Boston Personal Injury Lawyer - Spinal Cord Injury

Hospital Falls

Ken Margolin — Mon, 17 Sep 2007 15:45:00 GMT

A great deal of attention has been paid lately - rightfully so - to the subject of infections contracted in hospitals. Less focus has been placed on another source of serious and preventable injuries in hospitals - falls. The result of a fall down injury in a hospital may be severe. Patients are ill and often debilitated or disoriented to begin with. If a patient's condition presents any appreciable risk of falling, the hospital has the obligation to assess and document the risk, and to take appropriate precautions.

Fall precautions may take many forms, for example, accompanying the patient, in a geri-chair, to the bathroom, prompt response to patient calls, raised side rails on the bed if no nurse is in immediate attendance, doctor's orders that the patient be accompanied by a nurse or aide whenever mobile, even restraints where appropriate. Once a fall down risk is appreciated, the patient's risk assessment must be kept up to date throughout the patient's hospital stay. Hospital falls can result in severe injuries such as broken hips, traumatic brain injury, and other harm inconsistent with the hospital's role as a place of healing.

Originally posted at InjuryBoard by Ken Margolin

The Video Settlement Brochure

Ken Margolin — Fri, 22 Jun 2007 12:20:00 GMT

In a previous blog, I wrote about day-in-the-life videos. These are videos that film a severely injured plaintiff and capture vignettes of a typical day, in a 20 - 30 minute movie. If done properly, they can be shown to a jury at trial. Another tool that any lawyer representing a client with catastrophic injuries may consider, is a video settlement brochure. In the video settlement brochure, the company producing the video interviews the client, and key people in the client's life, to gain an understanding of the client's life before and after his injuries.

The video settlement brochure may interweave pictures of the client before his injuries, with interviews of loved ones, and day-in-the-life type vignettes of the client's struggles to perform simple, daily tasks, as a result of the injury. Some attorneys may worry that the video settlement brochure gives the defense too realistic a view of what the plaintiff's case at trial would be like if the video brochure does not result in a settlement. That shouldn't be a major concern if the witnesses to be interviewed have already been deposed. The video settlement brochure may convince the insurance company adjustor assigned to the case, that allowing the case to go before a jury is too risky, and that a reasonable settlement is the company's, as well as the plaintiff's, interest.

Originally posted at InjuryBoard by Ken Margolin

Preventing Drowning Deaths

Ken Margolin — Mon, 04 Jun 2007 07:00:00 GMT

You may have read the sad story last week, of the two toddlers who left their house, wandered down to a nearby pool, and drowned while their babysitter slept. The purpose of this blog is not to speculate on blame in that tragedy. It reminds us that summer season is here and with it, comes too many drowning deaths that could have been prevented. As was illustrated by the death of the two little girls, children can't be left unwatched for even a moment if there is a body of water nearby. Pools, lakes and ponds are attractive to children, who often have no sense of the danger they present. Drownings, especially of small children, can happen in an instant.

Pools must be maintained to be as safe as possible. Water should be kept clear so that no one can slip beneath the surface unnoticed. Pools need to be clear of any device or condition that can trap someone under water. They should not be open and accessible to a child wandering into the yard. Pools are often designed with a sharp dropoff from shallow to deep, a hazard for any pool user who can't swim. Diving board injuries can occur if the diver becomes unconscious or unable to swim, after hitting the water. Life preserving equipment, such as long poles and buoys, should be at every poolside. Commercial enterprises, such as hotels and motels, have an especially high obligation to heed basic safety precautions. Pools provide great fun for millions of Americans. There will inevitably be some drownings. Basic safety precautions can minimize their number.

Originally posted at InjuryBoard by Ken Margolin

Slip, Trip, and Fall Traps

Ken Margolin — Thu, 19 Apr 2007 13:15:00 GMT

Very serious injuries can result from incidents of slipping, tripping, or falling down. A fall can end careers, from such injuries as broken bones, traumatic brain injury, spine injuries, and others. But winning a fall down case in Massachusetts, is quite difficult. A number of legal theories stand in the way of success for even a severely injured plaintiff. If the incident occurred on a municipal way, there is no incentive for an attorney to accept the case, since a Massachusetts statute caps recovery, if the fall was caused by a defect in the public way, at $5,000 - that's right, five thousand dollars.

