Massachusetts Lawyer Blog

In Coombes v. Florio, 450 Mass. 182 (2007), a physician owed a duty of reasonable care to those foreseeability put at risk by a doctor’s failure to warn the patient of the side effects of the patient's treatment. In Coombes a young boy was struck and killed by a car driven by one taking medications, but who had neither been warned of the medications' side effects, nor been told not to drive while taking these medications. See Massachusetts Bar Association review of Coombes. Thus, liability under Coombes could be extended and include those not having any doctor-patient relationship. A recent case dealing with negligence, duty, and foreseeability sought to expand this holding even further, but it was unsuccessful before the Massachusetts Supreme Judicial Court (SJC).

In Leavitt vs. Brockton Hospital, Inc., Sheila Smith and Karen Sullivan (slip opinion), a pedestrian involved in a car accident had undergone a colonoscopy earlier in the day and was walking home from Brockton Hospital when struck by another vehicle. While heading to the accident's location, a Whitman police cruiser was hit by another vehicle resulting in an officer being seriously and permanently injured. The police officer sued the hospital for negligence claiming they had breached their duty of care, among other things, when they released the previously sedated patient without an escort. The Supreme Judicial Court agreed the case had been properly dismissed by a lower court and upheld that court's decision.

In a footnote, the court noted the different standards for reviewing a motion to dismiss because the standard had changed from the time of the judge's ruling to the time of the SJC's review. Regardless, the court opined this case would have failed under either standard.

After the judge had ruled on the hospital's motion to dismiss, we adopted as applicable to our civil rules the United States Supreme Court's revision of the standard for reviewing the adequacy of a complaint challenged by a motion to dismiss pursuant to Fed. R. Civ. P. 12 (b) (6). See Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008), quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1966 (2007) ("What is required at the pleading stage are factual 'allegations plausibly suggesting [not merely consistent with]' an entitlement to relief . . ."). The hospital does not ask that we apply the new, "stricter" standard. See Flomenbaum v. Commonwealth, 451 Mass. 740, 751 n.12 (2008). The complaint would not survive the hospital's motion to dismiss under either standard.

Technorati Tags: negligence, duty, police, hospital, Coombes

What do you do when a problem arises that could harm your reputation? How do you know when it's happening?

For starters, Google alerts provides one tool to keep track of what's being said about you online. A search on twitter might help, too. This list from author, Andy Beal, provides 34 more tools to consider, 34 Online Reputation Management Tools | Small Business Marketing Blog from Duct Tape Marketing.

Beal rightly states:

User generated media, blogs and discussion forums have changed the flow of information about your company forever.

Lee Odden in Basics of Online Reputation Management | Online Marketing Blog, proposes a three step approach: Monitor, Optimize and Engage. To start, Odden suggests monitoring:

• Brands
• Products
• Company
• Key Executives

OK, so once you have the information, now what do you do about it? Visit Odden's post describing more about optimizing and engaging.

In general, when a problem arises, one should consider both legal liability and business reputation issues when choosing the best course of action. Sometimes, however, these different approaches may not agree.

Continue reading "Web Identity Tips for Online Reputation Management" »

This Mass PI law post is last in a series of five that revealed some of the themes to be on the lookout for when settling your car accident case (or questioning whether you need a lawyer at the start of  your Massachusetts personal injury case.)

Wolf in sheep’s clothing – The friendly insurance adjuster (from the car that hit you) wants to check in on you and see how you’re doing.  In order to help you and get your bills paid, they’d like to come visit you at your home and go over some simple forms (some don’t even announce their visit and just show up).  Perhaps the tape recorder comes out, perhaps the wolf asks the questions in a cunning way, perhaps you're left wondering what just happened or even worse, perhaps you think he/she seemed like a nice person.  If so, there may not be any pleasant fairy tale endings in store for you.  If the wolf's already been around, get help quickly you're case becomes his next snack.

This Mass PI law post is the fourth in a series of five discussing themes to watch out for when settling your car accident case (or questioning whether you need a lawyer at the start of  your Massachusetts personal injury case.)

Fear of trial – How far do you want to take your case? Are you willing to lose it all?  In addition, are you willing to go through all the pre-trial actions and wait for a trial date in the distant future? These are fears that can be relied on and can often lead to low settlement offers being offered, and unfortunately too often, accepted.

Next installment: Part 5 -- Wolf in Sheep's Clothing

Craig Ball, in his article, GPS Evidence Might Drive Your Case Home, writes:

Think how many murders, rapes, burglaries, robberies, thefts, kidnappings and drug deals could be solved -- and innocent persons exonerated -- by reliably placing suspects in space and time. DNA just puts the accused at the scene. Reliable GPS data puts the suspect there between 9:42 and 10:17 p.m. and reveals where she came from and went
next.

With the FCC's rules getting stricter on cell phones and locating services (as well as GPS systems in corporate vehicles or being used by consumers), this may be another area to keep watching in upcoming civil and criminal cases in Mass. and around the country.

A small sampling of other blogs or posts from other blogs discussing GPS and various civil and criminal legal issues are:

• GPS Tracking Systems
• Use of GPS Tracking Devices in the Workplace - Some Things Employers Should Consider
• Law - "Police Using G.P.S. Units as Evidence in Crimes"
• GPS: Privacy Law Blog
• GPS Trackers Foil Cheating Spouses
• John Burkoff on GPS and Search Law
• Stalkers Use GPS to Track Victims

This Massachusetts PI law post is the third in a series of five addressing some of the themes to be on the lookout for when settling your car accident case or questioning whether you need a lawyer at the start of  your Massachusetts personal injury case.

Wait them out – A driver injured when another car struck her from behind suffered injuries and incurred minor damages.  The medical bills were just under the threshold for a claim to be pursued ($2,000 at the time).  Don’t expect the insurance company to tell you about the out of pocket expenses you can be reimbursed for and make your claim actionable.  In other instances, they can just wait you out and offer to make a small payment knowing you are getting collection letters and want to protect your credit.  If you don't know about the tort threshold is, are close but not sure what counts, or concerned about your unpaid bills, then consult with a MA personal injury attorney.

Next installment or Part IV: Fear of Trial

This post is the second in a series of five that addresses some of the themes to be on the lookout for when settling your car accident case (or questioning whether you need a lawyer at the start of your Massachusetts personal injury case.)

Blame the victim -- The at-fault driver’s insurance company tries to pressure you into a speedy, unfair settlement and if you don’t agree they threaten to sue you. The theory becomes you’ll get nothing, and be responsible for the unpaid bills. I have an elderly client they tried this with. She was parked at a light and rear-ended but they tried to bully her and claim it was “her” fault. Don't let them push you around. If it starts, end the conversation and get an attorney.

Next installment #3 -- Wait them out.

"Tort reform" sounds quaint, until you look under the hood and see what's really driving the engine.

Lawyers and the battles they fight on behalf of wronged clients are what often serves to keep the system accountable. Detractors say it's just about the money and greedy lawyers, but often the crux of the lawsuit isn't about money, it's about standing up for respect, integrity, and human decency.

Sure, sometimes this fight can only change an individual wrong, but other times fighting the good fight can change a broken system. Broken systems surround us and are out of balance -- medical care for the elderly is just one example that comes readily to mind.

It doesn't matter if you're from Massachusetts or Mississippi, end of life decisions will never be easy, but they should be made with proper medical evidence as this Mississippi case illustrates. 

The Mississippi Supreme Court recently upheld a $4 million award to the family of a woman who was misdiagnosed with pancreatic cancer and then given a lethal dose of painkillers.  An autopsy showed the woman never suffered from cancer.  The daughter best summed it up, 'a simple lab test could have stopped this from happening.' 

