical decision makers.

Have you communicated your preferences with both your family and your physicians? Perhaps these topics aren't easy to discuss, but they're unlikely to get any easier with the passage of time. A Boston Globe article recently addressed this in an informative way. See Patricia Wen's article,For many, Do Not Resuscitate' too painful to discuss.