CORONAVIRUS UPDATE: Click Here to Learn What We Are Doing to Protect Our Clients
William D. Kickham
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As readers of this blog and family members who have loved ones in nursing homes and long term care facilities know all too well, for nearly the past six months, family members have been unable to visit their loved ones, due to Covid-19 restrictions.  This has caused heartache and anxiety that people who have been spared the pain of placing a loved one in a nursing facility, can never fully understand.  Try to imagine that your mother or father, a grandparent, an aunt or uncle or someone close to you, is literally locked in a nursing home or long term care facility for months — places that are too often notorious for poor patient care – and you aren’t allowed inside to visit your loved one and verify his or her condition or care.

Such has been the plight of families with loved ones in Massachusetts nursing homes, “skilled nursing facilities”, long term care facilities, and rehabilitation hospitals.  Aside from family members, just try to imagine the fear and despondency of patients and residents themselves, many of whom suffer from Alzheimer’s Disease or cognitive decline.   As a Massachusetts nursing home neglect lawyer, I’ve seen these awful situations far too often, even under “normal” circumstances.   The past six months with Covid-19 has been intolerable, for everyone involved.

Gladly, the federal agency that oversees such regulations for nursing facilities and rehabilitation hospitals, the  Centers for Medicare & Medicaid Services (CMS), just released a directive substantially reducing those restrictions.

In a narrow, but nonetheless positive decision in the area of public safety at Massachusetts colleges and universities, the Massachusetts Supreme Judicial Court (SJC) recently issue a ruling that clarifies and confirms a University’s legal obligations to intoxicated students.  Previous to this ruling, colleges and universities almost universally took the attitude that they had no legal duty to safeguard their students from harm caused or aggravated by intoxication.

A brief background on the case history:

A Northeastern University student attended a campus party and became visibly intoxicated, even vomiting at the party location.  She was escorted back to her dorm by another male student, and the two were seen kissing en route to the dorm.  When at the alleged victim’s dorm room, the two students engaged in sex, which the plaintiff alleged was initiated by the male student.  The next day, the plaintiff told her roommate about the encounter, stating that if she had not been drunk, she would not have had sex with the other student.  The roommate then told the dorm RA of the incident, which caused the University to undertake an investigation as to whether a rape or other non-consensual sex occurred between the two students.  The University found insufficient evidence to charge the other student.

Those three words are what most dog owners would say about their beloved pet, whenever someone has been the victim of a dog bite.  I know – both as a plaintiffs’ attorney representing victims of dog bites – as well as a dog lover myself.  Dogs are wonderful creatures:  They offer friendship, loyalty, unconditional love and much more.  And nine times out of ten, when someone’s dog attacks and injures another person, the dog thinks his/her owner is being threatened somehow and is acting to defend the owner.

But that doesn’t make the experience any less physically painful, or any less injurious for the person who’s attacked.  Not only is a dog bite extremely painful, for some people it can cause lasting psychological trauma.  The number of dog owners in this country increases each year, especially now that many hotels and hospitality organizations welcome them.  Letter carriers (formerly “mailmen” and mailwomen”) have always been at especially high risk for dog bites: Almost 6,000 USPS employees were attacked by dogs just in 2019. The problem is so widespread that the Postal Service promotes National Dog Bite Awareness Week each June to raise awareness of the problem, complete with an over-sized laminated card bearing the image of a large, snarling dog, baring its teeth.

But obviously, postal carriers aren’t the only victims of dog bites.  Not in the slightest. And as a Massachusetts dog bite lawyer who has handled numerous dog bite cases over the years, I can assure you that the dog involved isn’t typically “Cujo” (from the film of the same name) or a German Shepherd that you’d find on prison grounds. Yes. Little “Fifi” can cause a lot of damage, too.  If you doubt that, take a look at her teeth.