This should give you pause the next time you hear someone say, "we could run this lab test or that, but it's probably not going to show ..."  If there's an option, why not run the test?  Who is really being inconvenienced?  Is it wise to place all our faith and offer complete deference to the "professionals" making important medical decisions about care. A healthy dose of "prove it to me" isn't a bad thing, especially when we're talking about life and death. 

Sure it's easy to dismiss junk lawsuits, but cases like this above demonstrate that sometimes the only place to make a difference and force real change is to hit them in their pockets -- and hit them big.  Now maybe a few more life or death tests will get ordered, maybe it will take even more verdicts to send a lasting message. 

Of course, there are powerful interests that would like a limit on their economic liability -- they try to sell this in words like "reform," but it's really about protecting their profits and ignoring the pain caused to individuals who will undoubtedly suffer when greed and bonuses drive decisions over common decency and respect.

Blogs, social networks, and the web extend well beyond Massachusetts borders thus it's often instructive to look around the country and consider how laws are developing elsewhere as they relate to blogging and cyberspace in general. Trial lawyers of both today and of the future will need to be well versed in the law and understand this evolving interactive arena that changes day-by-day. Blogger and California law professor Eric Goldman recently mentions a case involving blog postings being introduced as evidence in a trademark infringement lawsuit. He quotes the court's holding which excluded the blog's comments from evidence.

The Court declines to consider these postings in reaching its decision. The Court is concerned, on this record, that the blog entries lack sufficient indicia of reliability.FN4

Nothing is known about the persons who made the entries, about whether they are related in any way to either party or whether they are describing true events and impressions. Moreover, the authors' meaning and the import of the blog entries are far from clear.

FN4. This should not be construed as a ruling by the Court that entries on Internet blogs could not, on a different record, be reliable and admissible.

(The case was as consumer confusion case on whether "Mooo Tracks" ice cream infringes upon "Moose Track" ice cream. Blue Bell Creameries, L.P. v. Denali Co., LLC, 2008 WL 2965655 (S.D. Tex. July 31, 2008)).

You can look at this from two perspectives, the blog comments were kept out. On the other hand, there were some criteria listed for their exclusion. If these were met, would the comments be allowed into evidence here? It would seem so, why shouldn't they be? Look to the next round of cases to have greater foundations laid down concerning the inclusion of blog comments as evidence.

Like many attorneys I talk with, I'm already seeing more of my clients who are relying on blogs or websites for much of their news. The constantly dwindling size of my newspaper backs this up too. Some do believe, "If I read it, then it's true," but as we know, that's often not the case.

Reliability, validity, authenticity are continuing concerns of justice and in the short term, it seems the web won't make things easier in these areas. Here the law still has much to work out regarding how it's going to keep pace with the web, social media, web 2.0 or whatever name or thing is next. Smart trial lawyers will need to keep pace with these evidentiary possibilities as more and more communications and events are recorded somewhere someplace electronically. Appellate courts and lawyers should see interesting and intellectually stimulaing times ahead in this area of law. While some of the tools of proof may be new, the principles remain the same -- it may just take a little time to connect the two.

Lately I've been hearing more and more from employees in Massachusetts who have been fired from their jobs or discriminated against at work. Some involve wage claims, others are retaliation claims. Many of these fired employees are forced to leave a bad employer (due to a new manager) and are looking to move on with a fair severance package or appropriate settlement arrangement, others just want a fair chance at having their jobs back. Some employees who are moving on are leaving jobs behind where they have worked for years. Now they wonder, how do I keep my new job in this tough economy.

An email from Keith Ferrazzi I received today discusses Stephen Viscusi's Bulletproof Your Job: 4 Simple Strategies to Ride Out the Rough Times and Come Out On Top at Work, a book on your personal brand at work. Here's his list of a few favorites he pulled directly from the book that can help those finding themselves in a new job or looking to secure their current employment positions.

Five Tips to Bulletproof Your Job Today

1. Introduce Yourself: "You don't need to get your name on a billboard to make yourself known to a company bigwig. You just need three things: say your name, assert your connection to her, and share your personal pitch... Follow up with an e-mail or handwritten note, reminding him of your brief meeting and saying how much you enjoyed it."

2. Volunteer to Lead: "Offering to take the lead shows you have a stomach for risk, the capacity to learn, and the desire for accomplishment that others might not possess."

3. Be Positive: "In short, positive people are easy to work with and negative people are not. And smart positive people are among the most valuable in the workplace.... You can choose to be positive - and to set off the whole chain of positive influence - simply by indentifying your current worldview and habits and making conscious positive adjustments... All you have to do is smile."

4. Be A Mentor: "...step up and offer a bit of support that will help newbies feel a connection that will make them want to stay in the game and get with the program... It allows you to plant seeds of influence and support throughout your company and your industry that will grow and become more valuable to you over time... You just need to know the ropes of your workplace and have some experience that would be helpful to someone else... Keep things informal, meet regularly, keep it professional, and keep up the connection."

5. Improve Your Networking Skills: "Job survival and advancement are about always having a substantial list of professional acquaintances... The most influential and useful are usually those who work in and around your field, but it's not at all unusual for an outsider to be the most effective person in your network... For every person you collect into your network because she may be helpful to you, you should count on being called onto be a resource for her, too."

Massachusetts employment and contract laws can often collide. As an attorney, I'd say the same can be said for federal law, contract law, and other state's employment laws too.

Take this for example from CO lawyers' Holme, Roberts & Owen LLP' Employment Law Newsletter, where Jennifer Sloan Bielak discusses a U.S. Court of Appeals ruling where an employee not otherwise entitled for Family and Medical Leave Act ("FMLA") rights was entitled to them because the FMLA conditions were set forth in the employee handbook. See Peters v. Gilead Sciences, Inc. No. 06-4290 (7th Cir. July 14, 2008).

Commenting on the case, Bielak writes,

Many employers incorrectly believe that employee handbooks are not binding legal contracts based on disclaimers, which state that the handbook is not a contract. These disclaimers, however, are often invalid. Under basic principles of contract law, whenever there is a conflict between general and specific contract terms, the general term is ignored, and the specific term is enforced. Thus, one cannot take away a specific contract right like the right to progressive discipline or employee leave with a general provision saying that the employee handbook is not a contract. If a handbook term gives employees specific rights, it is probably an enforceable employment contract.

The case stresses the importance for employers of understanding that employee handbooks and personnel policies are part of the law of the workplace and need to be written as such. Avoid idealistic polices that reflect the way an ideal workplace is supposed to work. Instead, write policies that are simple, that can be understood and followed by all managers and supervisors, and that are easy to apply in actual practice.

Whether I'm in a union hall in Boston or a boardroom in Braintree, I'm seeing employment discrimination and wage claims continuing to remain on the rise in Massachusetts. At the same time, the right to earn a living wage seems to be have begun being protected more and more by the courts. In sum, the technical requirements and risks seem greater for employers moreso now than ever before. Employees are calling lawyers like myself daily to discuss their employemnt claims. In this climate, all employers are best advised to make sure their policies are firmly in place and are being implemented soundly. While the scales may have tipped in their favor in the past, I wouldn't count on it in today's environment.

Personal injury lawyers, in Massachusetts often get a bad rap with "ambulance-chaser" being a well-known knock on PI lawyers. Did you know the moniker "ambulance-chaser", however, might be better suited for the other side of the courtroom in car accident case, not the plaintiff's?

Last night I was reviewing a claim against a reckless driver, and once again I was struck by how quickly the defendant's insurance company had visited my client and manipulated her into signing a medical authorization.