If an accident occurs on ice or snow, the plaintiff must show that the ice or snow was an "unnatural accumulation." Mere failure to keep a walkway clear, even if the hazard is appreciable by the landowner, will not support a case. If a person slips on a foreign substance in a store, for example, on a banana peel or spill in a supermarket, the injured person must be able to present evidence that the substance was on the floor for a sufficiently long period of time, that the store management should have known of it, and had the opportunity to clean it. That standard is not an impossible task, but can be difficult. And, as I have written before, there is a suspicion in many jurors, that people ought to look where they are going.

Despite the difficulties, slip, trip, and fall cases involving serious injuries, are well worth investigation. Sometimes, a less obvious theory of liability will carry the day. For example, if a defect causing injury, in and of itself, does not seem substantial, the case may yet have merit, if placement of barriers forced individuals near or over the defect. Inadequate lighting may be a fruitful avenue of investigation in a night time fall down case. The more severe the injury, the greater the reason to explore legitimate grounds of liability.

Originally posted at InjuryBoard by Ken Margolin

Swimming Pool Accidents

Ken Margolin — Tue, 20 Mar 2007 13:45:00 GMT

Swimming season is not far off, and with it will come the inevitable swimming pool tragedies. Most likely to experience pool accidents are children, usually because they fall into pools while supervising adults are not present. Persons with backyard pools who have children, or whose neighbors have children, are therefore advised to install appropriate fences, door alarms and/or pool covers to prevent very young children from accidentally drowning. Swimming ability of pool users also helps, though is no guarantee of safety, as evidenced by the instances every year, of skilled swimmers drowning in swimming pools.

Diving accidents are most commonly the cause of severe pool-related injuries and deaths in adults, most often occuring to males. Most diving accidents occur because the water is not deep enough to slow or stop the diver before he hits the bottom. Often a visual examination from above cannot convey an accurate sense of how deep the water is. Moreover, it can be difficult to see the curve of the pool's submerged walls or to see where the water level is along the upper portion of the side walls. Light conditions, time of day, water clarity, refraction and other visual obstacles or tricks interfere with reliably gauging how much water is in a pool in the absence of markings clearly indicating the depth. Having the depth of the water clearly marked can mitigate such ambiguity. Failure to have such markings, depending on forseeable use of the pool, and other factors, may be negligent.

Diving boards magnify the risk of diving accidents. Many private and public pools remove them or no longer install them at all, which is not to say that there is anything inherently wrong with having a diving board. The reasonableness of the height that a diving board should be above the water, as well as reasonableness of the depth of the water below it, may vary considerably, dependintg on forseeable use. A high diving board that is suitable for a private club with competitive divers amongst the members, and with clear rules for pool and board use, may be unreasonable if placed above a motel pool, where no supervisor is present and where children of all ages and abilities can be expected to play. Robyn Shelton, staff writer for the Orlando Sentinel, provides a good short-list of considerations to help avoid swimming pool deaths, in her "Health Check" blog.

Originally posted at InjuryBoard by Ken Margolin

Injuries to Disabled People

Ken Margolin — Mon, 26 Feb 2007 11:20:00 GMT

It may be tempting to think that the value of a serious injury case due to negligence, to a person already burdened with significant disabilities, has to be substantially discounted. Unfortunately, I've dealt with some insurance adjusters who take just such an attitude. They are seriously mistaken. Juries throughout the country, including my own state of Massachusetts, have recognized the value of life and quality of life possessed by a severely disabled person.