For nearly the past four months, our way if life in this state and country has been turned almost completely upside down.  We’ve been forced in to “lockdown”, workplaces shut, schools closed for months on end, and everyone required to “practice social distancing”.  Now it’s summer, with its glorious heat and long, lazy days, and people just want to get outside, play, and have a good time, with many opting for “staycations” instead of travel.

And having a good time in the summer while staying at home, often means backyard water sports of some kind – usually swimming pools, whether inground or above-ground.

Yet, hidden among the fun and enjoyment that so many people understandably seek in swimming pools and watersports during summer, tragedy can occur.  Actually,while water sports injuries are not as common as other types of accidents such as car accidents, truck accidents, nursing home injuries and other types of injuries, Massachusetts swimming pool accidents happen more than most people might think.  The reasons for this make it no surprise why this is so.

Readers of my blog know of my devotion to protecting the legal rights and the health & dignity of nursing home patients, “memory care” patients, as well as hospital and rehabilitation center patients.  These people are the elders who raised us, and they are now among the most vulnerable and often forgotten in society.  While I been practicing in this sub-specialty and writing about these issues for several years, I’ve recently published a series of accelerated publications on this topic, in the wake of COVID-19.  Unfortunately, in today’s post, I have some troubling news to report.

At the behest (more accurately, pressure) of the Massachusetts nursing home industry and its related healthcare partners, the Baker administration recently passed & signed special legislation providing for legal immunity against the nursing home industry and hospitals, for injuries to patients occurring during the COVID-19 problem.  The effective date of the liability immunity providing to health care organizations in the act, is retroactive to March 10, 2020.  The text of this new law can be found by clicking here.

This legislation has profound and very troubling consequences for the care, the safety and the health of nursing home patients in this state.  Legally, under normal circumstances, if a patient in a Massachusetts nursing home, rehabilitation center or hospital suffered injuries due to negligence on the part of a staff member of the provider, that provider could be held liable for resulting damages, especially pain and suffering.  The plaintiff in such a circumstance (which would be either a guardian, a health care proxy, or the patient him or her self), would first need to demonstrate that a relevant “standard of care” had been breached by the nursing home or other defendant, in order to recover damages.  That “standard of care” is normally deemed to have been violated if the plaintiff can demonstrate that the actions or inactions involved in the matter, constituted what is called “ordinary negligence.”  This is a standard of evidence that can sometimes be legally challenging, but is typically not a bar to legal recovery.

We hope that you’ve been dealing as well as you can with all the frustration from what can only be described as this awful situation with COVID-19, and that our previous posts on this subject have been of help to you.

Predictably, a number of Massachusetts nursing homes and rehabilitation facilities have been reported to exhibit troubling rates of COVID-19 infection, and possible violations of state and federally imposed health, safety and infection control protocols, the Massachusetts Department of Public Health/DPH recently reported.

The average age of people who have died of COVID-19 in the facilities reported is 81. The death rate of those 80 and older is 393 per 100,000, which is more than four times as high as the next highest age group.

Understandably, we are receiving a high number of calls from clients, friends and potential new clients who are worried about their loved ones in Massachusetts nursing homes, long-term care facilities, rehabilitation facilities, and assisted living facilities.  A number of these facilities throughout the state have recently been reported to exhibit troubling rates of COVID-19 infection, and possible violations of state and federally imposed health, safety and infection control protocols.  The worries that these families are experiencing is made even worse due to the fact that visitors to nursing homes and long-term care facilities, are restricted during the current stay-at-home orders – even family members (absent an emergency).  Stress doesn’t begin to describe what many families and loved ones have been experiencing as result of all this.

In response, the state has set up a dedicated Nursing Home Family Resource line, available 7 days a week from 9am-5pm.  That number is: (617) 660-5399.  Regulations recently enacted make it mandatory that nursing homes report COVID-19 cases to residents,  families of residents, and to the Centers for Disease Control and Prevention.