As I was thinking about this family, I began seeing the young girl sitting on her family couch while crying in pain. She's sitting alongside her father who just wants to take care of her while the cagey insurance adjuster pushes and pushes for more and more information against her until he has what he came for and leaves -- it reminds me of how aggressive and abusive the real ambulance chasers of today are.(p/>

There was no reason for this victim to:

• Meet with this insurance adjuster, especially at her home while she recovers;
• Not have a lawyer with her;
• Provide a statement; or
• Authorize complete access to all of her private medical records.

This story, however, isn't unfamiliar or uncommon. The insurance company had taken the all too familiar 'wolf in sheep's clothing' approach. Luckily the young girl's father found this whole approach odd. Once the shock of it all left, he questioned why he had let this man into his home in the first place. Once I was contacted, I was able to revoke the medical authorization immediately and order the investigator to stop contacting or harassing this family at their home.

If you've been injured in an accident and don't have an attorney, don't allow the following to be used to coerce your in a deceitful manner:

• Shock of the accident,
• Guilt,
  
• Immediacy of an unexpected visit,
• Caring or friendly approach,
• Assurance that you don't need a lawyer,
• Your desire to be helpful,or
• Your hope to resolve things quickly
  

If you have already met with their adjuster before being represented by legal counsel, then have your lawyer get a copy of your statement and terminate any authorizations immediately. By acting quickly you may be able to limit the disclosures that probably don't need to be made.

Wilson & Whitaker, LLC represents people who have been harmed or suffered a loss in a personal injury or wrongful death case involving a Massachusetts transportation or auto accident.

An interesting article on law.com recently discussed the issue of lawyers asking jurors about their medication use. With so much of the population on medication, is drug use something that should be questioned of potential jurors? If so, how far should questioning go? Do we ask a general question? Whether the use of medication will interfere with a juror's duties, or do we delve deeper into more specific questions about the person, their conditions, and their treatments? The article, by Julie Kay, offers pros and cons while raising issues likely to continue making headlines(juror falling asleep in murder trial, someone goes off their medications during trial...).

As an attorney-advocate there may be times when seeking this information makes sense for my client. As the lawyer for my client I have the duty the pursue what's in my clients best interests. Personally, however, I think when we start asking jurors to divulge what medication they're taking, we're crossing a finer line. We have to wonder if the jurors' themselves aren't thinking, "Who is actually on trial, here?" Of course there are going to be exceptions to every rule, but speaking from a policy perspective, I'd rather have privacy rights' invasions remain the limited exceptions and not become the standard rule.

"Mediation’s Seven Deadly Sins - Avoiding the Seven Sure-Fire Ways to Torpedo Your Mediation, Upset Your Client and Enrich the Other Side" was the name of a discussion sponsored by the Section of Dispute Resolution held during the 2008 Annual American Bar Association Meeting in New York.

While mediation provides an opportunity to examine settlement, it also provides an opportunity to examine the other side, their case, and how a party may respond in court. One of the panelists, Joel Davidson, said

He sees the mediation process as a chance to get his point across in a specific way. He said he likes to show the person on the other side that I know the issue well.

... mediation provides the opportunity to examine how clients handle themselves. If a client does not come across rationally during mediation, I know that in advance of a trial...

Mediation, however, can also provide a receptive forum for an apology. Often parties want to apologize but are told not to apologize by their attorneys. The attorneys often fear an apology could be used as an admission of liability against them in court and/or reduce their bargaining position in settlement discussions. Handled properly, however, a sincere apology during mediation can sometimes go a long way towards resolving a a brooding conflict. Davidson notes mediation may,

... provide an opportunity for clients to either apologize for a wrong or acknowledge a misunderstanding. This simple communication may be enough to move a case toward settlement.

More and more, I'm finding people want to resolve their Massachusetts divorce, personal injury, or business case in mediation. There are a number of factors that contribute to this (control over the outcome, avoid formality of court, ease of scheduling, ...), but I'm sensing the Mass. economy is playing a role in this increase too.

People seem inclined to seek resolving their MA disputes fairly and quickly while avoiding the high costs and endless delays contentious litigation can sometimes bring. While not all cases can be resolved in mediation, many can. There's really nothing to lose in mediation. In the end, the parties have to agree on the ultimate solution in mediation (they can have an attorney review their agreement first or participate in the mediation with them).

I've been thinking about this more and more as I've begun to formalize our mediation practice offerings at Wilson & Whitaker, LLC. I've created a temporary website focusing solely on mediation as our Weymouth law firm continues to expand our mediation services. Let me know your thoughts and what questions you may have about mediation practices or disputes Massachusetts lawyers deal with.

USA Today's article, Hospital death rates unveiled for first-time comparison, has tools that allow users to compare mortality rates for hospitals near you:

• for heart attacks, heart failure, and pneuomnia on a map,
• compare hospitals in or near certain zip codes,
• or look at standouts (those with the highest and lowest death rates).

While data alone never tells the whole story, the use of statistics and measurement is growing across all fields and professions. The cultural change emerging with technology and collaboration will only continue to fuel this further. Law, politics, and other fields will not be far behind. Just look at sports as an example of how professionals and institutions are measured continuously. But is a focus on numbers alone good for us in the long run? How will this run into privacy concerns? Will Big Brother not only be always watching, but always measuring too? Time will tell how the law raises to these challenges and others.

From the SJC, a Diagram (see below) showing the Massachusetts Court System. Also, a resource titled, Representing Yourself in a Civil Case: Things to Consider When Going to Court.

While Massachusetts discrimination claims are often commenced under state discrimination laws (before the Massachusetts Commission Against Discrimination or in Superior Court), federal laws also exist and can often overlap or provide additional context for interpreting or enforcing state laws. For instance, Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) are federal laws that cover all private employers, state and local governments, and education institutions that employ 15 or more individuals. These laws also cover private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.

One of the lesser discussed discrimination prohibitions contained in Title VII concerns religious discrimination. While discrimination based on religion is seen less frequently than
other types of discrimination, its incidence of reporting has been
rising. Some attribute this to changes in the workforce,
attitudes post 9/11, and the increased attention focused on immigration issues. Perhaps due to these changes and others, the Equal Employment Opportunity Commission (EEOC) has released an updated Compliance Manual (PDF) covering religious discrimination. The newly revised "Section 12" (7/22/2008) provides guidance and instructions for investigating and analyzing charges alleging discrimination based on religion.

The revision includes 55 examples relating to religious discrimination issues and lists "best practices" for employers and HR professionals to be aware of (see list of best practices below).

The Section is organized in parts:

1. I - Coverage issues, including the definition of “religion” and “sincerely held,” the religious organization exception, and the ministerial exception.
2. II - Disparate treatment analysis of employment decisions based on religion, including recruitment, hiring, promotion, discipline, and compensation, as well as differential treatment with respect to religious expression; customer preference; security requirements; and bona fide occupational qualifications.
3. III - Harassment analysis, including religious belief or practice as a condition of employment or advancement, hostile work environment, and employer liability issues.
4. IV - Reasonable accommodation analysis, including notice of the conflict between religion and work, scope of the accommodation requirement and undue hardship defense, and common methods of accommodation.
5. V - Related forms of discrimination, including discrimination based on national origin, race, or color, as well as retaliation.

The Overview states:

Religion is very broadly defined under Title VII. Religious beliefs, practices, and observances include those that are theistic in nature, as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Religious beliefs can include unique views held by a few or even one individual; however, mere personal preferences are not religious beliefs. Title VII requires employers to accommodate religious beliefs, practices, and observances if the beliefs are “sincerely held” and the reasonable accommodation poses no undue hardship on the employer.