Naturally some elements of economic damages may be compromised, such as lost earning capacity. When it comes to damages for pain and suffering, most jurors understand the irony that the most severely disabled amongst us, have less cushion against disaster. If you look at their damages not only in terms of what was taken from them, but in terms of what they have left, it is easy to imagine a jury enhancing rather than minimizing their injuries. A Florida jury awarded $8 million to a mentally retarded woman raped in a group home. An article by the Center for Public Representation, a non-profit organization that handles disabilities rights cases, summarizes numerous significant awards resulting from personal injury to disabled people. In the late 1990s, M.I.T. and Quaker Oats settled a shocking case stemming from radiation experiments conducted on mentally retarded individuals in the 1940s and 1950s. Notwithstanding the passage of time and difficulty of proving damages, the $1.85 million settlement on behalf of 100 disabled plaintiffs seems relatively modest.

Early in my career, I had a disabilities rights practice. I saw first hand, the dignity and nobility of many individuals with severe mental retardation, cerebral palsy, and other disabling conditions. To properly convey the loss to a person with serious disabilities, caused by a significant personal injury, it is important to employ a physiatrist or other appropriate expert who understands the client's disability. Day-in-the-Life videos can play a major part, accompanied by before and after testimony from family members or caregivers. Serious consideration should be given to bringing the individual into the courtroom, even if briefly, so the jury sees the real person behind the trial story. A jury may have to be the best education for an adjuster who lowballs the value of injuries to a disabled person.

Originally posted at InjuryBoard by Ken Margolin

Chiropractic Malpractice

Ken Margolin — Sat, 17 Feb 2007 07:00:00 GMT

Chiropractors can seem to work miracles at times for patients with ailing backs. Some people swear by them and I don't doubt their ability to help in appropriate cases. There have been, however, some cases of horrific chiropractic malpractice, resulting in severe injury, even paralysis or death.

While chiropractors are trained in the mechanics of the body, they are not medical doctors. As is the case with perhaps too many practitioners of various alternative medical techniques, some chiropractors may overestimate the types of conditions their technique can cure. A major category of chiropractic negligence is failure to recognize the need to refer the patient to a medical doctor. There have been cases reported, for instance, of a chiropractor treating a patient for an extended period of time for symptoms that turned out to have been caused by a malignant tumor, cureable early on and fatally metastacized by the time the patient went to a physician.Chirporactors must be alert for alarming symptoms and be ready to refer a patient to a medical doctor in a timely manner if symptoms do not improve or worsen.

A second obvious category of chiropractic malpractice are cases in which manipulation has caused serious nerve damage. As in the case of the need to know when to refer patients to physicians, awareness of the patient's condition is the best prevention of chiropractic injuries from manipulation. Patients who are eldlerly or suffering from degenerative or other serious diseases, may be more fragile and susceptible to serious injury from powerful manipulations of their cervical or spinal regions. It is a fundamental obligation of every chiropractor to know when to manipulate gently or to avoid chiropractic treatment altogether.

Originally posted at InjuryBoard by Ken Margolin

Falling Down Stairs

Ken Margolin — Thu, 15 Feb 2007 07:00:00 GMT

Falling down a flight of stairs or even a few steps can cause serious injuries. Broken bones, head injury, and other trauma can result. In determining whether a stair injury case should result in a lawsuit, a number of factors need to be determined in addition to the severity of the injury. Stair injury cases are a form of premises liability litigation. Stair design is one factor to be analyzed. Knowledge of what makes stairs safe and unsafe has been circulated generally in the construction industry for many years. Age of the stairs is relevant. The owner of an older building with stairs narrower than would be designed today, for example, may not be liable for the excessively narrow stairs. There is no obligation known in the law to replace stairs, even if they would be considered unsafe if built today.

Other factors, though, are within the owner's control even in older buildings. If wear has made the surface of steps slick, treads may be required. If there is an odd curve increasing the likelihood that a walker may step off the edge suddenly or have difficulty visualizing the next step, a warning sign or strip may be necessary. Railings can reduce the risk of injuries on stairs and their absence may be negligent in some cases. Poor lighting is a common cause of falls on staircases. Many a condominium association or apartment building owner has assumed that they were free from liability from staircase falls on their premises because their stairs complied with the building code.

