INSIGHTS On Massachusetts Personal Injury Law

Welcome to the SUGARMAN blog. We'll be sharing our perspectives on the state of the law and current legal issues in Massachusetts personal injury law. Issues relating to medical malpractice, construction site injuries, premises liability, product liability, motor vehicle accidents, insurance, and more will all be reviewed here by our team of lawyers who have prosecuted some of the most complex cases in Massachusetts personal injury law.

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The Federal Highway Administration states that 300-400 people are killed each year in wrong way driving accidents.  Last week Massachusetts got a first-hand look at the impact these accidents have, when a woman drove on the wrong side of 495 in Middleborough and crashed head-on into a car full of four college students – no one survived the incident.  Unfortunately, car accidents happen frequently, but the realities of sharing the road make an impact when extreme incidents make the news.  Here’s what to consider to avoid wrong way drivers.

Be Aware of what Lies Ahead

Many drivers only look a few cars ahead of them and ignore the action happening beyond their immediate view.  Not only do you want to look at the people directly in front of your vehicle, but try to scan the road even further away.  The more information you can gather about what lies ahead, the safer your travel will be.

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Riding a bicycle is a skill most people master at a young age.  After conquering balance, braking and the fear of falling, it serves as the first form of freedom for youngsters.  In later years, cycling can become a leisure or health activity, competitive outlet, or transportation to work.  But cycling also poses serious risks.  The CDC reports that almost 500,000 emergency department visits in 2013 were bicycle-related injuries, and as the weather changes in New England there are added risks to consider that pose a threat to those driving on two wheels.

Leaves

Each fall, hundreds of leaf peepers descend on New England from around the country. While it’s a boon for tourism in the region, leaves pose serious hazards to cyclists. Leaves tend to build up in large piles along curbs and the sides of the road – typically where cyclists travel.  They can cover obstructions, cracks, or holes in the road leaving cyclists blind to the dangers ahead.  Leaves also create a slippery surface, especially when wet, which diminishes traction, causes skidding and loss of control. Ride slower and avoid clumps of leaves between the sidewalk and street to avoid potential problems.

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Early in the morning of August 1, 2016, two people were tragically killed and several others were injured when a Hampton Inn shuttle bus was involved in a rear end crash while transporting passengers from Logan Airport.  A Subaru Legacy rear ended the bus as it was exiting the airport and merging onto Route 1A North.  The accident and the force of the collision resulted in two of the passengers being ejected from the bus and suffering fatal injuries.

The Massachusetts State Police has not yet revealed whether or not the deceased and injured passengers were belted in the bus at the time of the accident or how it was that the passengers were ejected from the vehicle.  The details of this accident, however, illustrate the dangers posed by shuttle buses, buses and passenger vans, which all too often are not designed with the same safety features found in every day vehicles.  From windows that break upon impact allowing for the ejection of passengers to higher propensity for rollovers to safety belts that do not incorporate shoulder harnesses or impact-absorbing headrests, these vehicles are generally more dangerous and uncrashworthy even though they are used to transport tens of millions of people on U.S. roads every day.  Most people who board a shuttle bus, such as a hotel courtesy shuttle, do not even stop to think why it is that the buses do not have safety belts or shoulder harnesses.  Such vehicles should be held to the same safety standards as all other cars on the road, or arguably even higher standards considering the number of people that rely on them for transportation.

One only needs to do a quick online search to see how often accidents such as the one in Boston turn fatal or leave occupants with catastrophic injuries.  Unfortunately, these car accidents will continue to produce tragic results unless safety improvements to these vehicles are implemented.