Some general areas include:

Prohibited Conduct

Religious harassment in violation of Title VII occurs when employees are: (1) required or coerced to abandon, alter, or adopt a religious practice as a condition of employment (this type of “quid pro quo” harassment may also give rise to a disparate treatment or denial of accommodation claim in some circumstances), or (2) subjected to unwelcome statements or conduct that is based on religion and is so severe or pervasive that the individual being harassed reasonably finds the work environment to be hostile or abusive, and there is a basis for holding the employer liable.

National Origin, Race, and Color

Title VII’s prohibition against religious discrimination may overlap with Title VII’s prohibitions against discrimination based on national origin, race, and color. Where a given religion is strongly associated – or perceived to be associated – with a certain national origin, the same facts may state a claim of both religious and national origin discrimination. All four bases might be implicated where, for example, co-workers target a dark-skinned Muslim employee from Saudi Arabia for harassment because of his religion, national origin, race, and/or color.

Retaliation

Title VII prohibits retaliation by an employer, employment agency, or labor organization because an individual has engaged in protected activity. Protected activity consists of opposing a practice the employee reasonably believes is made unlawful by one of the employment discrimination statutes or of filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the statute. EEOC has taken the position that requesting religious accommodation is protected activity.

Employer Best Practices

• Employers can reduce the risk of discriminatory employment decisions by establishing written objective criteria for evaluating candidates for hire or promotion and applying those criteria consistently to all candidates.
• In conducting job interviews, employers can ensure nondiscriminatory treatment by asking the same questions of all applicants for a particular job or category of job and inquiring about matters directly related to the position in question.
• Employers can reduce the risk of religious discrimination claims by carefully and timely recording the accurate business reasons for disciplinary or performance‑related actions and sharing these reasons with the affected employees.
• When management decisions require the exercise of subjective judgment, employers can reduce the risk of discriminatory decisions by providing training to inexperienced managers and encouraging them to consult with more experienced managers or human resources personnel when addressing difficult issues.
• If an employer is confronted with customer biases, e.g., an adverse reaction to being served by an employee due to religious garb, the employer should consider engaging with and educating the customers regarding any misperceptions they may have and/or the equal employment opportunity laws.

• Employers should have a well-publicized and consistently applied anti-harassment policy that: (1) covers religious harassment; (2) clearly explains what is prohibited; (3) describes procedures for bringing harassment to management’s attention; and, (4) contains an assurance that complainants will be protected against retaliation. The procedures should include a complaint mechanism that includes multiple avenues for complaint; prompt, thorough, and impartial investigations; and prompt and appropriate corrective action.
• Employers should allow religious expression among employees to the same extent that they allow other types of personal expression that are not harassing or disruptive.
• Once an employer is on notice that an employee objects to religious conduct that is directed at him or her, the employer should take steps to end the conduct because even conduct that the employer does not regard as abusive can become sufficiently severe or pervasive to affect the conditions of employment if allowed to persist in the face of the employee’s objection.
• If harassment is perpetrated by a non-employee assigned by a contractor, the supervisor or other appropriate individual in the chain of command should initiate a meeting with the contractor regarding the harassment and demand that it cease, that appropriate disciplinary action be taken if it continues, and/or that a different individual be assigned by the contractor.
• To prevent conflicts from escalating to the level of a Title VII violation, employers should immediately intervene when they become aware of objectively abusive or insulting conduct, even absent a complaint.
• Employers should encourage managers to intervene proactively and discuss with subordinates whether particular religious expression is welcome if the manager believes the expression might be construed as harassing to a reasonable person.
• While supervisors are permitted to engage in certain religious expression, they should avoid expression that might – due to their supervisory authority – reasonably be perceived by subordinates as coercive, even when not so intended.

Reasonable Accommodation

• Employers should inform employees that they will make reasonable efforts to accommodate the employees’ religious practices.
• Employers should train managers and supervisors on how to recognize religious accommodation requests from employees.
• Employers should consider developing internal procedures for processing religious accommodation requests.
• Employers should individually assess each request and avoid assumptions or stereotypes about what constitutes a religious belief or practice or what type of accommodation is appropriate.
• Employers and employees should confer fully and promptly to the extent needed to share any necessary information about the employee’s religious needs and the available accommodation options.
• An employer is not required to provide an employee’s preferred accommodation if there is more than one effective alternative to choose from. An employer should, however, consider the employee’s proposed method of accommodation, and if it is denied, explain to the employee why his proposed accommodation is not being granted.
• Managers and supervisors should be trained to consider alternative available accommodations if the particular accommodation requested would pose an undue hardship.
• When faced with a request for a religious accommodation which cannot be promptly implemented, an employer should consider offering alternative methods of accommodation on a temporary basis, while a permanent accommodation is being explored. In this situation, an employer should also keep the employee apprised of the status of the employer’s efforts to implement a permanent accommodation.

Undue Hardship

• The de minimis undue hardship standard refers to the legal requirement. As with all aspects of employee relations, employers can go beyond the requirements of the law and should be flexible in evaluating whether or not an accommodation is feasible.
• An employer should not assume that an accommodation will conflict with the terms of a seniority system or CBA without first checking if there are any exceptions for religious accommodation or other avenues to allow accommodation consistent with the seniority system or CBA.
• An employer should not automatically reject a request for religious accommodation just because the accommodation will interfere with the existing seniority system or terms of a CBA. Although an employer may not upset co-workers’ settled expectations, an employer is free to seek a voluntary modification to a CBA in order to accommodate an employee’s religious needs.
• Employers should train managers to be aware that, if the requested accommodation would violate the CBA or seniority system, they should confer with the employee to determine if an alternative accommodation is available.
• Employers should ensure that managers are aware that reasonable accommodation may require making exceptions to policies or procedures that are not part of a CBA or seniority system, where it would not infringe on other employees’ legitimate expectations.

Schedule Changes

• Employers should work with employees who need an adjustment to their work schedule to accommodate their religious practices.
• Notwithstanding that the legal standard for undue hardship is “more than de minimis,” employers may of course choose voluntarily to incur whatever additional operational or financial costs they deem appropriate to accommodate an employee’s religious need for scheduling flexibility.
• Employers should consider adopting flexible leave and scheduling policies and procedures that will often allow employees to meet their religious and other personal needs. Such policies can reduce individual requests for exceptions. For example, some employers have policies allowing alternative work schedules and/or a certain number of “floating” holidays for each employee. While such policies may not cover every eventuality and some individual accommodations may still be needed, the number of such individual accommodations may be substantially reduced.

Voluntary Substitutes or Swaps

• An employer should facilitate and encourage voluntary substitutions and swaps with employees of substantially similar qualifications by publicizing its policy permitting such arrangements, promoting an atmosphere in which substitutes are favorably regarded, and providing a central file, bulletin board, group e-mail, or other means to help an employee with a religious conflict find a volunteer to substitute or swap.

Change of Job Assignments and Lateral Transfers

• An employer should consider a lateral transfer when no accommodation which would keep the employee in his or her position is possible absent undue hardship. However, an employer should only resort to transfer, whether lateral or otherwise, after fully exploring accommodations that would permit the employee to remain in his position.
• Where a lateral transfer is unavailable, an employer should not assume that an employee would not be interested in a lower-paying position if that position would enable the employee to abide by his or her religious beliefs. If there is no accommodation available that would permit the employee to remain in his current position or an equivalent one, the employer should offer the available position as an accommodation and permit the employee to decide whether or not to take it.