Compliance with building codes is important but does not necessarily mean that a stairway is not negligently designed or maintained. Building codes are minimum standards. While failure to comply with the building code is evidence in Massachusetts, of negligence, compliance does not necessarily equal due care. Any case of a fall on stairs resulting in serious injury must be assessed individually to determine whether the stairs were safe for their reasonably intended use and at all times when their use was forseeable.

Originally posted at InjuryBoard by Ken Margolin

Winter Driving Accidents

Ken Margolin — Wed, 14 Feb 2007 13:15:00 GMT

While the northeast of the country experiences nasty winter weather, from 2 feet of snow to frozen precipitation, it's a good time to remember the added responsibility on anyone who drives in the winter. Most serious highway accidents in winter conditions are the direct result of driver negligence.

The most frequent cause of fatal car crashes in winter is the same as other times of year - speed; in winter weather, going too fast for conditions. Other less obvious causes of winter car crashes have to do with proper maintenance of the car. It is not acceptable to take a rear-wheel drive car into the teeth of a snowstorm, without snow tires. Forgetting to fill the windshield washer tank or driving with a faulty defroster so that the driver can't see clearly through the windshield is obviously negligent. There may be no choice but to drive, even in severe winter weather, but knowing how to do it safely is the driver's obligation.

Originally posted at InjuryBoard by Ken Margolin

Railroad Worker Injury Cases

Ken Margolin — Fri, 09 Feb 2007 15:45:00 GMT

A colleague called me recently with questions about the rights of a railroad employee who suffers injury or death as the result of railroad negligence. The answer lies in a special statute, known as the Federal Employers Liability Act ("FELA"). FELA covers all claims resulting from the injuries or deaths of railroad workers in the course of their employment if the railroad was engaged in interstate commerce, which, is a practical matter, is pretty much all such incidents. FEMA is an exclusive remedy and supersedes state tort law. In many ways, FELA is preferable to the workers compensation laws that cover on-the-job injuries and deaths for workers in most occupations. Under workers compensation laws, there is recovery regardless of the employer's negligence. The trade off, though, for that certainty of economic benefit, is that the amounts of moneys paid are modest, not nearly sufficient to cover the loss resulting from a disabling injury, or death.

Under FELA, the plaintiff must show that the railroad or another railroad employee was negligent. Once negligence is shown, the standard for "causation," proving that the negligence contributed to the injury or death, is much lower than in a normal tort case. In a FELA case, as long as the employer's negligence was related in any way, no matter how small, to the workers injury, then the case may proceed. The standard is known as the "featherweight" causation standard. The railroad may attempt to show that the employee's own negligence contributed to his injuries. If successful, the amount of any award will be reduced by the percentage of the employee's own negligence, a principal known as "comparative negligence."

If the employee prevails in a non-fatal injury case, he can recover for his past and future loss of wages, the cost of past and future medical treatment, and past and future pain, suffering, and mental anguish. Proving substantial damages in a railroad death case, may be more complicated, especially if the deceased worker leaves no spouse or minor children. The estate of the worker can bring a claim for the benefit of the worker's beneficiaries. The beneficiaries are entitled to receive an amount equal to the "contributions" the decedent would have been expected to give to the beneficiaries. Given three different workers all of the same age and earnings, the amount of expected contributions to the beneficiaries might vary widely depending on the family circumstances. If the decedent left a wife and three children, ages 3 - 8, it is easy to see that a substantial portion of the decedent's net earnings would have gone to his children through their minority and his wife throughout his life. If, on the other hand, the fatally injured worker left no spouse and 3 adult children, the plaintiff's attorney would have to present evidence that the adult children had an expectation of substantial contribution from the decedent. If one or more of the adult children were seriously disabled, it might be reasonable for a jury to conclude that the decedent would have contributed to that child for the child's entire life.

While involving a special statute, FELA cases are not dissimilar from any other serious personal injury or wrongful death actions. They require on the part of the plaintiff's attorney, knowledge of the law, attention to detail, employment of experts, and sound tactical instincts in the preparation, and trial or settlement stages of the case.

Originally posted at InjuryBoard by Ken Margolin