Articles Tagged with Boston lawyer

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Have you been injured at work? Do you believe that your Employer may be at fault for your work injury? Pursuant to M.G.L. c. 152, § 28, if an employee is injured by reason of the serious and willful misconduct of an employer, or of any person regularly entrusted with and exercising the powers of superintendence the amounts of compensation provided shall be doubled. You may be entitled to double your Workers’ Compensation benefits if your employer or supervisor was at fault for your injury.

In Massachusetts, serious and willful misconduct involves conduct of a quasi criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of its probable consequences¹” An employer must intentionally do the act, but he also must have reason to know that his actions create an unreasonable risk of bodily harm.

Section 28 generally arises when an Employer or supervisor fails to comply with State mandated, or Federally mandated safety regulations, or when the Employer is aware of a serious risk of injury on the job and fails to take the appropriate measures to correct it, and/or warn of it. For example, in one case, the Massachusetts court found serious and willful misconduct consisted of a crew foreman ordering the employees into a trench without proper shoring precautions, contrary to the instructions of the general foreman, despite the observable conditions at the job site, the readily available shoring material, and the employee’s warnings and requests for shoring². When an Employer knows of potential dangers on a job site, and fails to warn of them or correct them, then the Employer can be held responsible for an Employee’s injury as a result of those conditions under Section 28.

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According to the Massachusetts Port Authority — which manages Boston’s cruise ship port, Cruiseport Boston, — over 300,000 passengers pass through the port each year. The 2016 season will bring 117 vessels through the port, which is the home base for four ships as well as a port of call for numerous ships on 17 different cruise lines.

According to Mass Port, Massachusetts is one of the top ten states economically impacted by the cruise industry. By estimate, passengers and crew spent 36 million dollars in Boston in 2012. It is also estimated (in a 2013 report) that the industry brought 8,000 jobs to Massachusetts and $479 million in income.

With the cruise industry booming in Massachusetts, passengers, crew, and their families often require legal advice for injuries and deaths that occur aboard a ship or in a port of call. Generally, injuries that occur in port are treated the same way as any other injury that occurs in Massachusetts. Usually, injuries that occur in port are not caused by the cruise line or its staff, but by local vendors, tour guides, or property owners.

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Dole recently announced that a number of its bagged spinach products are being recalled due to salmonella poisoning. According to the US Food and Drug Administration, the spinach tested positive for salmonella in random tests performed by the Michigan Department of Agriculture and Rural Development. You can read more about the recall this CNN article and this Boston.com article.

Of particular note, this recall affects spinach that was sold in a number of states in the Northeast, including Massachusetts, Connecticut, and New York. The bags affected will have a code of A27409B and A27409A. Additionally, the UPC code on affected bags reads 7143000976. Please go through your vegetable drawer in your refrigerator and check any bags that you may have for those codes. If you do have affected bag, you can either return it to your supermarket or throw the bag away. Most importantly, do not eat the spinach. If you already have eaten the spinach, seek medical care immediately.

Symptoms of salmonella poisoning include stomach pains, nausea, and gastrointestinal problems. Salmonella poisoning can be a serious threat, causing severe discomfort for 4-8 days in healthy adults who seek treatment quickly. However, the elderly and small children are at a greater risk of severe symptoms. 380 people on average die from salmonella in the US every year.

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The summer is a great time to go outside and enjoy the nice weather and sunshine, and a time when many people take advantage of the ability to be more active and participate in a variety of sports. However, people do not always consider the liability ramifications of participating in sports, or even merely being a fan in the stands. A few weeks ago, a woman got hit with a piece of a broken bat at a Red Sox game. This is a reminder that sometimes we can encounter danger when we least expect it. See the stories in the Boston Globe and in USA Today for more information on that accident.

The Baseball Rule discussed regarding the Red Sox fan’s injury basically states that the stadium is not legally responsible for spectator injuries sustained when a foul ball or broken bat flies into the stands. The rule was most recently applied in the case of Costa v. Boston Red Sox Baseball Club, 61 Mass. App. Ct. 299, 809 N.E.2d 1090 (2004), upholding a ruling of the Superior Court granting summary judgment to the defendant. The theory behind the baseball rule is rooted in assumption of risk, an area which remains very much alive in sport. The Baseball Rule does not shield stadium operators for liability in their entirety. A duty does remain to provide protective screening where the risk of immediate and unavoidable danger is at its highest, called the “zone of danger,” not just in baseball, but also in other sports, most notably hockey. A recent law review article by James Kozlowski, Professor at George Mason University discussed this rule in greater detail. The screening behind home plate at a ballpark, the netting behind the boards at a hockey game, and the prohibition of leaving your seat at a hockey game during live play are all examples of the limited duty that the stadium operator owes fans due to the Baseball Rule.

Assumption of risk does not just apply to spectators, but to participants as well. Generally, athletes assume the risk of injury incurred by participating in sports. This is true of being struck by a golf ball on the course, as in Gray v. Giroux, 49 Mass. App. Ct. 436, 730 N.E.2d 338 (2000). Additionally, there are two trial court level rulings, Orth v. Novelli, No. CIV. A. 95-0990-A, 1997 WL 805469 (Mass. Super. Nov. 11, 1997) and Mangone v. Pickering, No. CIV.A. 95-0357, 1997 WL 197232 (Mass. Super. Apr. 14, 1997) which detail the culpability standard for being struck by a golf club. In Orth the standard that must be met is negligence. In Mangone the standard that must be met is recklessness. This split of opinion must be resolved at the appellate level, and presumably will be heard at some point in time. This also applies in a contact sport context. In the case of Gauvin v. Clark, 404 Mass. 450, 450, 537 N.E.2d 94, 95 (1989), a hockey player was not held liable for injuring an opponent by hitting him with the butt end of his stick during a faceoff. The action was in violation of the rules of hockey, but not so egregious as to impose liability.

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Medical Malpractice occurs on a daily basis. When it happens in a hospital setting, it can be difficult to figure out who was responsible.  There are two to three nursing shifts every day, attending physicians, consulting physicians, physician assistants, and resident physicians.

Take this case, for example: Our client went to the emergency department with a broken leg. The emergency department physician evaluated her and admitted her — not for the broken leg, but for the dizziness that caused her to fall in the first place.  Then began the extensive workup and multiple consults (physician examinations from different specialists).   On day one, the broken leg was placed into a removable walking boot for the next three weeks – a simple break that needed some stability.  No orders were written about that boot, (but remember, it was a removable boot). Throughout the next five days in the hospital, the patient saw several different consulting physicians for an extensive workup to uncover why she became dizzy and fell.  The patient also had 24 hour nursing care. On a daily basis, the patient saw several different doctors who reviewed and assessed different test results, the patient’s clinical presentation, and radiology/laboratory findings.  As each physician or nurse assessed this patient, s/he was advised of the extreme pain experienced by the patient.  Each physician reviewed and agreed with the existing pain medication order or orders more/stronger pain medication – and with the medication, the patient’s pain subsides temporarily. But by day five, the pain was excruciating.  Someone finally took off that removable walking boot…only to discover that the “simple broken leg” is gangrenous.  The end result: a below the knee amputation.

So, who was responsible for the treatment and care of this patient?

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