Additionally, we have published additional COVID-19 information at our website at:  www.kickhamlegal.com.   If you call the above Nursing Home Family Resource line and don’t get the answers or results that you feel you need, and you want to speak with a law firm that specializes in nursing home neglect or abuse, please feel free to call us at either phone number on this page or send us a contact form.  We will help you any way that we can, and there is no charge at all to speak with us.

The coronavirus epidemic has caused heartache enough for people who have been infected or lost loved ones due to the infection.  And while everyone is (for the most part) understandably taking measures to protect themselves and safeguard their own health, who is protecting our seniors and the frail in Massachusetts nursing homes?  Is the thinking for many people who don’t have a loved one in a nursing home, “That’s not my problem?”

If this viral epidemic has exposed anything, it’s exposed how few Massachusetts nursing homes regularly take measures necessary to prevent the development or spread of viruses and bacteria in their facilities.  As a Massachusetts nursing home neglect lawyer, I can assure my readers:  It’s a fact that most nursing homes and “skilled nursing facilities” are filled with viruses and infectious diseases.  Don’t be fooled by what you can see in these facilities, with the naked eye.  It’s also what you can’t see that threatens patient health & safety:  Viruses and bacteria.  To keep these infectious diseases at bay requires diligent effort and attention to proper disinfection procedures, methods, procedural systems and algorithms.  And the Coronavirus epidemic has exposed this (literally) dirty little secret:  That as many as two-thirds of nursing homes in Massachusetts were cited a minimum of once in the past three years for deficiencies in infection control.

Massachusetts law requires nursing homes, rehabilitation centers, “skilled nursing facilities”, assisted living facilities as well as businesses not related to health care, to undertake prudent measures to to reduce the risk of spreading the Coronavirus as well as other infectious diseases.  Among these measures are strict disinfection protocols, as well as constant monitoring of any employee or patient who has exhibited symptoms of the virus, such as fever, dry cough or muscle aches and pains.  Once such a potentially infected person has been identified, an investigatory process known as “contact tracing” must be immediately implemented.  This involves re-tracing that person’s contact with other individuals, to warn those individuals that they may have been infected with the virus, and taking reasonable measures to remove that person from the facility’s population.

Free Legal Consultation: Ph.: (781) 320-0062; Text to:  (617) 285-3600.  Or Click here to send us a confidential Contact Form.

Like many attorneys, I’ve been getting a lot of calls recently from present and potential new accident and injury clients, who want to know how their cases are going to impacted by the quarantine and social distancing measures currently in effect in Massachusetts (as well as across the United States).  Potential new clients who have been recently injured due to someone else’s neglect also want to know if we can take on new cases.  I want all of our existing clients, as well as potential new clients, to know that we are providing uninterrupted legal services and communications during this time.  While most law offices and insurance companies have instructed all staff to work remotely, we can and we are still actively litigating and negotiating our cases.

Specifically:

While we’ve all been hearing about Coronavirus for the past two weeks or so, this past week has seen the most drastic and impacting of events surrounding this subject.  Seemingly, almost everything has been shut down around us: Important government offices & agencies, colleges & universities , grammar & high schools, sports games, businesses left & right. Uncertainty seems to be the order of the day, and unfortunately, it may continue to be this way for some time.

Regardless of this virus and the measures being taken to deal with it, people will still suffer accidents and injuries during this period of uncertainty. As a result, our office has been receiving a lot of calls from existing and potential new clients, wanting to know if they could still meet with me as their cases move forward, or if other legal problems suddenly develop. The answer is, yes.  No one here has tested positive for this virus, and so long as clients that need to meet with me also have not tested positive for this virus, I am happy to meet with you at your home, as my website advertises, and obviously also speak with you by phone. No one who is facing a serious legal problem or issue should delay speaking with or meeting with an attorney due to this present issue.

In addition, the Massachusetts Trial Court has issued Standing Orders that limit in-court appearances to emergency matters that cannot be heard through videoconferencing or teleconferencing and those notices can be found by clicking here.