Modifying Workplace Practices, Policies, and Procedures

• Employers should make efforts to accommodate an employee’s desire to wear a yarmulke, hijab, or other religious garb. If the employer is concerned about uniform appearance in a position which involves interaction with the public, it may be appropriate to consider whether the employee’s religious views would permit him to resolve the religious conflict by, for example, wearing the item of religious garb in the company uniform color(s).
• Managers and employees should be trained not to engage in stereotyping based on religious dress and grooming practices and should not assume that atypical dress will create an undue hardship.
• Employers should be flexible and creative regarding work schedules, work duties, and selection procedures to the extent practicable.
• Employers should be sensitive to the risk of unintentionally pressuring or coercing employees to attend social gatherings after the employees have indicated a religious objection to attending.

Permitting Prayer, Proselytizing, and Other Forms of Religious Expression

• Employers should train managers to gauge the actual disruption posed by religious expression in the workplace, rather than merely speculating that disruption may result. Employers should also train managers to identify alternative accommodations that might be offered to avoid actual disruption (e.g., designating an unused or private location in the workplace where a prayer session or Bible study meeting can occur if it is disrupting other workers).
• Employers should incorporate a discussion of religious expression, and the need for all employees to be sensitive to the beliefs or non-beliefs of others, into any anti-harassment training provided to managers and employees.

Retaliation

• Employers can reduce the risk of retaliation claims by training managers and supervisors to be aware of their anti-retaliation obligations under Title VII, including specific actions that may constitute retaliation.
• Employers can help reduce the risk of retaliation claims by carefully and timely recording the accurate business reasons for disciplinary or performance related actions and sharing these reasons with the employee.

Employee Best Practices

• Employees who are the recipients of unwelcome religious conduct should inform the individual engaging in the conduct that they wish it to stop. If the conduct does not stop, employees should report it to their supervisor or other appropriate company official in accordance with the procedures established in the company’s anti-harassment policy.
• Employees who do not wish to personally confront an individual who is directing unwelcome religious or anti-religious conduct towards them should report the conduct to their supervisor or other appropriate company official in accordance with the company’s anti-harassment policy.
• Employees should advise their supervisors or managers of the nature of the conflict between their religious needs and the work rules.
• Employees should provide enough information to enable the employer to understand what accommodation is needed, and why it is necessitated by a religious practice or belief.
• Employees who seek to proselytize in the workplace should cease doing so with respect to any individual who indicates that the communications are unwelcome.

When asked, "What are my chances at winning at trial?", most lawyers in Massachusetts or elsewhere would reply, "It depends." A recent article in the New York Times is offering some percentages and cost estimates that will likely raise a few eyebrows.

The article entitled, Study Finds Settling Is Better Than Going to Trial, discusses a study finding settlement is statistically generally the best option. The article indicates plaintiffs were wrong to go to trial in 61% of the cases and defendants were wrong to proceed to trial in 24% of cases. Both were wrong because they could have settled the case for an amount better than what was achieved at trial.

The article reports:

...in just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

It's worth noting, however, that the estimated cost for making the wrong choice was a lot greater for defendants ($1.1 million) than it was for plaintiffs ($43,000).

While numbers are one factor to consider in proceeding to trial, the issues of civil justice, correcting a wrong, or having your day in court are worth something of societal value too. These are issues that can't be measured in dollars or percentages, but at the same time lawyers need to advise their client's to pursue their best interests. In the end, the right question may not only be: "What are my chances of winning at trial?" but also ,"Why do I want to go to trial?" The decision is always the clients and it's a decision that should be based on what is right for them, even when it's against all odds.

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.

Do you know what's being said about you on the internet? Whether you're a Massachusetts small business owner, an individual, or a parent, are you monitoring the conversations about you, your business, or your family taking place on the internet?

Check out What Should Every Company Be Monitoring? for a list of ideas.

You can't respond to what you don't know about. I use alerts and RSS feeds to help stay on top of issues and conversations involving our Weymouth, MA law firm and our Massachusetts clients. With more and more reputation attacks and defamation cases arising on the internet (as well as speculative and plainly erroneous information), this is likely to be growth area in law and business.

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.

While not specific to Massachusetts, a recent AAJ Law News Digest (by email, June 5, 2008) cited three articles illustrating interesting developments in arbitration and law, as well as an interesting poll.

Costs vs. Benefits in Arbitration

In No Room for Error in Arbitration?, Thomas E.L. Dewey and Kara Siegel, New York Law Journal, June 03, 2008, write:

Arbitration of commercial disputes has become increasingly common, due in part to the widely held perception that arbitration is a less expensive and more expeditious method of dispute resolution. Recent court decisions, however, have underscored the fact that those perceived benefits come at a price: the U.S. Supreme Court ruled in April that parties cannot agree to a higher standard of judicial review of arbitration awards, and appeared to question the validity of a long-standing doctrine that does permit courts to overturn arbitration awards that are in "manifest disregard" of the law. The net result: parties who agree to arbitrate their disputes should understand that it will be very difficult to obtain relief from an erroneous arbitration award.

Franchise Concerns in Arbitration

In Pressure Grows to Rethink the Use Of Mandatory-Arbitration Clauses By Richard Gibson, he states:

Most franchise contracts once called for mandatory arbitration of issues, rather than going to court. But these days there is growing pressure -- from franchisees, judges, Congress and even some franchisers -- to rethink that longstanding arrangement. 'The trend toward arbitration has pretty much ended,' says Peter Lagarias, a franchisees' attorney in San Rafael, Calif. Among the concerns is that there is no guaranteed right of appeal. 'You have to take what the arbitrator decides,' says Joshua Becker, an in-house counsel for fast-food franchiser Kahala Corp. For that reason, he says, Kahala, whose brands include Blimpie submarine sandwiches and TacoTime, favors resolving issues with franchisees in court."

Doctors Not Treating Patients without Arbitration

The Tampa Tribune Editorial, New 'Hello' In Health Care: Sign Here Not To Sue, states:

"It's not uncommon today for a woman visiting her gynecologist to give up her right to sue if something goes wrong. The doctor simply won't treat her unless she agrees to take any potential claim to an arbitration panel rather than the courts. The same goes for many acute-care hospitals and nursing homes, where stressed-out families with little choice are handed 60-odd pages of documents to sign. Sandwiched near the end, the mandatory-arbitration agreement gets the briefest of explanations. Binding arbitration - not health precautions and explanations - is the new 'hello' in health care. It's a physician's answer to the threat of litigation and the high cost of malpractice insurance. Like some trial lawyers who have convinced clients to sign away their constitutional rights to limited legal fees, doctors are getting patients to sign away their constitutional right to sue, too. This troubling new practice is a barrier to the doctor-patient relati onship, akin to signing a pre-nuptial agreement before getting married. The practice is a form of blackmail: Sign it or get out."

Consumer Poll Results on Arbitration

The AAJ on their webites provide the article, New Poll: Americans Say “No Thanks” To Binding Arbitration:

Washington, DC—Americans generally disapprove of binding arbitration provisions in consumer contracts as an alternative to civil legal proceedings involving a judge or jury, according to a recent national poll by survey firm Peter D. Hart Research Associates Inc.

“Mandatory binding arbitration doesn’t give consumers a choice,” said American Association for Justice President Kathleen Flynn Peterson. “This poll proves that when asked to choose, consumers overwhelmingly say ‘no thanks’ to unfair arbitration agreements. Arbitration can only be a valid and effective method of resolving disputes when both parties agree voluntarily.”

Consumers are sometimes required to sign a contract with a company when purchasing products or services ranging from cell phones to nursing home care. These contracts often include a binding arbitration provision which states the consumer agrees to have any dispute with the company decided by an arbitrator, rather than by a judge or jury in a civil legal proceeding.