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Medtronic, one of the world’s most prominent manufacturers of medical devices, has been named in a whistleblower lawsuit alleging that it regularly promoted its spinal implants for use in the neck despite the fact that the devices were not approved for such use by the FDA and specifically were labeled as being inappropriate for the cervical spine. The specific implant was the Medtronic VERTE-STACK, which is “intended for vertebral body replacement to aid in the surgical correction and stabilization of the spine” and is part of Medtronic’s INFUSE Bone Graft system.  The whistleblower suit alleges that Medtronic defrauded government healthcare entities by charging for the implantation of the spinal implant devices when the company knew that the use was illegal or unsafe.  The company is already facing thousands of potential personal injury lawsuits related to the INFUSE products.

This lawsuit is just one example of what seems to be a common practice for medical device and pharmaceutical drug manufacturers – promoting “off-label” use of its products to physicians despite federal prohibitions against such practices and despite the risk for patient safety.  Such practices, while making millions for medical device manufacturers, pose significant and sometimes deadly risks to patients who are implanted with the devices.

The personal injury attorneys at SUGARMAN have litigated complex medical device and defective product cases for decades.  If you believe you may have a claim involving a defective medical device, please fill out a Contact Form, call us at (617) 542-1000 or e-mail info@sugarman.com.

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The newest app craze sweeping the country is Pokemon Go, a smartphone game created by Niantic and the Pokemon Company and released over the summer.  The app uses smart phone cameras and GPS tracking, which when integrated with the app, allows you to see and “capture” the Pokemon characters in “real time” as you walk (or drive) nearly anywhere.  While hailed by many as a great way to get children, teenagers and adults alike out of the house and on their feet, the hordes of people walking through city streets, parks, buildings and busy intersections focusing on the screen instead of their surroundings are causing accidents and injuries all over the world.

To date, there are increasing reports of hospitalizations caused by the inattention of people while “catching Pokemon.”  People have tripped over things, walked into poles and trees, fallen into holes and ditches (and two men in California off of a cliff), and they have walked directly into traffic – all as a result of this game, which seems to have a “zombie-like” effect on many.

While the concern for self-injury is high, however, this new obsession also poses significant risks to the non-playing public.  Since the app works anywhere, there have been reported vehicle collisions caused by drivers suspected of Pokemon chasing while driving.  Since the proliferation of the smartphone, texting and emailing while behind the wheel has caused thousands of accidents, many fatal, and this presents yet another challenge to safe drivers on the road, as well as pedestrians, bicyclists, Pedicabs and all of the other individuals sharing the crowded city streets.  While the clear message is not to drive and play Pokemon, many people who fail to heed the advice can cause serious accidents.  Similarly, people walking distractedly into traffic have caused vehicles to collide in avoidance of the unaware pedestrian.  Injuries have also been reported as a result of pedestrians walking into other pedestrians, resulting in injuries.

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Summer is here, which means it’s time to fire up the grill and relax with friends and family by the fire pit. While barbecues and bonfires are a big part of summer, it’s important to be cautious and well aware of the dangers that the use of propane and other flammable materials present.  Accidents can be avoided, in part, by taking the following precautions:

Grill Safety

According to The National Fire Protection Association (NFPA), every year emergency rooms treat approximately 17,000 people who suffer from grill-related accidents.  The NFPA also reports that 10 deaths and 8,800 house fires are also caused by improper use of grills in the United States.  Charcoal and propane/gas are the two predominant types of grills in the U.S. and both pose their own safety risks.  When using a propane or natural gas grill, the most common threat is a gas leak that is allowed to ignite.  Before you even think about turning on your grill, check your tank, hoses and all connection points to be sure the hoses are in excellent condition and there is tight point of contact between the gas and the tank.  Signs of a leak include the smell of propane and the hissing noise of gas escaping.  If you encounter either of these problems, do not light your grill or any other flammable near the area until a professional checks it out.

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April vacation is here and whether your week involves fun in the sun at a tropical destination, an exciting road trip, or just day excursions to a local park or attractions, it is important to think about keeping your family safe before you hit the road.  Here are key points to keep in mind.