Binding arbitration has even been enforced in nursing home deaths. Massachusetts resident John Donahue suffered an eye injury so severe that it required removal of his eye while under the care of a nursing home. The infection caused by his injury eventually led to his death. When his daughter Marlene Owens went to file a claim against the nursing home corporation she was told that her father signed a binding arbitration agreement without any family members present. The nursing home insists that the case be taken to arbitration and the case is currently pending.

According to the polling, when consumers learn that the company picks the arbitrator, and they give up their right to take the case to court and binding arbitration applies even if they are seriously injured, 81 percent disapprove.

The poll also shows broad support for Congressional legislation called the “Arbitration Fairness Act” that seeks to protect Americans from abusive arbitration agreements. The legislation would ensure that the decision to arbitrate be made voluntarily and after a dispute has arisen. In addition, the legislation enjoys very strong support across party lines with no statistically significant differences between Democrats (+38) and Republicans (+37).

Last week, the U.S. House and Senate passed The Food, Conservation and Energy Act of 2008 conference agreement containing a voluntary arbitration provision which would allow farmers to opt out of binding mandatory arbitration clauses at the time they sign a contract with a processing company. The enactment of this provision would mark a significant step forward for farmers who are subject to these abusive contracts.

Summary

Is arbitration right for you? What are your downsides and upsides? These are questions to consider anytime you're faced with an arbitration clause or are considering including one in your contracts. The larger issues remains, are forced arbitration agreements fair and should they be allowed under law? It appears both consumers and companies are now giving this some additional thought.

Something to think about the next time a defense expert or doctor treats a car accident victim with disdain. Perhaps they don’t really dislike the injured person (who they’re showing disgust towards). Maybe they’ve just been coached by the insurance company’s defense lawyer as part of the “litigation plan.”

Although not from Massachusetts, defense attorney Jenifer L. Kienle generally discusses how mental health professionals and experts should be coached to avoid forming favorable impressions of an injured car accident victim. In her article, “The New Science of Stress - Why Defending a Fender Bender Lawsuit When the Plaintiff Claims Post Traumatic Stress Syndrome Requires a New Litigation Plan,” she states:

Finally, choosing a defense expert also requires an understanding that treaters in the mental health field frequently become involved with a patient, and while exploring their personality, subconsciously begin to "like" the plaintiff. … be alert to any defense expert who, after spending considerable time interviewing the plaintiff, reports his/her impression of the plaintiff in complimentary terms. This may be a sign the expert's professional judgment (and ultimate diagnosis) is impeded by favorable feelings toward the plaintiff. Avoid this trap with early, frequent and candid discussions with the expert so that his/her favorable impressions of the plaintiff can be managed. [bold added for emphasis]

If you’ve been injured in a car accident, the stress can be real. It can cause anxiety, loss of sleep, fear of driving, and many other emotional and physical symptoms. Don’t ever let a supposed "expert" make you feel bad or question the legitimacy of what you are going through. You’ve suffered enough and it wasn’t your fault. Remember, even though they’re “professionals” they’re not being paid to like you. As you can see from above, some "defense experts" are even being coached to ensure they don’t. They're not being genuine and they're not playing fair, you need an advocate who can understand what you're going through and who isn't afraid to challenge the defense expert's bias or the people who pay them.

Age Discrimination

A Supreme Court decision extends federal workers' rights in filing age-bias suits by a vote of (6-3). A U.S. 1st Circuit Court of Appeals in Boston's ruling (upholding a lower court's dismissal) was overturned. The ruling allows federal employees retaliated against (because of their discrimination complaints) to pursue lawsuits under the Age Discrimination in Employment Act (ADEA). Prior to this case, it was argued the ADEA only applied to private sector workers. This case establishes it applies to federal employees as well.

Racial Discrimination

Also, in a vote (7-2), the Supreme Court ruled a provision of the Civil Rights Act of 1866 (known as known as section 1981) covers claims of retaliation following complaints about discrimination based on race. The dissents in both these cases were Justices Antonin Scalia and Clarence Thomas. While Chief Justice John Roberts dissented in only in the age bias case, he was with the majority in the racial discrimination case.

With rights expanding, the question becomes how do you prove discrimination. This led to interest in the "me too" evidence case. However, for now no new answers emerge form the Court on this issue.

Me Too Evidence

George Lenard, reports on his blog, George's Employment Blawg, in detail about the issue of "me too" evidence in discrimination cases:

In its recent unanimous decision in Sprint v. Mendelsohn, the Supreme Court largely avoided the tough issue before it: admissibility of “me-too” evidence in discrimination cases — testimony of other employees who believed they too had been discriminated against.

Genetic Information Discrimination On May 21, 2008, President George W. Bush signed the Genetic Information Nondiscrimination Act of 2008 (GINA) protecting people from discrimination based on genetic material. GINA becomes effective November 21, 2009. A general "primer" on GINA is covered at the Genetic Genealogist.

All and all, May has been a discriminating month...

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.

Public records can be helpful in government matters but also for business purposes, in automobile and personal injury cases, or many others types of litigation.

People sometime ask, "How do I get a copy of a local government record?" In Massachusetts, the Secretary of State has published A Guide to the Massachusetts Public Records Law, updated January 2008.

Records are presumed public unless they fall under one of sixteen exclusions, but fees may be charged to obtain them.

The difference between the federal Freedom of Information Act (FOIA) and the Massachusetts Public Records Law is FOIA applies to federal records while the Massachusetts Public Records Law applies to state and local records.

LAW PASSED: A new Massachusetts labor or wage law will create treble (triple) damages against companies in wage and hour violation cases. This departs from federal courts and other states where an employer can raise a “good faith” defense and avoid treble damages.

Massachusetts Lawyers Weekly reports,

“Previously, under a 2005 Supreme Judicial Court decision, treble damages were available only in cases in which the court concluded that an employer had willfully and intentionally committed an infraction.”

“…the [Massachusetts] Legislature passed a bill on April 15 that makes Massachusetts the first state in the country to impose automatic treble damages against any business that violates wage and hour laws.”

EMPLOYEE BENEFIT: From a Massachusetts employee's perspective, this new labor law provides an incentive for employees and their lawyers to pursue claims. A $10,000 claim is now a $30,000 claim, plus attorneys’ fees. Apply this multiplier to multiple claimants and the numbers can add up quickly.

UNION ORGANIZING BENEFIT: Labor unions should celebrate this law’s enactment. From their perspective, this law will provide an additional tool for protecting employees’ wages.

Additionally, it may become a useful tool for union organizers who come across wage claim violations in non-unionized companies. Organizers can educate employees of their rights; motivate an employee to pursue a claim; and then use the cost and risk of litigation as a bargaining chip against a target company. I’ve seen this work with success in past organizing campaigns involving National Labor Relations Board (NLRB) complaints. With even higher stakes involved in Massachusetts wage cases now, I wouldn't be surprised to see this organizing strategy emerge on every union organizer’s radar soon.

DEFENSE STRATEGY: Nevertheless, the new threat of triple damages and attorneys fees in Massachusetts alone will likely impact the manner in which these cases are defended against. Defending these cases will require a reasonable assessment of the facts as well as the potential liabilities created by the new law. As in many areas of law, prevention still works best.

WAGE POLICIES AND PROCEDURES: With higher liability exposure in Massachusetts, companies doing business here would be well served to review their procedures on wage issues, as well as their dispute resolution practices and procedures best suited for these and other disputes. It makes sense for companies of any size to establish a relationship with a lawyer who can respond to an issue when it arises, or even better, before.

LIVING WAGES & FAIRNESS: A recent Massachusetts AFL-CIO Weekly Labor Reader dated Friday April 18, 2008, quoted past U.S. President Franklin Delano Roosevelt.

"No business which depends for existence on paying less than living wages to its workers has any right to continue in this country. By living wages I mean more than a bare subsistence level - I mean the wages of decent living."

Every person is entitled to the pay they earn as an employee. At the same time, good employers who are trying to do right by their employees and are providing a living wage also deserve protection, especially in this tough economy.

Full disclosure, I had attended and graduated from the AFL-CIO Organizing Institute before organizing for several unions around the nation. My experiences there and elsewhere helped guide me in deciding to attend law school. I now represent both employers and employees.

Sexual harassment (or discrimination) in Massachusetts workplaces can take many forms creating liability for both individuals and companies. Earlier today, I talked with a good friend about his first day in a new job. Day one consisted of him filling out the usual forms, making introductions, and watching a video on sexual harassment in the workplace. He summed up his new company's sexual discrimination policy as, “don’t look, don’t touch.” While that may be a good message to absorb on day one, as a manager who could subject both his company and himself to liability under sexual harassment law, it may be helpful to know a bit more about it.

Formal workplace sexual harassment standards are set forth in Massachusetts General Laws, Chapter 151B. Additionally, the Massachusetts Commission Against Discrimination (MCAD) issues guidelines regarding sexual harassment and what employees and employers should do to prevent, stop and respond to sexual harassment complaints. Two nonexclusive types of sexual harassment are known as: "quid pro quo" and "hostile work environment" harassment.

Quid pro quo harassment involves “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when … submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions.”

Hostile Work Environment harassment includes “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when … such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.”

Examples offered by MCAD of each type are:

quid pro quo harassment: termination; demotion; denial of promotion; transfer; alteration of duties, hours or compensation; or unjustified performance reviews.

hostile work environment: inappropriate touching; sexual epithets, jokes, gossip, sexual conduct or comments; requests for sex; displaying sexually suggestive pictures and objects; and leering, whistling, or sexual gestures.

While sexual harassment jokes may be funny in movies or sitcoms, discrimination can be devastating for someone suffering it in their employment. If you are the target of or subject to sexual harassment at the workplace then you need to act to preserve your rights in Massachusetts. While Massachusetts law did require claims to be filed within six months, changes in the law have extended the filing deadline to 300 days. Of course, laws and deadlines can change. Massachusetts discrimination and employment law has many nuances best navigated by a lawyer who takes the time to hear your case, identifies the applicable law, and knows how to protect your rights. Whether you work on the South Shore, are appearing in Boston before the MCAD, or have a claim best suited for Superior Court, don’t proceed without knowing your rights and how to protect them.

Massachusetts train crashes are recoverable against the MBTA and its operators. I previously discussed this in my post on commuter train crashes and compensation for personal injuries or fatalities, "Personal Injuries and Commuter Train Crashes in Massachusetts: Seeking Compensation for Injuries Involving the Massachusetts Bay Transportation Authority (MBTA)." Some may ask, “What are the outer limits of the state’s liability in a commuter train accident?”

Massachusetts General Laws (M.G.L.) Chapter 161A, Section 43 addresses the liability policy requirements for commuter rail train service (the MBTA and the operating railroad company). The law provides for a liability insurance policy with annual policy limits of at least $75,000,000 subject to self-insured retention of at least $7,500,000.

Liability beyond the available insurance coverage is disclaimed in the statute, but this law does not apply to third parties who may be at fault for a train accident. Nonetheless, this ceiling does seek to cap liability for the Commonwealth of Massachusetts. If a maximum recovery is likely to be paid out, you may consider being among the first to settle so you are not prevented from a recovery based on the state’s liability cap. That is, once the maximum amount of funds are dispersed to other claimants, it will be hard (if not impossible) to receive your fair share.

Injured or hurt in Massachusetts auto accident or a car crash involving MA drivers? There can be a good amount of detailed paperwork you are asked to fill out regarding your accident (as well as your wages, insurance, and injuries). Failure to correctly complete an auto accident report can certainly hurt your potential compensation rights in a personal injury case. If you go it alone, proceed with caution in preparing any early car accident reports or forms. Instead, it's highly recommended to obtain the assistance of a lawyer familiar with auto accidents and personal injury claims.

As an attorney working on motorcycle, bicycle, and auto crash cases, I counsel clients to always be clear and succinct in their written statements and reports. Oftentimes the less said, the better. It is unwise to quickly complete a form you do not fully understand. A simple mistaken statement or carelessly sketched diagram made following your accident can greatly harm, if not destroy, a serious personal injury case involving a motor vehicle accident.

The Massachusetts Motor Vehicle Crash Operators Report Download file is often the first form you may encounter after a motor vehicle accident (not, however, the only one to look out for which could torpedo your case). It is not uncommon for people to raise questions about this form with our lawyers or even to complete the auto accident form in our Weymouth office – or at a client's home or elsewhere when their injuries prevent someone from travelling to Weymouth to discuss their case.

I like to use an electronic version of the Massachusetts Motor Vehicle Crash Operators Report that allows us to fill in the form's blanks and to quickly make corrections when mistakes or misunderstandings occur. People generally find this approach is much better than starting from scratch and handwriting three copies of the same detailed report (as well as keeping at least one for your records too). Below are instructions on what is involved in completing a Massachusetts Operators Report:

Section A: Crash Location. Provide the city/town where the crash occurred, the date and time of the crash, and the number of vehicles involved. Complete section A1 or A2.Use official names of all locations, streets and landmarks. Use street name and route #, if applicable. Be as precise as possible when describing the location. Provide enough information to locate the crash to a specific point, not just a street or roadway.

Section B: Vehicle You Were Driving. Provide information on your license and the vehicle you were driving. Use the codes provided to indicate the cause of the crash.

Section C: You and Your Passengers. Provide information on you and your passengers at the time of the crash. Use the codes provided to indicate occupant information.

Section D: Other Vehicles Involved in the Crash
Provide information on the other vehicle(s) and operator(s) involved in the crash. If more than one vehicle involved, please use additional form completing Section D only.

Section E: Non-Motorist(s) Involved. Provide information on the non-motorist(s) involved in the crash. If more than one non-motorist involved, please use additional form completing Section E only.

Section F: Crash Conditions. Use the codes provided to indicate the conditions at the time of the crash.

Section G: Crash Diagram. Draw a diagram of how the crash occurred. On the diagram, Vehicle 1 represents your vehicle.

Section H: Witness Information. List all the people who saw the crash but were not involved.

Section I: Property Damage Information. Indicate all non-vehicular property that was damaged in the crash.

Section J: Description of What Happened. Describe the crash including events prior to the crash for your vehicles and all other vehicles.

Section K: Signature. Please sign and print your name and indicate the date you completed the form.

Once you get through the form, you are next told to: 1) mail or deliver one copy to your local police department in the city or town where the crash occurred, 2) mail one copy to your Insurance Company, and 3) mail one copy to the Registry of Motor Vehicles (RMV).

Your report is filled out regardless of whether the police were at the scene of your accident and they completed their own police report. The police report (even when you have a copy) is not a substitute for completing your Operator's Report following an accident. Clients generally take comfort in completing this form (as well as others involving insurance, wages, and medical records) with someone who will take the time to walk them through it and explain the significance of each question. It's also reassuring to leave a law office with confidence knowing that all of the final details and notices will be taken care of for you.