On The Road Safety

Road trips are a popular vacation choice for families during school break. They can be extremely memorable experiences, but there are risks to consider when driving long distances in unfamiliar territory. Before you leave, be sure to do a maintenance check on your vehicle. Experiencing car trouble on the highway or in a new place can be dangerous to you, your family and those sharing the road. If you have items that need to be strapped down, or physically hang from the vehicle, make sure they are fully secured. If debris falls from your vehicle causing an accident and injuries, you can be held liable for the damages. Leave the phone off or let your passengers handle the phone. Not only is texting or talking on the phone a serious road hazard, it is illegal in most states in the U.S.

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Spring has finally arrived, and it’s time for one of America’s favorite pastimes to start back up after a long winter. Recent injuries and accidents have forced MLB to take further action to protect fans at the games. Over the last few years, there have been several alarming stories of fans seriously injured by foul balls, broken bats or falling over railings and protective barriers. According to a recent study by Bloomberg, there were an estimated 1,756 injuries sustained at major league ball parks in 2013 alone.

While most fans acknowledge that they are taking a risk attending sporting events, the question is are major league teams doing enough to protect their fans? MLB isn’t responsible for injuries sustained beyond the “Baseball Rule”, or screening the most dangerous areas (behind home plate), and it is up to the individual team to provide a safe environment for fans at their home stadium. However, as of late 2015, MLB has urged teams to extend the safety net behind home plate to both dugouts for fans in lower level seats; and most teams, including the Red Sox, were quick to agree to this added precaution. Despite the added measures MLB is making to keep fans safe, the onus still falls on the fans to stay alert and safe during the games. Here are some important tips to consider when going to a baseball game.

Always Stay Alert

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Over the past several years, there have been disturbing reports of exposure to blood-borne diseases such as HIV, and Hepatitis B and C after undergoing colonoscopies. The most recent of these cases was reported earlier this month at Baystate Noble Hospital in Westfield, Massachusetts, where 293 patients who underwent colonoscopies between June 2012 and April 2013 may have been exposed to these diseases. This exposure was due to improper sterilization of colonoscopy equipment, which had been purchased in 2012 and required a different sterilization process.

While colonoscopies are usually considered routine medical procedures, ease your mind about potential risks by asking your physician:

1. Does your facility have staff devoted to the reprocessing and disinfection of colonoscopy equipment?

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While a true New England winter has not yet set in, there are plenty of hazards to navigate on the roads, including drivers distracted by cell phones and other handheld devices. The sight of a vehicle drifting into another lane because the driver is texting, emailing, GPS-ing or reading on a cell phone has become an all-too-common sight. Drivers need to be vigilant in order to avoid collisions with distracted drivers, which cause tens of thousands of collisions each year, many of which result in death.

In 2010, the Massachusetts Legislature passed a law making it illegal to “use a mobile telephone, or any handheld device capable of accessing the internet, to manually compose, send or read an electronic message while operating a motor vehicle.” A violation of this law is punishable by a fine of $100 for the first offense, $250 for a second offense and $500 for the third or subsequent offense, but under no circumstances would the penalty be a surchargeable offense. M.G.L. ch. 90, § 13B. However, despite people breaking the law on a daily basis, it turned out to be hard to prove that the driver was actually sending or reading messages while driving without subpoenaing phone records, something not generally done to prove a simple traffic violation, without a serious injury or fatality.

A new proposed law, entitled “An Act to Prohibit the Use of Mobile Telephones While Operating a Motor Vehicle,” Bill S.2093, if passed by the legislature, will ban the use of all handheld mobile devices while driving, except to “activate, deactivate or initiate a feature or function.” Moreover, someone who is seen by police driving with a phone near his or her ear or head, is presumed to be in violation of the law, placing the burden of proof on the individual to prove he or she was not violating the law, or that it was for emergency purposes. Fines for violating the new law will remain at $100 for the first offense, $250 for a second offense and $500 for the third or subsequent offense; however, the third or subsequent offense will be considered a moving violation and could affect your insurance premiums.

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