But beware; forewarned is forearmed. It's quite easy to lose your auto accident personal injury case without realizing it. Wherever you are in Eastern Massachusetts or the Greater Boston area (or down the street from our law office in Weymouth, MA), I recommend your find someone experienced you can trust to handle your personal injury case right from the start.

Massachusetts competitive auto insurance is about to begin and become available to Massachusetts consumers.

An insurance premium comparison website has been made available for Massachusetts consumers looking to lower their car insurance bills under the new program. The interactive website allows you to compare estimates of premiums for new private passenger automobile policies sold in Massachusetts.

The site was rolled out as part of an introduction to managed competition beginning April 1, 2008 in Massachusetts. The consumer focused website asks several questions before providing results as well as discounts companies may offer.

One of the seven questions makes a distinction between types of auto insurance coverage: "mandatory" or "standard."

Mandatory coverage is the least amount required under Massachusetts law (Bodily Injury ($20,000/$40,000); Personal Injury Protection; Uninsured Motorist ($20,000/$40,000); Property Damage ($5,000)).

The "Standard Policy” offers more protection: Bodily Injury ($100,000/$300,000); Personal Injury Protection; Uninsured Motorist ($100,000/$300,000); Property Damage ($100,000); Collision and Comprehensive ($500 deductible), and is recommended over the required minimum.

The site states, "[a]ccidents can often result in damage that exceeds these [Standard] limits." At least a $100,000 bodily injury policy limit makes a lot more sense than $20,000. Whether you are being sued or if you are injured in a car accident, you will be more protected.

When the other side in your case has no (or too little) insurance – then your insurance policy may be available to compensate you for your damages. Even when you were not at fault, your insurance company may end up paying you for injuries caused by someone else. This was discussed earlier in my Hit and Run post discussing "uninsured" issues.

In the end, the better policy protects both you and others on the roads. Contact me if you’d like to discuss the options available to you when you’ve been injured in car, bus, or truck accident in Massachusetts. We are experienced in these cases and we can help you with the insurance issues they raise. Let our attorneys know if we can help you discover the insurance that may be available to compensate you for your injuries, pain and suffering, or loss.

If you are Massachusetts passenger injured in a commuter train accident (or MBTA bus or trolley accident), then several options for compensation may be available to you. You may have an actionable claim (i.e., for negligence) against the train’s operator or owner, as well as claims against other responsible parties.

You must, however, take action in a timely manner. If not, your claims or compensation rights will be forfeited. Massachusetts General Laws (M.G.L.) Chapter 161A, Sec. 38 states, in part, “The authority [MBTA] shall be liable … for personal injury and for death … in the same manner as though it were a street railway company.” Additionally this section establishes a two year statute of limitations for these claims.

Although a report from the Association of American Railroads indicates Massachusetts experienced a 21% decline in train accidents between 2006 and 2007, train accidents continue occurring and may involve serious injuries or fatalities as demonstrated by recent events.

Recently headlines discuss multiple fatalities involving Amtrak trains. Last evening a commuter rail crash took place involving estimates between 100 to 300 people. Injuries were reported to range from a broken leg to back or spine injuries, with details still unknown. Due to the large number of passengers involved, at least three different medical facilities provided care: Caritas Hospital in Norwood, Good Samaritan Hospital in Brockton, and Milton Hospital in Milton, Massachusetts.

This commuter train was apparently struck by a runaway freight train. The freight train, loaded with lumber, was believed to have “rolled” for two to three miles before crashing into the commuter train.

Channel 5 News reported a, “freight train car rolled into a commuter train in Canton on Tuesday afternoon, injuring several people.” FOX video shows the scene of the crash and includes reactions from some passengers.

Dealing with the MBTA on your personal injury claim can be challenging. Your case deserves the attention of an experienced attorney to distinguish your case from the many others being reviewed by the MBTA’s lawyers. In fiscal year 2008, the MBTA law department had a total budget of just under $5.5 million dollars and was expected to handle between 4,000 to 5,000 claims and settle over 1,000 of these while being involved in over 500 lawsuits.

The legal and administrative issues arising with the MBTA are not for the uninitiated. These cases may generally take time to resolve and can also be delayed by fiscal policies related to the timing of settlements and available government funding.

In Massachusetts, several state laws can apply to train accident victims. If you’ve been injured in a train accident, then don’t go it alone. Contact us to review your case and to determine your compensation rights before it’s too late.

Massachusetts personal injury and wrongful death cases may involve outstanding medical bills or liens that should be considered before trial or settlement occurs. A lien is basically the right to take another's property if an obligation is not discharged.

For instance, your health insurer may be entitled to a lien against your personal injury case for medical bills arising from a car accident and paid by your insurer. The same could apply to an estate following a fatality. The size of liens or outstanding medical bills in Massachusetts may factor heavily in settlement offers, counteroffers, settlements or jury awards.

A study of 100 cases (involving personal injury, employment, medical malpractice, automobile accidents, and contracts) suggested civil case mediation has about an 80% effectiveness rate, but the rate can be increased if mediators consider the effect of liens in mediations.

As an attorney in Weymouth, Massachusetts I have negotiated liens in a number of personal injury and wrongful death cases. As a mediator in places like Boston, Quincy, or Wrentham, I have seen liens overlooked and not even mentioned by either the plaintiff's or the defendant's lawyer.

Often a lien against your case can be negotiated along with a final settlement (with a lien holder agreeing to accept less than 100% of its lien amount.) A lien may be negotiated to avoid delays, minimize the risk of losing at trial or arbitration, or as contribution toward legal fees involved in obtaining a recovery.

If you have a slip and fall, car crash, or any type of personal injury or wrongful death case in Massachusetts potential liens often arise. This is true even when you are only an injured bystander or a passenger in a car that was rear ended. It is best to make sure all potential lien issues are dealt with before settling your case.

I often consider the effect of liens when valuing a case for our clients. Whether the lawsuit involves a case in Norfolk, Plymouth, Barnstable, Suffolk or other counties, we have successfully negotiated lien amounts, avoided some liens altogether, or had defendant insurance companies take full responsibility for our clients' outstanding liens and medical costs.

If you have a personal injury case in Massachusetts, inquire about the potential liens on your case. Failure to address liens upfront may lead to insurance companies assessing your case for less than it is worth. Insurers often defend their lower offers on cases where no liens exist by arguing the full amount will go to you free and clear (and not shared with a third party). Finally, it is also wise to remember, liens may end up being paid 100% from your settlement or recovery.

Protect your final recovery by ensuring any potential liens are resolved before your case is settled. An unexpected lien is not something you want to learn about only after closing your case and investing your settlement proceeds or recovery elsewhere.

In Massachusetts or elsewhere, it happens. Someone causes a car accident or a motorcycle accident and then takes off leaving the scene of the wreck. Today’s news has Springfield Police looking for a speeder who was evading the police by making a u-turn into oncoming traffic on an interstate highway.

This phantom driver caused a five car crash. If they catch the driver, then civil lawsuits will likely follow, but what if they don't catch the responsible party? What if you are injured in a car accident or truck accident and the offending vehicle speeds away or takes off before the police arrive, or while you are being taken to the hospital?

In these instances, whether you’re in Boston, Plymouth, Brockton, Weymouth, or anywhere in Massachusetts, the injured party may still recover under an "uninsured" policy claim. In these types of cases, the non-negligent driver's insurance may cover the loss, pain and suffering of anyone injured by the phantom vehicle.

There are steps to take to protect these claims. The trail of insurance coverage may not always make sense, but the key point to remember is this: do not give up on your personal injury claim that involves a hit and run or unidentifiable vehicle. See a Massachusetts lawyer soon and take the steps needed to protect your car accident case.